nuclear power cooling towers

The ACCC confirms public participation obligations regarding the construction of a nuclear power plant in a transboundary context

Findings and recommendations with regard to communication ACCC/C/2012/71 concerning compliance by Czechia (adopted on 13 September 2016)

The construction of nuclear power plants in a transboundary context require the government of the country of origin to ensure participation of the public concerned in its own territory as well as that of the neighbouring countries affected. Analysis by Linli-Sophie Pan-Van de Meulebroeke.

In the context of a bilateral cooperation agreement with Germany regarding the construction of a nuclear power plant in Temelín, the Czech Republic was alleged to be in non-compliance with Articles 3(9), 6 and 9 of the Aarhus Convention.

With regard to Article 6 of the Convention, the Compliance Committee has confirmed the Maastricht Recommendations according to which a transboundary context does not release the concerned Party from its obligations under the Convention. The ultimate responsibility for ensuring that the public participation procedure complies with Article 6 still rests with the competent authorities of the Party of origin.

Despite the fact that the Czech authorities gave clear instructions to their German counterparts on how to notify to the public in Germany, the Committee considered that these instructions were not sufficient to ensure effective notification in a transboundary context. According to the Committee’s findings on communication ACCC/C/2006/16, “the requirement for the public to be informed in an effective manner means that public authorities should seek to provide a means of informing the public which ensures that all those who potentially could be concerned have a reasonable chance to learn about proposed activities”.

The Committee also highlighted the ultra-hazardous nature of the activities at issue. In such circumstances, all possible effects relating to the nuclear power plant must be taken into consideration, including in case of accidents. The Committee considered that the Czech Republic’s approach to defining the public concerned was too narrow and that locally specific ways of notification may be insufficient. Public notice in the newspapers in the areas potentially affected is recommended (Maastricht Recommendations). The Committee concluded that by confining only the public concerned to the public in the Czech Republic living in the “municipalities whose administrative territory includes an internal or external part of the emergency planning zone”, the Czech Republic had failed to comply with Article 6(2) of the Convention with respect to its legal framework.

In addition, the Committee considered that the Czech Republic did not provide adequate and effective notification of the opportunities for the public to participate in a public hearing as required under Article 6(2)(d)(ii) of the Convention. It also judged that given the complexity of the project, the duration of the hearing – only one working day – was too short to be reasonable and to ensure effective public participation according to Article 6(3) of the Convention. However, since these shortcomings could be rectified at a future stage of the multi-stage procedure, the Committee did not make a finding of non-compliance.

The Committee called upon the Czech Republic to provide an adequate legal framework and make the necessary arrangements to ensure effective notification and participation of the public concerned in a multi-stage procedure. It also asked the Czech Republic to submit a report on the progress made on these issues. The Czech Republic will have to take these recommendations seriously if it wants to avoid future findings of non-compliance related to the issues identified.

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