Japan: Court Verdict Snags Tokai-2 Restart

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A district court decision to impose an injunction on the planned restart of Japan Atomic Power Co.'s (JAPC) Tokai-2 boiling water reactor (BWR) marks a new twist in judicial actions on restarts. For the first time, judges suspended the operation of a nuclear power plant due to inadequate evacuation and disaster prevention plans. A panel of three Mito District Court judges in Ibaraki prefecture led by presiding Judge Eiko Maeda on Mar. 18 granted the injunction to plaintiffs living within the plant's 30-kilometer radius "urgent protective action planning zone" (UPZ). The judges ruled that inadequate evacuation plans could affect the safety of some 940,000 residents within the zone in the event of a major nuclear accident and thus constituted “concrete risk of personal rights." The stakes are high given that the UPZ has the largest number of people of any UPZ in Japan, including about 60,000 within the 5 km radius "precautionary action zone" (PAZ). If the verdict is not overturned, the decision marks a potentially fatal blow to JAPC's hopes of restarting the 1,110-megawatt unit and could raise the stakes for reactor restart efforts elsewhere in Japan. In a Mar. 26 statement, Japan Federation of Bar Associations (JFBA) President Tatashi Ara said the verdict marked the first case in which "operation of a nuclear power plant had been ordered to be suspended because of inadequacies in evacuation plans" and would become “an important judgment for examining the safety of other nuclear power plants." However, similar decisions are not a given in other restart proceedings. Notably, for example, the Sendai District Court in July 2020 rejected a suit by residents of Miyagi prefecture calling for a provisional injunction against the restart of Tohoku Electric's Onagawa-2 BWR, based on inadequate evacuation plans, and the decision was upheld on appeal by the Sendai High Court in October 2020. The Sendai courts resolved that such an injunction was unnecessary on the basis that risk or imminent danger due the inadequacies of evacuation plans would not be directly linked to the restart (NIW Nov.13'20). JAPC promptly filed an appeal to the Tokyo High Court Mar. 19 and on Mar. 31, JAPC President Mamoru Muramatsu stated that he "sincerely regretted" the court's decision that "restarting would not be permitted because of inadequate evacuation plans," NHK reported. The firm has no operating reactors and is kept financially afloat by contributions from other utilities -- primarily Tokyo Electric Power Co. Holdings (Tepco) and Tohoku Electric Power Co. (NIW Mar.8'19). Tokai-2, which has been off line since Mar. 11, 2011, received approval from the Nuclear Regulation Authority (NRA) for a 20-year license extension in November 2018. The firm is reportedly aiming to complete safety upgrade projects by the end of 2022, but will require Nuclear Regulation Authority (NRA) approval of the plant's safety program and pre-operational tests as well as consent from the prefecture government and the five municipalities within the UPZ (NIW Jun.12'20). The Risk of Natural Disasters Maeda and her colleagues acknowledged that achieving complete safety was impossible, but maintained that the concept of “defense in depth" formulated by the International Atomic Energy Agency (IAEA) "must be adopted because even with the latest scientific knowledge, it is not possible to reliably predict when and at what scale natural disasters can occur during the operation period of the nuclear power plant." Generally speaking, the Mito District Court appears to have accepted JAPC's safety improvements and did not raise any novel questions regarding seismic or tsunami resistance; it also found that Tokai-2 had no major deficiencies with regard to the first four levels of the IAEA “defense in depth” guidelines covering operational prevention and control of events that could lead to a severe accident, including accident progression and mitigating consequences. But the judges emphasized that residents near a nuclear power plant had the right to expect "Level 5" protection in terms of "mitigation of the radiological consequences of significant external releases of radioactive materials,” especially in light of the Fukushima Daiichi disaster. And they didn't shy away from explaining the difficulty of providing such protection, saying that a severe accident near the plant would result in the need of tens of thousands of local residents to evacuate promptly but on a coast with a limited number of highways and other transportation routes. "A feasible evacuation plan must be created and a system in place to implement it must be in place," the ruling said. The ruling found that, in addition to the prefectural government, only five of 14 localities that are fully or partly within the PAZ or UPZ have formulated evacuation plans even though they are all legally required to do so. Of these 14 districts, five of which are entirely within the UPZ, namely Tokai Village, Hitachi City, Hitachinaka City, Hitachiota City, Naka City and Mito City, along with Ibaraki prefecture, have signed the so-called safety and environmental “Ibaraki Accord” with JAPC, whose Article 6 grants them "substantive preconsent" over the restart. (NIW Apr.20'18). Indeed, the judges found that the largest cities, namely Hitachi City and Hitachinaka City with populations of over 150,000 and Mito City with a population of 270,000, “have not yet formulated plans" and warned that the evacuation plans of the five localities with plans have serious flaws related to “complex disasters,” such as failing to identify multiple evacuation routes or how to shelter at home if their structure is damaged. This situation is “extremely inadequate," the court said. The three judges therefore granted the injunction on the grounds that the lack of sufficient “Level 5” defense posed “concrete risks of infringement on personal rights.” In order to avoid being defined as a “defendant” in the wake of JAPC's appeal and to demand that the court carry out stricter review regarding Level 1 to Level 4 risks, the plaintiffs also filed an appeal to the Tokyo High Court Mar. 31, according to a statement issued by the “Plaintiffs for an Injunction Against Tokai-2 Nuclear Power.” Citizens Nuclear Information Center (CNIC) Secretary-General Hajime Matsukubo told Energy Intelligence that “plaintiffs in many cases will use this verdict as reference since evacuation plans are gravely lacking at just about every nuclear power plant.” The issue is under investigation by one of the three commissions reviewing nuclear safety issues for the Niigata prefectural government as part of a decision-making process over Tepco's bid to restart its Kashiwazaki Kariwa power plant (NIW Oct.30'20). Dennis Engbarth, Taipei City

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