Challenges and Prospects for the Nuclear Safety and Liability Regimes in Japan after

Fukushima

Kyoji KAWASAKIDean of the School of International and Public Policy

Hitotsubashi University, Tokyo, JAPAN

NUCLEAR INTER JURA 2014

Buenos Aires, 20-23 October

Introduction

2

The restart of reactors at the Sendai nuclear power plant in Kagoshima Prefecture appears unlikely before January, as the plant’s operator only submitted the necessary documentation to regulators on Tuesday, months later than originally planned. Kyushu Electric Power Co. submitted roughly 600 pages of documents concerning reactor 1 — one of two reactors at the complex that have obtained safety clearance by the Nuclear Regulation Authority — but that accounts for only a fraction of the operator’s 20,000-page construction plan, which needs to be submitted for the plant to be restarted. (The Japan Times, OCT 1, 2014)

The administration of Prime Minister Shinzo Abe plans to submit a bill to the Diet by the end of the year to have Japan join an international pact on compensation in the event of a nuclear disaster (the CSC), Chief Cabinet Secretary Yoshihide Suga said Monday… 　 “ By ratifying the treaty, (Japan) can support the participation of overseas companies in the decommissioning of — and measures against radiation-tainted water at — the Fukushima No. 1 nuclear power plant,” Suga told a news conference. (The Japan Times, SEP 22, 2014)

IAEA Action Plan on Nuclear Safety (SEP 2011)

• Strengthening nuclear safety in light of the accident is addressed through a number of measures proposed in this Action Plan including 12 main actions: among others

• Safety assessments in the light of the accident at TEPCO’s Fukushima Daiichi Nuclear • Power Station by promptly undertaking a national assessment of the design of nuclear

power plants against site specific extreme natural hazards and to implement the necessary corrective actions in a timely manner.

• Emergency preparedness and response by a prompt national review and thereafter regular reviews of their emergency preparedness and response arrangements and capabilities, with the IAEA Secretariat providing support and assistance through Emergency Preparedness Review (EPREV) missions, as requested. 　 Establishing national rapid response teams that could also be made available internationally through RANET.

• A prompt national review and thereafter regular reviews of national regulatory bodies, including an assessment of their effective independence, adequacy of human and financial resources and the need for appropriate technical and scientific support, to fulfil their responsibilities.

3

Nuclear Safety: 　 Organization

4

Convention on Nuclear Safety National Report of Japan for 6th Review Meeting, August 2013, p.44.

Nuclear Safety: 　 Requirements

5

New Regulatory Requirements for Light-Water Nuclear Power Plants– Outline –, August 2013, Nuclear Regulation Authority

Measures for enhancing safety and credibility outside of the reactor building (KEPCO)

6

Measures for enhancing safety and credibility in the reactor building (KEPCO)

7

Nuclear Safety: 　 Procedure

8

New Regulatory Requirements for Light-Water Nuclear Power Plants– Outline –, August 2013, Nuclear Regulation Authority

Nuclear Safety: 　 International Aspect

Convention on Nuclear Safety• The 6th National Report of Japan includes descriptions of the organizational framework of the NRA, which was established to enforce Japan’s revised nuclear 　 regulations, and NRA activities implemented in line with the new regulatory 　 requirements for reactor facilities, which were enforced in July 2013, and the new Nuclear Emergency Response Guidelines. 　

• The 6th Review Meeting (States Parties’ meeting) was held in Vienna, Austria, on 　 24 March 2014 for reviewing the regulatory activities in Japan. The Japanese Government delegation consisted of delegates from the NRA, the Ministry of Foreign 　 Affairs, and nuclear operators. In the review of the National Report of Japan, other State Parties praised Japan’s activities including the establishment of an independent and stronger regulatory organization, the adoption of stricter regulatory requirements,　 and the introduction of backfitting to existing nuclear plants.

• The 6th Review meeting 　 also pointed out the following challenges: stabilization of the site status of TEPCO’s 　 Fukushima Daiichi NPS, treatment of contaminated water, implementation of 　backfitting measures and improvement in safety, the enhancement of operators’safety culture through an ongoing dialogue, improvement of the management system and human resources development, and the enhancement of inspection functions.

• (NRA, FY2013 Annual Report, August 2014, p.20.)

9

Nuclear Liability: Overview• Strict Liability (of nuclear operators): Section 3 of the Japan’s Compensation Act of 1961• Liability Limits in Amount: Unlimited Liability in Japan• Financial Assistance through Nuclear Damage Compensation Facilitation Corporation• Dispute Reconciliation Committee for Nuclear Damage Compensation: Guidelines and

Mediation.

• Channeling of Liability (to nuclear operators): Section 4 of the Japan’s Act. Litigations

against the Japanese government are also considered to be permissible. Even a claim against manufactures has actually raised, asserting Section 4 is unconstitutional.

• Liability Limits in Time: Extinctive prescription: 3 years from knowing the damage and 20 years from the accident under the Japanese Civil Law. A new Act was adopted in December 2013 which extended the period of extinction to 10 years from knowing the damage and 20 years from the damage occurred in Fukushima cases.

• Litigation against TEPCO abroad: One case in the United States• Towards Japan’s ratification of the CSC: Definition of “Nuclear Damage,” Jurisdiction and

Procedure of the Conclusion

10

Nuclear Liability: Structure

11

OECD/NEA, Japan's Compensation System in Nuclear Damage: As Related to the TEPCO Fukushima Daiichi Nuclear Accident, 2012, p.88.

Nuclear Liability: Nuclear Damage

12

OECD/NEA, Japan's Compensation System in Nuclear Damage: As Related to the TEPCO Fukushima Daiichi Nuclear Accident, 2012, p.56.

Nuclear Liability: Procedure (1)

13

　total　number　of　applications 13,249　　 　amicable　settlement 8,581

　 　　　　settled　cases 10,453　 79% 　withdrawal 935

　 　　　　now　proceeding 2,796　 21% 　broken　off　negotiations 936

　reject 1

Reported by the Dispute Resolution center as of October 3, 2014

The enforcement situation of the settlement intermediation procedure( ～ September 2014)

Nuclear Liability: Procedure (2)• 1,400 file lawsuit against manufacturers of Fukushima nuclear reactors for only 100 yen

each• Around 1,400 people have filed a lawsuit jointly against the three manufacturers of the

reactors in the Fukushima Dai-ichi nuclear plant. The lawsuit is seeking compensation of only 100 yen (US$1) each in damages caused by the 2011 meltdown. The lawsuit is aimed at raising awareness to the problem of the nuclear disaster and its effects.

• The lawsuit, which was filed at the Tokyo District Court, is of landmark proportions as it sets a precedent against the manufacturers’ immunity on having any liability in the event of nuclear accidents. Current regulations dictated that only the plant’s operator is liable for any damages caused. Combined with 1,000 Japanese nationals, around 400 people from countries and all over the world comprised the plaintiffs that claim the three manufacturers – Toshiba, GE and Hitachi, failed to complete necessary adjustments to the safety of the reactors, which has been in use since 1971. (Japan Daily Press, Jan 31, 2014)

• Channeling clause in the Compensation Act is allegedly to be null and void because it is contrary to the constitutional rights of people, including the right to property, the right to have a fair trial and the right to pursue happy life, etc..

14

Nuclear Liability: Procedure (3)

15

The Japanese Nuclear Liability Regime and the TEPCO Fukushima Daiichi Accident11 December 2013,Toyohiro NOMURA, Taro HOKUGO, p10.

Nuclear Liability: International Aspect (1)• Lindsay Cooper et al. v. Tokyo Electric Power Company (U.S. District Court, Southern

California)

• This is the case, before the Southern district court of California, brought in December 2012 by 8 US military servicepersons who had participated in the rescue operation after 3.11 earthquakes, which was called at that time “friendship” operation. They were asserting to be suffered health and mental damages by TEPCO’s negligence of not informing them risks on the place where they were operating. The total amount of their claims was 210 million US dollars.

• On 26 November 2013, United States federal judge based in San Diego, California, dismissed the lawsuit mainly on the ground that it was beyond her authority to determine whether the operator and the Japanese government had committed fraud against the American military and government.

• Following the dismissal, on 6 February 2014, the case was refiled before the same court as a class action, claiming one billion US dollars for economic and non-economic damages, punitive damages and costs of the suit, etc..

16

Nuclear Liability: International Aspect (2)• Convention on Supplementary Compensation for Nuclear Damage

• Article I Definitions• f. "Nuclear Damage" means:• (i) loss of life or personal injury;• (ii) loss of or damage to property; • and each of the following to the extent determined by the law of the competent court:• (iii) economic loss arising from loss or damage referred to in sub-paragraph (i) or (ii), insofar as not included in those

sub-paragraphs, if incurred by a person entitled to claim in respect of such loss or damage;• (iv) the costs of measures of reinstatement of impaired environment, unless such impairment is insignificant, if such

measures are actually taken or to be taken, and insofar as not included in sub-paragraph (ii);• (v) loss of income deriving from an economic interest in any use or enjoyment of the environment, incurred as a result of

a significant impairment of that environment, and insofar as not included in sub-paragraph (ii);• (vi) the costs of preventive measures, and further loss or damage caused by such measures;• (vii) any other economic loss, other than any caused by the impairment of the environment, if permitted by the general

law on civil liability of the competent court,

• in the case of sub-paragraphs (i) to (v) and (vii) above, to the extent that the loss or damage arises out of or results from ionizing radiation emitted by any source of radiation inside a nuclear installation, or emitted from nuclear fuel or radioactive products or waste in, or of nuclear material coming from, originating in, or sent to, a nuclear installation, whether so arising from the radioactive properties of such matter, or from a combination of radioactive properties with toxic, explosive or other hazardous properties of such matter.

17

Nuclear Liability: International Aspect (3)• Convention on Supplementary Compensation for Nuclear Damage of 1997: Five States

have made ratification of this convention (USA, Romania, Morocco, Argentina and most recently, on 7 July 2014, United Arab Emirates, but not yet entry into force.)

• Article XIII Jurisdiction: 1. Except as otherwise provided in this article, jurisdiction over actions concerning nuclear damage from a nuclear incident shall lie only with the courts of the Contracting Party within which the nuclear incident occurs.

• Article XVII Signature: This Convention shall be open for signature, by all States at the Headquarters of the International Atomic Energy Agency in Vienna from 29 September I997 until its entry into force.

• Article XVIII Ratification, Acceptance, Approval• 1. This Convention shall be subject to ratification, acceptance or approval by the signatory• States. An instrument of ratification, … shall be accepted only from a State which is a

Party to either the Vienna Convention or the Paris Convention, or a State which declares that its national law complies with the provisions of the Annex to this Convention, …

18

Conclusion

19

• There have been considerable developments in the Japanese Safety / Liability regimes!

• Nuclear Safety: the establishment of an independent and stronger regulatory organization, the adoption of stricter regulatory requirements, and the introduction of backfitting to existing nuclear plants.

• Nuclear Liability: Financial Assistance through Nuclear Damage Compensation Facilitation Corporation, Dispute Reconciliation Committee for Nuclear Damage Compensation: Guidelines and Mediation, and Towards Japan’s ratification of the CSC.

• But there remain a lot of challenges, so that the prospects are unclear…• Nuclear Safety: stabilization of the site status of TEPCO’s 　 Fukushima Daiichi NPS,

treatment of contaminated water, implementation of 　 backfitting measures and improvement in safety, the enhancement of operators’safety culture through an ongoing dialogue, improvement of the management system and human resources development, and the enhancement of inspection functions.

• Nuclear Liability: Lawsuits against the Japanese government and even manufactures, Argument to reconsider the unlimited operator’s liability, and Long road to conclude the conclusion of the CSC: approval of the Diet, signature, review and revise of the Japanese Liability regime, declaration on the national law’s compliance with the Annex, notification of ratification to the Director General of IAEA, and possible entry into force of the CSC…

Thank you very much for your attention!

20