THE CONCEPT OF INDEPENDENT NUCLEAR

REGULATORY BODYBY

ABDULHADI ABDULLAHI EsqNNRA Weekly Seminar March, 2011

BACKGROUND• Arising from the accident on 26 April 1986 in unit 4, Chernobyl,

Nuclear Power Plant ( in the Former USSR) now in Ukraine which was a major event that necessitates the need for effective separation of nuclear power development from nuclear safety oversight.

• Due to the safety concerns that nuclear accident in one place is nuclear accident anywhere,

• Given its significant transboundary consequences the international community will not allow the hitherto nuclear safety issues to the States alone

• As a result, the IAEA adopted Fundamental Safety Principles, IAEA Safety Standards Series No SF-1 (binding and non binding) international legal instruments whose fundamental safety objectives are the protection of people- individually and collectively, the protection of the environment without unduly limiting the operation of facilities or conduct of activities that could give rise to radiation risks.

•Recall the desire to established functional and technically competent independent national nuclear regulatory body.

Background

• The concept of independent nuclear regulatory body, should be clearly and legally instituted to enable it functions effectively, efficiently and independently.

• Furthermore, the IAEA Safety Fundamental, Safety Series No 110, The Safety of Nuclear Installations, provides that “ Countries that are operating nuclear power installations now or that may be doing so in the future need to apply the fundamental principles as set out in this publications” The most crucial question being that, is it possible in practice?

• Or in real terms to have “ independent nuclear regulatory body” especially in developing Countries where institutional legal framework are not available or where they are available, the implementation is weak.

Why Independent Regulatory Body?

• The use of nuclear energy involves many parties in various areas such as in agriculture, oil and gas, manufacturing industries, health, water resources, research and energy. Given the significant risks associated with the use of nuclear materials, activities and operation of nuclear facilities.

• The IAEA in recognition of consequences arising from radiological contamination of the environment transcending national boundaries; initiated regional and multilateral international instruments adopted under its auspices for measures to safe guide and protect people, society and the environment from the harmful effect of ionizing radiation.

• The body whose functions is to regulate and licensed nuclear facility and activities is identified as the “independent nuclear regulatory body”. This important entity is charged with the additional functions and responsibility of action during emergencies,safe disposal of radioactive waste, control over orphan /legacy sources.

• The regulatory body shall be established in accordance with the national legal framework of the State. For example, the IAEA Convention on Nuclear Safety (CNS), Joint Convention on the Safety of Spent Fuel Management and Radioactive Waste Management (Joint Convention), Safety and Security of Research Reactors (NS-R-4) not only required the creation of nuclear regulatory authorities but that they should be “ Independent” in character.

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The characteristics of independent nuclear regulatory body

• The concept of independent nuclear regulatory body is predicated upon its sound decisions on safety issues that are not or should not be subjected to any other interference or influence from other entities involved in the development, promotion, dealing or trading in nuclear materials or operating nuclear facilities.

• In line with its functions, independent nuclear regulatory body is expected to provide or involve the public, mass media, stakeholders, legislators and other interested bodies with fullest possible information concerning risks and benefits associated with using nuclear materials for economic and social development.

• On the international scene, it is also recognized that due to threat posed by non-State actors, terrorist organization, illicit trafficking, prohibiting proliferation of nuclear material, illicit trafficking among other acts required a high level of international coordination, cooperation and understanding which only independent nuclear regulatory body is recognized.

Characteristics• The manner in which States organized their nuclear regulatory body

differs from one to another. However, the legislation should clearly provide which of the government agencies has the power over what; such power/functions should be clearly understandable to the regulated, stakeholder and the general public with public safety as an overriding interest.

• In establishing independent nuclear regulatory body by a State , the term “ Independent” as a distinctive character must be clearly incorporated in the national law establishing the regulatory body.

• In Nigeria, for instance the Nuclear Safety and Radiation Protection Act. (NSRP Act) is being repealed to reflect the current safety standard and international best practices as the Country prepares to acquire nuclear power plants. The amendment was necessitated to reflect international treaties sign and ratified by Nigeria.

The legal bases• The conventions, treaties or protocol signed and ratified by the Federal

Government can only come into force when pass into law by the national assembly. This is incompliance with Article 4 of the (CNS) which states that “Each Contracting Party shall take within the framework of its national law, the legislative, regulatory and administrative measures and other steps necessary to implement its obligations under this convention.”

• In structuring the independent nuclear regulatory body in Nigeria, the draft Nigerian Safety, Security and Safeguards Bill (NSSS Bill) provides for a single regulatory authority.

• The NSSS Bill has elaborate provisions on finance, regulations, licenses, inspections, staff salaries, trainings, enlightenment of public, stakeholder etc. it provides for enforcement actions, engagement of consultants who will serve as advisory bodies and external support when the need arises.

• This is not to say that structure of independent nuclear regulatory body must be a single one all over the world. As a matter of fact it may consist of more than one authority, what the law requires is a just arrangement that is clear of duplications, absent of conflict or unnecessary meddling in the activities of independent nuclear regulatory body. The placement of regulatory body under an administrative supervision of a Ministry or under a government department should not impedes on the independent characteristics.

The Position of DG/CEO• A fundamental element to the concept of independent nuclear

regulatory body is the composition of administrative and technical capabilities. The law of the regulatory body should provide a clear provision of how the leadership of the regulatory body are to be appointed or employed.

• Importantly the law should be certain as to experiences and knowledge in specific disciplines either in law, science, nuclear, physics, engineering etc. The DG/CEO must be an accomplished administrator. For example the NSRP Act, provides inter alia in Section 8 (1) of the Act, empowered the President of the Federal Republic of Nigeria to appoint a “Director-General who shall be chief executive of the Authority.

• The law further set the specific qualifications of the DG/CEO to include a person of proven integrity “practical experience in the application of nuclear energy and ionizing radiation in sciences and technologies nuclear safety and radiation protection”.

Staff Capacity• Closely related in support of the concept of independent nuclear regulatory

body are the poll of staff that would assist the DG/CEO in the day to day regulatory activities , assessment of safety issues, enforcement, public, mass media interaction, draft regulations among other functions.

• Assembling staff of regulatory body is not an easy task, due the specific nature of the job schedule and required competences, the IAEA developed what is known as the “Competency Framework” essentially for developing training programmes for staff of independent nuclear regulatory body.

• The nature of the nuclear activities and operating facilities requires same level or size of the regulatory body in a given State. However the size or the organizational structure of independent nuclear regulatory body, it is still open to undue influences if the staff and top management do not adopt or have “The necessary qualifications….A questioning attitude…A personal Standing” It therefore follows,that when employing staff of regulatory body, certain qualities should be borne in mind, for example independent personality character traits of the staff. Aside the employment criteria, a deliberate programme of education and continues training are essential in retaining the required staff competences.

Staff educational requirement• Since 2003, the IAEA in collaboration with Asian Network for Higher

Education in nuclear technology, the European Nuclear Engineering Network, the OECD/NEA and World Nuclear University (WNU) have been put together to provide the necessary capacity building required for the safety of nuclear industry.[

• Recognizing the important role of education to the safety, security and sustenance of the nuclear industry, the NNRA in 2005 established in accordance with the Section 11-(1) of the NSRP Act, the National Institute of Radiation Protection and Research in collaboration with the University of Ibadan. The Institute is providing the relevant educational qualifications in a developing Country aspiring to acquire nuclear power for peaceful purposes. The IAEA also provides assistance to the training needs of the Institute.

• Besides the core competences framework developed by the IAEA, it therefore becomes expedient for each Country to determine its basic area of required competences necessary to sustained the safety role of independent nuclear regulatory body.

Financial capability• Financial resources are required to ensure the protection of the live, society and

the environment and to assure the Government and the public that their nuclear industry is safe. A crucial factor to the sustenance of independent nuclear regulatory body is the availability of funds for regulatory activities.

• The requirement of financial availability to independent nuclear regulatory body must be prescribed, predicable and reliable, even if it not enough to cover all its regulatory activities. NSRP Act made provision for financial grant through appropriation by the National Assembly to the NNRA , see Section 12 (1) ,(2) & (3)of the NSRP Act.

• A new provision has been made in the draft NSSS Bill, for grant of funds necessary for safety training and research development as a measured to enhance the quality of staff ’in the nuclear regulatory body.

• Therefore to sustained the concept of independent nuclear regulatory body in other not to subjugate the regulator to undue control by external body “sufficiently predicable….reliable adequate” financial resources must made independently available to the regulator. However, in Finland which is operating civil nuclear power plant, the regulator, Radiation and Nuclear Safety Authority (STUK) has achieved a strategic advanced financial management which provides them with correct data on regulatory cost to the operating nuclear power plants. Here STUK usually recovered cost from the licensee on the hourly bases for work done to the regulated.

Financial capability

• In some cases the financial requirement is shared in what is known as “nuclear safety regulatory cost”

• This concept is legally provided and practiced in some Countries with NPP. It provides for the operators of the NPP to share almost all the nuclear safety regulation cost to sustain and secured the role of independent nuclear regulatory body.

Public information• Access to correct and factual information bridge communication gaps. In

particular information regarding nuclear safety, security, and regulations must found their way to the public domain in way that it can be easily and clearly understand. In Nigeria, a clear provision on public enlightenment was provided by the draft NSSS Bill “establish appropriate mechanism and procedure for informing the public, mass media and other stakeholders on the regulatory process of safety and security aspect of incidents or nuclear accident” this is an improvement on the current NSRP Act which was not so elaborate.

• It follows that by the above provision the NNRA would be require under the draft NSSS Bill to communicate in an open manner its decisions, opinions and in emergency situation directly with the public and other stakeholders.

• Today ‘s policy is to involve stakeholders in regulatory actions, this seems to generate positive result” public opinion on nuclear matters can not be ignored in developed Countries with NPP; this is due to the sensitive nature of nuclear materials and activities.

• Therefore clear rules have to be set in advance of who is responsible to inform the public during emergencies. Furthermore, “it is considered destructive for accountability of independent nuclear regulatory body if information is only revealed because of pressure from the public”

The legal basis of right to know -

• Besides members of the public, mass media and other stakeholders, information to the legislators would go a long way in getting budgetary appropriation for nuclear regulatory activities especially in developing, non-NPP Country like Nigeria. Another point to note is that, public perception of nuclear power is dependent on many factors specific to a given Country, issues such as supply of electricity, waste, spent fuel, experiences of nuclear incident and or accident and environment all play important roles in determining or shaping public perception to the industry.

• There are the public participation principles as established by the 1972 Stockholm Declaration of United Nation Conference on Environmental Development, the 1992 Rio Declaration on Sustainable Development and participation recalling the Agenda 21 on access to information on products and activities harmful to the environment, the 1991 Espoo Convention providing for public participation on Environmental Impact Assessment, (EIA) and decision making process. Inaddition to the above, the 1998 United Nations Economic Commission for Europe- the Arahus Convention, provides Access to Information, Public Participation in decision making and Access to Justice in Environmental Issues.

• To ensure that independent nuclear regulatory body operate fairly, then the old order of Decide, Announced and Defend (DAD doctrine) by govt would no longer be fashionable in dealing with nuclear issues. The rights of modern public to participate in the nuclear activities which will impact on them are now in place, as a matter of fact, in Europe it is now practice.

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Challenges to independent nuclear regulatory body

• The concept of independent nuclear regulatory body as defined by CNS, the Joint Convention and the Safety and Security of Research Reactors (NS-R-4). Conventions adopted under the auspices of the IAEA have similar meaning.

• However the scope of the concept is concerned only with land based civil NPP. This is buttressed by the provisions of (Article. 2) of the CNS, waste management (Article.2) of the Joint Convention or (Para 3.2. NS-R-4) of the Research Reactors. That been the case the role of independent nuclear regulatory body is not an easy one.

• The “Independent” concept means that the “Regulator” is given the power of overseeing actions and activities within the nuclear industry and deciding which is complying, competent and responsible with nuclear materials or activities.

• Given that the “independent regulator’s powers is statutorily provided, it must therefore follows the law in executing the regulatory function/powers.

• Human resources in the developing Countries are critical to the successful launching of independent nuclear regulatory body. It is estimated that for Nigeria, a developing Country to successfully acquired NPP, it may take between 12-15 years to build on the infrastructures, human resources in NPP and the regulatory body inclusive.

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Challenges• The concept of independent nuclear regulatory body is such that

without it no Country can now be trusted to acquire civil NPP. A classical example is the recent MoU between Gulf States of United Arab Emirate (UAE) and the US on civil NPP. Thorium Power, an American company is the consultant appointed to established UAE’s Federal Authority for Nuclear Regulation (FANR).

• In developed Countries with NPP, the major challenges are decline in number of students graduating or taking course of studies in nuclear, engineering and other related fields. Another major concern is replacing those very experienced individuals who are retiring. According to the OECD/NEA publication, “the shortfall between supply and demand for graduates in the disciplines could reach critical proportions in some Member Countries within a decade or so, if no action is taken to preserve the present knowledge base…”

• Thus it would be suicidal to leave the training, retaining, educating and recruiting of suitably qualified and experienced staff for the independent nuclear regulatory body entirely to be determined by external forces. In doing so the independent nuclear regulatory body would be falling short of its responsibility.

Undue influence• An important condition for the proper functioning of the regulatory

body in discharging its responsibility is its effective independence from organisations or bodies that promote nuclear activities. This is necessary so that its judgements may be made, and enforcement actions taken without undue pressure from interests that may compete with safety. Undue influence may come from different sources from the operator (Article.8) CNS, from Government, from other lobbying organisations, from political parties and politicians with economic interest and so on. Let us consider where the State could be the owner or shareholder of the NPP.

• There is the likelihood of conflict of economic interest versus safety concern especially where both organs are supervised by the same Minister. This conflict of interest would lead to undue influence unless and until the State disposes it interest from the NPP completely or pulls out of any form of involvement from the NPP; or the independent nuclear regulatory body is completely separated from the Ministry that supervises the NPP. As stated above failure to do that, would render the concept of independent a nonentity.

How to check undue influence• Consider that part ownership of the NPP belongs to the politicians

or even some legislators and the fact that promoters or owners of NPP could try to use the politicians to “captured the regulator”i.e. influencing regulatory decisions to compromised on safety issues,or security concerns.

• To avoid the regulator being captured, there is need to separate and free public administration from politics and political influence. This is the reasons why DG of such bodies are usually allowed to function for a specific years in office, basically to enable them concentrate on the safety objectives.

• It is because the independent nuclear regulatory body is separated from and given the legal and political will to act as independent that it sometimes come under sever criticism from public, mass media and other stakeholders. Now more than ever before, the public demand openness, transparency and demand input into the regulatory decisions making.

• Recall that our able DG/CEO was hugely criticized for closing down some radiotherapy facilities and well-logging sites in Nigeria. Infact the NNRA survived many undercover attempts to have it transfer to ministry directly supervising promotional activities.

Challenges• In 2008, the nuclear industry watched helplessly as political/

economic interest clashed due to raising safety concerns. One of the best examples of independent regulator,Ms Linda keen was fired late at night from her Job as the President of Canadian Nuclear Safety Commission in what appears to be blatant political interference by Canadian Minister of Natural Resource Mr Gray Lunn.

• Keen’s dismissal as president was due to shortages of medical isotopes produced by nuclear operator, Atomic Energy of Canada Limited.(AECL) Keen had ordered the closure of the fifty years old AECL reactor until emergency power systems are connected to cooling pumps as required to prevent a meltdown during disasters such as earthquakes.

• Here, the clashed between political and economic interest succeeded against the spirit, intent and the concept of independent nuclear regulatory body in Canada.

challenges• In Nigeria, the NNRA supported by the Federal Government,

banned SPDC and its contractors from the use of radioactive sources at any of SPDC unregistered sites.

• Besides the banned, SPDC and its contractors were further dragged to Abuja Federal High Court and prosecuted for non-compliance with the regulations and NSRP Act.

• However, there exist a lacuna in the NSSS BiIl, where the NNRA is expected to tow the line if a directive of a general nature is given to it. This is highly unacceptable to the industry rules.

• Also, a policy / promotional body has circulated memos to relevant stakeholders claiming it has responsibility for the development and harmonization of single comprehensive nuclear law for the entire country.

• To date, the promotional body has drafted and circulated a new bill prescribing and ascribing function/powers of the NNRA. A clear case of attempt to captured and weaken the powers of independent nuclear regulatory body.

Recommendation

• For developing Countries without NPP, like Nigeria, to sustain the concept of “independent of the regulatory body” it has to be entrenched in the national legal system.

• To achieve the concept of independent nuclear regulatory body, many factors outside regulatory frameworks also come into play.

• Establishing independent regulatory body could take the form of US NRC as a good example.

Recommendation

• Training and retaining in knowledge management be accorded high priority, the IAEA assist in that regard.

• Know the methodologies for knowledge management and tools for its preservation. The IAEA should lead the way, having come far in its dual capacity in the nuclear field.

• Addressing shortages of competent personnel Staff both in developed and developing nuclear countries is now imperative, The scope and numbers of intake should be expanded into the annual School of nuclear knowledge management at the AbdusSalm ICTP.

Recommendation

• Due to renewed interest in nuclear power from developing countries around the globe. Increased support for the intake be given to the developing countries into the World Nuclear University Summer Institute.

• The IAEA and OECD/NEA should consider the up grade of International School of Nuclear Law into degree awarding institution.

Recommendation• It is also recommended that IAEA and OECD/NEA should

collaborate with a University in Africa for the establishment of an international nuclear institution capable of awarding degree and up to masters’ level in nuclear law, administration and other technical and engineering concerns.

• In establishing the independent nuclear regulatory body that can be sustain especially in developing country; the enabling law should provide for the provisions that will enable it engage the services of necessary technical and consultancy services from where it lacks expertise or has short fall in its personnel. However such experts must have minimum degree of independent from bodies engaged in the development or promotion of nuclear energy.

Recommendation• As noted previously, “Independence” is a relative concept, method,

rules, acts or organizational structures are not enough to guarantee the concept; they however provide boundary conditions that are likely to assist in projecting “Independence” within the nuclear regulatory body.

• The regulator must and should distance itself from promotional energy matters otherwise it will loss focus.

• For the regulator to be independent and effective it must build trust and confidence with the mass media, stakeholders and the public.

• To sustain the concept of independent nuclear regulatory body it must employ competent staff, demonstrate its regulatory action and activities transparently. It must based its regulatory decisions on sound scientific and legal bases.

Recommendation

• There are so many different levels on which the independent of nuclear regulatory body can function, asides its clearly assigned powers/ functions, resources allocation and its leadership “each State has to individually determine the extend to which its nuclear regulatory body’ can be independent.

Finally• One of the most important attributes of an independent regulatory

body is its freedom from unwarranted interference in its regulatory functions; this concept has been included in the draft NSSS Bill Part 1, as follows

• Section 2.-(d) “shall exercise its function effectively independent from those of any body or organization concerned with the promotion or utilization of nuclear energy.”

• Section 7(f). Board shall – ensure that the Authority has adequate staffing and financial resources to discharge its assign responsibilities, and “developed and submit for the approval of the President appropriate condition of service concerning remunerations, fringe benefits, pension scheme and other benefits which will enable it to attract and retain high quality manpower.”

The End

• THANX FOLKS