Protocols to amend the Paris and Brussels Conventions were signed on 12 February 2004 but have still not entered into force. They require higher amounts of compensation than the original conventions, in order to cover a greater number of victims and types of damage that are eligible for indemnification. The State in which the nuclear facility of the operator that is liable for causing the damage is located is liable for amounts above the €700 million for which the operator is liable, up to €1,200 million (provided that said State is a Contracting State of the Brussels Convention). Over and above this amount, the Contracting States of the Brussels Convention are liable up to a maximum amount of €1.5 billion. In addition, for personal injury only, the time limit to claim compensation has changed from 10 years to 30 years from the date of the incident. The definition of “nuclear damage” is evolving and includes economic losses, the cost of protective measures, the cost of measures to rehabilitate damaged environments, and certain other losses resulting from damage to the environment.
The purpose of the regulations on the protection and control of nuclear material governed by Article L. 1333-1 of the French Defence Code is to detect and prevent the loss, theft or misappropriation of nuclear material that is stored at facilities or being transported, or any attempts to alter, damage or disperse such material.
For nuclear power plants, the Order of 10 June 2011 on the physical protection of facilities that house nuclear materials, which can only be held with an authorisation, is based on in-depth defence of targets, namely the nuclear material, equipment or functions, which, in the event of default or damage by a malicious act, are liable to have radiological consequences. Accordingly, the operator must set up several lines of protection in the form of six zones (e.g. access control areas, a vital area, an internal area, etc.). Following an amendment by an Order of 15 September 2015, the Order of 10 June 2011 now makes it possible to set up safety devices in dangerous are as if the assessment of the contents of the safety study provided for in Article R. 1333-4 of the French Defence Code reveal that the means implemented to meet the safety objectives appear to be insufficient.
Law no. 2015-588 of 2 June 2015 on the improvement of the protection of civilian facilities that house nuclear materials, which is now incorporated into the French Defence Code, created a specific criminal misdemeanour of trespassing in these facilities. For the implementation of these rules, Decree no. 2015-1255 of 8 October 2015 created restricted access nuclear areas (“ZNAR”) that must be delineated within each facility. Trespassing in a ZNAR constitutes a criminal misdemeanour that carries a one-year prison sentence and a €15,000 fine. These penalties are increased in the event of aggravating circumstances (to a three-year prison sentence and a€45,000 fine, in particular when the offence is committed in a group, and to a seven-year prison sentence and a €100,000 fine, in particular if the offence is committed with the use or threat of a weapon). All of the orders that define the ZNAR for each nuclear power plant have been published.
In the United Kingdom, EDF Energy is required, under the Nuclear Installations Act 1965 (“NIA 1965”), to hold a nuclear site licence for its existing nuclear power plants and comply with a certain number of licence conditions. Licence condition 35 concerns decommissioning and requires EDF Energy to make a decommissioning plan and to decommission its nuclear power plants/manage its waste in accordance with its plan. Part 3 of the Energy Act 2013 and the corresponding implementing order setup the Office for Nuclear Regulation (“ONR”) as the UK’s nuclear safety and security regulator. The decommissioning plan must be approved by the ONR, which may order operators to commence or cease decommissioning at any time. The ONR and the Environment Agency/SEPA are responsible for the safety, security, environment and emergency planning regulations that apply to the UK’s nuclear sites.
For new nuclear constructions in the United Kingdom, a nuclear site licence must be obtained under the Nuclear Installations Act 1965 at an early stage of development and is required for commissioning, operation and decommissioning. The ONR, in collaboration with the Environment Agency, also conducts non-site-specific safety assessments on potential nuclear power plant designs, which is a key element of the licensing process. This is called generic design assessment.
The Planning Act 2008 (“PA 2008”) regulates the planning process for major infrastructure projects, including new nuclear power plants. The PA 2008 introduced the concept of Development Consent Orders (“DCOs”), which are the authorisation required to build a new nuclear power plant in the UK. The DCO application process involves conducting an environmental impact assessment, implementing environmental mitigation measures and holding a certain number of public consultations.
Under section 45 of the Energy Act 2008 (“EA 2008”), operators applying for a licence for a new nuclear power plant in the United Kingdom are required to give written notice, to prepare and to submit a funded decommissioning programme (“FDP”) to the Secretary of State. The FDP is designed to ensure that operators have secure financing arrangements in place to cover all decommissioning costs and their total share of waste management and disposal costs.
The United Kingdom implemented Directive 2014/87/Euratom on 15 August 2017 by amending the ONR’s Technical Assessment Guides and Technical Inspection Guides and submitting a Directive under section 92(1) of the Energy Act 2013.
In the United Kingdom, the ONR is responsible for the regulation and inspection of nuclear facilities and the following laws are overseen by the ONR:
(1) The Health and Safety at Work Act 1974 (“HSWA 1974”), which defines EDF’s liability for the safety of workers and the public;
(2) The NIA 1965, under which operators of nuclear power plants need to obtain a nuclear site licence and comply with 36 licence conditions;
(3) the ionising radiation regulations 1999 (“IRR 1999”), which are based on the Basic Safety Standards Directive and provide for the protection of workers against ionising radiation.
When assessing the measures that may be required to reduce risks in accordance with the HSWA 1974, the ONR requires risks to be reduced as low as reasonably practicable.
Safety is ensured through all of the ONR’s duties and its approach to the regulation of nuclear facilities. It begins with a detailed review and assessment of the safety of the design and continues throughout the operation and decommissioning of the facilities.
The ONR uses the powers granted to it under the NIA 1965, the conditions for licensing sites and the HSWA 1974 as the basis for its monitoring and enforcement regime. The ONR has extensive inspection powers allowing it to inspect nuclear facilities, request documents and conduct investigations.
Under the NIA 1965, the ONR is authorised to grant licences to applicants and to impose licence conditions which may be varied or revoked. In particular, the ONR can prohibit certain nuclear operations or revoke the licence of a nuclear site. More commonly, the ONR may agree to specific actions, approve arrangements or require changes/variations to operations. The maximum penalty for non-compliance with safety legislation is an unlimited fine or imprisonment for a term not exceeding two years for directors.
In the United Kingdom, EDF is subject to licence condition 35 which forms the basis for the detailed decommissioning plans and programmes required by the ONR, but its requirements must be taken into account with other legal provisions such as the nuclear reactors (environmental impact assessment for decommissioning) regulations 1999 which require an assessment of the environmental impact of decommissioning and mitigation measures to reduce the environmental impact.
Decommissioning is usually carried out in stages, with a separate licence required to move on to the next stage. The ONR may order operators to start or cease decommissioning at any time and must approve decommissioning plans for each stage of the decommissioning process.
