The claimant, a recognised environmental association, challenges a licence granted to the third party summoned to attend the proceedings as a party whose rights may be affected (hereinafter summoned third party) for the decommissioning and dismantling of the Isar 1 nuclear power plant (KKI 1).

KKI 1 is part of a power plant installation consisting of another nuclear power plant (Isar 2), an on-site interim storage facility and a transport provision installation. A total of nine partial and 15 modification licences were granted for its construction and operation. Commercial power operation began in 1979 and was discontinued in spring 2011 by order of the defendant. The entitlement to power operation expired when the 13th amendment to the Atomic Energy Act (AtG, Atomgesetz) of 31 July 2011 entered into force on 6 August 2011. All fuel assemblies have been transferred from the reactor pressure vessel to the fuel pool during the post-operational phase, from where they are successively conveyed to the on-site interim storage facility. According to the communication of the summoned third party dated 18 December 2020, the nuclear power plant has been fuel-free since October 2020.

The summoned third party intends to dismantle the nuclear power plant in two phases and, in a letter dated 4 May 2012, applied for a licence under section 7 (3) AtG for the first decommissioning phase. On 17 January 2017, the defendant granted the summoned third party the "First Licence under section 7 (3) AtG for the decommissioning and dismantling of the Isar 1 nuclear power plant in Essenbach, Landshut District" (First Decomissioning and Dismantling Licence). This established the summoned third party's entitlement to residual operation of the plant for the purpose of its decommissioning and dismantling and permitted the change of use of spatial areas as well as various decommissioning and dismantling measures including the discharge of radioactive substances into the air and water to the extent necessary for such operation. 

The action brought against the decommissioning and dismantling licence was dismissed by the Higher Administrative Court (Verwaltungsgerichtshof) by judgment of 20 December 2018. 

The claimant’s appeal on points of law remained unsuccessful.

9 The claimant's appeal on points of law is without merit. The contested judgment complies with federal law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung).

10 The Higher Administrative Court rightly decided that the decommissioning and dismantling of a nuclear installation does not re-trigger the entire examination effort incurred during the construction and commissioning of the installation, but requires only the examination of the measures planned to be taken in the decommissioning and dismantling phase and their effects on the existing installations. In all other respects, the legally binding licences granted for the construction and operation of the installation remain in force.

11 1. According to section 7 (3) first sentence AtG, the decommissioning and dismantling of a stationary nuclear installation within the meaning of section 7 (1) first sentence AtG requires a licence. Regarding the licencing procedure, section 7 (3) second sentence AtG stipulates that the licencing requirements of section 7 (2) AtG for the construction and operation of a nuclear installation apply accordingly. However, pursuant to section 7 (3) third sentence AtG, no decommissioning and dismantling licence is required, if the planned measures have already been the subject matter of a licence under section 7 (1) first sentence AtG or an order under section 19 (3) AtG.

12 With this regulatory structure, the decommissioning and dismantling licence shows parallels to the modification licence under section 7 (1) first sentence AtG. The latter is characterised by the fact that the licencing question, which was answered in favour of the operator when the initial licence was granted, arises anew only in part (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) judgment of 21 August 1996 - 11 C 9.95 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 101, 347 <355>). The situation is comparable for the decommissioning and dismantling licence. It is not the purpose of the licencing requirement under section 7 (3) first sentence AtG, which applies to the decommissioning and dismantling of a nuclear installation, to re-trigger the entire examination effort involved in the initial construction and commissioning of an installation and to call into question the entire legally binding operating licence. Rather, it is a matter of ensuring that the measures planned for decommissioning and dismantling also satisfy the licencing requirements of section 7 (2) AtG with regard to the nuclear-specific hazards they pose. The assessment programme for licencing under section 7 (3) AtG therefore first relates to the installation components or operational process steps to be decommissioned and modified. Furthermore, it extends to those installation components and process steps affected by decommissioning and dismantling. The authorities may thus, in individual cases, be limited in their assessment, as the decommissioning and dismantling licence does de facto not necessarily affect the entire installation and its operation (see BVerwG, judgment of 21 August 1996 - 11 C 9.95 - BVerwGE 101, 347 <355 et seq.> on the modification licence). This applies in particular if - as in the present case - the dismantling is carried out in several phases.

13 Based on this, in applying section 7 (3) third sentence AtG, the question must be asked, whether the concrete measures planned in the context of decommissioning and dismantling the installation are covered by the scope of permission of the legally binding licences. In order to clarify the regulatory structure stipulated by law, the defendant, in its statement of defence in the appeal on points of law, correctly elaborates that only those "dismantling-specific measures" that are not covered by the (partial) licences issued for operation are subject to and require to be regulated in a licence for the decommissioning and dismantling of a nuclear installation. This clearly shows that the legally binding operating licence in particular remains valid to the extent that the licencing question does not arise anew and that it constitutes the legal framework for the continued existence of the installation. In other words, in this respect there is no extended decision-making programme which would justify to review the actual state of the installation and the questions related thereto (see BVerwG, judgments of 21 August 1996 - 11 C 9.95 - BVerwGE 101, 347 <358 et seq.> and of 22 January 1997 - 11 C 7.95 - BVerwGE 104, 36 <42>, in each case on modification licences). Accordingly, in a licencing procedure for the granting of a decommissioning and dismantling licence, no questions are to be re-examined which are precisely not raised by the decommissioning submitted for licencing and which in terms of subject matter only concern the initial (legally binding) licences.

14 Contrary to the claimant's opinion, this understanding of the decommissioning and dismantling licence does not constitute a (blatant) over-stretching of the wording of section 7 (3) third sentence AtG. The assumption that the scope of application of the provision was limited to measures that were already planned in connection with the application for an operating licence under section 7 (1) first sentence AtG with a view to subsequent decommissioning and were thus licenced together with it, fails to persuade. Such an understanding of the provision is not supported by the wording of section 7 (3) third sentence AtG. Accordingly, the only decisive factor for granting exemption from the licencing requirement is that the "planned measures" are covered by a licence under section 7 (1) AtG. In this context, measures that are routinely conducted during power operation or post-operation, but which may also occur during decommissioning, such as the emptying of the reactor core or clearing the wet storage (...), come into particular consideration. The understanding of the wording represented by the claimant is also contradicted by the explanatory memorandum, which points out the delimitation in terms of content of the decommissioning and disposal licence from the scope of application of the types of licences under section 7 (1) AtG as intended by section 7 (3) third sentence AtG and thus assumes that the licences under section 7 (1) and (3) AtG coexist (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 7/5293 p. 3). Had the legislature acted on the assumption that the licences originally granted expired, there would have been no need for a legal provision delimiting the scope of application of the various licences.

16 2. The application for a decommissioning licence does not also constitute an implied waiver of the operating licence. To find that the previous licences regulating the existing installations and power operation were waived, would result in a licence-free situation for the duration of the licencing procedure pursuant to section 7 (3) AtG - and thus possibly for several years - and would thus not only be contrary to the regulatory structure of section 7 (1) and (3) AtG, which is clearly designed to ensure the continued application of the previous licences, and to the regulatory intention of the legislature, but would also be contrary to the requirements of the protective objective of section 1 (2) AtG and to the interests of the operator of the installations. This apart, any possibility of finding an implied waiver has been deprived of its basis at the latest with the end of the authorisation for the power operation of 17 nuclear power plants, ordered by virtue of the amendment of the Atomic Energy Act of 31 July 2011 (Federal Law Gazette (BGBl., Bundesgestzblatt) I p. 1704), and the resulting obligation to decommission and dismantle such installations without delay, which has since been codified in section 7 (3) fourth and fifth sentence AtG.

17 The coexistence of operating and decommissioning licences does not result in double examinations, as the claimant fears. The contrary is true. Measures that have already been examined and licenced for power operation do not have to be (re)examined, so that it is precisely double examinations that are avoided. One cannot describe in more detail in the abstract which installation components and process steps have already been licenced and which are to be considered for the first time in the decommissioning and dismantling procedure, as this depends on the concrete circumstances of the individual case. In this respect, too, the principles developed for the modification licence can, without further ado, be adopted for the decommissioning licence (BVerwG, judgment of 21 August 1996 - 11 C 9.95 - BVerwGE 101, 347 <356>). Insofar as, with regard to the decommissioning and dismantling process controlled by the licence under section 7 (3) AtG, the Higher Administrative Court states that the condition of the nuclear installation changes "degressively" as a result of progressive dismantling measures and does not leave unaffected the scope of the operating licence, it did not question these principles, but expressed the view that the operating licence, which continues to apply in parallel, is partly expiring "for any other reason" within the meaning of section 43 (2) of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) as a result of dismantling measures and can thus insofar "melt away" so to speak.

19 4. The Higher Administrative Court rightly assumed that the contested licence ensures necessary damage precaution within the meaning of section 7 (2) no. 3 AtG.

20 The judgment correctly assumes that the level of protection required for humans, animals and property and the environment as a whole, which must be ensured by the content of the respective licence under nuclear energy law does not differ during decommissioning and dismantling of the installation from that which must be complied with during construction and operation. Insofar as the Higher Administrative Court speaks of a "different" assessment standard in this context, it merely expressed that the examination is subject to the respective risk situation and therefore the reduced risk and hazard potential of the installation had to be taken as a basis for the examination following the discontinuation of power operation.

21 Insofar as the claimant is of the opinion that, with regard to the required precaution to prevent damage within the meaning of section 7 (2) no. 3 AtG, compliance with the state of the art of science and technology was not already guaranteed by the earlier operating licence, this continues to show its incorrect view on the relationship between the operating licence and the decommissioning licence. As explained above, the competent authority does not have an extended decision-making programme when examining the granting of a decommissioning licence, that could justify to review the actual state of the installation and questions related thereto.

22 The Higher Administrative Court has comprehensively reviewed and evaluated compliance with the licencing requirements. Contrary to the claimant's opinion, the standards developed in jurisprudence for differentiating between significant and insignificant changes were observed and the newly permitted measures were reviewed, taking into account their effects or repercussions on the existing installation, to determine whether the principles of damage precaution as laid down in section 7 (2) No. 3 AtG were complied with. The extent to which the existing regulations of the operating licence cover the dismantling and its effects, was examined in detail in each case. The claimant's criticism of this remains general and is characterized by the idea that every change to the reactor building and in the vicinity of the fuel pool raises the licencing question for the entire installation anew. In particular, one cannot agree with him in that the dismantling of installation components was "unacceptable in principle" as long as fuel assemblies were still in the fuel pool. The defendant rightly points out that it is a question of damage precaution, whether the dismantling of installation components can be licenced even though the site is not yet free of nuclear fuel, which must be guaranteed and proven in each individual case. On the basis of the operating licence, the Higher Administrative Court outlined that no decommissioning- and dismantling-related hazards were to be feared from the fuel assemblies present in the fuel pool. The appeal on points of law does not address this, but confines itself to the general criticism arguing that the Higher Administrative Court had substantially shortened the examination programme.

23 Without breaching the law, the Higher Administrative Court assumed that, in the case of a licence under atomic energy law, it is not excluded by law that, depending on the case, certain individual measures requiring licencing are only reviewed and defined "roughly", but that their detailed review is reserved for supervisory support and monitoring during implementation. Contrary to the claimant's criticism, this does not amount to a "carte blanche" for shifting precaution to the supervisory phase.

24 The Higher Administrative Court proceeds from the assumption that the licencing authority may not, when deciding on a licence pursuant section 7 (3) AtG, leave the examination of and compliance with substantive law requirements, prohibitions and other needs to a greater extent to supervisory procedures than is the case when deciding on a licence pursuant to section 7 (1) AtG. However, referring to the jurisprudence of the Federal Administrative Court (judgment of 9 August 1994 - 7 C 44.93 - BVerwGE 96, 258 < 267>), it correctly points out that the decommissioning and dismantling measures are such that they are comparable to the construction phase and are therefore functionally assigned to state supervision in a special way. In this respect, the Federal Administrative Court has emphasized that, in view of the practical course of the construction and retrofitting work, any interactions can be better countered by measures taken by the supervisory authority during construction, because the best of several possible solutions can only be determined on site and in full knowledge of all the details. Such an approach avoids burdening the licencing procedure with inappropriate questions for it, as they are directed at the horizon of supervision (BVerwG, judgment of 9 August 1994 - 7 C 44.93 - BVerwGE 96, 258 <267>).

26 5. Contrary to the claimant's opinion, the First Decommissioning and Dismantling Licence does not suffer from any error in failing to provide the required protection against disruptive action and third-party interference with regard to the scenario of a targeted (terrorist) air crash.

27 a) As the Higher Administrative Court has identified, the existing installation (reactor building, turbine building, decontamination building, previous buffer storage areas) is largely not the subject matter of the First Decommissioning and Dismantling Licence, but is governed by the legally binding operating licence, which continues to apply in this respect. The use of the existing operating facilities of the nuclear power plant, in particular the fuel pool, is also part of the operating licence and is not modified by the fact alone that it is no longer used as part of power operations but with the aim of decommissioning. Insofar as the claimant asserts that more fuel assemblies were initially stored in the fuel pool during the decommissioning phase than during power operation, this does not lead to a different assessment. The Higher Administrative Court investigated this argument and comprehensibly came to the conclusion that the use of the installation during residual operation and dismantling was covered by the existing licence. If the claimant at this point again bases its argument on the fact that the 69 series, to which KKI 1 belongs, would no longer meet today's safety standards, this may be true, but it does not lead to a different assessment. KKI 1 is not up for licencing for construction and operation in accordance with today's standards, but up for decommissioning. It still disposes of a legally binding operating licence - certainly with the exception of the actual power operation (section 7 (1a) AtG) - which provides for the storage of fuel assemblies in the fuel pool and the buffer storage areas within the reactor building and the turbine building respectively. For the protective purpose of atomic energy law, it is irrelevant whether the fuel assemblies are returned to the reactor after storage in the fuel pool or are removed after they have decayed, as is planned for decommissioning. If one were to follow the claimant's opinion in this respect, higher risk precaution would have to be taken during the decommissioning of a nuclear power plant than during power operation. Insofar as the claimant argues that massive interferences were made in the core of the installation, these submissions are already irrelevant, for it finds no support in the findings of the appeal judgment.

28 b) Even to the extent that new buffer storage areas are set up in a storehouse and on the power plant site outside of buildings as part of the decommissioning and dismantling of KKI 1, the First Decommissioning and Dismantling Licence cannot be challenged for failing to provide sufficient damage precaution.

29 It is irrelevant whether these areas, (...), also belong to the licenced existing installation. For, the Higher Administrative Court's assumption that the defendant was entitled to assign the targeted terrorist air crash with a (civilian) aircraft onto the - to be newly built - buffer storage areas to the residual risk and that therefore he did not have to give closer consideration to it, proves to be free from errors of law. The Court relies on the fact that the buffer storage areas have only a low risk potential and at best only a low symbolic value for terrorist attacks and therefore do not represent a scenario in need of defence. This evaluation does not give rise to any objections. In particular, it does not contradict the statement in the Senate's judgment of 22 March 2012 - 7 C 1.11 - (BVerwGE 142, 159 <165>), according to which the scenario of a "targeted air crash" is not to be assigned to the residual risk but to damage precaution. This statement does not exclude the possibility of arriving at a different assessment for cases which, due to a particularly low risk potential, differ from the scenarios involving a targeted air crash on a reactor building - still in power operation or equipped with fuel assemblies - or on an on-site interim storage facility. The delimitation between the risk that can be reduced by precautionary measures and the residual risk no longer to be taken into account by the standards of practical reason, resulting in no administrative measures being required against the realisation such an "inescapable remainder", as such risk cannot be further minimised, represents a decision in the individual case (BVerwG, judgment of 10 April 2008 - 7 C 39.07 - BVerwGE 131, 129 para. 19, 29, 32). The functional reservation (Funktionsvorbehalt) granted to the licencing authority for this decision, which is open to limited judicial review only, also covers the risk identification and assessment, including the residual risk to be accepted when specifying the range of protection required against terrorist attacks (BVerwG, judgment of 10 April 2008 - 7 C 39.07 - BVerwGE 131, 129 para. 25).

30 Measured against this, the licencing authority was entitled to consider the risk of a targeted crash onto the new buffer storage areas as being virtually excluded. The defendant's assessment that the areas of a decommissioned nuclear power plant intended for the storage of low and medium-level radioactive materials or waste next to the still existing reactor building not only have a lower damage potential but also only a low symbolic value for terrorist attacks and therefore do not represent a scenario in need of defence, is plausible. It is utterly inconceivable and thus beyond all practical reason to assume that a terrorist air crash would be conducted on a storage area on the power plant site intended for less hazardous materials and waste rather than on the easily and widely recognisable and due to its size highly symbolic reactor building, which, at least at the time the licence was granted, was still equipped with fuel assemblies. The same applies to the relationship between a buffer storage facility and the interim storage facility also filled with fuel assemblies. This is all the more convincing in the present case because the power plant site includes not only the decommissioned KKI 1 and the on-site interim storage facility, but also the Isar 2 nuclear power plant, which will continue power operation until 2022. In view of these targets, which are much more attractive in terms of causing the greatest possible damage and are easier to identify and target, it is beyond all likelihood that the new buffer storage areas could instead become the target of a terrorist attack with a commercial aircraft.

31 However, the Higher Administrative Court's further assessment that the risk of a targeted air crash on KKI 1 as a whole is to be assigned to the residual risk, is not consistent with the jurisprudence of the Federal Administrative Court. Its reasoning assuming that a nuclear power plant that has been decommissioned for five years and is being dismantled, was not a "good target for attack" because nuclear fission no longer takes place there and because it is no longer needed for energy supply is not suitable for classifying a targeted crash on the reactor building as a hypothetical residual risk. While the decommissioning of a nuclear power plant will reduce its "attractiveness" as a target for attack for the reasons mentioned by the Higher Administrative Court and will make an act of terrorism less likely, it will not, however, remove it in such a way that an attack on the building is beyond all likelihood. In particular, an existing reactor building, especially as long as it still holds fuel assemblies, can neither be denied having an increased hazard potential nor having any symbolic effect.

32 However, the legal error committed by the Higher Administrative Court in assigning a targeted air crash on a decommissioned nuclear power plant building to the residual risk does not have an impact in the present case. The judgment is not based thereupon, as the Higher Administrative Court rightly relied on the fact that the reactor building and the annexes are covered by the legally binding operating licence, which is insofar not affected by the decommissioning licence and does therefore not require a new risk assessment.