Nuclear lawyers highlight potential pitfalls
With South Africa apparently committed to increasing its use of nuclear power as an energy source, the rarely thought about but very important issue of nuclear liability (in the event of an accident) is now beginning to come to the fore in this country.
“With regard to financial liability for the nuclear industry, there is an international problem,” reports National Nuclear Regulator (NNR) senior legal adviser Rodney Elk.
“Worldwide, the prescription period – that is, the period in which a claim can be made against a company or institution – for the nuclear sector is 30 years; but the longest period you can get liability insurance (financial security, obtained by insurance or guarantee) is ten years,” he explains.
That is, claims can be lodged for up to 30 years after an accident or incident, but insurance cover to pay such claims only runs for ten years after the event.
This is, however, less serious in reality than it would seem to be at first glance.
“The majority of claims will be made in the first ten years, because damage to property and the environment will manifest itself immediately, and most claims relating to nuclear damage to people will also be made reasonably early – only claims caused by latent cancers will surface after ten years,” he elucidates.
“We are satisfied that the nuclear operators in South Africa will have the means to meet any claims,” assures Elk.
“But this is an issue that has to be raised and discussed, which is currently being done at an international level,” he stresses.
Two options are on the table, internationally: the operator remains responsible for the liability; or the State assumes liability for any amount claimed beyond the ten-year insurance-cover period.
Some, at least, of South Africa’s small cadre of nuclear lawyers believe that this issue would be settled definitively if this country adhered to an international treaty called the Convention on Supplementary Compensation for Nuclear Damage (CSC).
The US Senate recently approved US accession to the CSC, and most of the rest of the world is expected to follow suit. The CSC provides for liability cover by the member states – the parties to the convention agree to jointly fund any further damages, according to a formula contained in the convention.
Another issue of concern to local nuclear lawyers is that of legal liability.
The South Africa State Law Adviser has given an opinion which says that the site on which a nuclear installation is located is not part of that nuclear installation.
This has significant legal and bureaucratic consequences.
Thus, radioactive material – say a nuclear isotope – which would, outside a nuclear installation, be classified as a Group IV Hazardous Substance, would not be so classified inside a nuclear installation.
Now, South Africa’s Safari-1 nuclear research reactor manufactures radio isotopes for nuclear medicine.
Under the current opinion, these radio isotopes have one legal status inside the building housing Safari-1, and a completely different one immediately they are taken out of that building for transport to the medical facilities that use them.
Indeed, such a radio isotope’s legal status can change twice if it is taken from one building in a nuclear complex, across a square or lawn, to another building in the same complex – it moves from installation to site to installation, all within a few minutes.
This has an impact on the liability regime applicable to the material in the event of an accident.
Radioactive material in nuclear installations is subject to strict liability – one does not have to prove negligence or incompetence to succeed in a claim against nuclear operators in the event of nuclear damage.
That selfsame radioactive material, once outside nuclear installations, even if still on a nuclear site, is suddenly not subject to strict liability, and, in the event of nuclear damage, negligence has to be proven to succeed in a claim.
Moreover, if a nuclear site is not part of a nuclear installation, who is responsible for regulating and inspecting the site? This is done by the NNR, but if the NNR regulates and inspects the site as well as the installation, surely all radioactive material on both the site and the installation should be under the same regulatory framework? It currently seems that the best exit from this bizarre situation would be to get the courts to make a determination on the issue.
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