By Dr Katja Samuel and Dr Bahram Ghiassee
This piece explores key challenges facing the international community in effectively dealing with ‘na-tech’ disaster incidents, where a natural hazard triggers a technological one. An overarching theme is the inadequacy of many existing national legal and regulatory systems to fully mitigate the effects of na-techs since they do not fully implement existing applicable treaty obligations and/or adopt single rather than multi- hazard approaches which do not fully integrate applicable standards and rules into coherent responses. These issues are illustrated by the Fukushima Daiichi nuclear accident. The piece concludes with a number of recommendations regarding future steps.
A significant focus of the global community, as evidenced in the broad parameters and ambitious goals of the Sendai Framework for Disaster Risk Reduction (2015-30), is to prevent or at least mitigate the potentially destructive impact of all forms of disasters, including those attributable to ‘natural’ as well as ‘man-made’ (including technological) hazards.
An especially challenging scenario is where these different hazard types collide, illustrated here by what is known as a ‘na-tech’. This is where a natural hazard – such as an earthquake, tsunami or extreme weather event – triggers a technological disaster – such as the release of hazardous materials with accompanying contamination. Such scenarios can be especially complex to deal with, legally and technically, since they cut across different legal regimes, regulations and standards, require complementary yet also different preparedness and response activities, and necessitate considerable capacity and resources since a State will effectively be dealing with at least two forms of significant disaster in tandem. They can also raise important issues of legal liability, illustrated by the recent indictment of chemicals manufacturer Arkema North America and two of its executives in relation to the na-tech that involved the ‘reckless’ release of a toxic cloud at a chemical plant in Crosby, Texas during Hurricane Harvey in 2017.
Necessity and Benefits of Strengthening Existing Multi-Hazard Approaches
A further complicating feature of na-techs is that they can cut across the traditionally separate paradigmatic lines of security and disaster management, in that the technological hazard triggered may involve not only more conventional disaster management responses, but also security considerations too, such as where both the safety and security of a nuclear reactor or chemical plant are compromised. These raise not only public safety considerations, but also security ones regarding affected populations – who may become fearful, resulting in mass panic and disorder. If key installations are badly damaged, then associated security implications may ensue, such as how to maintain the physical integrity of sensitive materials which might fall into the wrong hands, especially those of organised criminal groups or terrorists intent on causing harm.
In better preparing for, and ultimately responding most effectively to, such na-tech scenarios – many of which are likely to pose serious risks to critical national infrastructures – there may be merit in all stakeholders further exploring the potential benefits of adopting multi-hazard approaches to this type of disaster scenario, where different hazard types are interconnected. Notably, one of the Sendai Framework’s guiding principles is that ‘[d]isaster risk reduction requires a multi-hazard approach and inclusive risk-informed decision-making…’ (Sendai Framework for Disaster Risk Reduction 2015-30, para. 19(g)).
To be truly effective, this will require some softening of traditional conceptual and institutional divisions existing between security and disaster management since these have the potential to inhibit rather than facilitate more joined-up thinking and approaches. For instance, the security sector is not generally concerned or involved in disaster risk mitigation or management, such as clearing-up operations dealing with the aftermath of a technological disaster; nor is the emergency response sector (with the exception of the police and military) normally concerned with issues of local or national security. That said, there are some limited positive signs of change, such as the latest version of the UK’s counter-terrorism CONTEST Strategy (June 2018) which uses the language of being a ‘comprehensive risk reduction framework’. Some shifts in paradigmatic thinking – such as regarding the scale and effect of an incident, retaining but also moving beyond the traditional contours of causation or motivation, could therefore be beneficial.
More generally, further research to assist policy-makers and practitioners is highly desirable on these and related issues, notably here on the strengths and limitations of adopting ‘multi-hazard’ or ‘all-hazard’ approaches which, to date, have attracted only limited scholarship. For example, one key issue requiring further analysis is the extent to which it would be beneficial for States to adopt a multi-hazard approach as a broad strategy to disaster risk reduction, accompanied by more hazard-specific measures for prevention/response.
Such conventional roles and thinking are reflected within existing legal and regulatory frameworks which tend to be single rather than multi-dimensional in their approaches, reflecting traditional security and disaster management lines. This remains the case within many States, whose laws, policies and practices do not embed or reflect multi-hazard approaches traversing traditional sectoral paradigms, despite the related limitations of existing systems not being new. [See, e.g., A.M. Cruz, ‘Natech Disasters: A Review of Practices, Lessons Learned and Future Research Needs’ (2005)].
Yet these limitations can be significant, since they have the potential to restrict rather than facilitate more joined-up responses from being made when they matter most, especially national (and, where national capacity and resources are exhausted, international) cooperation, which is so crucial to mitigating the adverse effects (on lives, health, livelihoods, economically, socially, etc) of any na-tech incident. Indeed, it is interesting to note here that another key Sendai Framework goal is ‘[t]o develop and strengthen, as appropriate, coordinated regional approaches and operational mechanisms to prepare for and ensure rapid and effective disaster response in situations that exceed national coping capacities’ (para. 34(a); see too, more generally, para. 8), with cooperation featuring as a recurring theme throughout, including within its principal guiding principles (see further para. 19; also International Law Commission’s Draft articles on the protection of persons in the event of disasters, especially articles 7 and 8, 11-17).
Case Study of Fukushima Daiichi Nuclear Accident
The necessity and benefits of adopting a more integrated, multi-hazard approach to na-tech disasters are clearly illustrated in the case of the Fukushima Daiichi nuclear accident. Though the discussion here focusses on this incident, key principles and lessons identified are of wider applicability to na-tech scenarios, subject to the specific requirements of their own unique regulatory contexts.
On 11 March 2011, an earthquake of magnitude 8.9 struck some 160 Kilometres off the coast of North-East Japan. This triggered a chain of events, including the generation of a massive tsunami, which eventually resulted in the release of significant quantities of radioactivity (radionuclides) into the marine and terrestrial environments, and the atmosphere.
The earthquake had triggered the automatic shutdown of 11 operating nuclear reactors in the North-East region of Japan, including reactors 1, 2 and 3 of the Fukushima Daiichi Nuclear Power Plant (FD NPP). The ‘FD NPP’ comprised six nuclear reactors, the first of which was built in 1970. The design and construction of the reactors were based on an earthquake of 5.6 magnitude on the Richter scale, and a tsunami height of 5.7 meters.
Three of the six reactors were generating electricity, at the time of the earthquake. The other three were shut down for planned maintenance, and one of which had its nuclear fuel removed. However, all 6 reactors had spent (used) nuclear fuel rods stored in the ‘Cooling Ponds’ inside the reactor buildings, which proved to be disastrous.
Due to the automatic shutdown of the ‘FD NPP’, when the earthquake occurred, no electricity was being generated by the Plant itself to power the cooling systems for the three nuclear reactors and the six ‘Cooling Ponds’. The earthquake had also damaged the main electricity grid outside the ‘FD NPP’ (off-site). Consequently, no external source of electricity was available to (i) Cool the nuclear fuel rods inside the three nuclear reactor vessels; and (ii) Replenish the cooling water in the six ‘Spent-Fuel Cooling Ponds’.
The ‘Back-up Diesel Generators’ had automatically started to generate electricity, as part of the overall safety design, and the cooling systems were made operational, thus, averting the melt down of nuclear fuel rods in reactors 1, 2 and 3, and the spent fuel rods in the ‘Cooling Ponds’. However, the 14-meter high tsunami generated by the 8.9 Richter earthquake, had reached the ‘FD NPP’ an hour later, submerging the ‘Back-up Diesel Generators’.
Following the failure of the ‘Back-up Diesel Generators’, very large batteries within the ‘FD NPP’ had started to supply electricity to the cooling systems (pumps) of reactors 1, 2 and 3. After 8 hours of operation, the batteries had run flat, resulting in the over-heating of the reactors cores and the ‘Cooling Ponds’. Subsequent efforts to cool the reactors and the ‘Cooling Ponds’, using helicopters and water cannons, had proved ineffective, resulting in explosively high pressures building up inside the reactor containments. To reduce the pressure, and to avert explosions, steam and hydrogen generated were vented to the atmosphere. Radioactive Iodine (I-131) and radioactive Cesium (Cs-137) had also been released to the atmosphere in the process.
In this sequence of events, exposure of overheated nuclear fuel rods to steam had resulted in further generation of hydrogen gas (H2), giving rise to massive hydrogen explosions, and the destruction of reactor buildings. As a result, substantive quantities of radioactivity, including radionuclides I-131, Cs-134, and Cs-137, had escaped into the environment also. Additionally, the ‘Spent-Fuel Cooling Ponds’ had lost water, exposing the fuel, generating excessive heat, and causing fire. Escape of Sea water and ‘treated water’, which had been used for cooling purposes, and which had come into contact with partially damaged nuclear fuel rods, had resulted in further contamination of the terrestrial and the marine environment.
Notwithstanding the extensive efforts by Tokyo Electric Power Company (TEPCO) and the Japanese officials, the ‘FD NPP’ subsequently experienced meltdown, resulting in the uncontrolled release of radioactivity into the atmosphere, the terrestrial environment, and the marine environment of the Pacific Ocean. Due to dry and wet depositions of radionuclides from the atmosphere, both terrestrial and marine environment had further been contaminated, affecting the food chain, biota, and public health. Radioisotopes of Iodine, Cesium and Strontium released to the environment had accumulated in the food chain, thus posing a major radiological and radio-ecological threat to the public and biota, respectively. To avert radiation exposure to the public, residents within a 20 km radius of the Plant had to evacuate and, to date, have not been given permission to return to the exclusion zone. The Accident was, subsequently, classified as Level 7 rating on the INES (IAEA International Nuclear and Radiological Event Scale), the same level as Chernobyl.
It is noteworthy, that some of the radionuclides released into the Pacific Ocean reached the coast of North America, adding a trans-national dimension to the Fukushima accident. For instance, in June 2013, trace amounts of the radioactive isotopes Cesium-134 and Cesium-137 were detected close to Vancouver Island in British Columbia, Canada. Also, in November 2014, trace amounts of the same radionuclides were found off the coast of California, USA. Cesium-134 is an anthropogenic radioisotope, with a 2-year half-life, the only possible source of which is considered to be Fukushima.
On a more positive note, none of the 6 reactors at Fukushima Daiichi suffered direct damage, as a result of the earthquake or the tsunami, notwithstanding the unprecedented magnitude of the earthquake (8.9) and the tsunami height of 14 meters. Indeed, none of the 54 nuclear reactors in Japan suffered damage, which is testimony to the excellent design and construction of these reactors, some of which were 40 years old.
It has been suggested that the likelihood of hydrogen explosions could have been foreseen, and measures should have been instituted to prevent them. It has also been reported that TEPCO had exceeded the design capacity for the storage of nuclear fuel rods in the ‘Cooling Ponds’, thus contributing to the hydrogen explosions, fire, and release of radionuclides into the environment. Moreover, TEPCO could have instituted measures to monitor Cs-134, Cs-137 and other radionuclides, e.g., Plutonium and Strantium-90, in soil and the marine environment at an early stage.
Key Lessons Learnt from Fukushima, and their Broader Applicability
Media reports, at the time, had commented on the legal and institutional shortcomings of Japan’s nuclear regulatory regime. In particular, the Nuclear and Industrial Safety Agency (NISA) – which was subsequently dissolved in 2012 and was replaced by the Nuclear Regulation Authority (NRA) – had been criticized for, inter alia, failing to enforce the relevant nuclear safety standards, and failing to require the Nuclear Operators to prepare for tsunamis of the scale witnessed on 11 March 2011. Indeed, the IAEA fact‐finding mission had found the design basis for tsunamis to be inadequate, and the Japanese government had acknowledged that there were deficiencies in this respect.
Furthermore, the IAEA had recommended that the Nuclear regulatory systems should ensure that regulatory independence and clarity of roles be preserved in all circumstances, in line with IAEA Safety Standards. In response, the Japanese Government had pledged to review and improve the legal and regulatory frameworks governing nuclear safety, and nuclear emergency preparedness and response, along with related criteria and guidelines.
In the light of the Fukushima accident, and to avert future na-tech disasters, the nuclear industry would benefit from conducting, inter alia, (1) Assessment of risks associated with the impact of extreme natural hazards; (2) Detailed analysis of the impact of concurrent hazards; (3) Probabilistic Safety Analysis for nuclear facilities that could have accidents with significant off‐site consequences; (4) Assessment of the dependency of nuclear safety on off‐site infrastructure under severe hazard conditions, in particular, electricity and water supplies; and (5) Assessment of the adequacy of strategies related to the storage of spent (irradiated) nuclear fuel.
The nuclear industry, also, needs to address the nuclear and radiological security risks, in addition to the threats posed to ecological systems and to public health. Non-State actors, be they terrorist groups or other criminal elements, may find access to radioactive substances and nuclear material, which could be used in a ‘Dirty Bomb’ (radiological dispersive device), or a crude nuclear device, respectively. Nuclear and radiological security measures, thus, need to be incorporated, in tandem with nuclear safety considerations, in site selection, design, construction, operation and decommissioning of nuclear facilities. Ideally, a holistic and integrated approach to Nuclear Safety, Nuclear Security and Nuclear Safeguards should be adopted, in order to mitigate, synergistically, the safety, security and proliferation risks associated with technological or na-tech nuclear accidents.
In promoting an integrated and holistic approach, States hosting nuclear facilities in their jurisdiction need to accede to international legal instruments on Nuclear Safety, Security and Safeguards, and to ensure effective national implementation of such instruments. The reporting requirements, the provisions for cooperation at international and regional levels, and the IAEA inspection requirements under some of these instruments, are all designed to enhance transparency, risk awareness, and development of requisite institutional, legal and regulatory frameworks.
In this context, a number of international legal instruments adopted under UN General Assembly and the auspices of the IAEA and the Nuclear Energy Agency of the Organisation for Economic Co-operation and Development’s (OECD-NEA) are of direct relevance, inter alia, OECD Convention on Third Party Liability in the Field of Nuclear Energy 1960 (as amended); Treaty on the Non-Proliferation of Nuclear Weapons (NPT) 1968; Convention on Early Notification of a Nuclear Accident 1986; Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency 1986; Convention on Nuclear Safety 1994; Convention on the Physical Protection of Nuclear Material and Facilities 1979, and the 2005 Amendment; and International Convention for the Suppression of Acts of Nuclear Terrorism 2005. Adoption of legal instruments, and the Recommendations, Guidelines and Standards promulgated by the IAEA and OECD would be effective in mitigating risks associated with na-tech nuclear accidents, including their likely negative impact upon public health, ecological systems, and the security of radiological and nuclear materials.
The same is true in other contexts, especially CBRN or industrial hazardous waste related, in ensuring that applicable treaties are ratified, and also fully implemented. Establishing this baseline is critical, not only for dealing most effectively with single hazard incidents, but also where they meet with other hazards, as in a na-tech event. And yet, despite the concerted efforts by some, over a number of years, to alert key stakeholders to the inadequacies of existing legislative and regulatory frameworks to deal with na-tech scenarios, the warnings appear to have gone largely unheeded, at least in terms of the political will to legislate, with only few notable exceptions.
As the Cruz article suggested in 2005, which remains true today, there is a pressing need for further research to be undertaken of national legislative and regulatory frameworks to better understand the scale and extent of this problem, together with the likely benefits that would accompany more integrated, multi-hazard approaches, not least from a disaster risk mitigation perspective in na-tech situations.
Some key benefits were identified in the recent OECD report, Towards an All-Hazards Approach to Emergency Preparedness and Response (2018), which examined the critical need for an increasingly ‘all-hazards’ approach to emergency planning, not least where transboundary harm may occur, such as in CBRN (na-tech) events. As with the Sendai Framework (see, e.g., para. 17), the OECD is urging the critical importance of further developing and strengthening multi-dimensional, cross-sectoral coordination and collaboration. This is to better identify and remedy weaknesses in existing disaster preparedness and response mechanisms, and ultimately to strengthen resilience and therefore reduce disaster impacts. In doing so, an overarching goal of the OECD is to ‘support governments in developing an integrated vision of risk governance’, which encompasses all-hazards and is transboundary in its approach towards strengthening national resilience and responsiveness. (See, e.g., pages 45-47, 99).
With the frequency, scale and impact of natural disasters on the rise – and the increased risk of the occurrence of na-tech incidents with potentially catastrophic consequences for public health, economy and ecology – can there be any justification for further delay in reviewing and, where necessary, fixing the existing critical mechanisms and frameworks?
GSDM would be delighted to assist and support clients on these and related issues, such as with risk assessments studies, accession to and national implementation of relevant international treaties and conventions, as well as undertaking audits of existing legislative and regulatory frameworks from single and multi-hazard perspectives.
Dr Katja Samuel and Dr Bahram Ghiassee. Katja is the Director of GSDM, specialising in security and disaster risk management law; Bahram is a Principal Associate at GSDM, holding dual qualifications in Nuclear Science & Technology and International Law.