Underground nuclear repositories and international civil liability: the time factor

Abstract

International conventions dealing with civil liability and compensation for nuclear damage which were mostly adopted in the early 60s were primarily designed to apply to accidents likely to occur during the operation of large nuclear installations. Accordingly, they did not take into consideration the particular aspect of the long-term management and disposal of radioactive waste and, obviously, the introduction of a new category of nuclear facility: the underground repositories for spent nuclear fuel and high-level, long-lived radioactive waste which contain material remaining hazardous for quasi-indefinite periods of time. Since, amendments to these conventions partly allow addressing this particular risk but some serious questions remain concerning the ability of the current legal regime to cope with the test of time.

Keywords:

• nuclear law
• liability
• compensation
• damage
• spent nuclear fuel
• radioactive waste
• nuclear repositories

Notes

1. A founding study in this field was the NEA Report on The Long-Term Management of Radioactive Waste – Legal, Administrative and Financial Aspects, prepared under the direction of Pierre Strohl, OECD-NEA, Paris, 1984.

2. (a) Paris Convention on Third Party Liability in the field of Nuclear Energy (29 July 1960), as amended in 1964 and 1982, and in 2004 (2004 Protocol not yet in force), (b) Vienna Convention on Civil Liability for Nuclear Damage (21 May 1963), as amended by a Protocol on 12 September 1997) and (c) Convention on Supplementary Compensation of Nuclear Damage (CSC) (12 September 1997); not in force.

3. ‘The Paris Convention [Art. 1(a) (iii)] defines Nuclear Fuel as “any fissionable material in the form of uranium metal, alloy, or chemical compound (including natural uranium), plutonium metal, alloy or chemical compound, and such other fissionable material as the [OECD-NEA] Steering Committee” may determine’. The Vienna Convention’s definition is more synthetic [Art. I.1.f]: ‘Nuclear Fuel means any material which is capable of producing energy by a self-maintained chain process of nuclear fission’. The CSC uses the same definition as the Vienna Convention (Annex, Art. 1(a)].

4. One advantage of the Paris Convention over the Vienna Convention is that it has benefited since its adoption from the constant attention of a dedicated international body within the Nuclear Energy Agency of the OECD, namely, the Group of Governmental Experts on Third Party Liability in the Field of Nuclear Energy (at present called the NEA Nuclear Law Committee), which explains why the question of the disposal of spent fuel and radioactive waste was addressed first in this context.

5. Michel Montjoie, Droit international et gestion des déchets radioactifs, L.G.D.J, Paris, 2011, p. 295.

6. The Exposé des Motifs of the Paris Convention – an official commentary published by the OECD-NEA in 1964 – states that when Nuclear Substances (covering radioactive waste and irradiated fuel) are stored only as incidental to a transport operation, the facilities used for this purpose are not deemed to be considered as a Nuclear Installation (paragraph 9). The Exposé des Motifs goes on explaining that facilities for the storage of natural or depleted uranium are not to be included in the category of Nuclear Installations, since the level of risk is too low to qualify.

See, respectively, Article 1(a) ii of the 1960 Paris Convention (‘facilities for the storage of nuclear substances other than storage incidental to transport’) and Article I.1.j of the 1963 Vienna Convention (‘any facility where Nuclear Material are stored’). While both definitions have in substance the same effect, it should be noted that the Paris Convention also refers to ‘such other installations in which there are Nuclear Fuel or Waste as the Steering Committee (the NEA’s directing body) shall from time to time determine’. The original text of the Vienna convention had no equivalent provision

7. Decision reproduced in Paris Convention, Decisions, Recommendations, Interpretations; an OECD-NEA publication, Paris, 1990.

8. Perhaps, is it worth noting that the Group of Governmental Experts does not seem to have much considered the question as to whether the risks associated with spent fuel repositories warranted their inclusion in the scope of the Paris Convention. Rather, it took apparently the view that the generic definition of Nuclear Installations required to be extended to this new type of facility.

This is confirmed by the explanatory notice of the 1984 Decision: ‘The Steering Committee, in deciding to include in the definition of “Nuclear Installation” installations for the disposal of nuclear substances, meant to remedy this situation without however prejudging the question of the application of the Paris Convention to the post-closure phase of the repository when operations are completed, the repository is closed and the waste no longer the subject of active surveillance’.

9. The revised Article 1(a) ii reads now as follows: ‘Nuclear Installations means reactors other than those comprised in any means of transport; factories for the manufacture or processing of nuclear substances; factories for the separation of isotopes of nuclear fuel; factories for the storage of nuclear substances other than storage incidental to the carriage of such substances; installations for the disposal of nuclear substances; any such reactor, factory, facility or installation which is in the course of being decommissioned; and such other installations in which there are nuclear fuel or radioactive products or waste as the Steering Committee shall …’.

10. Ibid. Note [5], p. 310 and seq.

11. Article 2.3(b) of the Annex reads: ‘Any civil facility for processing, reprocessing or Storing: (i) irradiated nuclear fuel; or (ii) radioactive products or waste that: (1) result from the reprocessing of irradiated nuclear fuel and contain significant amounts of fission products; or (2) contain elements that have an atomic number greater than 92 in concentrations greater than 10 nano-curies per gram’.

Article 2.3(c) reads: ‘Any other civil facility for processing, reprocessing or storing nuclear material unless the Contracting Party determines the small extent of the risks involved with such an installation warrants the exclusion of such a facility from this definition’.

12. Different from the Paris Convention, where successive amendments were meant to be eventually consolidated into one single regime, the 1997 Protocol to amend the 1963 Vienna Convention constitutes a separate legal instrument and it is likely that the Convention and the Protocol will continue to coexist separately.

13. Quotation extracted from an unpublished paper presented at the 2005 session of the International School of Nuclear Law/ISNL (Montpellier), on the Management of Radioactive Waste and Spent Fuel – A Responsibility towards Future Generations-Ethical, Legal and Financial Problems.