LEGAL STATUS, CREDIBILITY, VISIBILITY & CONFIDENCE IN TSOs BY CARLTON STOIBER INTERNATIONAL...

LEGAL STATUS, CREDIBILITY, VISIBILITY & CONFIDENCE IN TSOs

BY CARLTON STOIBER

INTERNATIONAL CONFERENCE ON CHALLENGES FACED BY TSOs IN ENHANCING NUCLEAR SAFETY

AIX EN PROVENCE – 25 APRIL 2007

OUTLINE OF THE PRESENTATION

INTRODUCTION DEFINITION OF TSOs LEGAL STATUS OF TSOs ROLES OF TSOs MEANS OF ESTABLISHING CREDIBILITY OPTIONS FOR CLARIFYING THE STATUS &

ROLES OF TSOs CONCLUSION

INTRODUCTION

TSOs WILL PLAY AN INCREASINGLY IMPORTANT ROLE IN NUCLEAR DEVELOPMENT WORLDWIDE

TSO EFFECTIVENESS INVOLVES MANY FACTORS

THIS PAPER WILL FOCUS ON TWO ISSUES:

(1) LEGAL STATUS OF TSOs

(2) ISSUES AFFECTING TSO CREDIBILITY

DEFINITION OF TSOs

• THE INTERNATIONAL NUCLEAR COMMUNITY HAS NOT ADOPTED AN AGREED AND CLEAR DEFINITION OF “TSO”

• IAEA DOCUMENTS USE A VARIETY OF TERMS SUCH AS “REGULATORY BODY”, “OPERATOR” OR “LICENSEE”—BUT NOT “TSO”

• NATIONAL LAWS USE A VARIETY OF TERMS THAT ARE NOT MUTUALLY CONSISTENT

• AN AGREED DEFINITION OF TSO COULD BE USEFUL FOR AFFECTED ORGANIZATIONS AND STAKEHOLDERS

AN OPTION FOR A DEFINITION OF TSO

“TECHNICAL AND SCIENTIFIC SUPPORT ORGANIZATION MEANS AN ORGANIZATION ESTABLISHED TO PROVIDE INDEPENDENT TECHNICAL OR SCIENTIFIC ADVICE OR ASSISTANCE TO A REGULATORY BODY OR OPERATING ORGANIZATION CONCERNING MATTERS AFFECTING THE SAFETY OF FACILITIES, ACTIVITIES OR PRACTICES INVOLVING NUCLEAR ENERGY OR IONIZING RADIATION.”

LEGAL STATUS OF TSOs

LEGAL STATUS OF TSOs IN INTERNATIONAL NUCLEAR LAW IS UNCLEAR

LEGAL STATUS APPEARS TO DEPEND ON THE TYPE OF ORGANIZATION FOR WHICH THE TSO PROVIDES SUPPORT

A TSO MAY HAVE A “MIXED” OR “HYBRID” CHARACTER IF IT SUPPORTS BOTH REGULATORY BODIES AND OPERATING ORGANIZATIONS

ENSURING SEPARATION OF FUNCTIONS BETWEEN REGULATORY AND OPERATING ORGANIZATIONS IS AN IMPORTANT LEGAL REQUIREMENT UNDER SEVERAL INTERNATIONAL INSTRUMENTS

ROLES OF TSOs

THE ROLES PERFORMED BY A TSO MAY HAVE A CRUCIAL BEARING ON ITS LEGAL STATUS AND NEED FOR INDEPENDENCE

TYPICAL REGULATORY ROLES INCLUDE: STANDARD-SETTING/PROMULGATING REGULATIONS AUTHORIZATION/LICENSING INSPECTION/MONITORING ENFORCEMENT PUBLIC INFORMATION REGULATORY RESEARCH

CREDIBILITY DEFINED

CREDIBILITY IS “THE QUALITY OR POWER OF INSPIRING BELIEF”.

MEANS FOR ACHIEVING CREDIBILITY CAN DIFFER AMONG VARIOUS AUDIENCES.

TECHNICAL INFORMATION PERSUASIVE TO EXPERTS MAY LACK CREDIBILITY WITH OTHER STAKEHOLDERS & PUBLIC

MEANS FOR ESTABLISHING TSO CREDIBILITY

SEVEN INTER-RELATED ELEMENTS CAN CONTRIBUTE TO TSO CREDIBILITY

1—COMPETENCE/EXPERTISE2—INDEPENDENCE3—TRANSPARENCY/OPENNESS4—INTEGRITY5—EFFICIENCY6—RESPONSIVENESS/INITIATIVE7—ACCOUNTABILITY

1—COMPETENCE/EXPERTISE

TECHNICAL AND SCIENTIFIC COMPETENCE IS PRIMARY FOR CREDIBILITY WITH ALL AUDIENCES

SOME FORM OF CERTIFICATION OR LICENSING OF TSOs AND THEIR PERSONNEL CAN ENHANCE CREDIBILITY

COOPERATIVE ARRANGEMENTS WITH OTHER TSOs (BOTH NATIONAL AND INTERNATIONAL) CAN ENHANCE COMPETENCE

2—INDEPENDENCE

A TSO MUST EXERCISE ITS COMPETENCE FREE FROM IMPROPER INFLUENCES

HOWEVER, A TSO CANNOT BE FREE FROM ADHERING TO ESTABLISHED REGULATORY POLICY

SEPARATION OF FUNCTIONS IS ONE MEANS OF ENHANCING INDEPENDENCE

THE FOLLOWING ASPECTS HAVE BEEN IDENTIFIED AS IMPORTANT FOR INDEPENDENCE: POLITICAL LEGISLATIVE FINANCIAL COMPETENCE PUBLIC INFORMATIONAL INTERNATIONAL

3—TRANSPARENCY/OPENNESS

CREDIBILITY SUFFERS IF ANY AUDIENCE BELIEVES THAT ISSUES IMPORTANT TO SAFETY ARE BEING DECIDED WITHOUT PUBLIC KNOWLEDGE BY UNKNOWN ENTITIES

INFORMATION ON A TSOs STRUCTURE, COMPOSITION & ACTIVITIES SHOULD BE BROADLY AVAILABLE & WELL-PUBLICIZED

HOWEVER TSOs MUST PROTECT INFORMATION PROPERLY HELD CONFIDENTIAL FOR PROPRIETARY OF SECURITY REASONS

4—INTEGRITY

TSO CREDIBILITY GOES BEYOND TECHNICAL COMPETENCE TO INCLUDE A PERCEPTION OF ITS HONESTY AND FAIRNESS

MEANS FOR DEMONSTRATING INTEGRITY INCLUDE: STANDARDS FOR EMPLOYEE CONDUCT CONFLICT OF INTEREST RULES PROCEDURES TO PREVENT BIAS OR DISCRIMINATION PROCEDURES TO ENSURE AGAINST INFLUENCE

THROUGH IMPROPER FINANCIAL CONSIDERATIONS

5—EFFICIENCY

EFFICIENCY IS MOST IMPORTANT TO THE USER OF TSO SERVICES

ECONOMIC ASPECTS ARE OFTEN A PRIME BASIS FOR USING A TSO

EFFICIENCY INCLUDES: TIMELINESS ECONOMICAL USE OF AVAILABLE RESOURCES HIGH QUALITY OF WORK PERFORMED CONSISTENT AND PREDICTABLE PERFORMANCE

6—RESPONSIVENESS/INITIATIVE

TSO CREDIBILITY CAN BE ENHANCED BY A “PRO-ACTIVE” APPROACH TO THE NEEDS OF THE CLIENT/USER ORGANIZATION

A TSO SHOULD SHOW INITIATIVE IN IDENTIFYING ISSUES REQUIRING WORK OR PROBLEMS THAT NEED TO BE ADDRESSED

HOWEVER, TSO CREDIBILITY SUFFERS THE TSO APPEARS TO BE PROMOTING UNNECESSARY “MAKE WORK” FOR REASONS UNRELATED TO SAFETY

A TSO SHOULD SHOW FLEXIBILITY IN RESPONDING PROMPTLY TO CHANGED CIRCUMSTANCES OR TECHNOLOGICAL DEVELOPMENTS

7—ACCOUNTABILITY

A TSO MUST ASSUME RESPONSIBILITY FOR THE WORK IT PERFORMS

IN CASES OF INADEQUATE PERFORMANCE THE TSO MUST TAKE PROMPT CORRECTIVE ACTION AND/OR PROVIDE SUITABLE COMPENSATION

QUALITY CONTROL MEASURES ARE AN ESSENTIAL BASIS FOR ACCOUNTABILITY

EXTERNAL REVIEW OF TSO PERFORMANCE BY AN INDEPENDENT BODY CAN ENHANCE ACCOUNTABILITY

OPTIONS FOR CLARIFYING THE STATUS AND ROLES OF TSOs

FIVE OPTIONS MIGHT BE CONSIDERED1—INTERPRETATION OF EXISTING LEGAL

INSTRUMENTS2—CODE OF CONDUCT ON TSOs3—REVISION OF EXISTING IAEA GUIDANCE

DOCUMENTS4—NEW IAEA GUIDANCE DOCUMENT ON

TSOs5—FINDINGS AND REPORTS OF RELEVANT

INTERNATIONAL MEETINGS/FORA

INTERPRETATION OF EXISTING LEGAL INSTRUMENTS

THE MOST SIGNIFICANT INTERNATIONAL INSTRUMENTS ON NUCLEAR SAFETY DO NOT ADDRESS TSOs (CNS; JOINT CONVENTION; CODES OF CONDUCT ON SOURCES AND RESEARCH REACTORS)

IT MAY NOT BE FEASIBLE TO AMEND THESE INSTRUMENTS TO COVER TSOs

MEANS FOR INTERPRETING RELEVANT PROVISIONS TO COVER SOME TSO ROLES MAY BE WORTH CONSIDERATION AT RELEVANT REVIEW MEETINGS, ETC.

CODE OF CONDUCT ON TSOs

IF REVISION OF “HARD LAW” INSTRUMENTS TO COVER TSOs IS NOT FEASIBLE, A POSSIBLE ALTERNATIVE WOULD BE DEVELOPMENT OF A NON-BINDING “SOFT LAW” CODE OF CONDUCT

THE SCOPE OF A CODE OF CONDUCT COULD COVER TSOs HAVING A REGULATORY, OPERATIONAL OR HYBRID CHARACTER

POSSIBLE ELEMENTS OF A CODE OF CONDUCT FOR TSOs

DEFINITIONS STATUS AND ROLES OF TSOs

STANDARDS DEVELOPMENT AUTHORIZATION/LICENSING MONITORING AND INSPECTION ENFORCEMENT RESEARCH PUBLIC INFORMATION

TECHNICAL COMPETENCIES HUMAN AND FINANCIAL RESOURCES RELATIONSHIPS WITH REGULATORY BODIES RELATIONSHIPS WITH LICENSEES OR OPERATING

ORGANIZATIONS ACCOUNTABILITY AND LIABILITY TSOs IN THE TRANS-NATIONAL SETTING

REVISION OF EXISTING IAEA GUIDANCE DOCUMENTS

CURRENT IAEA DOCUMENTS DO NOT ADDRESS TSOs IN A COMPLETE OR CONSISTENT MANNER

EXISTING DOCUMENTS THAT COULD BE REVISED INCLUDE: GS-R-1 LEGAL & GOVERNMENTAL INFRASTRUCTURE GS-G-1.1 ORGANIZATION & STAFFING OF THE

REGULATORY BODY GS-G-1.2 REVIEW & ASSESSMENT BY THE

REGULATORY BODY GS-G-1.3 REGULATORY INSPECTION & ENFORCMENT IAEA SAFETY GLOSSARY

NEW IAEA GUIDANCE DOCUMENT ON TSOs

RATHER THAN REVISING A NUMBER OF IAEA DOCUMENTS, IT MAY BE MORE PRACTICAL TO DEVELOP A SINGLE NEW IAEA GUIDANCE DOCUMENT

THE CONTENTS AND FORMAT OF A NEW DOCUMENT COULD BE SIMILAR TO THAT SUGGESTED FOR A CODE OF CONDUCT

FINDINGS AND REPORTS OF RELEVANT INTERNATIONAL MEETINGS/FORA

A MEANS OF CLARIFYING THE STATUS AND ROLES OF TSOs THAT WOULD NOT INVOLVE DEVELOPING NEW INSTRUMENTS OR REVISING EXISTING ONES WOULD BE TO ADDRESS RELEVANT ISSUES IN THE FINDINGS AND REPORTS OF TECHNICAL MEETINGS ON THE INTERNATIONAL NUCLEAR CALENDAR

THE CURRENT MEETING OBVIOUSLY PROVIDES AN OPPORTUNITY IN THIS REGARD

CONCLUSION

FOR A VARIETY OF REASONS [FINANCIAL, LEGAL, ORGANIZATIONAL] TSOs ARE LIKELY TO PLAY AN INCREASING ROLE IN NUCLEAR DEVELOPMENT WORLDWIDE

THE LEGAL STATUS AND PROPER ROLES OF TSOs CURRENTLY LACK CLARITY AND PRECISION IN BOTH INTERNATIONAL LAW AND PRACTICE

CONCERNED GOVERNMENTS, INTERNATIONAL ORGANIZATIONS AND RELEVANT STAKEHOLDERS SHOULD CONSIDER OPTIONS FOR CLARIFYING THE STATUS AND ROLES OF TSOs THROUGH A VARIETY OF MEANS

IT IS HOPED THAT THE OPTIONS DISCUSSED IN THIS PAPER CAN CONTRIBUTE TO SUCH A DIALOGUE