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polluter pays principle (PPP), 33 the precautionary principle 34 and the right to access to environmental information. 35 These principles are intergenerational in scope and can be interpreted as generally pointing out that we are ethically compelled to do the best we can to reduce the transmitted risks, to enable awareness about residual risks and to support related informed decision making over time (see also NEA, 2015: pp. 29-30).

The international principles just mentioned are, however, not without controversy. Due to their interpretative flexibility, they can be used by both proponents and opponents of certain RWM strategies. Nevertheless, they offer guiding reflective frameworks for RK&M preservation. The notion of “sustainable development” encourages us to reflect upon what it means to balance the needs of current and future generations, the PPP on what it means to maintain the environment in an “acceptable state” (see also Section 3.4 on costs and funding). The precautionary principle can be interpreted in two potentially conflicting ways. In one sense, it can be read as: when potential adverse effects are not fully understood, action should not proceed (emphasising the principle of no harm). In another sense, it can be read as: lack of scientific evidence does not preclude action if damage would otherwise be serious and irreversible (emphasising the principle of no regret). For the case of radioactive waste disposal, RK&M preservation may be interpreted as a bridge between both interpretations of the precautionary principle. RK&M preservation can be said to be most directly hinged upon the right to access environmental information, both in the present and across generations.

Regulation: a necessary condition for RK&M preservation

To summarise this overall section on the challenges and opportunities of a regulatory context for RK&M preservation, the RK&M initiative acknowledges regulating RK&M preservation is indeed a challenge. It is a dynamic, context-dependent issue that does not easily lend itself to being translated into tight rules. The lack of similarity among both the terminology used and the actual requirements in the different countries, to the point that it is difficult to discern trends or perform a thematic analysis of the existing requirements, is telling in this regard. The success of RK&M preservation strategy depends on whether or not it establishes the relevance and responsibility in the minds and attitudes of waste producers, regulators, implementing agencies, other stakeholders 36 and the general public today, and whether that need and responsibility is understood and passed on to the next generation (NEA, 2013: p. 108). Yet minds and attitudes are difficult to regulate.

Nevertheless, the regulatory context also offers opportunities for RK&M preservation. In fact, proactive regulatory guidance on RK&M preservation is of key importance, due to its connection to safety and because RK&M preservation does not “happen by itself” while RK&M loss does. Regulation should equip RWM actors with concepts and guidelines that are clear

33.“Under the 1972 and 1974 OECD Recommendations, the Polluter-Pays Principle means that the polluter should bear the “costs of pollution prevention and control measures”, the latter being “measures decided by public authorities to ensure that the environment is in an acceptable state”. In other words the polluter has to bear the cost of steps that he is legally bound to take to protect the environment, such as measures to reduce the pollutant emissions at source and measures to avoid pollution by collective treatment of effluent from a polluting installation and other sources of pollution” (OECD, 1992).

34.“If an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus, the burden of proof that it is not harmful falls on those taking an action that may or may not be a risk”. Principle 15 of The Rio Declaration on Environment and Development, produced at the 1992 United Nations Conference on Environment and Development (UNCED).

35.The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“Aarhus Convention”), 1998. The Aarhus Convention is legally binding for all the States who ratified it, but the way it is concretised varies greatly among countries and domains and the addressees are public authorities, not the private sector.

36.The RK&M initiative adapted the definition of “Stakeholder” formulated the FSC (www.oecd- nea.org/rwm/docs/2013/6988-fsc-glossary.pdf) as follows: any actor – institution, group or individual – with an interest, a concern, or a role to play in the radioactive waste management related RK&M preservation process.

RK&M PRESERVATION: CHALLENGES AND OPPORTUNITIES

enough, not only to initiate action and planning today and over time, but also to enable compliance review and enforcement mechanisms today and over time. The issue of RK&M preservation is thus also connected to the issue of planning responsibilities over time. While national nuclear regulators are key actors in this field, other regulatory fields are also involved, and international attuning is recommended.

Overall, a variety of interconnected RK&M approaches and mechanisms with different characteristics is recommended, regulation being one of them. As such, regulation alone is not a sufficient condition for developing and implementing a successful RK&M preservation strategy, but it is a necessary one.

3.4. Intraand intergenerational ethics in terms of costs and funding

Challenges and opportunities also arise in relation to the costs and the funding of RK&M preservation across generations. The discussion relates to the PPP, but also to the radiation protection optimisation principle (see also Section 2.1 on oversight). What does “keeping radiation exposures as low as reasonably achievable, taking into account economic and social factors” (ICRP, 1977) mean in practice, not only today, but also over time? Controversy exists related to a risk of economic disproportionality, one side warning for “too little”, the other for “too much”. Criticisms range from allegations that the economic clause results in authorities “putting a price on a life”, to that it results in the investment of “excessive funds to reduce trivial risks” (D. Oughton in SSI, 2000: p. 31).

Similar lines of discussion took place within the RK&M initiative (see NEA, 2013: session 9, pp. 101-108), extending the issue into the future. On the one hand, it was pointed out that, compared to the total costs of a disposal repository, the financial costs of RK&M preservation can be relatively low, while the respective benefits can be high (see also Section 3.2, outlining that the loss of RK&M is not unlikely to incur financial costs, both in the present and in the future). On the other hand, the question was raised whether it is justified to spend certain costs today to attempt to prevent uncertain costs in the future.

The latter question was notably raised by American RK&M initiative members (see Van Luik et al., 2016). In their 1993 recommendations, the Marker Panel members (see Section 1.2) stated the following: “We obviously recommend that a very large investment be made in the overall framework of this system, in the marking of the entire site” (Trauth et al., 1993: p. F-49). In line with this recommendation, the respective RK&M preservation budget estimation (including records management and storage, awareness triggers, conceptual permanent marker design and testing schedules) for the WIPP Compliance Application presented to the US Environmental Protection Agency in 1997, was indeed high (see also R. Patterson et al. in NEA, 2013: pp. 104-105). This raised discussions on “distributive justice” (i.e. the fair distribution of economic resources, both within [intra-generational] and across [intergenerational] generations [one opinion can be found in Van Luik et al., 2016]).

The issue of “how much will it cost” is connected to the question of “how will it be funded”. In this regard, a difference can be made between “mediated” and “non-mediated” RK&M preservation strategies (see Section 4.5 on transmission modes). For the latter, which aims at a communication strategy that does not require intermediaries, costs would be borne by the current generation by means of upfront investment. For the former, which aims at a communication strategy that relies on intermediary generations, costs would be spread among generations with the potential for the current generation to make investments that are hoped to deliver interests or income across time. Drafting a budget is easier for non-mediated than for mediated transmission. The cost of designing and creating a marker, for instance, can be estimated. The concept of a “percent for art” also offers inspiration in this regard. It refers to the placement of a fee, usually some percentage of the total cost, on large-scale development projects in order to fund the development and installation of public art (see also Section 5.6 on

RK&M PRESERVATION: CHALLENGES AND OPPORTUNITIES

the culture, education and art approach).37 One proposal for the funding of mediated RK&M transmission is to create a dedicated RK&M fund (see also J-N. Dumont in NEA, 2013: pp. 105-108). For the lowand intermediate-level waste repository project in Belgium, a “Local Fund” was created, which is meant to last for the duration of the hazard and thus of the repository.38 If possible, only the interest is to be used, in analogy with the Nobel fund (see also J-N. Dumont in NEA, 2013: pp. 106-107) and to be invested in local projects that benefit the community and keep the memory of the repository alive.

In summary, the existing discussion on the issue of costs and funding related to the PPP and the optimisation of radiation protection, is made even more complex in light of the long time frames involved in RWM and, from a cost-benefit point of view, the unprovable benefits of longterm RK&M preservation. The economic discussion about the optimisation principle even reached the Vatican. In 1983 the Pontifical Academy of Sciences drew the conclusion that “it is the responsibility of the protection authorities to seek society’s acceptance of a level of radiation protection which is the highest possible without conflict with other legitimate needs and duties of society” (B. Lindell in SSI, 2000: p. 21).

What is certain is that RK&M preservation is often not part of the disposal budget at present. This may incur an underestimation of the overall cost of disposal programmes today and in the future. The RK&M initiative thus recommends dedicated participatory and creative thinking and action with regard to RK&M preservation financing, fund creation and investments. “The economic challenges for long-term RK&M preservation must be analysed and allowance made for them in future programmes” (NEA, 2011), including deliberations on intraand intergenerational distributive justice.

3.5. References

Dumont, J.-N. et al. (2017), “Analysis of the needs for long term memory and knowledge preservation relating to radioactive waste disposal facilities”, paper presented at the Waste Management Conference, Phoenix, Arizona, United States.

EU (2011), Council Directive 2011/70/EURATOM of 19 July 2011 “Establishing a Community Framework for the Responsible and Safe Management of Spent Fuel and Radioactive Waste”,

Official Journal of the European Union, 2 August 2011 (L 199/48).

IAEA (2006a), Data Requirements and Maintenance of Records for Spent Fuel Management: A Review, AEA-TECDOC-1519, IAEA, Vienna.

IAEA (2006b), Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, IAEA International Law Series No. 1., IAEA, Vienna.

ICRP (2013), Radiological Protection in Geological Disposal of Long-Lived Solid Radioactive Waste, ICRP Publication 122, Annals of the ICRP, Vol. 42/3, pp. 1-57.

ICRP (1977), Recommendations of the ICRP, ICRP Publication 26, Annals of the ICRP, Vol. 1/3, www.icrp.org/publication.asp?id=ICRP%20Publication%2026.

NEA (forthcoming-a), Preservation of Records, Knowledge and Memory (RK&M) Across Generations: Catalogue of Legislation, Regulation and Guidance Governing the Preservation of RK&M for Radioactive Waste Repositories, OECD, Paris.

NEA (forthcoming-b), Preservation of Records, Knowledge and Memory (RK&M) Across Generations: Compiling a Set of Essential Records for a Radioactive Waste Repository, OECD, Paris.

37.In Ireland for instance, one percent of the cost of all public works can be allocated to commissioning a work of art. The General National Guidelines can be found here: www.publicart.ie/fileadmin/user_ upload/PDF_Folder/Public_Art_Per_Cent_for_Art.pdf.

38.See www.niras.be/meerwaarden-voor-de-regio (in Dutch) or www.ondraf.be/des-plus-values-pour-la- r%C3%A9gion (in French).

RK&M PRESERVATION: CHALLENGES AND OPPORTUNITIES

NEA (2019), Preservation of Records, Knowledge and Memory (RK&M) Across Generations: Developing a Key Information File for a Radioactive Waste Repository, OECD, Paris.

NEA (2015), Radioactive Waste Management and Constructing Memory for Future Generations: Proceedings of the International Conference and Debate, OECD, Paris, www.oecd-nea.org/rwm/ pubs/2015/7259-constructing-memory-2015.pdf.

NEA (2014), “Preservation of Records, Knowledge and Memory across Generations: Loss of Information, Records, Knowledge and Memory in the Area of Conventional Waste Disposal”, NEA/RWM/R(2014)3, www.oecd-nea.org/rwm/docs/2014/rwm-r2014-3.pdf.

NEA (2013), “The Preservation of Records, Knowledge and Memory (RK&M) Across Generations: Improving Our Understanding”, www.oecd-nea.org/rwm/reports/2013/rwm-r2013-3.pdf.

NEA (2012), “The Preservation of Records, Knowledge and Memory (RK&M) Across Generations: Scoping the Issue: Workshop proceedings”, www.oecd-nea.org/rwm/docs/2012/rwm_r _2012_6.pdf.

NEA (2011), “Preservation of Records, Knowledge and Memory across generations: A Collective Statement of the NEA Radioactive Waste Management Committee (RWMC)”, www.oecd- nea.org/rwm/rkm/documents/rkm-collective-statement-2011-en.pdf.

NEA/ICRP (2013), “Radiological Protection and Geological Disposal: The Guiding Principles and Recommendations of the International Commission on Radiological Protection (ICRP)”, www.oecd-nea.org/rwm/documents/icrp-rp-gd.pdf.

NWTRB (2013), “Review of US Department of Energy Activities to Preserve Records Created by the Yucca Mountain Repository: A Report to Congress and the Secretary of Energy”, US NWTRB, Washington.

OECD (1992), “The Polluter-Pays Principle: OECD Analyses and Recommendations”,

OCDE/GD(92)81, www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=OCDE/

GD(92)81&docLanguage=En.

SSI (2000), “Ethical Issues in Radiation Protection – An International Workshop”, SSI, Stockholm.

Trauth, K.M., S.C. Hora and R.V. Guzowski (1993), Expert Judgement on Markers to Deter Inadvertent Human Intrusion into the Waste Isolation Pilot Plant, SAND92–1382 l UC–721, prepared by Sandia National Laboratories for the United States Department of Energy, Albuquerque, New Mexico and Livermore.

Wikander, O. (2015), “Don’t push this button: Phoenician sarcophagi, “atomic priesthoods” and nuclear waste”, Vetenskapssocieteten i Lund. Årsbok 2015, Rahm, H. Lund, Vetenskapssocieteten, Lund.

Van Luik, A., T. Klein and G. Sahd (2016), “Ethical Considerations for developing repository warning messages to the future”, paper presented at the Waste Management Conference, Phoenix, Arizona, United States.