Article 7 of the Decree modifies the annex of Article R.122-2 of the Environment Code, by creating three new categories of Installations Classified for Protection of the Environment (ICPEs) subject to a systematic environmental assessment: ∙ integrated ironworks and steel mills; ∙ facilities for the disposal of hazardous waste –as defined in Article 3, point 2, of European Parliament and Council Directive 2008/98/EC of 19 November 2008 relative to waste– by incineration, chemical treatment, as defined in Annex I, D 9, of said Directive, or landfill dumping; ∙ the facilities intended for the extraction of asbestos and the treatment and transformation of asbestos and products containing it. Article 9 of the Decree creates an Annex to Article R. 122-3-1 of the Environment Code, which lists the criteria used to decide whether a project subject to a case by case examination must undergo an environmental assessment; these criteria are those set out in Annex III to Directive 2011/92/EU of 13 December 2011 concerning the assessment of the impacts of certain public and private projects on the environment, as modified by Directive 2014/52/EU of 16 April 2014, incorporated in full. Article 10 of the Decree modifies Article R. 593-5 of the Environment Code, to specify that the impact assessment must take account of the opinion issued by the authority with competence to take the authorisation decision, when it has been solicited by the project owner, on the basis of Article R. 122-4 of the same Code. The project owner must take account of the available results of other pertinent assessments of the effects on the environment, required pursuant to other applicable legislations. Article 26 of the Decree modifies Article R. 123-46-1 of the Environment Code, to specify the content of the file for the projects which are to undergo an environmental assessment and which, although not requiring a public inquiry, are subject to online public consultation on the basis of Article L. 123‑19 of the same Code. It is now specified that the file subject to public participation on the basis of Article L. 123-19 must contain the same items as those mentioned in Article R. 123-8 of the Environment Code. Article R. 123-8 of the Environment Code specifies the items to be contained in a public inquiry file; this notably comprises the updated impact assessment, the opinion from the environmental authority and the licensee’s response, other mandatory opinions, the licensee’s response, an indication of the texts governing the consultation and of how this consultation fits into the administrative procedure, the decision(s) which could be adopted further to the consultation and the authorities with competence to take the authorisation decision, as well as any indication that the project is subject to a transboundary assessment. It is also now specified that the references to the public inquiry in this Article R. 123-8 of the Environment Code are replaced, for application of Article R. 123-46-1 of the same Code, by those relative to online public participation and that the request for consultation on a paper version of the file, as applicable, set out in point II of Article L. 123-19 of the Environment Code, is made in the conditions stipulated in Article D. 123-46-2 of the same Code. Decree 2021-903 of 7 July 2021 supplementing Section 9 of Chapter III of Title IX of Book V of the Environment Code Article L.593-19 of the Environment Code states that the provisions for remedying the anomalies found or for improving the protection of the interests mentioned in Article L. 593-1 of the same Code, proposed by the licensee during the reviews beyond the 35th year of operation of a Nuclear Power Plant (NPP) reactor, are the subject of a public inquiry. The Decree clarifies the NPP reactor review process beyond their 35th year of operation and specifies the scope and organisational arrangements for the public inquiry and consultations planned as part of these reviews. The Decree thus specifies the methods for implementing the legislative measures by supplementing Section 9 of Chapter III of Title IX of Book V of this Code (regulatory part): ∙ on the one hand, to make its implementation legally secure; ∙ on the other, to promote effective public participation, by enabling it to assess those safety improvements already made and those planned by the licensee for continued operation of its facility. Article R. 593-62-1 of the Environment Code makes it possible for the licensee of several NPP reactors of similar design to carry out a part of their periodic safety reviews that is common to all of them, even if they are located on different sites. This possibility is in fact already used for the French NPP reactors owing to the standardisation of the fleet operated by EDF (the generic phase of the periodic safety review is conducted per plant series). The benefit of the provision is to manage this possibility and enshrine it in the regulations. The text specifies that in this case and for the periodic safety review of each reactor, the licensee incorporates the conclusions of this common part in the review report, together with any follow-up measures decided on by ASN. Prior to each review, the licensee checks that the conclusions of this common part remain valid with regard to changing knowledge and operating experience feedback. Article R. 593-62-1 of the Environment Code stipulates that this possibility can only be used for NPP reactors (its application to Basic Nuclear Installations –BNIs– other than NPP reactors would not appear to be appropriate owing to their diversity) and for each periodic safety review (not only as of the fourth review). The Decree creates a specific sub-section (1 bis) within Section 9 of Chapter III of Title IX of Book V of the Environment Code, comprising Articles R. 593-62-2 to R. 593-62-9, applicable to periodic safety reviews of NPP reactors beyond their 35th year of operation. These Articles set the organisational arrangements for the public inquiry and the consultations planned as part of these reviews. Even if the legislative provisions do not so require, the decision has been made to apply the common law regulatory provisions relating to the procedure and the performance of the “environment” public inquiry (Section 2 of Chapter III of Title II of Book I of the regulatory part of the Environment Code), with the necessary adaptations (Articles R. 593-62-2 to R. 593-62-8). It is first of all stipulated that the public inquiry covers the provisions proposed by the licensee and what the Prefect transmits to the Chair of the administrative tribunal when he or she asks them to appoint an inquiry commissioner or a board of inquiry (Article R. 593-63-3). This provision removes all ambiguity regarding the scope of the public inquiry and the procedure applicable to it. According to the actual terms of the law, the public inquiry covers “the provisions proposed by the licensee”. Article R. 593-62-4 sets the composition of the file submitted to the public inquiry (which therefore is not that of Article R. 123-8 of the Environment Code). 32 ABSTRACTS – ASN Report on the state of nuclear safety and radiation protection in France in 2021 REGULATORY NEWS
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