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/EXPERTISE 2—INDEPENDENCE 3—TRANSPARENCY/OPENNESS 4—INTEGRITY 5—EFFICIENCY 6—RESPONSIVENESS/INITIATIVE 7—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 CONSIDERED 1—INTERPRETATION OF EXISTING LEGAL INSTRUMENTS 2—CODE OF CONDUCT ON TSOs 3—REVISION OF EXISTING IAEA GUIDANCE DOCUMENTS 4—NEW IAEA GUIDANCE DOCUMENT ON TSOs 5—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