The decision of the Federal Administrative Court (FAC) dated 1 March 2012 runs contrary to the opinion of the international experts.
ENSI should be given the authority to formulate binding and final conditions in the nuclear energy sector. This is one of the recommendations in the report of the IRRS Mission organised by the IAEA, which is only available in draft form at present. ENSI should also be granted the power to issue binding regulatory requirements.
In connection with licensing procedures, moreover, “all authorities and committees should supply their comments directly to ENSI before it takes decisions.” This should take place in an open and transparent manner so that ENSI is able to reach well-founded decisions.
ENSI welcomes the IAEA’s recommendations
“It is now up to DETEC and the political authorities to review these recommendations and their implementation,” according to ENSI’s Director Hans Wanner. “As a supervisory authority, we welcome the recommendations and it is our view that they will make the processes for granting licences and specifying conditions more transparent and plausible.”
When the IRRS Mission inspected the Swiss supervisory authority in November of last year, it also determined that ENSI is independent. The restructuring of the supervisory authority as a public law institution that is independent of DETEC and the Swiss Federal Office of Energy (SFOE) “met a key requirement of the Convention on Nuclear Safety.” This Convention calls for an effective separation between the safety authorities and those bodies that deal with energy policy and the utilisation of nuclear energy.
IAEA identifies need to improve definition of competencies
Nevertheless, the experts identified a need for improvement regarding Swiss legislation. DETEC is the licensing authority for nuclear plants (except for general licence applications). To reach its decisions, it obtains comments on the licence applications from ENSI and also from the Federal Nuclear Safety Commission (NSC).
Jean-Christophe Niel, Head of the IRRS Mission, commented: “The IRRS Mission recommends that important authorities, commissions and committees dealing with issues of nuclear safety, such as the NSC, should submit their recommendations and expert reports directly to ENSI before the Inspectorate arrives at a final decision. This should take place in an open and transparent manner so that ENSI can arrive at well-founded decisions.”
Lack of specialist expertise in decision-making
In the view of the IRRS, the decision-making process for licensing is not adequately regulated by the legislation. In particular, the team criticises the fact that the final decision lies with a body that has no specialist nuclear expertise, and moreover does not require such expertise due to the international requirement of independence of safety supervision.
On this point, the decision by the Federal Administrative Court contradicts the international requirements. Hans Wanner is looking ahead: “Once the final version of the report is available, we shall immediately set about implementing the recommendations by the experts of the International Atomic Energy Agency. However, it is up to the legislator to decide on any changes to laws.”
The recommendations
R1 Recommendation: The government should consider providing ENSI with the authority to issue regulatory requirements.
R5 Recommendation: Government should ensure that relevant authorities, commissions and committees, involved in nuclear safety matters, provide its recommendations and advice directly to the ENSI before it issues its final decision. This should be done in an open and transparent manner, in order to allow ENSI to make an informed decision.
R6 Recommendation: The government should revise relevant legislation in order to provide ENSI with the authority to formulate binding conditions on nuclear safety, security and radiation protection. This should be fully reflected in various licenses, orders or in their amendments whenever it is necessary before or after the issuance of the authorization.
Definitive report will probably follow in April
ENSI will publish the complete IRRS report as soon as it has been completed by the IAEA. This will probably take place at the beginning of April.
