23 Mars 2017
March 20, 2017
Japan court shocks nuclear industry with liability ruling
by Shaun Burnie, Asia Times, March 20, 2017
Japan’s atomic power establishment is in shock following the court on Friday that found the state and the operator of the Fukushima nuclear plant liable for failing to take preventive measures against the tsunami that crippled the facility.
The reason for the shock is the ruling has wide-ranging implications for Japan’s entire nuclear power industry and the efforts to restart reactors throughout the country.
Judges in the Maebashi District Court in Gunma prefecture ruled that Tokyo Electric Power Co. (Tepco) and the government were aware of the earthquake and tsunami risks to the Fukushima Daiichi plant prior to the 2011 triple reactor meltdown, but failed to take preventative measures.
The decision was welcomed by the 137 Fukushima citizens who filed the lawsuit in 2014. What needs to be remembered is a further 28 civil and criminal lawsuits in 18 prefectures across Japan are pending. They involve more than 10,000 citizens and include a shareholder claim seeking compensation of 5.5 trillion yen (US$49 billion).
Tepco is already a de facto bankrupt, has been effectively nationalized and now faces the unprecedented challenges of how to remove three melted reactors at the Fukushima plant.
Six years after the disaster it still faces unanswered questions about the precise causes of the accident, questions that have generated public opposition to Tepco restarting reactors at another plant in Kashiwazki-kariwa in Niigata prefecture, on the opposite coastline to Fukushima.
Beside the court ruling being yet another blow to Tepco’s efforts to recover from the Fukushima nuclear disaster, the judgement will be highly disruptive to plans by the government and utilities to restart nuclear reactors in Japan.
In the court ruling, the judges found that science-based evidence of major risks to the nuclear plant was “foreseen” but ignored and not acted upon by Japan’s government and Tepco.
The evidence included a 2002 government assessment that concluded there was a 20% risk of a magnitude 8 or greater earthquake off the coast of northeastern Japan within 30 years. This includes the sea bed area off the Fukushima Daiichi plant.
Further, the plaintiffs cited a 2008 internal Tepco report ‘Tsunami Measures Unavoidable’ which included the likelihood of a potential 15.7 meter tsunami hitting the Fukushima nuclear site.
The court ruled that if the government had used its regulatory powers to make Tepco take countermeasures, such as installing seawalls, against such an event, the nuclear disaster could have been avoided.
While the judges in Gunma prefecture have concluded that ignoring evidence of risk can have devastating consequences, that does not seem to be the approach of the nuclear utilities or the Nuclear Regulation Authority (NRA).
Over the last four years, the NRA has demonstrated a tendency to ignore evidence of risks to nuclear plants that have made applications to restart reactors shut down after the Fukushima disaster, and to bend to the demands of the nuclear power companies and the government.
A total of 26 reactors have applied for NRA review, of which seven have passed and four more will likely be approved this year.
In each case, the NRA has failed to apply a robust approach to assessing risks. It has chose to screen out seismic faults that threaten nuclear plants, failed to follow recommendations from international safety guidelines, and accepted selective evidence on volcanic risks.
In the case of the three forty-year old reactors at Takahama and Mihama, the NRA approved the reactors, while granting the utility an exemption from demonstrating that the reactors primary circuit can meet the 2013 post Fukushima revised safety guidelines, until a later date.
All of these safety issues have the potential when things go wrong — see Fukushima — to lead to severe accidents, including reactor core meltdown.
District courts have issued injunctions against reactor restarts in Fukui prefecture, and in a historic ruling in March 2016 a court in Shiga prefecture ordered the immediate shutdown of the Takahama 3 and 4 reactors.
An appeal court is scheduled to rule on the above in the coming weeks and while it is anticipated that the reactor owner Kansai Electric will likely win, the prospects of further legal action remains.
Next month, for example, the former deputy chair of the NRA, Kunihiko Shimazaki will testify in a lawsuit against the operation of the Ohi reactors owned by Kansai Electric in western Japan.
Shimazeki, emeritus professor of seismology at Tokyo University and the only seismologist to have been an NRA commissioner, has challenged the formulas used by the regulator in computing the scale of earthquakes, which he believes underestimates potential seismic impact by factor of 3.5.
Last July the NRA dismissed Professor Shimazeki’s evidence.
Six years after the start of the Fukushima Daiichi accident, only 3 of Japan’s reactors are currently operating out of the 54 available in 2011.
For any business that runs the risk of its principal cash-generating asset being shut down at any point and for an extended period through legal challenges, the future does not look bright — unless you are granted approval to disregard the evidence.
The utilities are hemorrhaging money and therefore run the risk of following the same path as Tepco prior to 2011 in prioritizing cost savings over safety.
Such an approach directly led to the bankruptcy of Tepco, one the worlds largest power companies, and liabilities of at least 21 trillion yen.
The nuclear industry and current government of Prime Minister Shinzo Abe understand that to allow robust evidence of safety risks, in particular seismic, to determine the future of operation of reactors would mean the end of nuclear power in Japan.
Citizens from Fukushima with their lawyers and now supported by the judges, have moved Japan one step closer to that eventual scenario.
A district court has ordered the government and Tokyo Electric Power Co. to pay compensation to dozens of people forced or driven to flee their homes because of the 2011 Fukushima nuclear disaster.
The Maebashi District Court’s ruling March 17 sends a strong message to both parties to undertake serious soul-searching based on a keen awareness of their responsibility for the nuclear calamity.
Underlying the court decision in the group suit filed by Fukushima evacuees is the notion that both operators of nuclear power plants and the government have a grave obligation to prevent devastating accidents. Its rationale is that they have worked closely together to promote nuclear power generation as matter of national policy. Many people would fully agree with this line of thinking.
But there is no broad consensus on key legal liability issues related to the accident triggered by the Great East Japan Earthquake and tsunami. With regard to a criminal complaint filed against former senior TEPCO executives, for instance, prosecutors twice decided not to indict them, prompting a committee for the inquest of prosecution to conclude that the prosecutions must go ahead.
This ruling is the first in a series of group lawsuits that have been filed over the accident with district courts around the nation.
The rulings in all these suits will require close monitoring with regard to such issues as the scope of local residents who are deemed entitled to receive compensation and the amounts of damages awarded.
The Maebashi District Court’s decision came as a fresh reminder of the “complacency” prevailing among policymakers, industry executives and other people involved in nuclear power generation before the March 11, 2011, disaster.
The court found that TEPCO realized as far back as 2002 that there was a possibility of a massive tsunami occurring but failed to take even simple preventive steps. It also said the government should have ordered the utility to take necessary safety measures.
The ruling contains many critical comments about the policies and positions adopted by the company and the government. It contended, for instance, that economy took priority over safety. It also said the government’s unreasonable stance deserved the same kind of criticism that TEPCO should receive.
The ruling echoes the conclusion of the Diet’s investigative committee into the disaster. In 2012, the panel said the fundamental cause of the accident was the failure of the utility and the government to make appropriate responses to the safety risks, even though they were aware of the danger.
Despite all these accusations, TEPCO has yet to publish a detailed review of the way it dealt with the risks of a large tsunami.
The utility should make an exhaustive investigation into what happened to answer many vital questions. The questions include who should have made what kind of decisions and when in order to prevent the accident. Or what kind of organization TEPCO should have been to enable it to accept such decisions?
As the company responsible, TEPCO naturally has an obligation to conduct a serious inquiry to tackle these questions and release its findings to other utilities operating nuclear power plants. It must fulfill this obligation.
The government’s nuclear power policy is also under scrutiny.
After the disaster, a new nuclear safety watchdog, the Nuclear Regulation Authority, was established for more effective regulatory oversight over nuclear power generation.
In recent years, however, some utilities have appeared to be resisting regulatory decisions concerning the recognition of the existence of an active fault near a nuclear facility and the estimation of a maximum possible seismic shaking for determining the quake-resistance requirements for a plant.
The latest court ruling should serve as a fresh opportunity for the government to review its own regulations for the nuclear industry. The government should change what has been criticized as a cozy relationship between nuclear regulators and plant operators and ensure that the utilities will always make quick responses to safety risks based on latest scientific knowledge.
In his speech at this year’s official memorial ceremony for the victims of the Great East Japan Earthquake, Prime Minister Shinzo Abe didn’t use the term nuclear accident. But there are still many issues related to the accident that remain to be examined and explored with utmost vigor and commitment.
--The Asahi Shimbun, March 19