CYIL vol. 8 (2017)

JAKUB HANDRLICA CYIL 8 ȍ2017Ȏ was in its infancy and there was little concern about activities at the back end of the fuel cycle. Perhaps also, the question of compensation for damage likely to be caused by radioactive waste when disposed of was not raised due to the considerable difference in the time scale between the risk of an accident linked to the operator of a nuclear installation and the same risk linked to radioactive waste disposal. As compared to day-to-day radioactive waste management, its storage in the very long term and especially its disposal implies operations of a different nature. The risk linked to such operations, however low may exist for an unlimited period and any damage might be discovered only after the occurrence of the event having caused the damage. 37 Having said this, it is necessary for the achievement of goals of this study to evaluate the applicability of liability regime created under the Vienna Convention on different types of facilities, which are used in the course of radioactive waste management, in particular on storage facilities, reprocessing facilities and disposal facilities. Radioactive waste storage facilities It is a matter of fact, that the Vienna Convention includes any “facility where nuclear material is stored, other than storage incidental to the carriage of such material” under the scope of the liability régime. Because the definition of “nuclear material” 38 covers also radioactive products and waste, the Convention has sometimes been interpreted as applying to installations for the storage of radioactive waste without any further precision. It is a matter of fact, that the Convention is silent regarding what “storage” means. Having said this, we must refer to some interpretation, which included all facilities where radioactive waste is placed under the term “facilities where nuclear material is stored.” 39 However, a study presented during the negotiation of the Amended Vienna Convention made it clear, that the issue needed more consideration. 40 Recently, it is widely acknowledged, 41 that facilities serving for temporary storage of nuclear materials (in particular interim storage facilities for the spent nuclear fuel) are certainly covered by the liability régime created by the Convention. However, given the fact, “storage” is considered to be exclusively temporary, 42 this provision does not per se cover the (final) disposal facilities. Basically, there are three exceptions, where the liability régime created under the Vienna convention does not apply: 1. Where radioactive waste is stored only as an incidental part of their carriage – for example, on a railway station platform – the facilities used for such storage will not be 37 REYNERS, P., The Nuclear Liability Conventions as Applied to Radioactive Waste Geological Repositories, in: AIDN/INLA (ed.) Proceedings International Conference on Geological Repositories: Political and Technological Progress, Stockholm: AIDN/INLA, 2003, at pp. 1-13. 38 “Nuclear material” means nuclear fuel, other than natural uranium and depleted uranium, capable of producing energy by a self-sustaining chain process of nuclear fission outside a nuclear reactor, either alone or in combination with some other material; and radioactive products or waste (Art. I, Par. 1 letter /h/). 39 OECD/NEA (ed.): Problems raised (n 35), at p. 18. 40 IAEA (ed.): Explanatory Texts (n 15), at p. 26. 41 REYNERS, P., Civil Liability for Long-TermDamage Caused by the Disposal of RadioactiveWaste, in PELZER, N. (ed.) Schnittpunkte nationalen und internationalen Atomrechts, Baden-Baden: Nomos Verlag, 1997, at pp. 124-125. 42 In this regard, we can refer to the meaning in the Joint Convention, which provides, that “storage” means “the holding of spent fuel or of radioactive waste in a facility that provides for its containment, with the intention of retrieval (emphasis added)” (Art. 2 letter /t/).

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