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"Deviation" of Responsibility in Using Atomic Energy
A.B.Malyshev, Head of the Federal Atomic Supervising Service, B.G. Gordon, Director of Scientific and Technical Center for Federal Atomic Supervising Service
Technology of transformation of atomic energy (AE) into electric one exists for hardly half a century and by right is considered one of the most high-end technological industries. Implementation of this technology has demanded development of many scientific disciplines in mathematics, nuclear and neutron physics, radiochemistry, materiology, thermophysics, etc. Advanced scientific ensuring of AE utilization sphere requires for its other aspects, particularly legal ones, to be at an appropriate level.
As it is known, till 1995 in Russia there were no "nuclear" laws and the legislation existing in this area is rather young. The logic of state construction requires accruing of experience, analyzing the practice of laws application. For eight years all of us has been studying to act in the new legislative field and would keep to accrue the experience of laws application by natural way, but due to entry into force of the law "About technical regulation" revision of many legislative acts including "nuclear" laws began. Therefore, it's quite the time to draw attention to the discrepancies of contents and terminology of the basic legislative acts which are well-known to many nuclear experts. Analysis of available experience, comparison of various legal rules will subsequently allow to prove and to give reason for amendments to the laws now being prepared.
The purpose of this article is consideration of the major part of legal ensuring of the nuclear branch - arising of responsibility. Nuclear technology differs from other industrial technologies by the fact that at normal operation AE utilization objects practically do not affect the environment, but the consequences of nuclear failure or act of terrorism can have global and long-term radiation influences. Therefore, the experts working in the nuclear branch should precisely know the limits of responsibility and mechanisms of of punishment application. In this work the questions of arising of criminal and administrative responsibility for offences at AE utilization are considered. The problem of civil liability for nuclear damage is not debated, since the corresponding draft of the law is presently only being considered by the State Duma.
At studying of the problem of responsibility in the field of AE utilization it is impossible to miss the law enforcement practice and, first of all, results of judicial investigation of Chernobyl accident reasons. As we remember, three executives of the atomic power station and inspector of Gosatomenergonadzor of the USSR were convicted. Particular decision was made regarding designers and developers of the project, but due to various reasons judicial investigation of design features of reactor facility of the fourth generating unit of Chernobyl atomic power station wasn't performed. One of the reasons was absence of legislative standards for such investigation in that years.
Proactive measures taken by IAEA and other international organizations has resulted in the fact that the nuclear right of various countries contains a line of similar legal rules. Recommendations of IAEA are closely studied at working out national nuclear laws and rules since they are founded on the wide foreign experience of legal regulation of AE utilization. But all the same in the basis of the national legislation lays Russian experience, practice and mentality.
Within the framework of this given work only 4 fragments pertinent to the problem of responsibility are considered:
[1] - from article 71 of the Constitution of the Russian Federation: "Under the supervision of the Russian Federation are ... the Federal power systems, nuclear power engineering, splitting materials... ";
[2] - from article 35 of the Federal Act (FZ) of 21.11.95 No. 170-FZ "About utilization of atomic energy": "operating organization bears all the responsibility for safety of nuclear units, radiating sources and storage facilities and also for appropriate treating nuclear materials and radioactive substances...";
[3] - article 215 of the Criminal Code of the Russian Federation "Infringement of safety rules at the objects of atomic engineering":
"1. Infringement of safety rules at placing, designing, construction and operation of the objects of atomic engineering if it could entail death of person or radioactive environment pollution - is punished by penalty in the size from 200 to 500 minimal sizes of wage or in the size of wage or other the income of the person convicted for the period from 2 till 5 months, or restraint of liberty for the term up to 3 years, or by deprivation of liberty for the term up to 3 years with prohibition to occupy defined positions or to be engaged in defined activity for the term up to 3 years or without it;
2. The same particular act which has entailed due to carelessness death of person, radioactive environment pollution or other gross consequences - is punished by deprivation of liberty for the term from 4 to 10 years with prohibition to occupy defined positions or to be engaged in defined activity for the term up to 3 years or without it"3.
[4] - from article 9.6 of the Code of administrative violations of the Russian Federation "Infringement of rules of atomic energy utilization and account of nuclear materials and radioactive substances":
"1. Infringement of the norms and rules in the field of atomic energy utilization entails administrative penalty to citizens in the size from 15 to 20 minimal size of wage; to officials - from 30 to 40 minimal sizes of wage; to legal persons - from 300 to 400 minimal wage sizes... ".
In the beginning we shall consider the terminological discrepancies. We shall outline the area of AE utilization. It includes the objects of application [2]:
- nuclear devices;
- radiation sources;
- places of storage of nuclear materials and radioactive substances, storehouses of nuclear wastes;
- heat generation assembly of nuclear reactor;
- irradiated heat generating assembles of nuclear reactor;
- nuclear materials;
- radioactive substances;
- nuclear wastes.
Objects of nuclear weapon complex are not regulated by the FZ "About atomic energy utilization", and we also shall not consider them in this article.
We'd like to emphasize that among the listed objects there are no "nuclear power engineering" and "split materials" mentioned in [1]. So, in the strict sense, one should think it over what precisely is under the state supervision and if necessary to establish it in court. The Constitution should contain the wider concepts than in [2] since it is also applied to the nuclear weapons complex.
Also non-conformity of objects of application of [2] and [3] is seen. If "nuclear power engineering", used in the Constitution, may be considered as synonym of the term "atomic engineering" [3], the meaning of these terms covers only part of AE utilization objects [2]. And, strictly speaking, infringement of safety rules at the research reactor used on chemical metallurgical production, does not come within [3], since this production is not an object of atomic engineering.
The same discrepancy of the terms is seen at using in [3] of the concept "infection" of environment. In the FZ "About radiation safety of population"1 such term is absent. Instead is used the term "radioactive pollution", defined in the Norms of radiation safety (NRB-99)2 as "presence of radioactive substances on surface, inside material, in the air, in the body of person or in other place in the quantity exceeding the levels established by the present Norms and Rules". Both "infection" and "pollution" are metaphors for long time used in practice and both having similar meanings and precisely described in NRB-99. As [3] has a higher legal status, during working out of NRB-99 it was necessary to use the term already accepted in the legislation. In the existing situation in case of arising of legal case different interpretation of the specified terms in normative acts can complicate making legal decisions.
Comparison of titles of articles [3] and [4] also gives reasons for a good thinking. They describe safety norms and rules of AE utilization. Certainly, in both codes there is no definition of these concepts, but it is not present in [2] as well, where article 6 introduces and defines federal norms and rules in the field of AE utilization. I.e., criminal offence and administrative violation are recognized infringements of the rules which names in three legislative acts differ one from another and their authenticity, if necessary, should be established by legal proceedings. And it seems not a short cause.
Existing national system of normative documents fully complies with the international practice and consists of 5 groups of documents3:
1. Legislative acts (the Constitution, international treaties, federal acts).
2. Normative legal acts of the President and the Government.
3. Federal norms and rules.
4. Normative and technical documents of the bodies regulating safety (safety manuals, supervising documents, instructions, provisions, etc.).
5. Normative and technical documents of AE utilization control bodies (SNiPs , GOSTs, OSTs, TUs, etc. (construction norms and rules, state standards, branch standards, technical specifications, etc.)).
There are thousands of documents of the last group, they make the basis of this pyramid and normative and technical base of nuclear technology. Compulsion of the documents of the first three levels is established legislatively, others - established in the texts of the documents or in the administrative documents at their coming into force.
Federal norms and rules (FNP) in the field of AE utilization according to the FZ "About atomic energy utilization" are developed by control bodies of AE utilization and the bodies of safety regulation of AE utilization, and approved and entered into force by the bodies of safety regulation. The law has established 4 kinds of safety: nuclear, radiation, fire and technical (in our understanding - industrial) and obligatory fulfillment of FNP for all persons realizing activity in the field of AE utilization. The list of FNP is approved by the Government and amended on regular basis according to working out of new ones. FNP are divided by kinds of safety, as noted above. FNP of nuclear and radiation (technical aspects) safety are approved by Gosatomnadzor. FNP of sanitary-and-hygienic aspects of radiation safety are approved by the Ministry of Health Protection, of fire safety - by the Ministry of Emergency Measures. Standards of technical (industrial) safety are approved by Gosgortekhnadzor, and the practice is that they do not form part of FNP and their compulsion is provided by registration by the Ministry of Justice. As of 01.01.04 Gosatomnadzor of Russia or its predecessors has approved 53 documents of nuclear and radiation safety. FNP of nuclear and radiation safety, in turn, are subdivided by objects and kinds of activity. We shall summarize titles of some of them:
1) Norms of calculation of durability of equipment and pipelines of nuclear power settings, PNAE-G-7-002-87;
2) General provisions of nuclear power stations safety, NP-001-97;
3) Rules of nuclear safety of research reactors, NP-009-98;
4) Requirements of reporting of substantiation of safety of nuclear power units of vessels, NP-023-2000;
5) Rules of investigation and record of infringements at treatment of radiating sources and radioactive substances utilized in national economy, NP-014-2000;
6) Requirements of the program of ensuring the quality of objects of nuclear fuel cycle, NP-041-02.
The above sample illustrates the variety of objects and kinds of activity in the field of AE utilization. These FNP establish the requirements for safe AE utilization but contain most different demands including as of organization, documenting and work at accomplishment of the established kinds of activity. All these demands hardly may be recognized as safety rules for infringement of which the Criminal Code of the Russian Federation establishes criminal responsibility. That is, in the course of legal proceedings it is necessary to establish what of the violated requirements (articles of FNP) can be recognized as safety rules and which not. Certainly, this conflict could be avoided, if [2] and [3] were coordinated beforehand.
But it is a mistake to believe that safety rules could be recognized identical to FNP. Documents of the fifth group, under which nuclear objects are designed, built and operated, also contain important rules which can be recognized as safety rules, for example, requirements of production schedules regarding. As there is no legislative definition of it, such recognizing remains the court prerogative.
The same conclusion may be apparently made comparing [2] and [4]. There is no legislative definition of the concept "rule of use of atomic energy". Certainly, it includes not only FNP. In the system of normative documents described above, all documents of the three bottom levels can be recognized as rules of AE utilization, but among them there is a lot of the ones which do not affect safety of the objects in any way.
It is possible to illustrate the present ratio of existing norms and rules defined in various laws by the following drawing. Rules of AE utilization [4] include FNP [2], and safety rules [3]. But only part of FNP can be recognized as safety rules and not all rules of AE utilization really affect safety. So it is possible to establish that definitions of important legal terms establishing responsibility at AE utilization, are not coordinated and require reduction into conformity. This rather actual work should be conducted by all means within the framework of creation of the system of technical regulation of nuclear and radiation safety since alive people may suffer from discrepancy of the terms.
Ratio of various kinds of rules.
1 - rules of atomic energy utilization [4];
2 - FNP [2];
3 - safety rules [3].
Let us consider the above norms of the legislation in the essence. Any technical rules are written on the basis of available experience of placing, designing, construction, operation and withdrawal technical objects from operation. By the way, the last kind of activity fallen away from [3] though infringement of the rules at withdrawing from operation is also impermissible. At the same time the applied science studies technological processes at these objects, models them and accumulates so-called scientific and technical experience which also forms the basis for working out rules and norms.
In Gosgortekhnadzor there is a saying that "norms are written by blood". Its essence is that the norms of industrial safety are reviewed and specified in the course of accumulation of experience of failures at industrial objects. Though, certainly, scientific researches are widely conducted there.
In atomic engineering, where failures are rare events, rules are written on the basis of analysis of available experience by all listed kinds of activity which usually is referred to as operation experience, accenting attention to the fact that operation of operated object is the basic source of information about its properties.
But alongside with it even bigger role is played by scientific and technical experience which together with studying of operational modes is practically the unique source of emergency processes data. Studying, modeling, reproduction of emergencies at experimental units, with the help of mathematical patterns and software are put into the basis of criteria and principles of safety contained in the rules and norms. And the rules are reviewed in the course of accruing this summarized scientific and technical experience.
Designing and construction of AE utilization objects last for about 10 years. Operation of objects is realized for 20-40 years. For this period of time norms and rules can be reconsidered repeatedly. Practice all over the world gives numerous examples as the objects designed under the norms of the 70th , built under the norms of the 80th, are perfectly operated in this century. Though pretty often these objects in some aspects do not satisfy modern rules.
Aspiration to forbid operation of such objects on the basis of the above contradicts the international practice. All over the world there is another approach. Careful analysis of deviations from acting norms is conducted. Programs of elimination of some main deviations are developed and realized. And where possible, technical measures compensating available deviations are developed. Such practice is realized by Gosatomnadzor at licensing the activity for AE utilization and, by the way, it is established in a number of normative documents which also can be named safety rules.
But even after the compensatory measures are carried out, the acting norms are violated all the same, since in laws the concept of the measures compensating deviations from the safety norms is not entered. So, all the great work made by the operating organizations and the Ministry of Atomic Energy for modernization of operating objects of AE utilization, for prolonging their term of operation makes actual the works for legal substantiation and corresponding updating of the current legislation.
Activity of Gosatomnadzor for licensing and supervision in the field of AE utilization does not exclude at all criminal prosecution of operating organizations. Gosatomnadzor carefully investigates deviations from the norms and rules, estimates nuclear and radiation safety, quality of programs aimed at elimination of deviations and efficiency of compensating actions, establishes conditions for validity of the licenses, but all this activity legally does not abrogate presence of infringement of rules and formally does not protect operating organizations from possible criminal prosecution. For the sake of justice it is necessary to note that FZ "About atomic energy utilization" , contains articles 61 and 62, devoted to responsibility for infringement of the legislation. Besides infringement of "norms and rules in the field of atomic energy utilization" they foresee infringements of licensing conditions, non-execution of orders of the bodies of safety regulation, etc. Namely the documents of regulatory body, following from their law-enforcement functions, contain official requirements which alongside with the norms and rules guarantee safety. But these circumstances are not reflected in the criminal legislation by any way.
So, for what infringement of safety rules criminal responsibility arises? Precise answer to this question, in our opinion, isn't contained in the legislative acts. Metaphorically, gears of various laws not everywhere cling one another and frequently turn empty.
Let's pay attention to [3] where it is said "... could entail death of person or radiation contamination". Here we face the major characteristic of safety, including nuclear and radiation safety, - possible character of its existence 4. There is no absolute safety. One may affirm with 100 % probability that any person will die. Causes of death are very various also many actions not offending any rules can result in it. The matter is in possibility of realization of this probability which is not regulated either in the norms nor in the rules. Existing nuclear science only attempts to establish quantitative scales of measurement of nuclear and radiation safety. Estimations of safety are made, basically, qualitatively, by investigation, and, finally, the guilt can be established only by court. And the fact, that, under these estimations, infringements in nuclear area can entail death of person with probability in tens and hundreds times lower than probability to be lost in accident, does not change anything. This side is not considered by criminal legislation and is not developed yet in any way. The concepts of risk basing on definition of probability, are just now gradually become parts of some laws.
The number of deviations from the norms and rules or the number of not yet eliminated deviations for which the programs are being realized could serve one of the quantitative ways of estimation. Though in the course of realization of the programs of deviations eliminations temporary compensating measures are taken, acting norms are obviously violated and may cause death. This conflict is known to each inspector, it really exists at all industrial objects and should be resolved by the law if we do not want to stop modernization of our industry.
There is one more problem: who bears the responsibility for erroneous norms and rules, and what is the punishment for mistake? The first part of the question is resolved as though by default: the one who approves and puts into force is the ones who should bear the responsibility. That means, that for defects of FNP regulatory bodies answer, for defects of other rules regarding AE utilization answer the administrative bodies. But in the FZ "About atomic energy utilization" responsibility of regulatory body is provided only for issuing the license with infringement of the established order, not for wrong conditions of action of the license. Collegiateness of the procedure of working out and implementation of the norms and rules provides summation of all available experience. But discrepancies or inaccuracy of normative requirements are the evidence of our lack of knowledge. Scarcely the responsibility for it may be administrative or criminal, more likely - only moral.
One more prominent aspect of the problem arises at analyzing Chapter 23 of the Code of the Russian Federation of administrative violations. It concerns authorities of the bodies and persons considering administrative violations. Among them there are supervisory authorities, control, protection, security, regulation bodies. Some of them combine several kinds of activity.
There is no precise definition of the difference between all these kinds of activity in the legislative documents known to us. Sometimes one may hear that bodies of the control register infringements and supervisory authorities also apply administrative measures. But analysis of [4] of the mentioned chapter does not give bases for such conclusion. We hope that within the framework of the administrative reform presently being realized, these terms will be legally established.
Article 23.33 of the Code of the Russian Federation of administrative violations establishes the rights of the bodies realizing state regulation of safety at AE utilization. Their authorities fixed in the FZ "About atomic energy utilization", are much more wide than only supervision of safety. Therefore, for several years already the question of establishment of accordance between the powers and titles of these bodies is debated. For example, instead of the out-of-date title "Gosatomnadzor" it is possible to offer "State (Federal) body for nuclear and radiation safety regulation". In discussion of the administrative reform Gosatomnadzor simply under its title is referred to supervising bodies though its existing authorities defined by the law are getting it out from this group of official institutions.
The general conclusion which can be made of the analysis conducted, is unfavorable. Legal norms defining arising of responsibility are not coordinated among themselves and allow various interpretation. The practice of AE utilization management and safety regulation have not quite adequate legislative substantiation and needs it, since absence of precise mechanism of arising of responsibility, finally has an adverse effect to the safety of AE utilization objects.
Existing state of affairs is caused, first of all, by relative novelty of nuclear right in Russia and inconsistency of actions by legislative and executive branches of authority. In many respects it is connected with the fact that urgency of such coordination does not follow from the practice of AE utilization where serious failures are extremely rare.
The overwhelming majority of officials and heads in the organizations utilizing AE, have no precise idea of the legal aspects considered by us in this article. They are well aware of contents of articles 61, 62 of the FZ "About atomic energy utilization", but we haven't seen neither in the literature, nor in private discussions any calmness that these manifests are not supported by the criminal and administrative legislation. To the contrary, both in project, scientific, operating organizations, and in official bodies the personal official responsibility is highly developed at decision-making, cultivated since the times of beginning of nuclear industry. It is a tradition of our branch.
Atomic engineering really requires clearness and discipline which are maintained by education, selection and control. But alongside with it legislatively enacted measures should be taken at infringement of the laws at all stages of life cycle of the objects - from placing till withdrawal conclusion from operation. And absence of precise mechanisms of arising of responsibility causes more harm to the sphere area of AE utilization than facilitates the life to its workers. Inconsistency of laws in various spheres of human activity can result in improper arising of responsibility of various legal and natural persons, as well as its "deviation". "Deviation" of the responsibility connected with various interpretation of similar concepts in different legislative and legal acts in the field of AE utilization can and must be stopped.
The experts of Gosatomnadzor have long ago noticed inconsistency of the laws specified in this article. The appropriate offers have been sent in due order by the experts to the State Duma. Nevertheless, the latest amendments to the Criminal code of the Russian Federation coming into effect in December 2003, do not mention the problems discussed in this article. We hope that interaction of technical experts with the experts in the field of legislation will result in perfecting the legal base in the field of AE utilization. Our generation of atomic scientists the most part of the life living and working without the laws in the field of AE utilization, and for the last 8 years working out the FNP, connecting the available norms and rules of atomic engineering with the newly appearing laws, face a serious problem. It is necessary to be in time, using the scientific and organizational experience of FNP development, to create the system (code) of technical rules in the field of AE utilization, agreed and among themselves and also with the criminal and administrative legislation. This task should be fulfilled in rather short terms.
Reduction of the laws in conformity, creation of clear, transparent system of arising of responsibility of all participants of AE utilization, is finally aimed at achievement of the basic, presently priority purpose of the nuclear technology - creation of the conditions in which its safety is guaranteed. And it has already proven its efficiency and availability for the country.
Malyshev Andrey Borisovich has been working for the State scientific-research design and prospecting institute "Atomenergoproekt ", since 1997 - the General Director of FGUP (federal state unitary entity) "Atomenergoproekt". In July 2002 assigned as Deputy Minister of the Russian Federation for atomic energy, coordinated the matters of safe operation, reconstruction, modernization of atomic power stations and prolongation of the service life, their withdrawal from operation, working out and designing new nuclear energy units of power stations, ecological safety of atomic engineering, manufacturing of equipment for atomic power stations and objects of atomic engineering, construction of nuclear stations and objects of atomic engineering in Russia and abroad. Since June 2003 - Head of Gosatomnadzor of Russia.
Gordon Boris Grigorjevich. From 1987 - chief of experimental research laboratory, from 1994 - director of Scientific and technical center for nuclear and radiation safety of Gosatomnadzor of Russia. Doctor of technical sciences, professor. Author of more than 100 scientific publications. Member of collegiate body of Gosatomnadzor of Russia and expert Council of the State Duma of the Russian Federation for atomic energy utilization.
Notes:
1. Federal act of 09.01.96 No. 3-FZ "About radiation safety of population".
2. Standards of radiation safety (NRB-99) / Ministry of Health of Russia. М., 1999.
3. Gordon B.G., Slutsker V.P. Legislative and normative basis of regulation of nuclear safety / Bulletin of Gosatomnadzor of Russia. 1998. No. 2.
4. Gordon B.G., The concepts of safety at utilization of atomic energy // Bulletin of Gosatomnadzor of Russia. 2001. No. 2.
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