The Standards for the Safety and Security of Nuclear Materials

The release of nuclear materials in the environment through an accident or a terrorist act will generate havoc for human health and the environment. The international community has enacted a number of instruments to ensure the safety and security of nuclear materials.

Nuclear Safety

Nuclear safety is one of IAEA’s top concerns and the Convention on Nuclear Safety[1] was negotiated under its auspices. The convention is the first international convention that addresses the safety of land-based nuclear reactors (it does not apply to military and marine power reactors).[2] The fundamental tenet of the convention is that responsibility for nuclear safety rests with the state that has jurisdiction over a nuclear installation. Each state shall “ensure that prime responsibility for the safety of a nuclear installation rests with the holder of the relevant licence and shall take the appropriate steps to ensure that each such licence holder meets its responsibility.”[3] Each state must establish a legislative framework and an independent regulatory body for nuclear energy.[4] Safety within a state is ensured through a system of licensing of operators of nuclear plants coupled with inspections and enforcement.[5] The implementation of the treaty is based on persuasion that is reinforced during the peer review meetings.[6] The peer review meetings have been considered effective because of the information exchange among states and the opportunities provided to them to self-assess their performance.

In addition to the peer review process that is mandatory for state parties to the Convention on Nuclear Safety, the World Association of Nuclear Operators (WANO) has adopted its own review process. The WANO “was formed in May 1989 by nuclear operators world-wide uniting to exchange operating experience in a culture of openness, so members can work together to achieve the highest possible standards of nuclear safety.”[7] The WANO performs peer reviews of nuclear power plants at the request of operators of such plants. An international team consisting of professionals from other nuclear plants — peers of the staff at the nuclear station reviewed — conducts the review. The peer review team evaluates the nuclear plant performance based on specific criteria and performance indicators. The peer review process focuses on all aspects of the organization and function of a nuclear power plant including administration, operations, maintenance, engineering support, radiological protection, operating experience, emergency preparedness and safety culture. At the end of the peer review process, a confidential report is forwarded to the utility identifying strengths and areas for improvement. The confidentiality of the report is important because it ensures the free exchange of information between the peer review team and the plant operator.  The peer review process seems to be working. Nuclear power plants concerned about their reputation like to benchmark their performance based on objective indicators.[8]

Most utilities operating nuclear power plants have strong operating experience and tend to analyze even low-level events and near-misses. The analysis of such events and reasons they take place is a good way to establish a culture of alertness that should help prevent a major nuclear calamity.[9] Despite improvements in safety, the IAEA is still concerned that national programs do not investigate all the low-level and near-misses events. At the international level, most members of the IAEA report only a fraction of the unusual events that take place in nuclear power plants.[10] Avoiding the risk of a nuclear accident requires endless vigilance, high technical competence and a constant fight against complacency. It requires also a culture willing to derive lessons learned from small incidents to avert large-scale contamination accidents,[11] like the one at Fukushima. The IAEA has emphasized that safety features must be incorporated into the design of nuclear power plants.[12] Nuclear power facilities must have in place a “defense-in-depth.”[13] Defense-in-depth is achieved by a combination of consecutive and independent levels of protection (defense barriers) that would have to fail before radiation reaches people and the environment. The assumption made here is that it is highly improbable that all defenses would fail simultaneously. Therefore, it is highly unlikely that radiation would reach people and the environment.[14]

Physical Protection of Nuclear Material

The Convention on the Physical Protection of Nuclear Material (CPPNM)[15] was adopted to ensure that any material imported or exported for peaceful purposes would receive physical protection based on international standards. The CPPNM covers weapons useable material[16] and includes several preventive measures that must be employed during international transport. States are not allowed to export, import or allow the transit of nuclear material through their territories unless the material is protected under the rules provided in Annex I of the treaty.[17] Annex I divides nuclear material into three categories prescribing for each category measures that must be taken for transport. Category I measures are the most stringent since the materials included in that category are the most hazardous.[18] States are requested to make known to other states their central authority and point of contact that has the responsibility for the protection of nuclear material and for coordinating recovery and response operations in the event of unauthorized removal or a credible threat.[19] States are to inform, coordinate and exchange information in the case of theft, robbery or any other unlawful taking of nuclear material.[20] The convention makes certain acts criminal including illegal acquisition, possession, and use of nuclear material in international and domestic transit or storage.[21]

In 1999, states parties to the convention indicated that a review was necessary to safeguard further radioactive material.[22] The amendment to the convention, now entitled Convention on the Physical Protection of Nuclear Material and Nuclear Facilities,[23] is an attempt to deal more decisively with the problems of nuclear terrorism and sabotage.[24]

The goal of this convention is to achieve and maintain worldwide effective physical protection of nuclear material/facilities used for peaceful purpose and to prevent and combat offenses relating to such material and facilities worldwide.[25] While the 1980 convention applied to “nuclear material used for peaceful purposes while in international transport,”[26] the 2005 amendment applies “to nuclear material used for peaceful purposes in use, storage and transport and to nuclear facilities used for peaceful purposes.”[27]

States are to establish, maintain and implement the appropriate legislative and regulatory framework.[28] The principles governing that framework include:

• state responsibility for establishing a physical protection regime for nuclear materials and facilities;
• responsibilities of states during international transport (i.e., specifying when responsibility  for nuclear material is transferred to an importing state);
• establishment of a regulatory authority and the independence of such authority  vis-a-vis any  other bodies in charge of the promotion of nuclear energy;
• primary responsibility of license holders — responsibility rests with the holders of relevant licenses and other authorizing documents;
• maintenance of a security culture;
• a graded approach to physical protection that has to do with the evaluation of the threat, the attractiveness of the material, and potential consequences associated with the unauthorized removal of the material or with sabotage;
• several layers of defense (technical, personnel, organization) that have to be defeated in order to achieve the objective of obtaining nuclear material;
• quality assurance programs in order to create confidence that the requirements of physical protection are satisfied;
• emergency plans to respond in the case of an unauthorized removal; and
• the principle of confidentiality of information.[29]

Additionally cooperation, exchange of information and assistance must be established among states in case of a credible threat of sabotage of nuclear material or facilities or of actual sabotage.[30] Overall, while the amended convention is an improvement over the prior treaty it does not contain specific standards that could be directly incorporated into state legislation.

The IAEA Recommendations on the Physical Protection of Nuclear Material were issued in 1999.[31] They touch on many aspects of nuclear safety but they are short on details that must be filled in by states. The IAEA recommendations, for instance, provide that states must develop a design basis threat (DBT) for all their nuclear facilities. This DBT determines the level of preparedness needed to stop the unauthorized access to nuclear facilities. According to the IAEA, “a design basis threat developed from an evaluation by the State of the threat of unauthorized removal of nuclear material and of sabotage of nuclear material and nuclear facilities is an essential element of a State’s system of physical protection. The State should continuously review the threat, and evaluate the implications of any changes in that threat for the levels and the methods of physical protection.”[32]

It has been suggested that instead of leaving it up to states to establish the DBT, the IAEA could recommend that all Category I material, that is the most radioactive material, should have functioning security systems that will defeat the threat of unauthorized removal of nuclear material. The DBTs can differ from one member state to another but, at a minimum, category I material should be protected from: two small teams of well-armed and well-trained outsiders who have at the same time access to inside information (about the functioning of the security system and the location of radioactive material); or one or two well-positioned insiders; or both outsiders and insiders working together.[33]

Furthermore, for category I material, the IAEA recommends that: “A 24-hour guarding service should be provided. The guard force or the central alarm station personnel should report at scheduled intervals to the off-site response forces during non-working hours. Guards should be trained and adequately equipped for their function in accordance with national laws and regulations. When guards are not armed, compensating measures should be applied. The objective should be the arrival of adequately armed response forces in time to counter armed attacks and prevent the unauthorized removal of nuclear material.”[34] It is not detailed, in that paragraph, what the compensating measures in lieu of armed guards may include and states are to decide on their own about the alternative compensating measures.[35]

Overall, the IAEA physical protection standards are objective-oriented.[36] Recommendations that would prescribe all technical details of a physical protection system would be too restrictive for states with different levels of development. If states made a genuine effort to meet the objectives prescribed by the IAEA recommendations, instead of using the occasional lack of specificity to justify lax implementation, nuclear security would have increased all over the world. In other words, creating rigid international standards is not the key to nuclear safety. The question is how to promote a culture that makes the establishment and implementation of standards an urgent matter for states that have radioactive material that can be useful to terrorists. As long as this lack of urgency pervades national systems, states are unlikely to throw their weight behind the further development and application of safety and security standards.

Safety of Irradiated Nuclear Fuel Cargo

The International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships (INF Code)[37] became mandatory on January 1st, 2001 by amending the SOLAS Convention.[38]
The code sets the standard for the transport of:

• Irradiated nuclear fuel used in nuclear power plants;
• Plutonium that results from reprocessing; and
• High-level radioactive wastes.[39]

The INF code applies to all ships regardless of date of construction and size, including cargo ships of less than 500 gross tonnage provided they carry the type of materials of INF cargo. The INF code does not apply to warships, naval auxiliary or other ships used only on government non-commercial service, although states are expected to ensure that such ships comply with the code. The code addresses a variety of issues that have to do with the safety of INF cargo such as fire protection,[40] emergency plans,[41] radiological protection equipment[42] and the control of temperature of cargo spaces.[43] Ships carrying INF cargo are assigned to one of three classes, depending on the total radioactivity of INF cargo carried on board, and regulations vary according to class.[44]

Liability for Nuclear Accidents

It can just take an accident for the nuclear energy industry to fall back to the dark ages and many have argued that the Fukushima is just such an accident. A number of international treaties deal with nuclear accidents. The Convention on Early Notification of a Nuclear Accident adopted in 1986, following the Chernobyl nuclear accident, establishes a notification system for nuclear accidents that may have transboundary effects.[45] States must report nuclear accidents and notify other states about an accident’s location, time, radiation releases, and other effects. Other international conventions establish liability rules for operators of nuclear installations for the damage to humans, property and the environment caused by a nuclear incident.[46] The treaties impose strict and limited liability on the operator of a nuclear power plant. In addition, a fund sponsored by states is to supplement the operator’s liability.[47] Liability rules have been established also for the operators of ships that carry radioactive cargo.[48]

The safety and security standards if implemented conscientiously by states could do much to avert nuclear accidents like Fukushima and impose controls on the release of radioactivity when such accidents occur. The matter of truth is, though, that no matter the number of safety and security standards it is difficult to replace the vigilance of the IAEA, states and private actors. This is why when such actors attempt to subvert the existing regulatory system the enforcement response should be decisive.

Endnotes

1. Convention on Nuclear Safety,1994, reprinted in IAEA Doc. INFCIRC/449 (July 5, 1994), 1963 UNTS 293, 33 ILM 1514 (1994). It entered into force on October 24, 1996.
2. Nuclear installation under the convention means any land-based civil nuclear power plant including storage, handling and treatment facilities for radioactive materials located on the same site and directly related to the operation of a nuclear power plant.  A nuclear power plant ceases to be a nuclear installation when all nuclear fuel elements have been removed permanently from the reactor core and have been stored safely in accordance with approved procedures, and a decommissioning programme has been agreed to by the regulatory body. See art. 2(i), id.
3. Art. 9, id.
4. Art. 8, id.
5. Art. 7, id.
6. Art. 22, id.
7. See Homepage of WANO http://www.wano.info/.
8. See http://www.wano.info/programmes/peer-reviews/.
9. IAEA, Nuclear Safety Review for the Year 2008, at 12, IAEA Doc. GC(53)/INF/2 (July 2009).
10. Id. at 13.
11. Id.
12. See, e.g., the Multinational Design Evaluation Programme (MDEP) available online http://www.nea.fr/mdep/welcome.html. The MDEP is a multinational initiative. The goal of the initiative is to create innovative approaches that will be useful to national regulatory authorities when they are reviewing new reactor power plant designs.
13. See IAEA Safety Standards for Protecting People and the Environment, Fundamental Safety Principles, at 13 (Safety Fundamentals, No. SF-1, 2006). The standards establish that: the primary responsibility for safety rests with the person or organization who is responsible for activities or facilities that give rise to radiation risks; an independent regulatory body must be established (independent from a licensing body) that would regulate radiation risks; protection must be optimized to provide the highest level of safety that can reasonably be achieved; and all practical efforts must be undertaken to prevent and mitigate nuclear or radiation accidents.
14. Id.
15. Convention on the Physical Protection of Nuclear Material, 1980, reprinted in IAEA Doc. INFCIRC/274/Rev.1 (May 1980) [hereinafter Initial CPPNM ] available online http://www.iaea.org/Publications/Documents/Infcircs/Others/inf274r1.shtml. The convention entered into force on February 8, 1987.
16. Art. 1, id.
17. Art. 3, id.
18. According to annex I, measures during storage incidental to international transport include: “(a) For Category III materials, storage within an area to which access is controlled; (b) For Category II materials, storage within an area under constant surveillance by guards or electronic devices, surrounded by a physical barrier with a limited number of points of entry under appropriate control or any area with an equivalent level of physical protection; (c) For Category I material, storage within a protected area as defined for Category II above, to which, in addition, access is restricted to persons whose trustworthiness has been determined, and which is under surveillance by guards who are in close communication with appropriate response forces. Specific measures taken in this context should have as their object the detection and prevention of any assault, unauthorized access or unauthorized removal of material.”  See annex I, para.1, id.
19. Art. 5(1), id.
20. Art. 5(2), id.
21. Arts. 7-13, id.
22. Report by the Director General, Nuclear Security – Measures to Protect Against Nuclear Terrorism, Amendment to the Convention on the Physical Protection of Nuclear Material, IAEA Doc. GOV/INF/2005/10-GC(49)/INF/6 (Sept. 6, 2005).
23. See Convention on the Physical Protection of Nuclear Material and Nuclear Facilities, 2005,  reprinted in IAEA Doc. GOV/INF/2005/10-GC(49)/INF/6 (Sept. 6, 2005) [hereinafter Amended CPPNM] available online http://www.iaea.org/About/Policy/GC/GC49/Documents/gc49inf-6.pdf.
24. See Preamble, id.
25. Art. 1A, id.
26. Art. 2(1), Initial CPPNM, supra note 15.
27. Art. 2(1), Amended CPPNM, supra note 23.
28. Art. 2A(2), id.
29. Art. 2A(3), id.
30. Art. 5(3), id.
31. The Physical Protection of Nuclear Material and Nuclear Facilities, reprinted in IAEA Doc. INFCIRC/225/Rev.4, 1999 (Corrected) [hereinafter IAEA Physical Protection].
32. Para. 4.1.4, id.
33. M. BUNN, “Securing the Bomb” 2008, at 151, Project on Managing the Atom, Belfer Center for Science and International Affairs, Harvard Kennedy School (Commissioned by the Nuclear Threat Initiative, Nov. 2008) available online http://www.nti.org/e_research/Securing_the_bomb08.pdf.
34. Para. 6.2.14 (emphasis added), IAEA Physical Protection, supra note 31.
35. M.BUNN, supra note 33, at 152.
36. See also para. 4.4.1, IAEA Physical Protection, supra note 31.
37. The International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships was adopted by a resolution of the Maritime Safety Committee, IMO Doc. MSC.88(71) (May 27, 1999) [hereinafter INF Code].
38. See International Convention for the Safety of Life at Sea (SOLAS), 1974, reprinted in 1184 UNTS 278, 14 ILM 959 (1975). The convention entered into force on May 25, 1980.  Chapter VII of the convention addresses the transfer of dangerous goods to which irradiated fuel and radioactive wastes are now added.  The INF Code was adopted by amending Chapter VII of the SOLAS convention.
39. Chapter 1, INF Code, supra note 37.
40. Chapter 3, id.
41. Chapter 10, id.
42. Chapter 8, id.
43. Chapter 4, id.
44. Chapter 1, id.
45. Convention on Early Notification of a Nuclear Accident, 1986, reprinted in IAEA Doc. INFCIRC/335 (Nov. 18, 1986), 1439 UNTS 275, 25 lLM 1370 (1986).
46. The international regime for the liability of nuclear operators is a rather complex regime including a number of conventions that supplement each other and are parallel to each other — establishing more or less similar norms. For a summary of the liability regime, see E. LOUKA, International Environmental Law:  Fairness, Effectiveness and World Order 462-66 (2006).
47. Id.
48. Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material,1971, reprinted in 974 UNTS 255, 11 ILM 277 (1972). The convention entered into force on July 15, 1975.  See also Convention on the Liability of Operators of Nuclear Ships, 1962. The convention provides for strict and limited liability of operators of nuclear ships (arts. 2-3). No other person except for the operator can be held liable (art. 2). Operators of warships can also be held liable.