Legal Affairs 2012
Nuclear Law Bulletin No. 89
Volume 2012/1
NUCLEAR ENERGY AGENCY
Legal Affairs ISSN 0304-341X
Nuclear Law Bulletin No. 89
© OECD 2012 NEA No. 7090
NUCLEAR ENERGY AGENCY ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT
The OECD is a unique forum where the governments of 34 democracies work together to address the economic, social and environmental challenges of globalisation. The OECD is also at the forefront of efforts to understand and to help governments respond to new developments and concerns, such as corporate governance, the information economy and the challenges of an ageing population. The Organisation provides a setting where governments can compare policy experiences, seek answers to common problems, identify good practice and work to co-ordinate domestic and international policies. The OECD member countries are: Australia, Austria, Belgium, Canada, Chile, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Republic of Korea, the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States. The European Commission takes part in the work of the OECD. OECD Publishing disseminates widely the results of the Organisation’s statistics gathering and research on economic, social and environmental issues, as well as the conventions, guidelines and standards agreed by its members.
This work is published on the responsibility of the OECD Secretary-General. The opinions expressed and arguments employed herein do not necessarily reflect the official views of the Organisation or of the governments of its member countries.
NUCLEAR ENERGY AGENCY
The OECD Nuclear Energy Agency (NEA) was established on 1 February 1958. Current NEA membership consists of 30 OECD member countries: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, Mexico, the Netherlands, Norway, Poland, Portugal, the Republic of Korea, the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States. The European Commission also takes part in the work of the Agency. The mission of the NEA is: – to assist its member countries in maintaining and further developing, through international co-operation, the scientific, technological and legal bases required for a safe, environmentally friendly and economical use of nuclear energy for peaceful purposes, as well as – to provide authoritative assessments and to forge common understandings on key issues, as input to government decisions on nuclear energy policy and to broader OECD policy analyses in areas such as energy and sustainable development. Specific areas of competence of the NEA include the safety and regulation of nuclear activities, radioactive waste management, radiological protection, nuclear science, economic and technical analyses of the nuclear fuel cycle, nuclear law and liability, and public information. The NEA Data Bank provides nuclear data and computer program services for participating countries. In these and related tasks, the NEA works in close collaboration with the International Atomic Energy Agency in Vienna, with which it has a Co-operation Agreement, as well as with other international organisations in the nuclear field. Also available in French under the title: Bulletin de droit nucléaire n° 89
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Corrigenda to OECD publications may be found online at: www.oecd.org/publishing/corrigenda. © OECD 2012 You can copy, download or print OECD content for your own use, and you can include excerpts from OECD publications, databases and multimedia products in your own documents, presentations, blogs, websites and teaching materials, provided that suitable acknowledgment of the OECD as source and copyright owner is given. All requests for public or commercial use and translation rights should be submitted to [email protected]. Requests for permission to photocopy portions of this material for public or commercial use shall be addressed directly to the Copyright Clearance Center (CCC) at [email protected] or the Centre français d'exploitation du droit de copie (CFC) [email protected]. Cover photos: Dismantling work, Caorso nuclear power plant, Italy (SOGIN); prevention and detection of the illegal transfer of radioactive material (IAEA Nuclear Security 2012). TABLE OF CONTENTS
Table of contents
ARTICLES
Global nuclear law in the making? Joint exercise of public powers in the nuclear field: the case of the revision of the International Basic Safety Standards by Zoltán Turbék ...... 7 Italian decommissioning in the post-referendum era by Vincenzo Ferrazzano and Serena Scarabotti ...... 35 Through the looking glass: placing India’s new civil liability regime for nuclear damage in context by Robert J. Gruendel and Els Reynaers Kini ...... 45 Legal aspects of the control and repression of illicit trafficking of nuclear and other radioactive materials – Is there a need for an international convention? by Scott Spence ...... 67
CASE LAW
Canada ...... 107 Appellate decision upholding nuclear regulatory licensing process and practices for consultation with aboriginal groups: Fond du Lac Denesuline First Nation v. Canada (Attorney General) ...... 107 France ...... 109 Court of Appeal of Nîmes regarding the SOCATRI incident in July 2008 ...... 109 Conseil d’État regarding the association Réseau « Sortir du nucléaire » ...... 110 Switzerland ...... 110 Judgement of the Federal Administrative Court in the matter of Balmer-Schafroth a.o.v. BKW FMB Energy Ltd on the repeal of the time limitation with respect to the operating licence for the Mühleberg nuclear power plant...... 110 United States ...... 111 Judgement of a US District Court granting a permanent injunction against the State of Vermont in order to prevent certain State laws from prohibiting Vermont Yankee nuclear power plant’s continued operation ...... 111
NATIONAL LEGISLATIVE AND REGULATORY ACTIVITIES
Armenia ...... 113 Nuclear safety and radiation protection ...... 113 Australia ...... 113 Radioactive waste management ...... 113 Austria ...... 114 Nuclear safety and radiation protection ...... 114
NUCLEAR LAW BULLETIN No. 89, VOL. 2012/1, ISSN 0304-341X, © OECD 2012 3 TABLE OF CONTENTS
Belgium ...... 115 Nuclear security ...... 115 Nuclear safety ...... 115 Nuclear safety and radiation protection ...... 117 Brazil ...... 118 Nuclear security ...... 118 France ...... 118 Liability and compensation ...... 118 General legislation ...... 119 Germany ...... 120 Nuclear safety and radiation protection ...... 120 Transport of radioactive material ...... 121 International trade ...... 121 Hungary ...... 122 Nuclear safety and radiation protection ...... 122 General legislation ...... 122 India ...... 123 Liability and compensation ...... 123 Ireland ...... 123 Transport of radioactive material ...... 123 Lithuania ...... 124 Licensing and regulatory infrastructure ...... 124 Nuclear safety and radiation protection ...... 124 Nuclear security ...... 126 Moldova ...... 127 General legislation ...... 127 Poland ...... 127 General legislation ...... 127 Liability and compensation ...... 127 Organisation and structure ...... 128 Nuclear safety and radiation protection ...... 128 Portugal ...... 128 General legislation ...... 128 Nuclear safety and radiation protection ...... 131 Romania ...... 131 Environmental protection ...... 131 Slovenia ...... 132 Nuclear safety and radiation protection ...... 132 Sweden ...... 132 Nuclear safety and radiation protection ...... 132 Ukraine ...... 132 General legislation ...... 132 Nuclear safety and radiation protection ...... 133 Nuclear security ...... 134 Radioactive waste management ...... 134 United States ...... 135 Radioactive waste management ...... 135 Emergency preparedness ...... 136 Licensing and regulatory infrastructure ...... 137 Nuclear safety ...... 138
4 NUCLEAR LAW BULLETIN No. 89, VOL. 2012/1, ISSN 0304-341X, © OECD 2012 TABLE OF CONTENTS
INTERGOVERNMENTAL ORGANISATION ACTIVITIES
European Atomic Energy Community ...... 141 Proposed legislative instruments ...... 141 Adopted legislative instruments ...... 143 Non-legislative instruments ...... 143 Other activities ...... 144 OECD Nuclear Energy Agency ...... 145 NEA free report on Japan’s compensation system for nuclear damage ...... 145 Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization ...... 145 Treaty actions 2011-12 ...... 145 Status of the establishment of the CTBT verification regime ...... 145 Civil and scientific applications of the IMS data ...... 146
DOCUMENTS AND LEGAL TEXTS
Australia ...... 147 National Radioactive Waste Management Act 2012 ...... 147 Germany ...... 169 Act on the Peaceful Utilisation of Atomic Energy and the Protection against its Hazards (Atomic Energy Act) ...... 169 Sweden ...... 217 The Swedish Radiation Safety Authority’s regulations concerning clearance of materials, rooms, buildings and land in practices involving ionising radiation ...... 2 1 7 The Swedish Radiation Safety Authority’s general advice on the application of the regulations concerning clearance of materials, rooms, buildings and land in practices involving ionising radiation ...... 229
NEWS BRIEFS
International Nuclear Law Association ...... 231 Nuclear Law Association (India) First Annual Conference...... 231 World Nuclear University ...... 232
BIBLIOGRAPHY ...... 233
LIST OF CORRESPONDENTS TO THE NUCLEAR LAW BULLETIN ...... 235
NUCLEAR LAW BULLETIN No. 89, VOL. 2012/1, ISSN 0304-341X, © OECD 2012 5 ACKNOWLEDGEMENTS
Acknowledgements
NEA Legal Affairs would like to thank the following individuals for their contributions to this edition of the Nuclear Law Bulletin: Mr. A. Martirosyan (Armenia), Mr. S. Kumar (Australia), Mr. T. Augustin (Austria), Ms. K. Geerts (Belgium), Ms. D. Fischer (Brazil), Mr. J. Lavoie, Ms. L. Thiele and Ms. A. Mazur (Canada), Ms. F. Touitou-Durand (France), Prof. N. Pelzer and Mr. A. Woitecki (Germany), Mr. Z. Zombori (Hungary), Mr. R. Mohan (India), Ms. I. Bolger (Ireland), Ms. U. Adomaityte (Lithuania), Ms. E. Mursa (Moldova), Mr. M. Koc (Poland), Mr. M. Sousa Ferro (Portugal), Ms. R. Banu (Romania), Mr. A. Skraban (Slovenia), Mr. S. Carroll (Sweden), Ms. F. Portmann-Bochsler and Mr. C. Plashy (Switzerland), Mr. V. Shvytai (Ukraine), Mr. T. Rothschild and Mr. J. Lindell (United States), Ms. A. Durand (European Commission) and Ms. L. Tabassi (CTBTO). The information submitted to NEA Legal Affairs by these individuals represents the opinions of the authors alone and does not purport to represent the official views or the policies of their government or any other entity.
6 NUCLEAR LAW BULLETIN No. 89, VOL. 2012/1, ISSN 0304-341X, © OECD 2012 ARTICLES
Global nuclear law in the making? Joint exercise of public powers in the nuclear field: the case of the revision of the International Basic Safety Standards by Zoltán Turbék
he revision process of the International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources (BSS), Safety TSeries No. 115, 1996 (hereinafter referred to as 1996 BSS1) has reached its final stage. After the review of the 1996 BSS in 2005, the revision process started in 2006 and the final draft of the revised BSS2 was submitted to the Board of Governors of the International Atomic Energy Agency (IAEA or Agency) in August 2011 for approval. Subsequent to the decision of the IAEA Board of Governors adopted on 12 September 2011, the competent organs of the other potential sponsoring organisations also started to adopt or acknowledge, as appropriate, the text, which then will come into force one year after the date of the respective adoption or acknowledgement by the relevant organisation. The BSS revision process is an example of joint exercise of public powers by multiple and diverse actors aiming at normative development, the outcome of which is a special type of “global nuclear law”. This article will analyse the BSS revision process from the institutional legal point of view with particular attention to (1) the multiple actors involved in the revision process; (2) the legal framework within which the revision process took place; (3) the nature of revision process; and (4) the legal nature of the revised BSS3 itself.