THE INTERNATIONAL REGULATION OF NUCLEAR SAFETY

The Nuclear Energy Agency

Discussions with senior officials of the NEA in Paris were wide ranging and included discussion of the safety performance of nuclear power stations.  The experience of Ontario Power Generation (OPG) in the mid- 90s with the decline in the performance of its stations was mentioned as one of the triggers for the NEA move towards development of a set of safety performance indicators.  The goal of the program is to develop a means of detecting the early signs of a drop in performance, so that remedial action can be taken before the situation deteriorates to the extent that plants need to be shut down.  Work is still underway on this project.

NEA officials noted that, over the past few years there has been a general trend towards improved safety performance in the world’s nuclear reactors, including those in Canada.  Enhanced attention to safety issues following the Chernobyl accident along with the efforts of organizations such as WANO (World Association of Nuclear Operators), the NEA and the IAEA are having an impact.  Committee members and NEA officials discussed the agency’s role as a forum for discussion and consensus building on key safety issues as input to decisions by member governments on nuclear energy.  The agency is particularly involved with nuclear regulators in member countries.  In light of recommendations made by the Committee in its interim report regarding concerns about seismic issues at the Pickering site, members were particularly interested in hearing that the NEA is looking at a number of related issues. For example, the Committee heard that the agency is now carrying out assessments of whether the seismic safety margins (as determined by the Seismic Margin Assessment methodology) of older reactors are sufficient to meet new seismic safety standards.  The NEA is also working with member countries to find a consensus on how useful PRAs (Probabilistic Risk Assessments) are in predicting seismic risks.  These are both issues raised by this Committee in its interim report and we eagerly await the outcome of these discussions.

 Also of great interest to the Committee was the involvement of the NEA in promoting international discussions, and where possible reaching consensus, on such important issues as the impact on nuclear safety of the emerging competitive market for electricity, preserving the necessary safety culture in nuclear power plant operation, and ensuring the future supply of technically qualified personnel in the nuclear field.  Officials provided Committee members with many useful publications in these areas including, but certainly not limited to such titles as Nuclear Regulatory Challenges Arising from Competition in Electricity Markets, Regulatory Aspects of Life Extension and Upgrading of NPPs (Nuclear Power Plants), and Assuring Future Nuclear Competencies.

With respect to safety culture, Committee members raised the issue of testing nuclear plant operators for drugs and alcohol.  Officials commented that mandatory drug and alcohol testing is a complex issue that touches on human rights and labour code provisions, which vary from country to country and are strongly held as sovereign responsibilities.  As such there are no specific international standards in this area.  Committee members feel strongly about the need to address this issue at home and on the international scene.  On the domestic level, the Committee made the following recommendation in its interim report on nuclear reactor safety.  We believe it is important to re-iterate it here: 

The Committee recommends that in the interests of public safety, the Government of Ontario and the Federal Government consider amendments to human rights legislation that would permit drug and alcohol testing of workers in areas critical to public safety.  In the meantime, the Committee recommends that representatives of union and management at OPG give priority to establishing a program for alcohol and drug testing that does not contravene existing law.

The Committee regrets that the international community has not yet developed a consensus on the importance of promoting and standardizing such testing.  It seems paradoxical that, airline pilots, as well as some truck drivers are randomly screened for drugs and alcohol in the interest of public safety, but those in charge of safely operating a nuclear power plant are not.  The Committee sees this as a serious gap in the safety culture, especially when one considers that more damage could be done to the environment and to the population by a serious runaway nuclear reaction and/or explosion resulting from operator error (see Chernobyl) than would result from a terrorist flying an airplane into a reactor building.  The Committee would like to see the problem addressed at the international, as well as the national level, and urges the NEA to consider taking up the issue.

The International Atomic Energy Agency

In Vienna at the IAEA, Committee members met with senior agency officials, and the issue of international safety standards and their regulation was discussed at some length.  It was noted that, while nuclear safety and safety standards have historically been a relatively small part of IAEA efforts (when compared to its verification work), the situation has begun to change.  The regulatory bodies of individual countries still make the final decisions regarding nuclear safety standards, but they are looking increasingly to the IAEA as a forum for developing a consensus on internationally accepted standards.  In fact, the Committee was told, that the IAEA’s Commission on Safety Standards, with which Canada is fully involved, has already set about seventy separate safety standards for various nuclear applications.  In addition, the IAEA has produced another 200 publications related to nuclear safety, ranging from guides, to lists of requirements for meeting international obligations such as those of the Convention on Nuclear Safety, to fundamental information related to radiation safety.

While there is obviously already a large body of internationally agreed upon safety standards, there is as yet no mandatory oversight of their implementation.  Many countries, including Canada, do, however, use the international standards as the basis for domestic standards.  Committee members discussed with the officials the possibility and advisability of developing binding international standards under the aegis of the IAEA.  It was noted by several officials that the nuclear industry appears interested in having an international regulatory regime (i.e. binding international safety standards) but “we are not there yet”.

Another member of the IAEA staff had a different view of the advisability of having the IAEA act as the international regulator.  She noted that it is not now the agency’s mandate to be the “world’s policemen” and that this is probably a good thing, as it maintains the credibility of the IAEA.  The agency offers a number of services to member states including detailed reviews of nuclear power plant operational safety carried out by experts from member countries who make up an Operational Safety Review Team (OSART).[8]  In this official’s view, “When you are not the police, people don’t hide things from you.” By maintaining the trust of nuclear operators, the IAEA gains access to all of the information it needs to make a thorough assessment of the operational safety of the reactors it is asked to examine.  Both points of view have merit, so perhaps the answer lies in having the IAEA maintain its current mandate, and creating a separate regulatory agency to act at the international level.

In its report Nuclear Safety Review for the Year 2000, the IAEA identified the issue of international safety standards as one of the safety related issues that will likely be prominent in coming years.  They state as one rationale for believing that this issue will have to be addressed, the increasing globalization of business.  As this continues, differences in national safety standards are becoming more and more of an issue.  Differing radiological criteria for commodities and foreign ownership of nuclear power plants where the standards of the country of the owner differ from those of the country in which the plant is operated are cited as examples of trade problems that could arise.  While not going so far as to advocate an international regulatory regime, the IAEA acknowledged, “…that states will begin to identify those issues for which international harmonization of safety standards would be beneficial.  With respect to those issues, the IAEA would be the natural focal point for establishing harmonized safety standards.” [9]  The Committee believes that competition and overall nuclear safety would be well served by moving towards an international regulatory regime.

Recommendation 11:
The Committee recommends that Canada support and promote the development and implementation of an international, nuclear safety regulatory regime to oversee binding international standards.

The mention of the OSART (Operational Safety Review Team) inspections in the above noted discussions led to further dialogue concerning this service that the agency can provide to member states.[10]  OSART reviews of the operational safety of a nuclear plant have to be requested by the regulatory body in a member state.  The IAEA cannot decide on its own which reactors to examine, nor when or how often to carry out assessments.  Officials mentioned that some countries such as France make great use of the service, requesting that one of their reactors be assessed every year.  In 2001 six OSART appraisals were completed including at least one each in France, the United States, China and the Czech Republic.  Comments were also made to the Committee about the apparent reluctance of Canada to request OSART reviews, although it was acknowledged that there have been numerous comparable reviews of Canadian reactors by the World Association of Nuclear Operators (WANO).

Recommendation 12:
The Committee recommends that every Canadian nuclear power generating station be routinely subjected to one WANO review and one OSART review every five years.

The Committee also heard that despite the fact that Canadian experts frequently participate in OSART reviews, only once has Canada availed itself of this service - for a 1987 OSART at Pickering.  Discussions centred on possible reasons and on the fact that perhaps if Canada had requested more OSART reviews in the past, the Canadian public would not now be so sceptical of industry claims about the safety of Canadian reactors.  It was also noted that Canada could set a good example for other countries, including eastern European countries, by seeking independent OSART assessments. 

The Committee agreed with this reasoning and recommends that Canadian nuclear operators consider requesting the IAEA to conduct OSART and other safety related assessments of their nuclear power stations.  Upon its return to Canada the Committee was pleased to learn that the Canadian Nuclear Safety Commission (CNSC), with the full co-operation and support of Ontario Power Generation (OPG), has already requested that the IAEA conduct an OSART evaluation of the Pickering A Nuclear Generating Station.  If current plans are realized, the international review team will conduct its on-site work in late 2002.  The Committee commends the CNSC and OPG for taking this proactive approach and acknowledges the regular use that OPG and other Canadian operators have already made of WANO peer reviews.  In order to address public concerns and scepticism about the safety of nuclear power, we make the following recommendation:

Recommendation 13:
The Committee recommends that the complete results of all IAEA and WANO safety assessments conducted on Canadian nuclear power stations be made available to the public.

Nuclear Law and Liability

In its interim report on nuclear reactor safety, the Standing Senate Committee on Energy, Environment and Natural Resources reported on the status of nuclear liability coverage in Canada.  The Nuclear Liability Act calls for operators to carry a minimum of $75 million (Canadian) in liability insurance.  If damages beyond that amount occur, the federal government must cover costs.   The amount of coverage is far below the international standards and the Committee urged the federal government to quickly address this issue by amending the Act.  Nothing that Committee members heard in our meetings with the NEA or the IAEA changed this view.  In fact, the sense of urgency in bringing Canadian legislation up to date was magnified.  The Committee therefore, reiterates its earlier recommendation:

The Committee recommends that the government take immediate action to amend the Nuclear Liability Act, and increase and maintain the mandatory operator held insurance coverage from the current 75 million dollars at an amount in line with the Paris and Vienna Conventions "over 600 million dollars".

While visiting the Nuclear Energy Agency in Paris, the Committee was briefed on the complex, interwoven set of international conventions governing nuclear liability insurance in Europe.  There are several conventions governing liability and they have been amended and supplemented a number of times over the years.  In fact, the major conventions are being updated again at the present time, and the level of coverage will, in all likelihood, soon be increased (to Can$3 billion), putting Canada’s inadequate coverage (Can$75 million) in an even worse light than before.  The level of coverage may not have been as significant in the past when all nuclear power plants where publicly owned.  However, it becomes more of an issue as countries including Canada move towards private ownership. The following paragraphs present a brief history of nuclear liability conventions in Europe and in North America.

From the early days of the development of the nuclear industry it was clear that the peaceful uses of nuclear power carried risks, which because of their potential magnitude and nature would not be adequately addressed by tort law.  Such law had been developed to cover conventional industrial risks.  In the event of a nuclear accident, these laws might actually prevent a victim from easily determining who was liable for any damages.  European states that were promoting the use of stand-alone nuclear power plants wanted to ensure adequate financial compensation would be available for victims in the event of an accident and so developed a special multi-national (i.e. European) nuclear liability regime.

The first instrument to be put in place was the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, known as the Paris Convention.  It was developed under the aegis of the OECD and incorporated a number of principles that would govern nuclear liability law.  Canada’s own Nuclear Liability Act is based on the same principles.  They are:

Ø      the strict liability of the nuclear operator for third party damage;

Ø      the exclusive liability of the nuclear operator for third party damage;

Ø      a limitation on the nuclear operator’s liability both in time and amount;  

Ø      the nuclear operator’s obligation to cover its liability by insurance or other financial security;  

Ø      the application of the Convention without discrimination based on nationality, domicile or residence; and  

Ø      channelling jurisdiction to the courts of the contracting party (country) where the incident occurred.[11]

As already noted, the Paris Convention is a regional (European) one, with fourteen western European countries as Contracting Parties.  It has been amended a number of times, including the 1963 Brussels Supplementary Convention.  Under the terms of the Paris/Brussels regime a three-tier system of funding is provided.  The first tier is the nuclear operators liability of at least 5 million SDR[12] (Can$10 million).  The second tier is the difference between the operator’s liability and 175 million SDR (Can$ 350 million), to be paid by the public funds in the country where the incident occurred.  Tier 3 is an amount equal to 300 million SDR, which is roughly equivalent to Can$600 million, to come from contributions made by all of the countries that are parties to the Convention.  The current discussions to revise this regime are looking to increase the total available compensation to approximately 1.5 billion SDRs (Can $3 billion).

The second major instrument in the nuclear liability regime is the Vienna Convention on Civil Liability for Nuclear Damage.  It was established by the IAEA in May 1963 in hopes that it would become a truly international, worldwide regime. It is based on the same principles as the Paris Convention.  Thirty-two countries are party to this convention including many that have no nuclear power reactors.  Countries from Europe, Central and South America, the Former Soviet Union, and Africa have signed this Convention. Despite its objective to do so, the Vienna Convention has not evolved into a truly worldwide liability regime.  In fact, it has been noted that “…those nuclear power generating countries that do not belong to the Paris Convention or the Vienna convention account for more than half of world-wide installed capacity.”[13]  Included in this number are Canada, Japan, Korea, the Russian Federation and the United States.[14]

Like the Paris Convention, the Vienna Convention has been amended since coming into force to increase the liability coverage.  In 1997, an Amending Protocol brought the minimum liability up to 300 million SDR (Can$ 600 million).  It also broadened the definition of “nuclear damage” to include damage to the environment, economic loss and the concept of preventative measures and consequential losses.  These changes were a result of the experience associated with the accident at Chernobyl.

Even before the Vienna Convention was amended, the realization of possible legal conflicts and complications arising from having two conventions, with some countries Party to both, and some to only one, led both the NEA and the IAEA, at different times, to suggest a Joint Protocol.  The final impetus to getting such a joint agreement came with the accident at Chernobyl.  It pointed sharply to the regional and international nature of damage from a major nuclear accident and the need for a comprehensive liability scheme.  In 1988, the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention was adopted.  The protocol extended to any state that was party to one of the Conventions, coverage provided under the other. 

Following the accident at Chernobyl, the international community also realized that compensation provided for under existing conventions, even as amended, would be inadequate in the event of another such incident.  As a result in 1997, after much negotiation, the IAEA Standing Committee on Civil Liability for Nuclear Damage adopted the Convention on Supplementary Compensation for Nuclear Damage, a stand-alone convention to which any State could become a Party whether or not they were also parties to the Paris and/or Vienna Conventions.  The new convention has a two-tier system.  Tier 1 compensation will come from the 300 million SDR (Can$600 million) minimum coverage to be provided by the operator or the Installation State (or combination, depending on national legislation).  Tier 2 compensation will come from an international fund to which all Contracting Parties will contribute.  Its size will depend on the number and type of States that eventually ratify the agreement; however, if most nuclear generating States sign on, it is expected to be about the same size as the Tier 1 fund.  The Convention also spells out in detail how the funds are to be distributed (to cover victims both in and outside of the country in which the incident takes place).  The United States and nine other countries have signed, but not yet ratified, this Convention.  Canada is still considering its participation. Only three countries-Argentina, Romania and Morocco- have so far ratified the agreement.  

Committee members and officials from the NEA also discussed the North American situation with regard to nuclear liability.  Concern was expressed about the huge difference between the levels of liability coverage in our two countries.  In the U.S., the Price Anderson Act caps commercial nuclear operator liability at US$ 9.4 billion nationally.  Operators must carry US$200 million of private, primary insurance on each reactor as well as US$88 million per reactor in “second level” insurance.  This legislation is set to expire in August 2002 and its renewal has been hotly debated in Congress over the past year.  The House of Representatives has already voted to extend the Act for a further fifteen years.  On March 7, 2002 the Senate approved the extension of the Act for a further ten years.  This proposal will now form part of the comprehensive energy legislation.  Since the Bush energy plan calls for an increased reliance on nuclear power in the future, it is unlikely that there will be any major changes to the legislation or the proposed extension, although critics continue to argue that no other industry receives such protection from financial risks.[15]  The level of coverage (US$9.4 billion) is especially upsetting to some critics in light of a 1982 U.S. study that predicted the cost of a worse case scenario accident at a nuclear reactor could range from US$24.8 to US$590 billion.[16]

Contrasting this required coverage of US$9.4 billion to the Canadian legislation that only requires operators to carry insurance for Can$75 million in the event of an accident confirms the urgent need to update our law.  Canada and the United States have signed a Memorandum of Understanding establishing a reciprocal arrangement in the event of a nuclear accident in one country having an impact on the other.  Under subsection 34 (2) of the Nuclear Liability Act Canada has recognized the United States as a reciprocating country for purposes of the Act.  The United States has undertaken to pay compensation to Canadian victims of an accident in the U.S..  Despite this agreement, perhaps it is time to give serious consideration to a formal North American Convention, similar to the Paris or Vienna Conventions. 

Recommendation 14:
The Committee recommends that the federal government explore with the governments of the United States and Mexico, the possibility of establishing a North American Convention on Nuclear Liability.

 

Security From Terrorism

The terrorist attacks on the United States on September 11^th   have raised concern around the world about the potential for a similar attack on a nuclear power plant, and the consequences of such an attack.  Committee members raised the issue during meetings with both the NEA and the IAEA.  Officials at the NEA commented that, in most of its member countries, reactor containment structures were designed to withstand the impact of the accidental crash of a commercial jetliner.  At the time most of these reactors were constructed, the typical commercial jetliner was the size of a Boeing 707.  The deliberate crashing of a fully fuelled jet the size of those that hit the World Trade Centre was never envisioned.  The Committee was told that NEA members were in the process of debating what additional actions could and should be taken to decrease the potential for such an attack.  They noted that, in the end, many of these decisions would be political rather than technical.  For example, how will the defence departments in various countries defend reactors against attack?  Much of the information surrounding this issue remains, not surprisingly, classified.  All NEA member countries have stepped up security measures around their nuclear power plants and all have emergency plans in place. 

Committee members also discussed the issue of security from terrorism with officials from the IAEA.  Part of the safeguards mandate of the IAEA is support for the physical protection of nuclear material.  Protection of nuclear facilities from terrorist attack is a part of this broader mandate.  With the Committee’s visit coming so soon after the events of September 11, officials noted that much of the international response was still under active discussion.  In fact, officials told the Committee that the agency would be hosting a major international conference on the topic several weeks after our meetings.   The International Symposium on Nuclear Safeguards, Verification and Security was held in Vienna from October 29 to November 2, 2001.  A special session was held on the last day of the conference focussing on nuclear terrorism and measures to improve the national and global regimes for protecting nuclear materials and facilities against potential threats.

The Director General of the IAEA, Mohamed ElBaradei is quoted a saying “The willingness of terrorists to commit suicide to achieve their evil aims makes the nuclear terrorism threat much more likely than it was before September 11^th.”[17]  In the past, the greatest threat of terrorism at a nuclear power plant was expected to come from within – from someone working at the station sabotaging the safety systems, for example.  This is still a greater threat than an external attack, although the September 11^th attacks have temporarily shifted the focus to external threats.  It should be remembered, however, that the devastation caused by a runaway nuclear reaction and/or explosion (i.e. a nuclear reactor “blowing itself up”) would be far greater than that caused by an external attack with an airplane or a truck bomb (someone else “blowing up” the reactor.)

In a Press Release issued on 1 November 2001 the IAEA pointed out that the nuclear power industry has always been subject to a higher level of security and protection than any other industry. 

“From its inception, the nuclear industry has been keenly aware of the dangers of nuclear material falling into terrorist's hands. At all levels - operator, State and international - there is a complex infrastructure at work to ensure nuclear material is accounted for; safeguarded from diversion; and protected from theft and sabotage.  However, like other large industrial complexes, they are not “hardened to acts of war.” [18]

One of the themes that emerged in the Committee’s discussions on reactor security with IAEA officials was the growing recognition that, as in the case of nuclear reactor safety, the issue of nuclear reactor security from terrorist attack is an international one.  The radioactivity that could be released by such an attack would not recognize national boundaries.  As the Director General of the IAEA said following the September 11^th attacks, “An unconventional threat requires an unconventional response, and the whole world needs to join together and take responsibility for the security of nuclear materials.”[19] 

Since September 11^th increased scrutiny is being given to the concepts of international standards, oversight and regulation of security measures in member countries.  The IAEA already has an international convention that addresses the security issue, but the Convention on the Physical Protection of Nuclear Materials (CPPNM) is seen by some as having shortcomings, which, especially in light of the September 11^th attacks, need to be strengthened.  For example, at the present time the CPPNM, to which Canada is a Party, is limited to setting out the standards that must be met to protect nuclear materials in international transport against theft.  It does not set out requirements for the physical protection of nuclear materials in domestic use, storage or transport and does not require protection against sabotage, including that by terrorists.[20]  (This does not imply that individual countries have no such protection requirements, but refers only to the international regime.) 

The Agency has been working with member countries for some time to amend the Convention, but recent events in the U.S. have added a sense of urgency to the task.  One paper presented at the special session of the IAEA Symposium urged the upgrading of IAEA standards for physical protection of nuclear materials and the “…institution of some form of cooperative, reciprocal international oversight over national physical protection programs.”[21]   It was suggested that the Convention on Nuclear Safety be used as a model.  As part of this convention, countries agree to report to the international community, through the IAEA, every two years on how they are meeting the safety standards set out in the convention.  This allows international experts to question countries about their practices and use moral suasion to get all participating countries to live up to their undertakings.  The same approach could be used for the CPPNM.[22]

The Committee also noted with interest that the IAEA is looking at ways to improve its ability to help countries with nuclear facilities but without the means to upgrade security.  To that end the Agency has been looking at establishing an International Fund for Protection Against Nuclear Terrorism.  The agency has already received a (U.S.)$1.2 million contribution from the Nuclear Threat Initiative (NTI)[23] to begin addressing the review of security of nuclear facilities worldwide, identify necessary upgrades and organize donations from Member States to carry out those upgrades.  The IAEA hopes that governments and organizations will contribute generously to this Fund since “This is a global threat that requires a global response.”[24] 

Recommendation 15:
The Committee recommends that the government continue to work closely with the IAEA in this vital work to combat the threat of terrorism against nuclear facilities around the world.