Hungary: Experience with Aarhus of Energiaklub
Experience with Aarhus pillar 1: Access to information
Energiaklub first articulated the need of working explicitly for the higher level of freedom of information in
2003 – after the serious INES 3 incident in Paks Nuclear Power Plant –, when the public could gain no appropriate information on the event.
Access to information about the incident – and about many issues since then – has been a challenging task in some cases even impossible. It was practically evident to start asking for documents concerning the incident and the following remediation processes, which in fact served the above described mission as well.
Since then Energiaklub has requested a number of data and documents from either the Hungarian Atomic Energy Authority or the Paks Nuclear Power Plant. Their experience shows that when the request concerns “sensitive” issues, such as the incident or the planned expansion of Paks NPP, access to information becomes quite challenging.
Requested information regarding nuclear energy:
Information on the INES 3 incident in Paks
- In 2004 and 2005:
documents of the INES 3 Paks incident from the Hungarian Atomic Energy Authority (HAEA).
As it was the second biggest nuclear incident in Europe after Chernobyl, Energiaklub wanted to look into the documents concerning the incident and remediation. (The documents were not disclosed referring to commercial secrecy and know-how. Energiaklub sued HAEA. Litigations came to end in 2010 (!), resulting in disclosing about 70% of the documents ordered by the Court).
- In 2008:
documents on the waste management strategy regarding injured spent fuel of the 2003 incident from the HAEA.
Disclosure of the documents was denied referring to commercial secrecy. Litigation followed and the Court ruled that the documents are public data, so HAEA finally handed them over.
Information on other topics on nuclear energy in Hungary
- In 2008:
documents regarding the final storage of low and intermediate level radioactive waste from the Mining Authority.
Disclosure of the documents was denied referring to commercial secrecy. Litigation followed and the Court ruled that the documents are public data.
- In 2009:
Documents of the Teller and Lévai projects (which are about the extension of Paks NPP by one or two reactors) from the Hungarian Power Company, called MVM.
MVM refused to provide the documents with reasons of commercial secrecy and pre-decision-making materials. Energiaklub launched a court case and on the first trial (half a year after our data request) MVM announced that they do not possess the data, it is Paks NPP whom Energiaklub should have asked for the documents.
- In 2010:
Energiaklub asked for the Teller project documents from Paks NPP.
Because of refusal a court case was launched. In April 2011, the court on the second instance judged the whole documentation to be published. The power plant sent the documents in May, 2011.
documents and information on the Central Nuclear Financial Fund were requested from the HAEA.
The information was fully provided.
request for the documents of the Lévai project from the Paks NPP.
Because of refusal a court case was launched, which is still progressing.
Experience with Aarhus pillar 2: Public Participation
Public participation in decision-making enhances the quality and the implementation of decisions, contributes to public awareness of environmental issues, gives the public the opportunity to express its concerns and enables public authorities to take due account of such concerns.
There are three types of public participation according to the Convention:
(1) in decisions on specific activities (such as projects which are subject to an environmental impact assessment),
(2) concerning plans, programmes and policies relating to the environment, and
(3) during the preparation of executive regulations and/or generally applicable legally binding normative instruments.
Energiaklub is active in all these fields regarding energy in general
As far as nuclear energy is concerned Energiaklub performed the following activities:
Paks NPP, Plant Lifetime Extension, Environmental Impact Assessment (EIA)
Energiaklub became a client and had a role in the entire Environmental Impact Assessment process. It was one of the first EIAs in Hungary with an interest for the whole country. Energiaklub expressed several worries and pointed out several deficiencies of the impact study. Together with EMLA (Environmental Management and Law Association) we also appealed to court against the issued environmental license as we found the EIA did not include every aspect it should have (mainly safety related issues). Unfortunately our appeal was rejected.
Bátaapáti Law and Intermediate Radioactive Waste Storage EIA
Basically the same happened as with Paks EIA. Energiaklub was a client in the process, EK analysed the impact study, presented their concerns, but the concerns were rejected.
participating in the evaluation of the planned Energy Strategy, where Energiaklub expressed – among other issues – that the expansion of Paks is not needed.
This last case is an excellent example of the relation between the first two pillars of the Aarhus Convention: access to information and public participation. In order to take part in relevant conversation and consultation on the need of the Paks expansion, Energiaklub would need the documents of the Teller and Lévai projects. It is only possible to refute the statements and particular arguments for expansion if it is public and known. However, with rejecting their requests, Energiaklub does not have the possibility to question the results, which creates a disadvantaged position when participating in the Energy Strategy preparation.
Experience with Aarhus pillar 3: Access to justice
The Aarhus Convention ensures that any person whose request for information has been ignored, wrongfully refused or inadequately answered has access to a review procedure before a court of law or another independent body established by law.
As seen from their access to information cases, Energiaklub’s requests were refused several times. In such cases Energiaklub turned to the court, making use of the opportunities provided by the Aarhus Convention (and other national legislation).
Below is the list of Energiaklub’s litigations relating to nuclear energy:
against HAEA, for refusing to disclose documents on the re-start of the 2nd reactor unit.
This is the unit next to the one the serious incident happened in 2003. The HAEA gave permission for the re-start of the unit while the injured spent fuel rods were still not removed and stayed next to the reactor.
against HAEA, for refusing to disclose documents on the remediation of the injured spent fuel.
This and the previous case came to an end after 6 and 5 years, in August 2010. They were mainly successes, as the Court ruled that the requested documents were public information and that they had to be disclosed except from the ones which is declared as commercial secret by an independent expert. This way Energiaklub received approximately 70% of the documents.
against HAEA for refusing to disclose documents on the waste management strategy regarding injured spent fuel of the 2003 incident.
This court case ended very quickly, resulting in the disclosing of all the documents, as, by the verdict of the Court, they are public environmental information.
against the Mining Authority for refusing to disclose documents regarding the final storage of low and intermediate level radioactive waste.
This court case also ended very quickly, resulting in the disclosure of all the documents, as, by the verdict of the Court, they are public environmental information.
against Paks Nuclear Power Plant for refusing to disclose the documents of the Teller project
which investigated the possibility of the expansion of Paks by one or two reactors. In April 2011, the court on the second instance judged the whole documentation to be published. The power plant sent the documents in May, 2011.
Alternative to turning to court
There is an alternative to turning to court for access to justice, especially when it is not particularly about information request: it is appealing to the Ombudsman. Hungary has a Parliamentary Commissioner (Ombudsman) of Future Generations, who is entitled to make resolutins on certain ambiguous cases. Energiaklub has two Aarhus related cases before the Ombudsman of Future Generations:
- one on the licensing and building of the low and intermediate level waste repository at Bátaapáti
- the other on the parliamentary decision in 2009 concerning the expansion at Paks. The legality and reasonability of this decision is questioned.
Although these appeals were submitted in 2009 there are still no official resolutions available. However, they can be expected soon (Spring 2011).
Resumé on experience Aarhus and nuclear
From their Aarhus cases regarding nuclear EK concludes that when it comes to a “sensitive” issue, access to information and also public participation becomes difficult.
- Answers for information requests usually come late, and often exceed deadlines defined by regulations, or even don’t come at all. Repeated requests are not unusual in this field.
- Refusals are more common than in any other fields of energy. The main reason for refusals is commercial secrecy.
- Court cases take up years, except from those which are so obvious that even the Court does not need much time to decide. Note that in Hungary access to information cases should have priority before the court, meaning that trials have to be appointed not later than 90 days. This did not always happen with our nuclear cases.
- The defendants (Paks and HAEA) are sometimes playing on temporization, e.g. not preparing for trials and asking for more time, prolonging the procedure even to extremities (like the two cases on the 2003 incident, which lasted for 5 and 6 years).
- The court of first instance often doesn’t dare to undertake the responsibility to decide against Paks – or so it seems –, that it even invents reasons, not used and mentioned by Paks, to refuse EKs appeal.