TRANSITION OF THE NUCLEAR REGULATORY BODIES IN JAPANKeiya MURAKAMIJapan Energy Law Institute

Table of Contents

I.

INTRODUCTION................................................................................................... 2

II. THE TRANSITIONS OF THE NUCLEAR REGULATORY BODIES............. 2A.

Establishment................................................................................................. 3

B.

Radiation leaks from the Nuclear Power Ship “Mutsu”............................ 3C.

The JCO (a nuclear fuel production company) nuclear criticality
accident........................................................................................................... 4

III. THE FUKUSHIMA ACCIDENT........................................................................... 5A.

Issues which have been pointed out after the Fukushima accident........... 5B.

Response after the Fukushima accident....................................................... 6C.

Opinions regarding the current nuclear regulatory bodies........................ 7

IV. INTEGRATED REGULATORY REVIEW SERVICE (IRRS).......................... 8V. CONCLUSION AND FUTURE PROSPECTS..................................................... 91

TRANSITION OF THE NUCLEAR REGULATORY BODIES IN JAPANKeiya Murakami
JAPAN ENERGY LAW INSTITUTE

I. INTRODUCTION
As a result of the Fukushima-Daiichi nuclear power accident (hereinafter the “Fukushimaaccident”), the government had to reconsider the meaning of its nuclear regulatory systems.
Therefore, the Nuclear Regulation Authority (NRA) was established under Article 3 of theNational Government Organization Act, and the NRA exercises executive power
independently, not under the direction and supervision of the Cabinet Minister.
Based on Article 5 of the Act for Establishment of the Nuclear Regulation Authority(hereinafter the “Establishment Act”), the government organization, which commands thework relating to ensuring safety in nuclear energy use, are due to be reviewed within three
years after enforcement of the Establishment Act. The "last adjustment" for review waspresented in September 2015 based on the said Act, and in the adjustment, it is indicated thatpoints of argument about the state of the Nuclear Regulation Authority have already beencorresponding.
Moreover, the IAEA conducted an Integrated Regulatory Review Service (IRRS)1 mission tothe NRA from 11 Jan 2016 to 22 Jan 2016. The mission report was sent from the IAEA andreceived by the NRA on 23 April.
Japan's Nuclear Regulatory Bodies have been restructured each time on the basis of lessons
learned from accidents that occurred in the past. So I would like to overview the Transition ofthe Nuclear Regulatory Bodies while paying particular attention to independence andcentralization.

II. THE TRANSITIONS OF THE
NUCLEAR REGULATORY BODIESThe Nuclear Regulatory Bodies were restructured from 1957, when the Regulation ofNuclear Source Material, Nuclear Fuel Material and Reactors (hereinafter the “Nuclear
1

IAEA, REPORT OF THE INTEGRATED REGULATORY REVIEW SERVICE (IRRS) MISSION TO
JAPAN 10-22 January 2016.

2

Reactors Regulation Act”) was established, because of the following three accidents:
Radiation leaks from the Nuclear Power Ship “Mutsu”, The JCO nuclear criticality accident,and the Fukushima accident.

A.

Establishment

From 1957 to 1978, when the Nuclear Reactors Regulation Act was revised, the license forall reactor installments were permitted by the prime minister, and so the prime minister musthave respected the opinions of the Atomic Energy Commission (AEC). In addition, thechairman of the AEC was General Director of the Science and Technology Agency and theoffice work of the AEC was handled by the Science and Technology Agency.
Although the AEC was established under the Cabinet Office based on Article 8 of theNational Government Organization Act, it was understood as having had high independency,
because it had the character of the regulatory authority de facto and the consent of bothHouses of Diet was required to appoint members of it2.
However, as for power reactors and marine reactors, administrative measures required theconsent of the competent ministers (the Minister of the International Trade and Industry(MITI) and the Minister of Transport). And permission for the design and construction
method of the reactor concerned were not under the requirements of the Nuclear Reactors
Regulation Act.

B.

Radiation leaks from the Nuclear Power Ship “Mutsu”

As a result of Radiation leaks from the Nuclear Power Ship “Mutsu” in 1974, the Advisory
Committee on Atomic Energy Administration was held as the Prime Minister's private
consulting group, whose chairman was Hiromi Arisawa, Emeritus Professor of the Universityof Tokyo, and the state of nuclear administration was discussed. The committee pointed outthat it was necessary to separate the functions relating to nuclear safety from those which theAEC had had, and based on this recommendation, the Nuclear Safety Commission (NSC),
which is in charge of safety regulation was newly established. Moreover, the Science andTechnology Agency had become the agency to deal with the office work of the Commission,
so that NSC could be functionally separated from general administration and be neutral andequal to each ministry agency.
Furthermore, based on criticisms that consistency of safety regulations was lacking, eachrelated minister regulated from the license for reactor installment to the regulatory activities
subsequent to the licensing: nuclear power reactors are regulated by the Minister of the MITI,
2Hideaki Shiroyama “Current Status and Issues of Nuclear Safety Commission” 1399 Jurist (2010)3

marine reactors are regulated by the Minister of Transport, and research and test reactors andthose in the stage of research and development are regulated by the Prime Minister. In
addition, since each Minister had the responsibility of both promoting development andsafety regulations and there was a possibility that a distrust about nuclear safety regulation
may arise, NSC came to check safety reviews of each minister (hereinafter the“double-checking system”).

C.

The JCO (a nuclear fuel production company) nuclear criticality accident

In 1999 after the JCO Nuclear Accident, the Accident Investigation Board (established in theNuclear Safety Commission), which conducted the investigation to determine the cause of theaccident and prevent recurrence, proposed “strengthening the deployment and clarifying therole of safety regulatory Authorities” and “strengthening the independency of the NSC,
strengthening the NSC secretariat, securing groups of experts in a wide variety of fields”.
In response to this report proposal, they transferred control of the NSC secretariat of the NSC
from the Science and Technology Agency to the Prime Minister's office while also increasing
personnel and deploying experts, etc., to strengthen the system. Furthermore, in keeping withthe abolition of the Prime Minister's office through the reorganization of central government
ministries, the NSC along with the AEC came to belong to the Cabinet Office. The fact that
control of the NSC was transferred in this way from the Prime Minister's office, which wasequal to the other Ministries, to the Cabinet Office, which has a higher status than the otherMinistries, and came to possess an independent secretariat was evaluated to have increased itsindependence3. However, at this time, revisions were being made to the Act for Establishmentof the Atomic Energy Commission and Nuclear Safety Commission, and the “respecting thedecisions” of the AEC and the NSC, which was stipulated in Article 23 of said act, has beenrepealed. This was repealed consequent upon the organization and rationalization of theCouncil, etc., but the purpose of the rationalization was given as "to resolve the problems ofthe Council, etc. such as its inviting of the so-called cloak of invisibility criticism andpromoting an over-compartmentalized bureaucracy and clearly define administrativeresponsibility", and it seems to carry a potential of losing its meaning as the core of the“double-checking system”. Furthermore, at the 64th Atomic Energy Commission regularmeeting (held on November 2, 1999), an explanation was made to the effect that the existenceof the “respecting the decisions” and the importance of the Commission of inquiry wereseparate issues, and that it is natural that the opinions of the AEC and the NSC be respected,
showing that the aforementioned concerns were borne.
Furthermore, the Minister of Economy, Trade and Industry (METI) was deemed to have3

Hideaki Shiroyama “Current Status and Issues of Nuclear Safety Commission” 1399 Jurist (2010)4

jurisdiction over regulations on commercial power reactors and reactors at the stage ofresearch and development as well as regulations on nuclear fuel facilities, etc., while
commercial marine reactors were to be regulated by the Minister of Land, Infrastructure andtransport (inherited from the Minister of Transport) and research and test reactors by theMinister of Education, Culture, Sports, Science and Technology (inherited from the PrimeMinister).
Regarding the organizational structure of the METI as well, the Nuclear and Industrial Safety
Agency (NISA) was newly established as a "special Organ" in the Agency of Natural
Resources and Energy, which is an external bureau of the METI, and while maintaining
independence it became burdened by regulations. Furthermore, there is an opinion that theNational Government Organization Act possesses a function to formalize structural units ofcentral government ministries and Authorities other than the Cabinet Office, but the "specialOrgan" is a concept which refers to all things which do not fall under such fixed forms, andsimply because such an agency may be established it cannot be thought to have immediately
secured independence4.

III. THE FUKUSHIMA ACCIDENT
A.

Issues which have been pointed out after the Fukushima accident

In the "Report of Japanese Government to the IAEA Ministerial Conference on Nuclear
Safety" after the Fukushima accident, the government declared that with whom the primary
responsibility for conducting sufficient safety maintenance activities to prevent accidents lies
is unclear due to the government organizations relating to ensuring nuclear energy safety
being divided on such things as safety regulations by the NISA as a primary regulatory
agency, supervision of the primary administrative agency's regulations by the NSC, andimplementation of environmental monitoring by concerned municipalities and each ministryduring emergencies.
Furthermore, a survey/report has been conducted by 4 accident investigation committees--thegovernment's Accident Investigation Committee, the Independent Investigation Commission
on the Fukushima Daiichi Nuclear Accident by the private Rebuild Japan Initiative
Foundation, the Fukushima Accident Investigation by Tokyo Electric Power Co., and theAccident Investigation Committee which was established by the National Diet--which
pointed out organizational and institutional problems with nuclear safety regulations, namelythat the independence of the regulatory authorities from the lobbying Authorities and business
4

Daiki Harada “Nuclear Regulation Authority” JAPAN ENERGY LAW INSTITUTE(2012)

Monthly Report 217

5people had become a mere facade and that the safety regulation organizations needed
independence from the lobbying organizations and business people.

B.

Response after the Fukushima accident

In August 2011 a cabinet decision was held on the basic policy for reform of organizations
relating to nuclear safety regulations in order to win back trust and improve the function of
the Nuclear Safety Administration after the Fukushima accident; and at the Advisory
Committee for Prevention of Nuclear Accident which was established therefrom, a detailed
proposal5 regarding nuclear reform was finalized in December 2011.
In this proposal, they indicated 7 principles for reforming nuclear safety regulatory bodies,etc., and pointed out that the efficacy of ensuring safety with consideration for the use ofnuclear energy must not decline ("separation of regulation and utilization") and a unificationof limited resources must take place ("centralization").
Considering this proposal, in January 2012, the government established the Nuclear
Regulatory Agency as an external bureau of the Ministry of the Environment and submitted
the Nuclear Organization Structural Reform Bill, etc., establishing a Nuclear Safety
Investigation Commission to conduct investigations regarding the implementation ofregulations, etc. relating to ensuring nuclear safety (hereinafter referred to as "the governmentbill") to the 180th National Diet. Furthermore, in the government bill, permission andauthorization is mainly carried out by the Minister for the Environment, while the authority
for safeguards and radiation monitoring, etc. remained with the Ministry of Education,Culture, Sports, Science and Technology.
On the other hand, the opposition party independently set up a project team concerning
nuclear regulatory bodies, and submitted a bill on the Establishment of the Nuclear
Regulation Authority, which established the Nuclear Regulation Authority as an Article-3
based commission and established the Secretariat of the Nuclear Regulation Authority to thelower house (April 2012). In this bill, the Nuclear Regulation Authority conducts permission
and authorization, and the matters which were left under the authority of the Ministry ofEducation, Culture, Sports, Science and Technology in the government bill are centralized
under the Nuclear Regulation Authority. The majority and minority parties subsequently
negotiated to conclude a revised bill based upon the bill on the establishment of the Nuclear
Regulation Authority on June 20, 2012.
Organized in this way, the NRA possesses a high level of independence as an Article-3 basedcommission, while also securing the exercise of authority independent from not only the5

Recommendation from Advisory Committee for Prevention of Nuclear Accident, 13th December 2011

6

Ministry of the Environment, but other government Authorities in the establishment Act. Also,
control of the nuclear reactor regulations, nuclear security, etc., which was previously
handled by related government Authorities, was transferred to the Nuclear Regulation
Authority, which is now responsible for said control with a unification of Safety, Security,and Safeguards. Additionally, the members of the Nuclear Regulation Authority are to beappointed by the Prime Minister from among persons who possess specialized knowledge,
experience, excluding those who operate nuclear activities or are executives or employees
thereof, securing its independence from nuclear operators as well.
Furthermore, the Japan Nuclear Energy Safety Organization (JNES), which was established
as a Technical assistance agency for NISA, was abolished and merged with the NRA, thus
enhancing the expertise of the NRA.
Following a series of such institutional reforms, a group of “Technical knowledge” directlycame to handle Japanese nuclear regulations. It is said that this organizational reform hasdeveloped nuclear “Technical knowledge” as a tool of “Governance”67.

C.

Opinions regarding the current nuclear regulatory bodies

Regarding the establishment of the NRA in the Ministry of the Environment, there are also
opinions that it should be established in the Cabinet Office due to the concern that conflicts ofinterest could arise in global warming counter-measures, etc., but looking at the nuclear
regulatory bodies of various countries, we see that there are a variety of ministries and offices
to which nuclear regulatory bodies belong such as under the Department for Work andPensions (United Kingdom), the Ministry of Social Affairs and Health (Finland), and theMinistry of the Environment (Sweden), as well as being placed as independent organizations
not belonging to other government organizations (USA), and there is also the opinion that itis difficult to find a need to transfer control of the nuclear regulatory bodies, which has
measures in place (Article-3 based commission, separation of regulation and utilization), toimprove its independence to the Cabinet Office.
It has also been pointed out that as the NRA must not fall into "isolation", it should adhere torules of transparency and deepen communication between concerned government Authorities,business operators, municipalities and other concerned parties.

6

Fumito Tomooka “The Relationship between Governance and Technicality--Viewed from Administrative Law”
Public Law Review No.76, yuhikaku, October 2014
7
Fumito Tomooka “chapter One Reflection of the Technical knowledge in accordance with the re-operation of
the nuclear power plant-- Legal issues surrounding the new regulatory requirements.” the Fukushima nuclear
power accident and Legal policy, daiichihouki, 2016

7

IV. INTEGRATED REGULATORYREVIEW SERVICE (IRRS)The IAEA conducted an Integrated Regulatory Review Service (IRRS) mission to the NRAfrom 11 Jan 2016 to 22 Jan 2016. The mission report was sent from IAEA and received bythe NRA on 23 April.
In the report, it was recognized as a good practice to have established the NRA as a neweffective independent and transparent regulatory with increased power, by citing thefollowing points about the independence and centralization of NRA:•JNES merged with the NRA. The NRA now has sole responsibility for regulating
nuclear safety, nuclear security and safeguards based on international commitments,and regulating radiation monitoring and the use of radioactive isotopes that wereformerly handled by a range of administrative bodies.

•The NRA is clearly separated from METI who holds jurisdiction over the use ofnuclear energy.

•The Chairman and Commissioners of the NRA are appointed by the Prime Minister,with the consent of the Diet.

•The openness and transparency by which the NRA acts, and some of the regulatory
actions considered by the IRRS team, also suggests that NRA acts with a high levelof integrity, i.e. that the NRA in those aspects has demonstrated effective (de facto)
independence.

However, as a result of the self-assessment carried out in preparation for the IRRS, the NRA
has identified that it does not have a sufficient number of qualified staff for performing theassigned responsibilities. In the report, IRRS members agreed with this, and recommend thatthe NRA should further develop and implement the activities relating to the evaluation ofcompetencies, execution of training programmes, on the job training, internal job rotation,and strengthening of safety research, co-operation with technical support organisations(JAEA), universities, research organisations and international and foreign organisations.
In addition, about coordination of authorities, IRRS members recommend that The
government should ensure that the Japanese regulatory authorities having responsibilities
relevant to nuclear and radiation safety develop and implement an effective, collaborative
process for the exchange of information regarding policies, authorizations, inspections andenforcement actions to provide coordinated and effective regulatory oversight that should
also ensure a harmonized regulatory framework under their respective responsibilities. In8

order to respond to this recommendation, the NRA is expected to provide a special regime(project team, etc.).

V. CONCLUSION AND FUTURE
PROSPECTS
As described above, it can be seen that the Nuclear Regulatory Bodies have been restructured
based on the lessons learned from the various accidents that have occurred in the past andvarious views about independence and centralization have been shown.
After the Fukushima accident, it was strongly pointed out that the “double-checking system”
hadn’t been functioning and "separation of regulation and utilization" wasn’t enough, but it
had been recognized that there was a problem with them. And the NSR had played a role inpreventing the problem (at least at the time when the "double-checking system" wasintroduced), but it can be said that the NSR did not fulfill that role well.
Although it is of course important to ensure the independence and centralization of nuclear
regulatory bodies at the surface of organizational structures, in order for the structure tofunction properly, I hope that the NRC continues to demonstrate (de facto) independence
which was recognized as a good practice in the IRRS mission report through acting with ahigh level of integrity.

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