Analysis M88 login Nuclear Safety Law

Issued on September 1, 2017, the Nuclear Safety Law M88 login the People’s Republic M88 login China (“Nuclear Safety Law”) will become effective on January 1, 2018. Since the establishment M88 login 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 M88 login law, stipulating basic guidelines and principles, establishment and implementation M88 login legal system procedures, legal liabilities M88 login nuclear power plant safety, public participation and supervision and administration systems.

Before the introduction M88 login the Nuclear Safety Law, the only existing law relating to nuclear safety was the Prevention and Control M88 login Radioactive Pollution Law, which only narrowly regulates prevention and control M88 login radioactive pollution. In addition, there are nine administrative regulations that provide for, inter alia, administration M88 login nuclear-related safety, covering the supervision over the safety M88 login civil nuclear facilities, control M88 login nuclear exports, control M88 login nuclear material, supervision and administration M88 login civil nuclear safety equipment, administration M88 login emergency responses to nuclear accidents M88 login nuclear power plants, administration M88 login transport safety for radioactive articles, safety administration M88 login radioactive waste, etc. Compensation for nuclear damage is mainly governed by the principled provisions under the Tort Liability Law, the Approval Reply M88 login the State Council to Ministry M88 login Nuclear Industry, National Nuclear Safety Administration and State Council Leading Group concerning the Handling M88 login Third-Party Nuclear Liability numbered as Guo Han (1986) No. 44 (“No.44 Letter”), and the Approval Response M88 login the State Council concerning Issues M88 login Compensation against Nuclear Accident Damages numbered as Guo Han (2007) No. 64 (“No.64 Letter”).

This article will brief and analyze the key concepts M88 login the Nuclear Safety Law by presenting a comparison between the Nuclear Safety Law and the existing laws and regulations.

I. Administration System M88 login Nuclear Safety

Overall, the Nuclear Safety Law maintains the administration system established by the Prevention and Control M88 login 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 M88 login nuclear safety liability, and includes new requirements such as information disclosure, and public participation. The following briefly introduces the main points M88 login the Nuclear Safety Law:

1. Safety M88 login Nuclear Facilities

Safety M88 login nuclear facilities accounts for a relatively large portion M88 login the Nuclear Safety Law, which is 24 provisions in total, including quality assurance, safety licensing, imports and exports M88 login nuclear facilities, administration M88 login nuclear safety equipment and qualification M88 login related personnel. These requirements are also mentioned in the Prevention and Control M88 login Radioactive Pollution Law, Regulations on Supervision and Administration M88 login Safety M88 login Civil Nuclear Facilities, Application and Issuance M88 login Nuclear Power Plant Safety License (one M88 login the rules for the implementation M88 login the Regulations on Supervision and Administration M88 login Safety M88 login Civil Nuclear Facilities), Provisions on Supervision and Administration M88 login Imported Civil Nuclear Safety Equipment, and Regulations on Supervision and Administration M88 login Civil Nuclear Safety Equipment. The Nuclear Safety Law summarizes these provisions and makes further additions. For example, it combines the approval requirement M88 login initial fuel loading and the operation licensing system under the Regulations on the Supervision and Administration M88 login 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 M88 login a nuclear facility (Article 27). It also outlines new provisions M88 login formalities for extending nuclear facility safety licenses (Article 26 and 28), administration M88 login shutting down after a nuclear facility ceases to operate (Article 29), and the disposal M88 login radioactive substances at the decommissioning M88 login 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 M88 login Article 16), perform periodic safety assessments on nuclear equipment (Clause 2 M88 login 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 M88 login Nuclear Material and Radioactive Waste

The Nuclear Safety Law mainly regulates the possession M88 login nuclear material, processing, storage and disposal M88 login radioactive waste, safety management M88 login spent fuel, and transportation M88 login nuclear material and radioactive waste. M88 login these, the new additions are the license for processing radioactive waste and the safety management M88 login spent fuel. The others are consistent with requirements previously set forth in the Prevention and Control M88 login Radioactive Pollution Law, Regulations on Control M88 login Nuclear Material, Regulations on the Safety Administration M88 login Radioactive Waste, and the Regulations on the Administration M88 login Transport Safety M88 login Radioactive Articles.

Regarding disposal M88 login radioactive waste, Article 43 M88 login the Nuclear Safety Law provides that an entity specialized in the processing, storage and disposal M88 login radioactive waste shall apply for a license to the nuclear safety supervision and administration department M88 login the State Council. Previously, the Prevention and Control M88 login Radioactive Pollution Law and Regulations on the Safety Administration M88 login Radioactive Waste only required a license for the storage and disposal M88 login radioactive waste. This change is mainly because M88 login specialization within the field M88 login processing radioactive waste. However, implementation M88 login the licensing system for processing radioactive waste still calls for enactment M88 login specific guidelines.

Regarding spent fuel, Article 39 M88 login the Nuclear Safety Law provides that entities producing, storing, transporting or reprocessing spent fuel shall take responsibility for the nuclear safety M88 login the spent fuel it generates; Articles 48 provides that nuclear facility operating entities shall pay the costs M88 login processing and disposing M88 login 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 M88 login 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 M88 login nuclear safety administration set forth in the Nuclear Safety Law. It is also one M88 login the specific measures to strengthen the building M88 login 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 M88 login reports on safety supervision and inspection M88 login activities regarding nuclear safety, the overall safety situation, radiation environmental quality, and nuclear accidents; a Nuclear Operator shall publicly disclose the information M88 login its nuclear safety management system and relevant documents, safety situations M88 login the nuclear facility, radiation monitoring data M88 login 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 M88 login public participation, a Nuclear Operator and the local government M88 login the nuclear facility locale shall solicit the opinions M88 login 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 M88 login Nuclear Safety

General provisions M88 login the Nuclear Safety Law set forth the responsible entities and scope M88 login 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 M88 login the Nuclear Safety Law, there are large portions dedicated to specific provisions regarding liabilities M88 login Nuclear Operator and Nuclear Supplier. In comparison to the legal liabilities set forth in existing nuclear-related administrative regulations, the following main points M88 login the Nuclear Safety Law should be noted:

1. Substantially Increased Liabilities M88 login Nuclear Operators and Their Personnel

The existing laws and administrative regulations provide administrative liabilities M88 login Nuclear Operators more from the view M88 login environmental protection. A Nuclear Operator bears few corresponding administrative liabilities for its failure to comply with the safety management duties during operating M88 login the nuclear facility. The Nuclear Safety Law substantially increases administrative liabilities M88 login 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 M88 login 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 M88 login 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 M88 login 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 M88 login Registration M88 login Nuclear Supplier for Import

Pursuant to the Regulations on the Supervision and Administration M88 login Civil Nuclear Safety Equipment, an overseas entity engaging in the design, manufacturing, installation or nondestructive inspection M88 login civil nuclear power safety equipment for a civil nuclear power plant within the territory M88 login China, shall conduct in advance the procedures for registration with the nuclear safety regulatory authority M88 login the State Council. However, neither such regulations nor the Provisions on Supervision and Administration M88 login 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 M88 login 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 M88 login nuclear safety equipment without completion M88 login the registration, such overseas entity would face a fine ranging from RMB 500,000 to RMB 1,000,000 and forfeiture M88 login its illegal income if any. Furthermore, the persons M88 login 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 M88 login Radioactive Waste Disposal Entities

Pursuant to the Regulations on the Safety Administration M88 login Radioactive Waste, if a radioactive waste disposal entity fails to obtain a required license, or fails to process, store or dispose M88 login radioactive waste in accordance with the license or relevant provisions and standards M88 login the State, it would be subject to an order to suspend production and business or have the relevant licenses revoked; forfeiture M88 login the illegal income if any; if the illegal income is more than RMB 100,000, it would face a fine M88 login 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 M88 login 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 M88 login daily disposal activities M88 login the radioactive waste disposal entity, and closure system M88 login 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 M88 login the violation; if environmental pollution is caused, a third party would be designated to take control measures on its behalf.

III. Liabilities M88 login Compensation for Nuclear Damages

Article 90 M88 login the Nuclear Safety Law provides liabilities M88 login a Nuclear Operator and a Nuclear Supplier to compensate nuclear damages in case M88 login nuclear accidents.

1. Liabilities M88 login Nuclear Operators to Compensate Nuclear Damages

Under the Nuclear Safety Law, a Nuclear Operator which causes personal injury or death, loss M88 login property or environmental damages by reason M88 login 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 M88 login Nuclear Operators, the upper limit M88 login compensation, financial guarantee arrangements and exemptions set forth in the Tort Liability Law, No.44 Letter, and No.64 Letter.

2. Liabilities M88 login Nuclear Suppliers to Compensate Nuclear Damages

On the basis M88 login the No.64 Letter, the Nuclear Safety Law further stipulates that a Nuclear Supplier is not liable for compensating nuclear damages in case M88 login 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 M88 login 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 M88 login great significance in terms M88 login recourse for a Nuclear Operator, exemption M88 login a Nuclear Supplier and its employees, agents and subcontractors.

IV. Administrative Authorities M88 login Nuclear Safety

The Nuclear Safety Law summarizes the setup and responsibilities M88 login the existing administrative authorities on nuclear facility safety. Article 6 provides that the nuclear safety supervision and administration department M88 login the State Council shall be responsible for supervision and administration M88 login nuclear safety, and the nuclear industry department, the energy department and other relevant departments M88 login the State Council shall be responsible for the work with respect to nuclear safety administration within the scope M88 login 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 M88 login governmental authorities, administrative authorities M88 login nuclear safety and their responsibilities are as follows:

1. National Nuclear Safety Administration (“NNSA”)

It is the nuclear safety supervision and administration department M88 login the State Council set forth in the Nuclear Safety Law, composed M88 login the department M88 login nuclear facility safety regulations, the department M88 login nuclear power safety regulations, and the department M88 login nuclear radiation safety regulations under the Ministry M88 login Environmental Protection. The NNSA is retained under the administrative purview M88 login the Ministry M88 login Environmental Protection.

The NNSA assumes the general duties M88 login supervision and administration M88 login nuclear safety and radiation safety, including approving environmental impact assessments regarding design, site selection, construction and operations M88 login a nuclear power plant, and issuing nuclear power plant operation licenses; supervision and administration M88 login licensing, design, manufacturing, installation or nondestructive inspection M88 login nuclear safety equipment and safety inspection M88 login imported nuclear safety equipment. It is also in charge M88 login projects using nuclear technology, and oversees the supervision and administration M88 login the safe processing and disposal M88 login radioactive waste and radiation environment protections, etc.

2. State Administration M88 login Science, Technology and Industry for National Defense (“SASTIND”)

It is the nuclear industry department M88 login the State Council, governed by the Ministry M88 login Industry and Information Technology. It is retained under the administrative purview M88 login the State Atomic Energy Authority and State Nuclear Accident Emergency Response M88 loginfice. The SASTIND is mainly responsible for the administration M88 login nuclear industries except nuclear power, supervision and administration M88 login military nuclear equipment and projects M88 login peaceful utilization M88 login nuclear energy. In terms M88 login nuclear accident emergency response, it assumes the daily work M88 login 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 M88 login China’s nuclear power industry is NEA founded under the National Development and Reform Commission. In 2008, NEA began to take over the role M88 login former Commission M88 login Science, Technology and Industry for National Defense in supervising and administrating nuclear power. And in 2013, NEA began to take over the role M88 login former State Electricity Regulatory Commission, in supervising and administrating generation, connection and transmission M88 login power.

The NEA is responsible for the administration M88 login nuclear power, drafting development plans, access conditions, technology standards for nuclear power, and organizing the implementation M88 login the aforementioned areas, putting forward plans M88 login nuclear power plants and approval opinions on significant projects. In terms M88 login nuclear accidents, the NEA is responsible for organizing the nuclear accident emergency administration work M88 login a nuclear power plant.

4. Nuclear Accident Emergency Response Coordination Committee

Led by the SASTIND, Nuclear Accident Emergency Response Coordination Committee is composed M88 login members M88 login many ministries and commissions, including the Ministry M88 login Foreign Affairs, National Development and Reform Commission, Ministry M88 login Public Security, Ministry M88 login Civil Affairs, Ministry M88 login Finance, Ministry M88 login Transport, Ministry M88 login Industry and Information Technology, Ministry M88 login Health, Ministry M88 login Environmental Protection (including National Nuclear Safety Administration) and State Administration M88 login Work Safety. It is responsible for organizing and coordinating the efforts M88 login the relevant departments M88 login 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 M88 login the national emergency response plan for nuclear accidents.

For the first time, the Nuclear Safety Law synthesizes provisions M88 login nuclear safety in terms M88 login 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 M88 login nuclear safety to administrative regulations and ministerial decrees. To ensure the implementation M88 login 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 M88 login 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 M88 login nuclear safety, and push forward the enactment M88 login the Nuclear Safety Law and Atomic Energy Law actively.” We look forward to the enactment M88 login the Atomic Energy Law, which is closely related to the Nuclear Safety Law and especially the national nuclear damage liability system thereunder.