NUCLEAR LAW JULIA SCHWARTZ Head of Legal Affairs, Nuclear Energy Agency Organisation for Economic Co-operation operation and Development World Nuclear University-Summer Institute 2008
NUCLEAR LAW 1. INTRODUCTION TO NUCLEAR LAW 2. IMPACT OF ENVIRONMENTAL ASSESSMENT REQUIREMENTS 3. LIABILITY AND COMPENSATION FOR NUCLEAR DAMAGE World Nuclear University-Summer Institute 2008 2
WHAT IS NUCLEAR LAW? Nuclear law is a complete set of special legal rules created to regulate the conduct of people, companies or governments who engage in activities related to fissionable materials, ionising radiation and exposure to natural sources of radiation. World Nuclear University-Summer Institute 2008 3
WHAT IS NUCLEAR LAW? World Nuclear UniversityUniversity-Summer Institute 2008 4
WHAT KIND OF LAW IS IT? NUCLEAR LAW IS ESSENTIALLY PUBLIC LAW PUBLIC LAW governs relations between: *a State and its general population in matters of public order * two or more States * States and international bodies (OECD; IAEA) PRIVATE LAW governs relations between private legal entities (persons, partnerships, corporations) in matters of property rights, civil rights, commerce, finance, etc. World Nuclear University-Summer Institute 2008 5
WHY DO WE NEED NUCLEAR LAW? Nuclear energy use poses special risks to the health, safety and security of people, property, the environment. Nuclear energy use brings significant benefits to society, e.g. electricity generation, medical diagnosis, industrial processes etc. Nuclear law aims to balance these risks and benefits so that nuclear energy production and use can develop safely and securely for the benefit of all World Nuclear University Summer Institute 2008 6
SCOPE OF NUCLEAR LAW 1. radiological protection 2. nuclear safety and incident management 3. radioactive waste and spent fuel management 4. international trade in material/equipment/technology 5. transport of nucler material and fuel 6. liability and compensation for nuclear damage 7. non-proliferation of nuclear weapons 8. nuclear security/physical protection World Nuclear University-Summer Institute 2008 7
SCOPE OF NUCLEAR LAW: NUCLEAR FUEL CYCLE Mining Uranium Conversion Enrichment Waste Reprocessing Plutonium Fuel Fabrication Nuclear Power Plant
NUCLEAR LAW: NATIONAL AND INTERNATIONAL *acts, regulations, decrees, orders National Law *implements and supplements international commitments ------------------------------------------------------------------------------------ International Law *treaties, conventions, agreements, judicial decisions *becoming increasingly important World Nuclear University-Summer Institute 2008 9
NATIONAL LAWS (acts, regulations, decrees) World Nuclear University-Summer Institute 2008 10
NATIONAL LAWS (acts, regulations, decrees) Australia: Radiation Protection and Nuclear Safety Act Brazil Federal Constitution (amendment) Canada: Class II Nuclear Facilities and Prescribed Equipment Regulations France: Decree No. 90-918 918 on Rights to Information Germany: Nuclear Financial Security Ordinance Indonesia: Decree on Nuclear Reactor Licensing Japan: Law on Final Disposal of High-Level Radioactive Waste (2000) Netherlands: Fissionable Materials, Ores and Radioactive Substances (Transport) Decree Romania: Decision on Procedures for EIAs Russian Federation: Presidential Decree (new Federal Agencies) United Kingdom: Nuclear Safeguards Act (2000) United States: Atomic Energy Act (1954) World Nuclear University-Summer Institute 2008 11
INTERNATIONAL LAW (treaties, conventions, agreements) World Nuclear University-Summer Institute 2008 12
INTERNATIONAL LAW (treaties, conventions, agreements) 1986 Convention on Early Notification of a Nuclear Accident 1986 Convention on Assistance in the Case of a Nuclear Accident or a Radiological Emergency 1994 Convention on Nuclear Safety 1997 Joint Convention on the Safety of Spent Fuel/Radioactive Waste Management 1968 Nuclear Non-Proliferation Treaty 1979 Convention on the Physical Protection of Nuclear Material 2005 International Convention for the Suppression of Acts of Nuclear Terrorism 1960 Paris Convention on Nuclear Third Party Liability 1963 Vienna Convention on Civil Liability for Nuclear Damage 1997 Convention on Supplementary Compensation for Nuclear Damage World Nuclear University-Summer Institute 2008 13
SOFT LAW (standards, codes requirements, recommendations) countries implement international standards, recommendations, codes through national laws and regulations World Nuclear University-Summer Institute 2008 14
WHO ARE A COUNTRY S S KEY PLAYERS? Government Ministries: Foreign Affairs Economy/Industry/Trade Environment Energy Health Defence Nuclear Regulatory Authority: radiological protection,safety radioactive waste management, non-proliferation, physical security Transport Agency/Board Environmental Protection/Assessment Agency/Board Legislative Body (Parliament, Congress) Nuclear operators/licensees World Nuclear University-Summer Institute 2008 15
THE REGULATOR: THE NUCLEAR WATCHDOG the regulator is essential for ensuring compliance with nuclear law and must have effective control over licensees * power to grant/refuse/suspend/extend licences * power to inspect facilities to check compliance with rules * power to take punitive measures if non-compliance * be independent, have adequate financial/human resources * actions should be transparent; decisions subject to appeal World Nuclear University-Summer Institute 2008 16
NUCLEAR LAW EVOLVED IN RESPONSE TO INCREASING USE OF NUCLEAR ENERGY World Nuclear University-Summer Institute 2008 17
ARGENTINA 2 + 1 UC LITHUANIA 1 ARMENIA 1 MEXICO 2 BELGIUM 7 NETHERLANDS 1 BRAZIL 2 PAKISTAN BULGARIA 2 + 2 UC ROMANIA 2 CANADA 18 RUSSIA CHINA 11 + 6 UC SLOVAK REP. 5 CZECH REP. 6 SLOVENIA 1 FINLAND FRANCE 4 + 1 UC SOUTH AFRICA 2 59 + 1 UC SPAIN 8 GERMANY 17 SWEDEN 10 HUNGARY 4 SWITZERLAND 5 INDIA ISL. REP. OF IRAN JAPAN KOREA NUCLEAR POWER PLANTS WORLD-WIDE WIDE 439 Operating; 34 Under Construction (UC) 17 + 6 UC TAIWAN 1 UC UKRAINE 55 + 1 UC UNITED KINGDOM 19 20 + 3 UC UNITED STATES 2 + 1 UC 31 + 6 UC 6 + 2 UC 15 + 2 UC 104 + 1 UC World Nuclear University-Summer Institute 2008 18
WILL NUCLEAR LAW GAIN IN IMPORTANCE? Response to needs of nuclear energy sector over 50 years
WHY IS NUCLEAR LAW IMPORTANT? World Nuclear UniversityUniversity-Summer Institute 2008 20
WHY ARE ENVIRONMENTAL ISSUES IMPORTANT? Resistance to the production and use of nuclear energy is largely due to public fears of environmental damage that could result from the construction, operation and decommissioning of nuclear facilities World Nuclear University-Summer Institute 2008 21
WHY ARE ENVIRONMENTAL ISSUES IMPORTANT? International and national environmental protection laws aim to prohibit potentially harmful activities, require impact assessments with public participation and ensure compensation for, or remediation of damage. These goals must be met to effectively address public concerns over new and existing nuclear facilities
WHY ARE ENVIRONMENTAL ISSUES IMPORTANT? Government response to public fears? Adopt national laws and join international conventions to: Prohibit Potentially Harmful Activities Require Impact Assessments with Public Participation Ensure Compensation/Remediation for Damage World Nuclear University-Summer Institute 2008 23
Environmental Issues: Prohibit Harmful Activities International Conventions London (Dumping) Convention (1972): prohibits dumping of high level radioactive waste at sea Protocol to the London (Dumping) Convention (1996): prohibits dumping all radioactive waste into the sea United Nations Convention on the Law of the Sea (1982): minimize to the fullest extent the release of toxic, harmful or noxious substances, especially those which are persistent Convention on Environmental Impact Assessment in a Trans-boundary Context (Espoo): to prevent, reduce, control significant adverse transboundary environmental impact from proposed activities World Nuclear University-Summer Institute 2008 24
Environmental Issues: Impact Assessments with Public Participation 1991 Convention on Environmental Impact Assessment in a Trans-boundary Context (Espoo): countries to do environmental impact assessments with public participation before authorising activities with likely adverse impacts (including nuclear activities) countries to notify/consult with neighboring states before granting permit/license or authorising the proposed activity goal is to provide high level of protection of the environment in force 1997; 42 Parties (U.K., Canada, Belgium, Finland etc) World Nuclear University-Summer Institute 2008 25
Environmental Issues: Impact Assessments with Public Participation 1998 Aarhus Convention on Environmental Matters: public authorities obliged to: provide the public with environmental information applies to nuclear activities: nuclear information is often classified as environmental information allow the public to participate in environmental decisionmaking by public authorities grant the right to judicial redress if the previous rights or national environmental law have been infringed project planning and execution could be seriously impacted in force 2001; 41 Parties (U.K. Spain, E.C., Romania, Ukraine; 2/3 of OECD members are Party to the Convention) World Nuclear University-Summer Institute 2008 26
Environmental Issues: Impact Assessments with Public Participation Project: Loviisa 3 NPP Proponent: Fortum Power & Heat Oy (Finland) Ministry of Industry/Trade consults affected Parties Proponent consults Russian Federation (not Party) Proponent produced 100 booklets in Russian ( 1,500) NGO in Russia organized public participation ( 500)( 60 days allowed for comments 18 received World Nuclear University-Summer Institute 2008 27
Environmental Issues: Impact Assessments with Public Participation Brennilis court case in France (2007) Government decree authorising dismantling of nuclear reactor NGO Sortir du Nucléaire institutes proceedings before the highest administrative court ( Conseil d Etat ) Annulment of the decree because of breach of obligation to make an environmental impact study available to the public to allow them to be informed and to participate in decisionmaking prior to the authorisation to dismantle World Nuclear University-Summer Institute 2008 28
Environmental Issues: Impact Assessments with Public Participation Greenpeace v. Secretary of State of Trade and Industry (U.K. 2007) 2003 Energy White Paper called for fullest possible public participation prior to decision of new build 2006 Government report decision to support nuclear High Court granted an order quashing the Government s decision for lack of public participation in nuclear power policy making World Nuclear University-Summer Institute 2008 29
Environmental Issues: Impact Assessments with Public Participation Czech utility CEZ has requested that the country's Ministry of the Environment conduct an environmental impact assessment of two additional reactors at the Temelin nuclear power plant. World Nuclear University-Summer Institute 2008 30
Environmental Issues: Impact Assessment with Public Participation 2003 Protocol on Strategic Environmental Assessment (Kiev): covers broad range of sectors including nuclear activities countries to evaluate environmental consequences of official draft plans/programmes (e.g. NPPs) likely to have environmental effects assessment made very early in decision-making process extensive stakeholder consultation (including other Protocol States) in government decision-making not yet in force: 9 ratifications out of the 16 required (as of May 2008) (Finland, Sweden, Slovakia, Germany ) World Nuclear University-Summer Institute 2008 31
ENVIRONMENTAL ISSUES: NATIONAL LAWS Australia: Canada: EC: France: Japan: Korea: USA: Environment Protection and Biodiversity Conservation Act Canadian Environmental Protection Act Canadian Environmental Assessment Act Environmental Impact Directive, Habitats Directive, Water Framework Directive Law on Transparency and Security in Nuclear Affairs Environmental Impact Law Atomic Energy Framework Act National Environmental Policy Act, Clean Air Act World Nuclear University-Summer Institute 2008 32
Environmental Issues: Ensure Compensation/Remediation for Damage 1996 Convention on Sea Carriage of Hazardous and Noxious Substances provides up to 250M SDRs ( 260M/US$405M) compensation to victims of sea carriage accidents involving hazardous and noxious substances excludes nuclear damage compensated under a nuclear liability and compensation convention 2004 Environmental Liability Directive (European Community) implements "polluter pays principle operators whose activities cause environmental damage financially liable for remediation those whose activities cause an imminent threat of environmental damage are liable to take preventive actions currently excludes nuclear damage compensated under a nuclear liability/compensation convention (evaluation by April 2014) World Nuclear University-Summer Institute 2008 33
ENVIRONMENTAL ISSUES:NUCLEAR CONVENTIONS Environmental Damage Prevention, Mitigation and Compensation Provisions are also found in Nuclear Conventions 1. First line of defense against environmental damage is the prevention of nuclear accidents by a continual reinforcement of nuclear safety programmes
ENVIRONMENTAL ISSUES:NUCLEAR CONVENTIONS 1994 Nuclear Safety Convention Ensure effective defenses in nuclear installations against potential radiological hazards to protect individuals, society and the environment from harmful effects of ionizing radiation 1997 Joint Convention on the Safety of Spent Fuel/Radioactive Waste Management Ensure effective defenses against potential hazards during spent fuel and radioactive waste management so that individuals, society and the environment are protected from harmful effects of ionizing radiation, now and in the future. World Nuclear University-Summer Institute 2008 35
ENVIRONMENTAL ISSUES:NUCLEAR CONVENTIONS 2. Second line of defense against environmental damage is effective damage mitigation through continual improvement of emergency response performance 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency Facilitate prompt assistance in the event of a nuclear accident or radiological emergency to minimize consequences and to protect life, property, and the environment from the effects of radioactive releases
ENVIRONMENTAL ISSUES:NUCLEAR CONVENTIONS 3. If an accident occurs and emergency response measures are not sufficient to prevent environmental damage, the environment must be re-instated and victims compensated 1960 Paris Convention on Nuclear Third Party Liability 1963 Brussels Convention Supplementary to the Paris Convention 1963 Vienna Convention on Civil Liability for Nuclear Damage Conventions do not refer specifically to environmental damage but it may be compensable as property damage or otherwise, depending on national law
LIABILITY AND COMPENSATION FOR NUCLEAR DAMAGE Why Is this Issue Important? Resistance to the production and use of nuclear energy is largely due to public fears of the potentially catastrophic damage that could result from the operation of nuclear facilities World Nuclear University-Summer Institute 2008 38
NUCLEAR LIABILITY ISSUES Government response? adopt national laws and join international conventions to ensure that where a nuclear accident occurs at a nuclear facility or during the transport of nuclear substances: victims will be adequately compensated for the damage they suffer World Nuclear University-Summer Institute 2008 39
NUCLEAR LIABILITY ISSUES need to assure public of adequate compensation for damage in case of a nuclear accident need to protect owners/suppliers/investors from ruinous liability claims, discouraging industry development national laws and international conventions are based on a balance between these needs allowing countries to benefit from nuclear energy use World Nuclear University-Summer Institute 2008 40
NUCLEAR LIABILITY ISSUES Balance has resulted in special legal principles: protect public + industry interests form basis for (most) national laws and international regimes Legal principles determine: who is liable who can get compensation what damage is compensable how much money is available that the money will be there when needed when/where/how claims should be brought World Nuclear University-Summer Institute 2008 41
NUCLEAR LIABILITY ISSUES: Special Legal Principles Nuclear operator strictly liable: victims need not prove fault or negligence; relieves them of normal burden of proof Nuclear operator exclusively liable: all liability channeled to operator regardless of who is at fault; eases victims proof + suppliers bear no defense/insurance costs Nuclear operator s liability of limited amount: quid pro quo for above benefits; operators can obtain only limited insurance against liability Nuclear operator must financially secure liability: ensures money is there; insurance most common form but market capacity is limited Nuclear operator s liability is limited in time: operators/insurers won t accept liability for extended or unlimited time; another quid pro quo. World Nuclear University-Summer Institute 2008 42
WHY DO WE NEED INTERNATIONAL REGIMES? maintain the balance where accidents cause trans-boundary damage establish rules for cross-border legal actions establish liability for damage occurring during inter-state transport ----------------------------------------------------------------------------- determine which courts have jurisdiction to hear claims determine which laws will apply prevent discrimination: nationality, domicile, residence harmonize the national laws of Contracting Parties 15 February 2008 FORATOM-Legal Task Force Meeting 43
INTERNATIONAL CONVENTIONS OECD Auspices 1960 Paris Convention on Third Party Liability (PC) 1963 Brussels Supplementary Convention (BSC) 2004 Protocols to amend both Paris and BSC (mainly Western Europe) -----------1988 Joint Protocol linking Paris and Vienna ---------- IAEA Auspices 1963 Vienna Convention on Third Party Liability (VC) (mainly Central/Eastern Europe + + +) 1997 Protocol to amend the 1963 VC 1997 Convention on Supplementary Compensation World Nuclear University-Summer Institute 2008 44
International Nuclear Liability and Compensation Conventions Pre-Chernobyl 1960 Paris Convention on Nuclear Third Party Liability 1963 Brussels Supplementary Convention (Paris) 1963 Vienna Convention on Civil Liability for Nuclear Damage World Nuclear University-Summer Institute 2008 45
1986: CHERNOBYL A nuclear accident could result in: Detrimental effects upon human health, property and
International Nuclear Liability and Compensation Conventions Post-Chernobyl 1988 Joint Protocol (links Paris and Vienna Conventions) 1997 Protocol amending the Vienna Convention 1997 Convention on Supplementary Compensation for Nuclear Damage (not in force) 2004 Protocol amending the Paris Convention (not in force) 2004 Protocol amending Brussels Supplementary Convention (not in force) World Nuclear University-Summer Institute 2008 47
The new Nuclear Liability and Compensation Conventions What s improved since Chernobyl? more compensation available to victims 2004 Paris/Brussels = 1.5B/$ 2.3B 1997 Vienna = 335M/$ 522M (SDR 300M) 1997 CSC = 670M/$ 1B (SDR 300M + ) more victims entitled to compensation victims in countries not party to a convention victims in countries party to a different convention World Nuclear University-Summer Institute 2008 48
The new Nuclear Liability and Compensation Conventions What s improved since Chernobyl? more damage will be compensable cost of reinstating impaired environment economic loss preventive measures victims have more time to claim for personal injury (30 instead of 10 years) more nuclear facilities covered (radwaste( disposal facilities) World Nuclear University-Summer Institute 2008 49
The Conventions: Who s s Covered? Who s s Not? (August/December 2007) 439 operating plants + 34 plants under construction (UC) 234 operating plants + 18 UC plants not covered by any nuclear liability convention almost ½ the world s s population (est. 6.6 billion) not covered by any nuclear liability convention World Nuclear University-Summer Institute 2008 50
NUCLEAR POWER GENERATING STATES PARTY TO AN INTERNATIONAL CONVENTION Paris Convention (PC) Brussels Supplementary Convention (BSC) Vienna Convention (VC) Protocol to Amend the 1963 Vienna Convention (RVC) Convention on Supplementary Compensation (CSC) (Not yet in force) ARGENTINA ARMENIA BELGIUM BRAZIL BULGARIA CANADA CHINA CZECH REP. FINLAND FRANCE GERMANY HUNGARY INDIA ISL. REP. OF IRAN JAPAN VC ; RVC ; CSC VC PC ; BSC VC VC VC PC ; BSC PC ; BSC PC ; BSC VC LITHUANIA MEXICO NETHERLANDS PAKISTAN ROMANIA VC RUSSIA VC SLOVAK REP. SLOVENIA SOUTH AFRICA SPAIN SWEDEN SWITZERLAND TAIWAN UKRAINE UNITED KINGDOM VC PC ; BSC VC ; RVC ; CSC VC PC ; BSC PC ; BSC PC ; BSC VC PC ; BSC KOREA UNITED STATES CSC World Nuclear University-Summer Institute 2008 51
Who Hasn t? THE CONVENTIONS: Who s s Joined? Who Hasn t? Canada, China, India, Japan, Korea, Switzerland Australia, Austria, Iran, Ireland, Luxembourg, Pakistan, South Africa Why Not? Support for unlimited liability (with a mature industry) Better compensation possible outside the conventions Reject exclusive liability (suppliers do not need protection) Geographic remoteness from other convention states Interest in bi-lateral or multi-lateral regional arrangements World Nuclear University-Summer Institute 2008 52
KEY MESSAGE A worldwide expansion of the peaceful uses of nuclear energy and ionizing radiation depends on harmonized national legislative frameworks and on broad adherence and strict compliance with relevant international legal instruments, agreed standards and guidance documents. World Nuclear University-Summer Institute 2008 53
RESOURCES FOR NUCLEAR LAW (NEA/IAEA) World Nuclear University-Summer Institute 2008 54
WEBSITES FOR NUCLEAR LAW www.nea nea.fr OECD/Nuclear Energy Agency website access to conventions, agreements, the Nuclear Law Bulletin and Nuclear legislation in OECD countries www.iaea iaea.org International Atomic Energy Agency website access to conventions, agreements, standards, recommendations, codes, handbooks, etc. World Nuclear University-Summer Institute 2008 55
SCENARIO 1 WHAT HAPPENS WHEN An NGO approaches the operator of a NPP and asks to have a look at the latest nuclear safety inspection report. What position should the following actors take: operator of the plant NGO nuclear safety regulator 25 August - 5 September 2008 University of Montpellier - ISNL 2008 56
SCENARIO 2 WHAT HAPPENS WHEN Country X is a Party to the Espoo Convention and plans to construct a radioactive waste disposal facility close to a nature reserve which is located in country Y. Country Y is not a Party to the Espoo Convention and has a strong anti-nuclear nuclear government and population. What should be the positions of the following actors: operator of RW disposal facility government of country X government of country Y anti-nuclear nuclear NGO in country Y 25 August - 5 September 2008 University of Montpellier - ISNL 2008 57
SCENARIO 3 WHAT HAPPENS WHEN Country X wants to build a NPP that will be co-owned owned by countries X, Y and Z. In country X there is no obligation to conduct an environmental impact assessment; in country Y only a minimal EIA is necessary while in country Z there are stringent EIA obligations. What should be the position of the following actors? Government of country X Government of country Y Government of country Z Regulatory body of country X Anti-nuclear nuclear NGO of country Z 25 August - 5 September 2008 University of Montpellier - ISNL 2008 58
SCENARIO 4 WHAT HAPPENS WHEN An NPP vendor in country X wants to sell a plant to country Y; the government of X will offer an attractive financing package (directly or by loan guarantee) but only if country X s X s EIA procedures and environmental protection requirements are applied to the project in country Y. Country Y wants to apply its own much less stringent procedures and requirements. What should be the position of the following actors: government of country X government of country Y Vendor of the plant 25 August - 5 September 2008 University of Montpellier - ISNL 2008 59