Wednesday, January 30, 2013

Tepco's Liability for the Japanese Nuclear Disaster


Tepco is trying to limit legal liabilities for compensation.


Tepco does have some degree of legal liability for the nuclear disaster at Daiichi under Japan’s third party liability legislation – the Act on Compensation for Nuclear Damage - and the financial liability is not limited by the act. However, as explained by Ximena Vasquez-Maignan, Senior Legal Adviser at the Legal Affairs Section of the OECD Nuclear Energy Agency, there are significant ambiguities in the law.[i]

First, the law does not define the nature of the damage that must be compensated by the operator so the Japanese courts will have to make the final decision on what counts as nuclear damage. The courts will have to distinguish between damages directly caused by radiation and those caused by the earthquake and tsunami.

Vasquez-Maignan notes that Tepco could actually be exonerated given the scale of the earthquake and tsunami. 

Another limit on litigation is the time-frame. As explained by Vasquez-Maignan: “All rights of action are fully extinguished 20 years following the date of the tort and the actions must be brought within three years from the date at which the person suffering damage had knowledge both of the damage and of the person liable.” 

Finally, Tepco’s financial liability may be unlimited in principle, but in practice the Japanese National Diet will offer financial support when Tepco’s liability exceeds JPY 120 billion through the legal auspices of the Facilitation Corporation, established by the Japanese Diet with the approval of the August 3, 2011 bill titled, “Establishment of a Nuclear Damage Compensation Facilitation Corporation.” In the wake of the Tokai-mura nuclear accident in 1999 most claims were settled out of court.

The details of three year statute of limitations and the definition of harm are key. Vasquez-Maignan claims that legal actions had to be brought within three years of confirmation of harm to person and property. In January of 2013 the blogger EX-SKF summarized Tepco’s stance on the details of compensation. As of January 2013:

[EX-SKF WRITES] Tepco has and the Nuclear Damage Liability Facilitation Fund has decided that the period to claim damages from the Fukushima I Nuclear Power Plant accident will be three years from the date when people affected by the accident receive their application documents. It has been pointed out that the three-year statute of limitations from the start of the accident may happen, but the new plan will move the date further back from which to count three years so that people affected by the accident are able to receive compensations.[ii]

The effect of this decision, if uncontested, is that Fukushima victims may have only a five-to-six year timespan within which to sue for damages to property and person. According to EX-SKF, the plan is “part of the change request for the ‘Comprehensive Special Business Plan’ that TEPCO submitted to Toshimitsu Motegi, Minister of Economy, Trade and Industry, on January 15.”

It typically takes years to ascertain and verify that disabilities and diseases are caused by exposure to radiation.

This is another example of the injustices that occur through the privatization of risk. 

[i] X. Vasquez-Maignan (2011) ‘Fukushima Liability and Compensation’, Nuclear Law Bulletin, 2.88, 61-64.

[ii] Ex-SKF (27 January 2013) Fukushima I Nuke Accident: TEPCO to Limit the Right to Claim Compensation to 3 Years After All’, The Mainichi, http://mainichi.jp/feature/20110311/news/20130110dde041040051000c.html, date accessed 30 January 2013. Article cited by EX-SKF in Nikkei Shinbun 16 January 2013, http://www.nikkei.com/article/DGXNASDD1600S_W3A110C1EB2000/


PRIVATIZATION OF RISK

Dec 17, 2012
Fuksuhima and the Privatization of Risk: Introduction. Every morning I look at the Fukushima webcam and I wonder at what I am seeing. I see strange brownish-purplish colors in vertical shafts, auras of blue-green, and ...

Dec 18, 2012
The privatization of risk is a global social trend occurring in myriad ways as risk is shifted from organized entities – such as government and corporations -- to private citizens. Risk is privatized when organized institutions ...

Dec 29, 2012
Privatization of Risk III: LDP Privatizes Risk in Push to Re-Start Reactors. I previously posted about the Japanese nuclear complex, drawing upon a research article written by a Japanese sociologist: The Nuclear Complex in ...

Jan 07, 2013
Fuksuhima and the Privatization of Risk: Introduction. Every morning I look at the Fukushima webcam and I wonder at what I am seeing. I see strange brownish-purplish colors in vertical shafts, auras of blue-green, and .


No comments:

Post a Comment