The Act has been in the Bulletin of Acts and Decrees (Staatsblad) for more than a year, but the news became official on 1 August 2017: the Nuclear Safety and Radiation Protection Authority (ANVS) is now an independent administrative body (zelfstandig bestuursorgaan). The ANVS has no legal personality and is entirely dependent on the goodwill of the State Secretary of Infrastructure and Environment for its finances and staff. However, it is not a powerless extension of the ministry, on the contrary. The Act establishing the ANVS and the accompanying amending Decree put the ANVS at a fair distance from the Ministry of Infrastructure and Environment and allocate ample powers to the ANVS in the area of regulation, licensing and supervision.
The ANVS was formed on 1 January 2015 following the merger of the Department of Nuclear Safety, Security and Safeguards with the Nuclear Installations and Security Program of the Ministry of Economic Affairs, the Nuclear Advisory Network of the Ministry of Infrastructure and the Environment, and the Radiation Protection Team of the Netherlands Enterprise Agency (Rijksdienst voor Ondernemend Nederland). It has so far functioned as an agency of the Ministry of Infrastructure and Environment. On 1 August 2017 it became an independent administrative body.
Legally speaking, the ANVS is a small organization, consisting of two or three members who together form the board. At present, the board consists of two members, a chairman of the board and a deputy chairman of the board. However, this board is in charge of an organization of considerable size involving about 120 employees, made available by the Ministry of Infrastructure and Environment.
The establishment of the ANVS follows the recommendations of the International Agency for Nuclear Energy (IAEA): separation of the economic and environmental interests that are involved with nuclear energy. In this context, the ANVS has formulated the following mission: “The Nuclear Safety and Radiation Protection Authority is independent and expert, it continuously monitors and promotes nuclear safety, radiation protection and security for this and the next generation”. The relationship between ANVS and the ministry is similar to that between the board of directors of a company and its shareholders. The state secretary appoints, suspends and dismisses the members of the board and establishes their remuneration, but has little influence on ANVS policy. Article 12a of the Act stipulates that, by way of derogation from the general rule, the state secretary may not establish policies (guidelines) regarding the task of the ANVS.
Tasks and powers
The ANVS is responsible for monitoring nuclear safety and radiation protection, transport of radioactive materials and radioactive waste, radiation incidents and security and safeguards. The ANVS also
- develops and formulates policy and legislation and/or advises on it;
- grants licences and records notifications;
- registers and acknowledges experts and radiation physicians;
- assesses the technical and organizational safety of nuclear installations;
- takes measures to protect against radiation;
- monitors compliance with the regulations based on the Nuclear Energy Act.
Finally, the ANVS is responsible for crisis preparation, crisis management, public awareness and national and international cooperation.
The Act gives the ANVS the power to make regulations regarding organizational or technical subjects.
Thus, almost the entire implementation of the Nuclear Energy Act and the underlying general administrative measures (AMvBs) rests with the ANVS. An exception is the approval of the financial security arrangements that operators of nuclear facilities must set for the cost of decommissioning at the end of their lifetime. This power will remain with the ministers of Finance and Infrastructure and Environment jointly.
The ANVS is clearly taking its new status seriously. On 1 August 2017, it published the following documents:
- Leaflet ANVS (containing information on the mission, tasks and fields of activity of the ANVS)
Establishments that fall under the Nuclear Energy Act will definitely notice the new status of the ANVS through the combination of legislative and executive powers. This combination enables the ANVS to react with regulations on what it encounters as a supervisor. This gives the ANVS a strong position in its contacts with the nuclear facilities. If an operator indicates to the ANVS that its operations comply with the rules, the ANVS can respond to it by adjusting the rules.
The broad powers of the ANVS raise questions about how legal protection will be arranged. Of course, after 1 August 2017, this will be available through the administrative courts and before the Administrative Jurisdiction Division of the Council of State. When it comes to the ANVS regulatory powers, however, expectations should not be overestimated. There is no administrative appeal process in respect of the ANVS regulations and the so-called exceptional review (in the context of a permit or enforcement decision) is used cautiously. Interested parties will primarily have to rely on statutory possibilities for public consultation, assuming the ANVS takes this initiative seriously.
Whether the ministry can offer any legal protection regarding the ANVS regulations is another question raised by these new developments. This is because, in fact, the state secretary ultimately supervises administrative bodies like the ANVS. It can request information from the ANVS and annul its decisions. The latter, however, in derogation from the general rule, will only take place if there is a violation of the law. The state secretary cannot therefore intervene because of public interest. In effect, there is little added value in seeking legal protection through the ministry over that provided by the courts.
What can we expect from the ANVS?
Nuclear energy is a sensitive and important subject. The Dutch government has expressed its concern by creating an independent authority with considerable powers, at a distance from politics. This separation is a good thing: to have the economic interests of energy supply on the one hand and the environmental interests on the other. At the same time, this arrangement is at risk of undermining the ministerial responsibility for the operation of the ANVS. The state secretary has only limited possibilities to intervene, even at the request of parliament. The ANVS should therefore act responsibly with its powers while keeping an eye on the interests of industry and society and not lose itself in the procedures and regulations.