Transcript ABA 2011 ANNUAL MEETING TORONTO AUGUST 4-9, 2011 POST FUKUSHIMA: Key Nuclear Regulatory and Nuclear Liability Actions and Issues Presentation to the American Bar Association (ABA)

ABA 2011 ANNUAL MEETING TORONTO
AUGUST 4-9, 2011
POST FUKUSHIMA:
Key Nuclear Regulatory and Nuclear
Liability Actions and Issues
Presentation to the American Bar Association
(ABA) Section of Public Utility, Communications
and Transportation Law
James A. Glasgow, Partner
1
Objectives of Presentation
1
Provide a concise overview of major actions by regulators, international
organizations and the nuclear industry in response to events at
Fukushima
2
Summarize key principles of nuclear liability conventions and selected
national laws relevant to decisions by providers of nuclear emergency
assistance
3
Review pertinent aspects of conventions concerning nuclear safety,
notification of emergencies and emergency assistance
4
Propose actions that could improve the international nuclear safety
regime and strengthen emergency assistance capability
2
NRC AND U.S. INDUSTRY
RESPONSE TO
FUKUSHIMA
Overview of the NRC’s 90-day
Report and Actions by U.S. Utilities
3
Fukushima Daiichi Events
Source: NRC 90-Day Task Force Report: http://pbadupws.nrc.gov/docs/ML1118/ML111861807.pdf
4
Fukushima Daiichi Events
Source: NRC 90-Day Task Force Report: http://pbadupws.nrc.gov/docs/ML1118/ML111861807.pdf
5
Fukushima Daiichi Events
6
NRC Assistance to Fukushima Daiichi
• Following the Fukushima Daiichi events, the Nuclear
Regulatory Commission (NRC) Headquarters Operations
Center immediately began to monitor the situation
• Teams of NRC officials were immediately deployed to Japan to
advise Japanese officials since the day after the event
• NRC’s monitoring of radiation levels around the Fukushima
Daiichi plant was coordinated with the U.S. Department of
Energy (DOE) and U.S. Environmental Protection Agency (EPA)
• NRC recommended that Americans working or residing within
50-miles of Fukushima Daiichi be evacuated from the area
7
Immediate NRC Regulatory Actions
• Temporary Instruction 2515/183, “Follow-up to the Fukushima
Daiichi Nuclear Station Fuel Damage Event”
– Relied upon reports by NRC licensees and NRC independent
inspections to gather data to determine whether regulatory actions
were necessary
– This initial NRC review was completed in April 2011
– NRC determined that there is a “potential industry trend of failure
to maintain equipment and strategies required to mitigate some
design and beyond design basis events,” though no damage would
have resulted to fuel or containment
8
Immediate NRC Regulatory Actions
• NRC Bulletin 2011-01, “Mitigating Strategies”
– Required information from nuclear power plant operators, by June
10, regarding their accident mitigating strategy, equipment and
staffing
– Required information, by July 11, regarding maintenance and
testing of essential nuclear power station resources, potential reevaluation of strategies when necessary, and arrangements with
local emergency response organizations
9
Immediate NRC Regulatory Actions
• NRC staff inspected each reactor site to confirm cooling
capability after a fire or explosion
• While the NRC received at least one request that it order a
shutdown of all reactors operating on or near fault-lines, the
NRC declined to take such action
• NRC did not halt its ongoing licensing proceedings
– continued to pursue proceedings, including license extensions,
early site permits and combined operating and construction
licenses (COLs)
– following Fukushima, NRC granted Vermont Yankee a 20-year
extension of its operating license
http://www.nrc.gov/reading-rm/doc-collections/news/2011/11-088.pdf;
http://frwebgate1.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=D8iVPS/0/1/0&WAISaction=retrieve;
http://www.gpo.gov/fdsys/pkg/FR-2011-03-28/html/2011-7218.htm
10
Nuclear Industry Response
• NEI (Nuclear Energy Institute), INPO (Institute of Nuclear Power
Operations) and EPRI (Electric Power Research Institute)
published a 9-page overview of how the industry will respond to
lessons-learned from the events at Fukushima Daiichi
• The World Association of Nuclear Operators (WANO) published a
Significant Operating Experience Report and asked members to
take actions to verify their ability to accommodate a station
blackout or beyond design basis event
http://www.nei.org/newsandevents/speeches/wano-after-fukushima-strengthening-global-nuclear-safety-may-10-2011-/
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NRC Task Force 90-Day Report
• Task Force was established by the NRC Commission to “review
information from the events at the Fukushima Daiichi nuclear
complex and make recommendations for any improvements
needed to [the] regulatory system”
– composed of six NRC senior managers and staff
– also directed to make recommendations for a longer-term review
• Task Force Report was released July 13, 2011
– scheduled to be presented to the Commission on July 19, 2011
http://pbadupws.nrc.gov/docs/ML1109/ML110910479.pdf;
http://www.nrc.gov/about-nrc/organization/commission/comm-gregory-jaczko/jaczko-06-21-2011-final-iaea.pdf
12
NRC Task Force Findings
• Task Force determined that
“continued operation and continued
licensing activities do not pose an
imminent risk to public health and
safety”
• However, the Task Force Report
stated that NRC could improve its
“patchwork of regulatory
requirements” developed over the
years by moving to a “logical,
systematic, coherent and better
understood” framework
http://pbadupws.nrc.gov/docs/ML1118/ML111861807.pdf
13
Task Force Recommendations
• Recommendations for Near-Term Actions:
– Reevaluation and update, if needed, seismic and flooding design-basis
every 10 years
– Increase minimum coping time without AC power to 8 hours
– Require emergency capability to maintain cooling of the core and spentfuel pool for 72 hours,
– Require offsite “pre-staging” of emergency response resources
– Require emergency plans for multiple reactor events and prolonged
station blackouts
– Require additional instrumentation and power sources for spent fuel pool
cooling
– Require hardened vent designs in GE Boiling Water Reactors (BWRs) with
Mark I and II containments
– Integrate onsite emergency response capabilities
– Focus more on defense-in-depth requirements in the Reactor Oversight
Process
http://pbadupws.nrc.gov/docs/ML1109/ML110910479.pdf;
http://www.nrc.gov/about-nrc/organization/commission/comm-gregory-jaczko/jaczko-06-21-2011-final-iaea.pdf
14
Task Force Recommendations
• Recommendations for longer-term review:
– Reevaluate hydrogen control and mitigation inside containment and
other buildings
– Identify ways to prevent seismically induced fires or floods
– Identify additional emergency preparedness requirements related to
station blackouts or multiple reactor events
– Evaluate emergency preparedness decision-making, radiation monitoring,
and public education
• Passive Designs
– Designs with passive safety systems (e.g., the Westinghouse AP1000 and
the GE Hitachi Economic Simplified Boiling Water Reactor (ESBWR)) may
already meet the 72-hour cooling requirements
– COL applicants with passive designs would still need to meet
requirements for pre-staging of additional equipment
http://pbadupws.nrc.gov/docs/ML1118/ML111861807.pdf
15
IMPLICATIONS OF FUKUSHIMA FOR
NUCLEAR LIABILITY AND EMERGENCY
ASSISTANCE LEGAL SYSTEMS
Improving International Ability to Respond to Nuclear Incidents
16
International Responses and Implications
•
•
•
•
Responses to Fukushima in North America
Conventions on Nuclear Liability
Conventions on Notification, Emergency Assistance
Issues concerning the international nuclear liability
regime and suggested solutions
17
Canada’s Evaluation of Implications of
Fukushima
• Canadian Nuclear Safety Commission (CNSC) requested
reexamination of nuclear plants for safety
– Reexamination is pursuant to subsection 12(2) of the General
Nuclear Safety and Control Regulations
– Licensees must respond to requests from CNSC for tests, analysis,
etc.
• CNSC established a task force to review Fukushima events and
recommend potential additions to regulatory framework
– Task force published its safety review criteria -- will be used to
evaluate responses from nuclear power plant operators in Canada
Source: Press Release, Canadian Nuclear Safety Commission, CNSC Releases Task Force Criteria for Nuclear Power Plant
Safety Review, July 7 2011
18
Canada’s Regulatory Response to
Fukushima
• Recent regulatory and legislative actions in Canada:
– CNSC has recently renewed operating licenses for Hydro-Quebec’s
Gentilly-2 nuclear generating station through June 2016
– CNSC also renewed the operating license for the Point Lepreau
Nuclear Generating Station for another year in early April, despite
news articles likening the plant to the reactors at Fukushima
Source:
http://www.nuclearsafety.gc.ca/eng/mediacentre/issues/letters_to_the_editor/May-27-2011-Response-to-L-Etoile.cfm;
http://www.nuclearsafety.gc.ca/eng/mediacentre/releases/news_release.cfm?news_release_id=384
19
OECD NEA Response to Fukushima
• OECD Nuclear Energy Agency (NEA) Forum on Fukushima
Daiichi, June 8, 2011
– Discussed lessons learned and actions to respond to those lessons
• Ministerial Meeting on Nuclear Safety, June 7, 2011
– Recommended reinforcing the IAEA’s role and missions
– Recommended reinforcing the OECD NEA’s safety activities
– Recommended IAEA review its safety standards in light of
Fukushima
– Recommended crisis management training at international level
– Recommended developing greater international solidarity through
emergency intervention teams and safety assistance mechanisms,
and modification of Conventions on Assistance and Early
Notification
20
OECD NEA Response to Fukushima
• NEA Nuclear Law Committee meeting June 15, 2011
– Discussed Japan’s Act on Compensation for Nuclear Damage
– Examined Japanese Government action to hold the Operator of
Fukushima Daiichi (TEPCO) exclusively liable for nuclear damage.
– Considered the Japanese Government’s determination that the
earthquake and tsunami that caused the incidents at Fukushima Daiichi
were not grave natural disasters of an exceptional character
• Such a determination would have exonerated TEPCO from liability
– Discussed Japan’s establishment of a Dispute Reconciliation Committee
that will mediate disputes regarding nuclear damage claims
• Committee will only require persons claiming damages or injury to (1)
demonstrate a causal link between the releases of nuclear material and
radiation following the occurrences at Fukushima and the damage suffered as
a result of such releases and (2) support the claimed amount of damage.
Source: Nuclear Energy Agency, Monthly News Bulletin, July 2011, http://www.oecd-nea.org/general/mnb/2011/july.html.
21
European Nations’ Response to
Fukushima
• Varied response from European nations:
– Germany and Switzerland: plans to phase out their nuclear reactors
• However, this has no impact on other neighboring countries’ decision to
place nuclear reactors near their borders
• In fact, the Czech Republic intends to expand its Temelin plant located 60 km
from the German border
– Italy: an indefinite moratorium on new nuclear plant construction
– Sweden: plans to replace its older reactors remain on track
• Nations have called for modifications to international
conventions:
– Switzerland’s Energy Minister said at the NEA Forum that countries
should have the right to inspect their neighbors’ safety plans
– US NRC Chairman Jaczko agreed that countries should participate in
international peer review processes, requiring an international
agreement
Source: Caroline Peachey, “World Survey – Safety First,” Nuclear Engineering International, June 1, 2011; Richard Black,
“Fukushima ‘lessons’ may take 10 years to learn,” BBC News, June 8, 2011, http://www.bbc.co.uk/news/science-environment13699055.
22
Paris Convention: Overview
• Convention on Third Party Liability in the Field of Nuclear Energy
(commonly known as “Paris Convention”)
– West European countries are Parties
– Adopted in 1960
• Brussels Convention Supplementary to the Paris Convention
adopted in 1963
• Paris and Brussels Conventions were amended in 1964 and 1982
• Major revisions to Paris Convention adopted in February 2004
Protocol
– 2004 Protocol will enter into force when it is ratified by all Paris
Convention Parties
– February 2004 Protocol to Paris Convention increases liability cap
Source: Nuclear Energy Agency, Monthly News Bulletin, July 2011, http://www.oecd-nea.org/general/mnb/2011/july.html.
23
Paris Convention: Main Principles
• Operator of the nuclear installation causing the damage is
absolutely (strictly) and exclusively liable for nuclear damage
• Nuclear damage is not defined in the Convention
– The compensable nuclear damage may be inferred from Article 3
– Upon its entry into force, the 2004 Protocol will add a definition of
nuclear damage
• The Operator must maintain insurance or other financial
security required by the Paris Convention and applicable
national law
• Paris Convention currently limits Operator’s liability to 15M
Special Drawing Rights (SDRs) (~$24M)
– However, German law provides that the Operator’s liability is
unlimited
• The Operator’s minimum liability is fixed at 5M SDRs (~$8M)
24
1963 Vienna Convention
• 1963 Vienna Convention on Civil Liability for Nuclear Damage
–
–
–
–
–
Exclusive liability of Operator of Nuclear Installation
Strict (no fault) liability of Operator
Exclusive jurisdiction granted to courts of one State
State guarantee of compensation where insurance is inadequate
Liability limited in amount and time
• Minimum amount of liability of Operator is $5M (U.S. dollar in terms
of gold on April 29, 1963 – approximately $35/oz of gold)
• Claims for compensation must be brought within 10 years of nuclear
incident
– Convention does not specifically address its geographic scope
• Generally accepted that the Convention only covers damage suffered
in other Vienna Convention countries and countries parties to the
Joint Protocol linking the Paris Convention and Vienna Convention.
– In force as of November, 1977; 38 countries are Parties
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1997 Protocol to Amend Vienna Convention
• Resulted from IAEA resolution, following the Chernobyl accident,
that “further strengthening of the liability regime for nuclear
damage is essential”
• Entered into force on October 4, 2003 (six years after its
adoption)
• 9 Countries have adhered to the 1997 Protocol
– Countries that have ratified or acceded are: Argentina, Belarus,
Kazakhstan, Latvia, Montenegro, Morocco, Romania, Poland and
Saudi Arabia
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1997 Protocol to Amend Vienna Convention
• Increases minimum liability of the Operator
– Minimum amount of liability of Operator is 300M SDRs (~$477M)
– Alternatively, 150M SDRs, provided public funds available to
cover difference up to 300M SDRs
• Transitional period – States can set liability to 100M SDRs for 15 years
following 1997 Protocol’s entry into force
– Increases time for bringing claims
• Claims must be brought within 30 years for personal injury and loss of
life; 10 years for other nuclear damage
• Adds specific dispute resolution procedure
• Operator is liable for Nuclear Damage caused by grave natural
disaster unless Party’s law otherwise provides
• Allows any country to become a Party
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1997 Protocol to Amend Vienna Convention
• Expands “geographical scope” by covering damage “wherever
suffered”
– A Party ‘s law may exclude damage in non-Party states that do not
provide equivalent reciprocal coverage, except for states without nuclear
facilities
• Expands definition of “nuclear damage” to include, to the extent
such damage is compensable under that Party’s national laws:
– Environmental damage
– Economic loss
– Costs of preventive measures
28
Convention on Supplementary
Compensation for Nuclear Damage (CSC)
• Resulted from recommendations by IAEA Standing Committee
on Nuclear Liability established in 1990; opened for signature in
September 1997
• Countries may adhere to CSC if (1) they are party to Vienna or
Paris Convention; or (2) their national law conforms to CSC
Annex
• 14 Countries have signed
– Argentina, Australia, Czech Republic, India, Indonesia, Italy, Lebanon,
Lithuania, Morocco, Peru, Philippines, Romania, Ukraine, United States
• 4 Countries have ratified (Argentina, Morocco, Romania, U.S.)
• Requirement for entry into force: 5 Parties with installed nuclear
capacity of 400,000 Mw(t)
29
Advantages of Adhering to the CSC
• Provides access to CSC’s regime of supplementary compensation
in the event of a major nuclear incident resulting in nuclear
damage exceeding the financial security a Party is required to
maintain under the CSC
• Will significantly improve nuclear liability regime in parties that
currently require minimal amounts of financial security
• Will harmonize international nuclear liability laws and clarify
certain key ambiguities
– Goal will be realized only with widespread adherence to the CSC
• Will place jurisdiction solely in the courts of the CSC Party in
which an accident occurs
– Applicable only where the countries in which the accident occurs and claims are
brought are both Parties to the CSC
– Avoids claims in multiple forums
– Full benefit will occur only upon widespread adherence to the CSC
30
U.S. Nuclear Liability Regime
• The Price-Anderson Act (PAA) provides the exclusive remedy for
personal injury and property damage caused by a nuclear
incident in the U.S.
• PAA economically “channels” all liability for damage caused by a
nuclear incident to the operator of NRC commercial reactor, who
must obtain the maximum available amount of insurance and
provide secondary insurance
• PAA limits damages for a nuclear incident to the total of the
“primary” insurance (currently $300M) and “secondary”
retrospective premium fund (currently $~12B)
– Claims likely to exceed this amount trigger requirement for Congress to
take action to provide compensation to the public
– Injury from a nuclear incident at an NRC-licensed reactor as a result of a
grave natural disaster is within PAA’s financial protection
31
Natural Disaster Exclusion
• Paris Convention and 1963 Vienna Convention countries:
– Operator is not liable for damage resulting from grave natural
disaster of an exceptional character, unless applicable domestic
law provides to the contrary
• Countries that are a party to the 1997 Protocol to Amend the
Vienna Convention:
– Operator is liable for nuclear damage due to incident caused by
grave natural disaster, unless the applicable domestic law provides
to the contrary
• Examples of national laws regarding such exclusions:
– Republic of Korea: Operator is not liable for nuclear damage
caused by serious disaster, earthquake, act of God, war or other
comparable circumstances
– India: Operator is not liable for nuclear damage caused by grave
natural disaster of an exceptional character
32
Japan’s Nuclear Liability Regime
• Legislation: Not party to an international nuclear liability
regime, but Law on Compensation for Nuclear Damage, last
amended in 2009, is based on Vienna Convention
• Liability limit: None. However, when damage exceeds required
financial security, government shall provide compensation if it
deems it necessary in order to attain the objectives of the law
• Financial security required: Operator must provide financial
security of ¥120 billion ($1.2 billion)
• Exclusions: Operator is not liable for damage from grave natural
disaster of an exceptional character or an insurrection
• Government did not characterize Fukushima releases as
resulting from natural disaster of exceptional character
33
IAEA Conventions and Guidelines
Concerning Safety
• Convention on Assistance in the Case of Nuclear Accident or
Radiological Emergency
• Convention on Early Notification of a Nuclear Accident
• Convention on Nuclear Safety
• Joint Convention on the Safety of Spent Fuel Management and
on the Safety of Radioactive Waste Management (INFCIRC/546)
• IAEA Safety Series
• Measures to Strengthen International Co-Operation in Nuclear,
Radiation and Waste Safety, particularly Annex 1. GC(44)/INF/4
• Conventions and other IAEA documents are available at the
IAEA’s web site
http://www.iaea.org/Publications/Documents/Conventions
34
Convention on Early Notification of a
Nuclear Accident
• Adopted and opened for signature on Sept. 26, 1986
• Entry into force: Oct. 27, 1986
• 110 countries have become parties, through accession or
ratification as of May 2011
– 11 countries have signed the Convention but have not ratified it
• Convention requires States to report accident data to the IAEA
• In addition to accidents at civil nuclear facilities, Nuclear
Weapons States (China, France, Russia, UK, and US) may elect to
report accidents involving nuclear weapons and tests
• Parties must provide exact information on accident to facilitate
the organization of countermeasures
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cenna.html
35
Convention on Early Notification of a
Nuclear Accident
• As permitted by the Convention, some Parties submitted a
Declaration stating their decision not to be bound by Article 11,
providing for dispute settlement in the Int’l Court of Justice
– Argentina, Bahrain, Belarus, Bolivia, China, Cuba, Egypt, El Salvador,
France, India, Indonesia, Iran, Iraq, Israel, Malaysia, Mauritius, Monaco,
Myanmar, Nicaragua, Oman, Pakistan, Peru, Romania, Russia, Saudi
Arabia, South Africa, Spain, Thailand, Turkey, Ukraine, UAE, U.S., Vietnam
• Convention provides only a general framework for providing
notification of an accident
• Convention suggests that, in appropriate circumstances, States
should consider concluding bilateral or multilateral agreements
– Such agreements could provide detailed framework for exchange of
information
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cenna.html. Declarations/Reservations,
May 6, 2011
36
Convention on Nuclear Safety
• Adopted by IAEA General Conference on June 17, 1994
• Entry into force: Oct. 24, 1996
• 73 countries (and EURATOM) have become parties, through
accession or ratification
– 10 countries have signed the Convention but have not ratified it
• The Convention establishes international safety standards for
operating land-based nuclear power plants
• Parties submit reports every 3 years on implementation for
“peer review” at meetings of the Parties at the IAEA to
encourage higher levels of safety
• Obligations are based on IAEA Safety Fundamental document
“The Safety of Nuclear Installations”
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/nuclearsafety.html
37
Convention on Nuclear Safety
• Obligations of Parties include:
– Reporting requirements
– Promulgation of legislative and regulatory framework for safety
– Actions to ensure safety in nuclear installations, construction, and
operation
– Based on incentives and lacks highly specific requirements
• Declarations Submitted by Parties to the Convention:
– The European Atomic Energy Community declared that certain
provisions apply to it, excluding the section on installation safety
– India’s declaration stated that safety Conventions should cover
both civil and military nuclear power plants, not just civil plants
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/nuclearsafety.html
38
Convention on Assistance in the Case of a
Nuclear Accident or Radiological Emergency
• Adopted by IAEA General Conference on Sept. 26, 1986 in
Vienna
• Entry into force: Feb. 26, 1987
• 105 countries have become Parties to the Convention, through
accession or ratification
– 11 countries have signed the Convention but have not ratified it
• Facilitates cooperation and assistance in event of nuclear
accident or radiological emergency
• Requires States to notify IAEA of their experts, equipment and
materials they could make available to provide assistance
• Provides a framework for assistance to Parties that suffer an
accident at a nuclear facility or a radiological emergency
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html
39
Convention on Assistance in the Case of a
Nuclear Accident or Radiological Emergency
• Liability issues: Art. 10 addresses Claims and Compensation
• Art. 10.2: States requesting assistance agree to indemnify parties
providing assistance, and compensate assisting parties for losses
• States may declare they are not bound by this provision
• States whose declarations disclaimed responsibility under art. 10.2:
– Declarations by Argentina, Canada, Colombia, El Salvador, France, India,
Iran, Ireland, Israel, Republic of Korea, Monaco, Netherlands, Nicaragua,
Oman, Peru, Saudi Arabia, Spain, Sri Lanka, Thailand, Turkey broadly and
completely declared that they did not agree to be bound by art. 10.2
– Austria, Bolivia, China, Denmark, Finland, Iraq, Italy, Pakistan and Sweden
declared that they are not bound in cases of gross negligence
– A declaration by the U.S. stated that it is bound to this provision with
respect to parties to the same extent that those parties have declared
they are bound
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html. Declarations/Reservations,
Sept. 24, 2009
40
Convention on Assistance in the Case of a
Nuclear Accident or Radiological Emergency
• Art. 13 addresses Dispute Settlement
• Art. 13.1: Disputes between Parties or between a Party and the IAEA
over the application or interpretation of the Convention will be
negotiated with the objective of settlement
• Art. 13.2: If disputes cannot be settled within one year, they will be
submitted to arbitration or referred to International Court of Justice
• States may declare they are not bound by these paragraphs
– Argentina, Indonesia declared they are not bound by article 13.
– Declarations disclaiming any intent to be bound by the article 13.2
provision regarding arbitration or referral to the ICJ were submitted
by: Algeria, Belarus, Bolivia, China, Cuba, Egypt, El Salvador, France,
India, Iran, Iraq, Israel, Korea, Malaysia, Mauritius, Monaco,
Nicaragua, Oman, Pakistan, Peru, Romania, Russia, Saudi Arabia,
South Africa, Spain, Thailand, Turkey, Ukraine, UAE, U.S. and Vietnam
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html. Declarations/Reservations,
Sept. 24, 2009
41
Convention on Assistance in the Case of a
Nuclear Accident or Radiological Emergency
• Procedure for Requesting Assistance
– Article 2 provides that a Party may call for assistance from another
Party directly or through the IAEA, or request assistance from the
IAEA or international organizations
– A Party requested to help will notify the requesting Party directly or
through the IAEA
– Convention is invoked when a Party requests assistance from another
Party in the event of a nuclear accident or radiological emergency
– An agreement between the Parties requesting and providing
assistance is not necessary for the Convention to be applicable
– Guidance is provided by IAEA’s Emergency Notification and Assistance
Technical Operations Manual (ENATOM)
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html. Declarations/Reservations,
Sept. 24, 2009
42
Convention on Assistance in the Case of a
Nuclear Accident or Radiological Emergency
• Applicability to Japan
– Japan is a signatory and party to the Convention (since Jul. 10, 1987)
– Japan’s declaration, submitted together with its instrument of
ratification, stated only that it is not bound to pay income and other
taxes imposed by the state requesting assistance with respect to
companies or citizens of such state who are providing assistance
– Since its declaration did not disclaim the applicability of the
indemnification provisions of Art. 10.2, in accordance with the
Convention, Japan is required to indemnify Parties providing
assistance from any liability for nuclear damage in Japan arising from
such assistance
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html. Declarations/Reservations,
Sept. 24, 2009
43
Limited Scope of the Assistance Convention’s
Indemnification Requirement
• The indemnification provision (Art. 10.2) of the Convention on
Assistance may help encourage Parties to assist another Party
that suffers an emergency at a nuclear power station or other
nuclear facility
• However, the Assisted State’s indemnification under Art. 10.2 is
not applicable to the following liability risks:
– Nuclear Damage which occurs in States other than the State in
which the assistance is provided
– Emergency assistance provided by private parties who are not
acting on behalf of an Assisting Party
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html. Declarations/Reservations,
Sept. 24, 2009
44
Geographic Limitation of Assistance
Convention’s Liability Provision (Art. 10)
• Unless otherwise agreed, a requesting State shall in respect of
death or of injury to persons, damage to or loss of property, or
damage to the environment caused within its territory or other
area under its jurisdiction or control in the course of providing
the assistance requested:
– not bring any legal proceedings against the assisting party or
persons or other legal entities acting on its behalf
– assume responsibility for dealing with legal proceedings and claims
brought by third parties against the assisting party or against
persons or other legal entities acting on its behalf
– hold the assisting party or persons or other legal entities acting on
its behalf harmless in respect of legal proceedings and claims
referred to in sub-paragraph (b)
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html. Declarations/Reservations,
Sept. 24, 2009
45
Limited Scope of the Assistance Convention’s
Indemnification: Post-Fukushima Implications
• States and private entities providing emergency assistance
(“Assisting Party”) may be concerned about the geographic
limitation of the indemnification provided by Article 10 to
nuclear damage suffered in the territory of the Party requesting
the assistance (“Assisted Party”)
– When providing assistance regarding stabilization of structures, for
example, personnel acting on behalf of an Assisting Party may
inadvertently cause a release of radioactivity that spreads by air or
water to the territory of a neighboring country
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html
46
Limited Scope of the Assistance Convention’s
Indemnification: Post-Fukushima Implications
• Other Parties to the Convention are not bound to indemnify the
Assisting Party for liability arising from the emergency assistance
– Assisting Parties may be held liable under other Conventions or
national laws
– Liability of Assisting Party will depend on many complex factors,
including whether the damage occurs in a State party to a nuclear
liability convention
• Private entities may be adequately protected from nuclear
damage claims arising from their emergency assistance if such
claims are brought only in the courts of an Assisted Party whose
laws channel liability solely to the Operator of the facility
receiving the assistance
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html
47
Applicability of the Assistance Convention to Private
Sector Entities: Post-Fukushima Implications
• If a private person or entity provides emergency services as a
contractor to the Assisting Party, Article 10 should provide
additional protection since it requires the Assisted Party to
indemnify the State party, or entities “acting on its behalf”
– Presumably, a contractor to the Assisting Party is “acting on
behalf” of the Assisting Party and therefore comes within the
protection of Article 10
– However, under Article 10, the Assisted Party is required to
indemnify such persons only with respect to liability for nuclear
damage suffered in the territory of the Assisted Party
– Many prospective providers may be concerned about liability in
third countries
Source: IAEA website, http://www.iaea.org/Publications/Documents/Conventions/cacnare.html
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Possible Actions to Strengthen Emergency
Assistance Pursuant to the Assistance Convention
• The U.S. and other Parties should enter into contracts
with private entities well in advance of a need for
emergency assistance
• Parties should create a “standby” emergency
assistance contract to:
– Provide a framework to expedite private sector assistance to
an Assisted Party
– Cause the Assisted Party’s indemnification to apply to private
party
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Possible Actions to Strengthen Emergency
Assistance Pursuant to the Assistance Convention
• Advantages of Suggested Action:
– Would enhance Assisting Parties’ ability to obtain resources for
emergency assistance from private entities
– Renewable on an annual/periodic basis with companies electing
to continue
• Potential Limitations on Implementation of Standby Contracts:
– Limited by Government ability to appropriate funds on long-term
basis
– However, Government obligation to perform “framework” or
“standby” assistance contract could be subject to availability of
appropriated funds
50
Possible Initiatives to Strengthen Emergency
Assistance Pursuant to the Assistance Convention
• Possible amendments could include the following:
– Amend Art. 10 to expand the geographic scope of the Assisted Party’s
obligation to indemnify the Assisting Party and persons or legal entities
acting on behalf of the Assisting Party
– The Art. 10 indemnity should apply to judgments of any court of
competent jurisdiction requiring the Assisting Party or other persons
providing emergency assistance to pay damages arising from such
assistance
– Extend the protection of Art. 10 to private persons and entities that are
not acting on behalf of the Assisting Government who provide assistance
under contracts with the Operator or owner of an affected facility within
the territory of the Assisted Party
– Alternately, the Assisting Government could indemnify private entities
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Other Possible Initiatives to Strengthen Nuclear
Safety Regimes and Enhance Assistance
• Initiatives to examine the adequacy of the minimum amount of
the operator’s financial security pursuant to International
Conventions and domestic law
– 1997 Vienna Convention and the CSC Annex establish what has become
an accepted “modern standard” of 300M SDRs (~$493M)
– Some countries are questioning whether 300M SDRs is a sufficient
amount in light of the lesson learned from the nuclear damage resulting
from the occurrences at the Fukushima Daiichi Nuclear Power Station
– Some countries may choose to voluntarily legislate higher standards in
their national laws
• A Review Conference could be convened pursuant to the 1997
Vienna Convention to address the adequacy of 300M SDRs
• Increased efforts to achieve universal adherence to the CSC
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Prospects for Significant Changes to the International
Regimes for Nuclear Safety, Assistance and Liability
• The Chernobyl accident was a catalyst for negotiation and entry
into force of three conventions: the Nuclear Safety Convention,
the Assistance Convention and the Notification Convention
– These Conventions were negotiated and entered into force very rapidly
• Whether there will be a similar expedited effort to amend
existing conventions and enter into new international
agreements will depend largely on whether deficiencies of the
sort that were recognized following Chernobyl have now
become evident as a result of Fukushima
• With respect to nuclear liability, governments should recognize
that they should accept responsibility for compensating nuclear
damage resulting from natural disasters that exceeds the
Operator’s required financial security
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THANK YOU
Sources
• “Liability for Nuclear Damage,” World Nuclear Association,
http://www.world-nuclear.org/info/inf67.html
• NRC Task Force 90-Day Report,
http://pbadupws.nrc.gov/docs/ML1109/ML110910479.pdf
• IAEA Legal Conventions,
http://www.iaea.org/Publications/Documents/Conventions/index.html
• International Expert Group on Nuclear Liability (INLEX), Civil Liability for
Nuclear Damage: Advantages and Disadvantages of Joining the International
Nuclear Liability Regime, available at Office of Legal Affairs, IAEA,
http://ola.iaea.org/OLA/documents/liability%20regime.pdf
• Industry Post-Fukushima Response,
http://www.nei.org/newsandevents/speeches/wano-after-fukushimastrengthening-global-nuclear-safety-may-10-2011-/
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