Role of a Lawyer in Nuclear Safety, Security and Safequards

By

ABULHADI ABDULLAHI ESQNational Training Course for Lawyers, Sheraton

Hotel & Towers, Ikeja. Lagos. 9-10 July 2012

2. Objective

• To achieve and maintain high level safety, security and Safeguards of radioactive sources, nuclear materials by preventing unauthorized access, damage, loss, theft and or unauthorized transfer so as to reduce the likelihood of accidental harmful exposure or the malicious use or act to cause harm to individual, society or the environment and to prevent intentional or inadvertent recycling of radioactive metals for other uses.

Definition of Safety

• Safety is an emplacement of strategies including rapid response for gaining or regaining control over orphan sources, provide for measures to reduce likelihood of malicious acts, mitigate or minimize the radiological consequences of accidents or malicious acts involving radioactive sources and provide for continuous improvement of the strategies

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What is Nuclear Security?

• Nuclear security is aimed at “the prevention and detection of and response to, theft, sabotage, unauthorized access, illegal transfer or other malicious acts involving nuclear materials, other radioactive substances or their associated facilities.”.

• By this definition, nuclear security also covers acts “with or without knowledge of the nature of the material, sabotage and other malicious acts, illicit trafficking and unauthorized transfer

What are IAEA Safeguards?

Key technical means for verifying compliance by States with legally binding undertaking not to use nuclear material or facilities to develop nuclear weapons or other nuclear explosive devices

The requirement for safeguards

• CSA: Basic Obligations of the State• Provide information to the IAEA concerning

nuclear material, facilities and activities• Provide access to the IAEA for purposes of

inspections and design information verification• Cooperate with the IAEA in the implementation of

the safeguards agreement• Establish a State system of accounting for and

control of nuclear material (SSAC)CSA: Elements

Lawyers and the regulatory infrastructure

• The role of lawyers in: the legislative process; the regulatory processes of notification,

authorization, inspection, enforcement; emergency preparedness and response; training and education; communication to the public and other

authorities; quality assurance and management.

Why are Lawyers required

• Lawyers have an important role in advising the Regulatory Body and other decision makers involved in the protection of persons, society and the environment against ionizing radiation hazards. In particular, lawyers are required to provide legal assistance to:

• Regulatory Body personnel;• Legislators;• Judges, or other Justice Officers.

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Regulatory System

Radiation Sources Notification; Authorization;

Inspection; Enforcement

RegulatoryBody

Radiation Safety Legislation

International Instruments

GOVERNMENT

Regulations and

Guidance

Role of the Lawyer

Lawyers should provide advice in relation to:– the development and review of legislation;– the development and review of regulations;– authorization, notification, inspection, and

enforcement procedures;– emergency preparedness and response.

Role of a Lawyer

Lawyers should provide advice in relation to:

– staff training and education;– communication with the public and other

government agencies;– international and national agreements and

Memoranda of Understanding (MOUs).

Legislative Process

• An effective legal infrastructure for regulating the possession and use of radiation sources (both radioactive substances and radiation generators) is needed.

• Therefore, Lawyers should have an active participation in drafting and guiding the promulgation process of the radiation safety legislation and regulations.

Legislative Process

• The lawyer is bound to take into consideration other national legislation (existing or in draft) and international instruments and recommendations adopted by the State which may have a bearing on radiation safety in order to:

– avoid gaps and overlaps in the radiation safety infrastructure; and

Legislative Process• ensure coordination and cooperation of

relevant government agencies;• ensure the fulfillment of the obligations

assumed by the State in International Conventions and Agreements;

Legislative Process

• ensure that legislation and regulations cover all applicable aspects of radiation safety within the State;

• clearly define and allocate responsibilities between government agencies and users;

• provide advice during the regulation drafting process to ensure that beneficial practices giving rise to radiation exposures are not unduly limited;

• provide advice during the promulgation process of the legislation and regulations in order to ensure that they are effective and legally valid.

Regulatory Process

• In performing their duties, Regulatory Body personnel will require legal assistance in the different regulatory processes.

Notification

Inspection

Authorization

Enforcement

Notification

• For notifications, the lawyer should provide advice in drafting notification applications and assessment procedures.

Authorization

• For authorization, the lawyer should provide advice: • in drafting applications;• during the assessment process on matters such as

the status of the legal person, etc;• when the Regulatory Body decides to reject an

application for authorization (which possibly may lead to an appeal by the applicant);

• to ensure the validity of conditions, restrictions or limitations that might be imposed on authorizations.

Inspections

– For inspections, the lawyer should provide advice:

• during the drafting of inspection procedures;• when inspectors are unable to access

premises and coordinate external assistance • when urgent measures are needed that fall

outside normal inspection procedures.

Enforcement– For enforcement, the lawyer should:• provide advice during drafting enforcement

procedures;• assist in the establishment of appropriate

penalties;• advise on the likely success of a planned

prosecution;• assist staff members when additional legal

powers may be required for enforcement (e.g. seizure of a radiation source);

• communicate to relevant government agencies any alleged offences that are not within the scope of the radiation safety legislation (e.g. criminal law matters).

Emergency Preparedness

• For emergency preparedness, the lawyer should examine existing related national legislation and international conventions which the State has accepted in order to:• avoid gaps and overlaps in planning for radiological

emergencies; • ensure the cooperation of relevant government

agencies;• ensure that legislation exists to deal with all aspects

of radiological emergencies, clearly defining and allocating responsibilities between government agencies and users

Emergency Response

• For the response to an emergency, the lawyer might need to provide advice: • when urgent measures are required or when

additional legal powers are necessary to ensure radiation safety and source security; and

• during the drafting of emergency procedures

Training and Education

• For training and education, the lawyer should give formal instructions to Regulatory Body personnel on the legal concepts and rules necessary to fulfill their daily duties as regulators, in particular,: • the State’s legal system and court procedures; • inspectors’ responsibilities and interview techniques to

ensure that evidence gathered is not rejected by the courts;

• the rights of users and other persons during inspections and interviews.

Communication

• The lawyer should provide assistance to Regulatory Body personnel when it is necessary to communicate to government or the public during emergencies or abnormal situations .

Quality Assurance and Management

• For quality assurance (and management), the lawyer should;• provide assistance during the drafting, review

and revision of the Regulatory Body’s internal procedures;

• draft, review and revise corresponding procedures for the Regulatory Body’s legal section and follow those procedures in daily practice.

International Conventions and National Agreements

• For international and national agreements, the lawyer should:• advise during the negotiation, drafting,

revision and review of agreements and the application of international conventions;

• assist during implementation of any agreement to avoid any unnecessary legal disputes.

In the areas of development and legislation

• The NSRP Act is under review to meet the requirement of International Conventions, Treaties and current development in nuclear and related matters

• The new bill entitled “Nuclear Safety, Security and Safeguard Bill” is before Senate awaiting its concurrence for passage into law.

Achievement• For example, adherence to relevant treaties,

domestication of the treaties, gazetting of regulations, authorization of various practices, the designation of entry and exit ports for nuclear materials, the establishment of the Inter-ministerial Committee on Nuclear Security, the required support of the Nigeria law enforcement agencies attest to the Nigeria’s seriousness as regards the country’s obligation and commitments towards safety, security and safeguards of nuclear materials and radioactive sources.

Achievement

• In 2006 the NNRA inconjuction with Federal Ministry of Justice gazette the 7nos regulations in various practice specifics areas in consonance with IAEA Safety Fundamentals and other essential materials;

• All International Conventions and Instruments signed and rectified by Nigeria have been deposited with the Director-General of IAEA,

Authorizations

• The NNRA license attained the international standard required in the following areas:

• Legal status• Terms and Conditions• Security

Notification

• The NNRA Notification forms has also been standardized and for all intent and purposes it has served the NNRA’s requirements for the processing and assessment,

• There is however the need to review the notification process to be an all embracing document

Inspection

• Inspections is and still remains the window, eyes, doors and the roof under which the NNRA carries out one of her important functions

• Authorization• Enforcement• Compliance

Enforcement

• The NNRA is a bulldog it can bark and bite as can be seen from some of its enforcement actions;

• The Halliburton incident• The Funtola incident

Enforcement

• The SGS incident• The Eko Hospital incident• The Grace Hospital incident• CERT Zaria• Western Atlas/SPDC incident• Recently the NBC PLC incident• Trinity Hospital, Abuja.• Greenwich Maritime Nigeria Limited.

Enforcement Action/Sanction

• The NNRA via its enforcement policy document administered the required imposition of administrative fine as penalty/sanctions for lesser offences.

Emergency and Preparedness

• The NNRA is the 1st Respondent/Incident Reporter internationally, it is responsible for coordinating radiological emergencies and preparedness programmes in Nigeria.

• The NNRA, NAEC, National Emergency Management Agency (NEMA) and other agencies are cooperating for the effective participation in nuclear and radiological emergency matters within Nigeria

Memorandum of Understanding

• The unique role of the NNRA requires it to enter into MOUs with relevant governmental agencies in carrying out its functions.

• In this regard, it has signed, sealed and delivered MOUs with the following governmental agencies;

• University of Ibadan in-respect of the establishment of Institute of Radiation Protection and Research

Memorandum of Understanding

• Nigerian Customs Service • Centre for Energy Research and Training,

Zaria• Republic of South Korea• Russian Federation. • US DOE GTRI.

Draw Backs

• The NNRA is yet to initiate MOUs with the following;

• The Nigeria Police Force• The Department of State Services• The Federal/States Ministry of Health• The Nigeria Immigration Service• The Federal Airports Authority of Nigeria

amongst others

Draw Backs

• Lack of approval from the Office of Mr. President on 2 new regulations has stalled the gazetting by the Federal Ministry of Justice.

• Regulation on NPP• Regulations on Sitting of NPP

Draw Backs

• Lack of approval from the Office of Mr. President on the MoUs Between

• NNRA and South African Nuclear Regulator

• NNRA and US Nuclear Regulatory Commission

• This has delayed the signing of the Agreement by both organizations

Draw Backs

• Nuclear Law Training Course for Lawyers• The Case between Nisa Premier Hospital

vs NNRA • The NSSS Bill• The NNRA Maiduguri Zonal Office &

others• The NNRA Headquarters.• Lack of adequate resources

Finally

• The NNRA and NAEC are yet to agree on some key national legislative requirements necessary for safety legislation and those for promotional legislations. A serious draw back for the country’s nuclear power programme.

THE END

• FOLKS IS PRSENTATION WELL DELIVERED?

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• THANK YOU FOR THE ENDORSMENT !!!

THE END