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/ML 111861807. pdf 4
Fukushima Daiichi Events Source: NRC 90 -Day Task Force Report: http: //pbadupws. nrc. gov/docs/ML 111861807. 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: //frwebgate 1. access. gpo. gov/cgi-bin/TEXTgate. cgi? WAISdoc. ID=D 8 i. VPS/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 -/ 11
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/ML 110910479. 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/ML 111861807. 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/ML 110910479. 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 AP 1000 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/ML 111861807. 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-environment 13699055. 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 15 M Special Drawing Rights (SDRs) (~$24 M) – However, German law provides that the Operator’s liability is unlimited • The Operator’s minimum liability is fixed at 5 M SDRs (~$8 M) 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 guarantee of compensation where insurance is inadequate Liability limited in amount and time • Minimum amount of liability of Operator is $5 M (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 25
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 Saudi Arabia 26
1997 Protocol to Amend Vienna Convention • Increases minimum liability of the Operator – Minimum amount of liability of Operator is 300 M SDRs (~$477 M) – Alternatively, 150 M SDRs, provided public funds available to cover difference up to 300 M SDRs • Transitional period – States can set liability to 100 M 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 27
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 $300 M) and “secondary” retrospective premium fund (currently $~12 B) – 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 48
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 49
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 51
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 300 M SDRs (~$493 M) – Some countries are questioning whether 300 M 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 300 M SDRs • Increased efforts to achieve universal adherence to the CSC 52
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 • Whethere 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 53
THANK YOU Sources • “Liability for Nuclear Damage, ” World Nuclear Association, http: //www. world-nuclear. org/info/inf 67. html • NRC Task Force 90 -Day Report, http: //pbadupws. nrc. gov/docs/ML 110910479. 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%20 regime. pdf • Industry Post-Fukushima Response, http: //www. nei. org/newsandevents/speeches/wano-after-fukushimastrengthening-global-nuclear-safety-may-10 -2011 -/ 54
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