2017.10.17 YUAN, Jianan、Aoxue GE、Xuan LIU、Yunhan LI
Issued on September 1, 2017, the Nuclear Safety Law of the People’s Republic of China (“Nuclear Safety Law”) will become effective on January 1, 2018. Since the establishment of the first nuclear power plant, Daya Bay Nuclear Power Plant, over 30 years ago in 1986, China has learned a lot about safety practices needed for nuclear power plants. Based on this accumulated experience, China for the first time lays out regulations for nuclear safety in the form of law, stipulating basic guidelines and principles, establishment and implementation of legal system procedures, legal liabilities of nuclear power plant safety, public participation and supervision and administration systems.
Before the introduction of the Nuclear Safety Law, the only existing law relating to nuclear safety was the Prevention and Control of Radioactive Pollution Law, which only narrowly regulates prevention and control of radioactive pollution. In addition, there are nine administrative regulations that provide for, inter alia, administration of nuclear-related safety, covering the supervision over the safety of civil nuclear facilities, control of nuclear exports, control of nuclear material, supervision and administration of civil nuclear safety equipment, administration of emergency responses to nuclear accidents of nuclear power plants, administration of transport safety for radioactive articles, safety administration of radioactive waste, etc. Compensation for nuclear damage is mainly governed by the principled provisions under the Tort Liability Law, the Approval Reply of the State Council to Ministry of Nuclear Industry, National Nuclear Safety Administration and State Council Leading Group concerning the Handling of Third-Party Nuclear Liability numbered as Guo Han (1986) No. 44 (“No.44 Letter”), and the Approval Response of the State Council concerning Issues of Compensation against Nuclear Accident Damages numbered as Guo Han (2007) No. 64 (“No.64 Letter”).
This article will brief and analyze the key concepts of the Nuclear Safety Law by presenting a comparison between the Nuclear Safety Law and the existing laws and regulations.
I. Administration System of Nuclear Safety
Overall, the Nuclear Safety Law maintains the administration system established by the Prevention and Control of Radioactive Pollution Law and the nine administrative regulations. It systematically unifies specific requirements scattered across administrative regulations and ministerial decrees into a law, and supplements and improves the current nuclear safety system. For example, the Nuclear Safety Law puts forward the nuclear safety concept for the first time, further stresses the undertaking of nuclear safety liability, and includes new requirements such as information disclosure, and public participation. The following briefly introduces the main points of the Nuclear Safety Law:
1. Safety of Nuclear Facilities
Safety of nuclear facilities accounts for a relatively large portion of the Nuclear Safety Law, which is 24 provisions in total, including quality assurance, safety licensing, imports and exports of nuclear facilities, administration of nuclear safety equipment and qualification of related personnel. These requirements are also mentioned in the Prevention and Control of Radioactive Pollution Law, Regulations on Supervision and Administration of Safety of Civil Nuclear Facilities, Application and Issuance of Nuclear Power Plant Safety License (one of the rules for the implementation of the Regulations on Supervision and Administration of Safety of Civil Nuclear Facilities), Provisions on Supervision and Administration of Imported Civil Nuclear Safety Equipment, and Regulations on Supervision and Administration of Civil Nuclear Safety Equipment. The Nuclear Safety Law summarizes these provisions and makes further additions. For example, it combines the approval requirement of initial fuel loading and the operation licensing system under the Regulations on the Supervision and Administration of Civil Nuclear Safety Equipment, providing that the nuclear facility operations entity (“Nuclear Operator”) shall apply for the operation license prior to the initial fuel loading of a nuclear facility (Article 27). It also outlines new provisions of formalities for extending nuclear facility safety licenses (Article 26 and 28), administration of shutting down after a nuclear facility ceases to operate (Article 29), and the disposal of radioactive substances at the decommissioning of a nuclear facility (Article 30).
Except for the above circumstances, the Nuclear Safety Law also provides that a Nuclear Operator shall establish an in-depth facility defense system (Clause 1 of Article 16), perform periodic safety assessments on nuclear equipment (Clause 2 of Article 16) and implement a nuclear safety report system (Article 35). These provisions are originally from the Convention on Nuclear Safety, and the Nuclear Safety Law applies these requirements at the Nuclear Operatorlevel.
In addition, the Nuclear Safety Law specifies that Nuclear Operator shall provide its staffs with nuclear safety education, skills training, appropriate labor protective supplies and occupational checkups, which reflect the legislative intent to protect nuclear-related personnel as well as public safety and health.
2. Safety of Nuclear Material and Radioactive Waste
The Nuclear Safety Law mainly regulates the possession of nuclear material, processing, storage and disposal of radioactive waste, safety management of spent fuel, and transportation of nuclear material and radioactive waste. Of these, the new additions are the license for processing radioactive waste and the safety management of spent fuel. The others are consistent with requirements previously set forth in the Prevention and Control of Radioactive Pollution Law, Regulations on Control of Nuclear Material, Regulations on the Safety Administration of Radioactive Waste, and the Regulations on the Administration of Transport Safety of Radioactive Articles.
Regarding disposal of radioactive waste, Article 43 of the Nuclear Safety Law provides that an entity specialized in the processing, storage and disposal of radioactive waste shall apply for a license to the nuclear safety supervision and administration department of the State Council. Previously, the Prevention and Control of Radioactive Pollution Law and Regulations on the Safety Administration of Radioactive Waste only required a license for the storage and disposal of radioactive waste. This change is mainly because of specialization within the field of processing radioactive waste. However, implementation of the licensing system for processing radioactive waste still calls for enactment of specific guidelines.
Regarding spent fuel, Article 39 of the Nuclear Safety Law provides that entities producing, storing, transporting or reprocessing spent fuel shall take responsibility for the nuclear safety of the spent fuel it generates; Articles 48 provides that nuclear facility operating entities shall pay the costs of processing and disposing of spent fuel according to the provisions issued by the State and list them as production cost. It is the first time that the legislator explicitly stipulates safety management liability and disposal costs of spent fuel from a legal standpoint.
3. Nuclear Accident Emergency Response
The Nuclear Safety Law mainly specifically sets forth the establishment of a nuclear accident response coordination committee, development of national emergency plans for nuclear accidents, establishment of a reserves system in case of a nuclear accident, emergency response and rescue in case of a nuclear accident, issuance and notification of nuclear accident emergency response information, investigation, operations evaluation following a nuclear accident, etc. Except for the newly-added requirement of an investigation of nuclear accidents and off-site emergency actions for nuclear accidents, all provisions are derived from and further clarify the Regulations on the Administration of Emergency Responses to Nuclear Accidents of Nuclear Power Plants, and synthesize related provisions under the Prevention and Control of Radioactive Pollution Law. The provisions in the Nuclear Safety Law are more comprehensive and systematic compared with those relating to nuclear plant accident emergency response in the Prevention and Control of Radioactive Pollution Law. However, the Regulations on the Administration of Emergency Responses to Nuclear Accidents of Nuclear Power Plants and Prevention and Control of Radioactive Pollution Law are not replaced by the Nuclear Safety Law, provisions not set forth in the Nuclear Safety Law but in the Regulations on the Administration of Emergency Responses to Nuclear Accidents of Nuclear Power Plants and Prevention and Control of Radioactive Pollution Law are still effective.
4. Information Disclosure and Public Participation
This is a new requirement of nuclear safety administration set forth in the Nuclear Safety Law. It is also one of the specific measures to strengthen the building of nuclear safety culture.
The Nuclear Safety Law provides that relevant governmental authorities shall publicly disclose, pursuant to law, the administrative licensing relating to nuclear safety and the information of reports on safety supervision and inspection of activities regarding nuclear safety, the overall safety situation, radiation environmental quality, and nuclear accidents; a Nuclear Operator shall publicly disclose the information of its nuclear safety management system and relevant documents, safety situations of the nuclear facility, radiation monitoring data of effluents and surrounding environment, and annual nuclear safety reports. Such information shall be disclosed in a timely manner by government announcements, websites or any other means to facilitate public access to information. Furthermore, citizens, legal persons or any other organizations may, in accordance with the law, apply to the relevant governmental authorities for access to the information relating to nuclear safety.
In terms of public participation, a Nuclear Operator and the local government of the nuclear facility locale shall solicit the opinions of interested parties on major nuclear safety matters involving public interest through hearings, discussion meetings, or symposiums or by any other means and provide feedback in an appropriate form.
II. Administrative Liabilities of Nuclear Safety
General provisions of the Nuclear Safety Law set forth the responsible entities and scope of nuclear safety liabilities. The Nuclear Operator shall be comprehensively responsible for nuclear safety, and entities which provide the nuclear facility operating entities with equipment, engineering or services, among others (“Nuclear Suppliers”), shall assume corresponding responsibilities for nuclear safety. In the following chapters of the Nuclear Safety Law, there are large portions dedicated to specific provisions regarding liabilities of Nuclear Operator and Nuclear Supplier. In comparison to the legal liabilities set forth in existing nuclear-related administrative regulations, the following main points of the Nuclear Safety Law should be noted:
1. Substantially Increased Liabilities of Nuclear Operators and Their Personnel
The existing laws and administrative regulations provide administrative liabilities of Nuclear Operators more from the view of environmental protection. A Nuclear Operator bears few corresponding administrative liabilities for its failure to comply with the safety management duties during operating of the nuclear facility. The Nuclear Safety Law substantially increases administrative liabilities of a Nuclear Operator, providing many requirements and corresponding penalties related to the daily operations, qualifications and licenses, safety assessments, measures for preventing and reducing nuclear pollution, nuclear accident emergency and information disclosure.
Depending upon the significance and seriousness of the violation, penalties includes: a warning with an order to take corrective actions; a fine imposed ranging from RMB100,000 to RMB 5,000,000; an order to cease construction or halt overall production; confiscation of illegal income; an order to take measures to eliminate environmental pollution or designating a capable entity to do so on its behalf. Among these, the most serious punishment relates to construction, operation or decommissioning of a nuclear facility without permission and importing nuclear material without approval.
In addition to liabilities of Nuclear Operators, based on specific violations, fines ranging from RMB 20,000 to RMB 200,000 may be imposed on the persons of the Nuclear Operator who are directly in charge and other persons who are directly responsible. If a Nuclear Operator conducts such activities as construction, operation or decommissioning of a nuclear facility without permission, the persons of the Nuclear Operator who are directly in charge and other persons who are directly responsible may also face a fine of no less than RMB 50,000 but no more than RMB 200,000; If a Nuclear Operator fails to develop emergency plans for nuclear accidents as required or fails to act according to the emergency plans, the persons of the Nuclear Operator who are directly in charge and other persons who are directly responsible may face a fine of no less than RMB 20,000 but no more than RMB 50,000. With reference to the Interim Measures for the Transfer by Administrative Departments of Cases of Environmental Violations for Which the Penalty of Administrative Detention May be Applied, the “persons of the Nuclear Operator who are directly in charge” refer to those personnel who mainly benefit from the illegal activities, or who have the power to make decisions during production or operations and serve as managerial, command or organization personnel; “other persons who are directly responsible” refers to personnel who directly discharge, dump or dispose of pollutants, or falsify or forge monitoring data.
2. Consolidated Liabilities of Registration of Nuclear Supplier for Import
Pursuant to the Regulations on the Supervision and Administration of Civil Nuclear Safety Equipment, an overseas entity engaging in the design, manufacturing, installation or nondestructive inspection of civil nuclear power safety equipment for a civil nuclear power plant within the territory of China, shall conduct in advance the procedures for registration with the nuclear safety regulatory authority of the State Council. However, neither such regulations nor the Provisions on Supervision and Administration of Imported Civil Nuclear Safety Equipment (HAF604), issued by the State Environmental Protection Administration thereafter on December 28, 2007, provides any legal liabilities for failure to complete the registration.
Article 83 of the Nuclear Safety Law provides that if an overseas entity assists a nuclear facility in China with services to design, manufacture, install and conduct non-destructive testing of nuclear safety equipment without completion of the registration, such overseas entity would face a fine ranging from RMB 500,000 to RMB 1,000,000 and forfeiture of its illegal income if any. Furthermore, the persons of the Nuclear Supplier who are directly in charge and other persons who are directly responsible would be imposed a fine ranging from RMB 20,000 to RMB 100,000.
3. Renew and Refine Liabilities of Radioactive Waste Disposal Entities
Pursuant to the Regulations on the Safety Administration of Radioactive Waste, if a radioactive waste disposal entity fails to obtain a required license, or fails to process, store or dispose of radioactive waste in accordance with the license or relevant provisions and standards of the State, it would be subject to an order to suspend production and business or have the relevant licenses revoked; forfeiture of the illegal income if any; if the illegal income is more than RMB 100,000, it would face a fine of no less than one time but not more than five times the total illegal income; if there is no illegal income or the illegal income is less than RMB 100,000, it would face a fine of no less than RMB 50,000 but no more than RMB 100,000; if environmental pollution is caused, a third party would be designated to take control measures on its behalf.
In addition to the above provisions, the Nuclear Safety Law also includes detailed requirements such as archive management of daily disposal activities of the radioactive waste disposal entity, and closure system of the waste disposal facility. Furthermore, corresponding legal liabilities are adjusted to order corrective actions, and impose a fine ranging from RMB 100,000 to RMB 2,000,000 depending on the seriousness of the violation; if environmental pollution is caused, a third party would be designated to take control measures on its behalf.
III. Liabilities of Compensation for Nuclear Damages
Article 90 of the Nuclear Safety Law provides liabilities of a Nuclear Operator and a Nuclear Supplier to compensate nuclear damages in case of nuclear accidents.
1. Liabilities of Nuclear Operators to Compensate Nuclear Damages
Under the Nuclear Safety Law, a Nuclear Operator which causes personal injury or death, loss of property or environmental damages by reason of a nuclear accident shall be responsible for making compensations according to the national nuclear damage liability system. It is understood that the national nuclear damage liability system mainly refers to the provisions regarding strict liability of Nuclear Operators, the upper limit of compensation, financial guarantee arrangements and exemptions set forth in the Tort Liability Law, No.44 Letter, and No.64 Letter.
2. Liabilities of Nuclear Suppliers to Compensate Nuclear Damages
On the basis of the No.64 Letter, the Nuclear Safety Law further stipulates that a Nuclear Supplier is not liable for compensating nuclear damages in case of nuclear accidents. But it also provides that where the Nuclear Operator has an agreement with the Nuclear Supplier, the Nuclear Operator may, after undertaking the liabilities of compensation for nuclear damages, claim recovery against the Nuclear Supplier pursuant to the agreement. Therefore, relevant terms and conditions in the supply contracts would be of great significance in terms of recourse for a Nuclear Operator, exemption of a Nuclear Supplier and its employees, agents and subcontractors.
IV. Administrative Authorities of Nuclear Safety
The Nuclear Safety Law summarizes the setup and responsibilities of the existing administrative authorities on nuclear facility safety. Article 6 provides that the nuclear safety supervision and administration department of the State Council shall be responsible for supervision and administration of nuclear safety, and the nuclear industry department, the energy department and other relevant departments of the State Council shall be responsible for the work with respect to nuclear safety administration within the scope of their respective functions and responsibilities. Article 54 provides that the State shall establish a nuclear accident emergency response coordination committee to organize and coordinate national nuclear accident emergency response management. Pursuant to the aforesaid provisions and other existing relevant provisions relating to setup of governmental authorities, administrative authorities of nuclear safety and their responsibilities are as follows:
1. National Nuclear Safety Administration (“NNSA”)
It is the nuclear safety supervision and administration department of the State Council set forth in the Nuclear Safety Law, composed of the department of nuclear facility safety regulations, the department of nuclear power safety regulations, and the department of nuclear radiation safety regulations under the Ministry of Environmental Protection. The NNSA is retained under the administrative purview of the Ministry of Environmental Protection.
The NNSA assumes the general duties of supervision and administration of nuclear safety and radiation safety, including approving environmental impact assessments regarding design, site selection, construction and operations of a nuclear power plant, and issuing nuclear power plant operation licenses; supervision and administration of licensing, design, manufacturing, installation or nondestructive inspection of nuclear safety equipment and safety inspection of imported nuclear safety equipment. It is also in charge of projects using nuclear technology, and oversees the supervision and administration of the safe processing and disposal of radioactive waste and radiation environment protections, etc.
2. State Administration of Science, Technology and Industry for National Defense (“SASTIND”)
It is the nuclear industry department of the State Council, governed by the Ministry of Industry and Information Technology. It is retained under the administrative purview of the State Atomic Energy Authority and State Nuclear Accident Emergency Response Office. The SASTIND is mainly responsible for the administration of nuclear industries except nuclear power, supervision and administration of military nuclear equipment and projects of peaceful utilization of nuclear energy. In terms of nuclear accident emergency response, it assumes the daily work of the Nuclear Accident Emergency Coordination Committee, taking the lead in developing a national emergency plan for nuclear accidents, and arranging for its implementation as approved by the State Council.
3. National Energy Administration (“NEA”)
The main supervision and administration department of China’s nuclear power industry is NEA founded under the National Development and Reform Commission. In 2008, NEA began to take over the role of former Commission of Science, Technology and Industry for National Defense in supervising and administrating nuclear power. And in 2013, NEA began to take over the role of former State Electricity Regulatory Commission, in supervising and administrating generation, connection and transmission of power.
The NEA is responsible for the administration of nuclear power, drafting development plans, access conditions, technology standards for nuclear power, and organizing the implementation of the aforementioned areas, putting forward plans of nuclear power plants and approval opinions on significant projects. In terms of nuclear accidents, the NEA is responsible for organizing the nuclear accident emergency administration work of a nuclear power plant.
4. Nuclear Accident Emergency Response Coordination Committee
Led by the SASTIND, Nuclear Accident Emergency Response Coordination Committee is composed of members of many ministries and commissions, including the Ministry of Foreign Affairs, National Development and Reform Commission, Ministry of Public Security, Ministry of Civil Affairs, Ministry of Finance, Ministry of Transport, Ministry of Industry and Information Technology, Ministry of Health, Ministry of Environmental Protection (including National Nuclear Safety Administration) and State Administration of Work Safety. It is responsible for organizing and coordinating the efforts of the relevant departments of the State Council, local people’s governments, and the Nuclear Operators in carrying out nuclear accident emergency response and rescue in accordance with the arrangements of the national emergency response plan for nuclear accidents.
For the first time, the Nuclear Safety Law synthesizes provisions of nuclear safety in terms of basic guidelines and principles, legal system and measures, legal liabilities, public participation and supervision and administration system. We no longer lack top-level legislation, which left the administration of nuclear safety to administrative regulations and ministerial decrees. To ensure the implementation of the Nuclear Safety Law, relevant authorities are expected to issue corresponding regulations and rules, and revise current provisions with respect to radioactive waste processing licensing, information disclosure systems and other improvements and supplements to the current nuclear safety administration system. In the meantime, considering that the Plan for Nuclear Safety and Radioactive Pollution Prevention and Control during the Period of the Thirteenth Five-year Plan and the Vision for 2025, approved by the State Council on February 28, 2017, the State will “promote the legislation of nuclear safety, and push forward the enactment of the Nuclear Safety Law and Atomic Energy Law actively.” We look forward to the enactment of the Atomic Energy Law, which is closely related to the Nuclear Safety Law and especially the national nuclear damage liability system thereunder.