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159
THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE …
shutdown could or should have a mitigating effect upon the extent of the mandatory
financial liability limit.
55
For that reason the Steering Committee decided in 1990 that
a Contracting Party may cease to apply the Paris Convention to a nuclear installation
being decommissioned, provided that it must have
permanently
56
ceased operation, be
completely defueled and remain under control of the competent national authority
which should ensure maintenance of appropriate provisions for confinement of
radioactivity, and, finally, provided that the specified criteria are satisfied.
57
This means
that the decision to exclude those facilities in the process of being decommissioned
from the scope of the Paris Convention is left to the Contracting States, whereas the
technical criteria for this option ensure that the risk presented by the relevant facility
are minimised to the extent that continued application of the Convention is no
longer warranted. Similar provisions on the possible exclusion of nuclear installations
being decommissioned have been proposed in the original draft of the Amended
Vienna Convention.
58
Mining and milling facilities
Not all facilities interconnected directly or indirectly with the nuclear sector fall
under the Vienna Convention. Some facilities, as for example those used for mining,
milling and the physical concentration of uranium ores, do not involve high levels of
radioactivity. Hence, these activities do not fall within the scope of the Convention.
Factories for the manufacture or processing of natural or depleted uranium, facilities
for the storage of natural or depleted uranium, and the transport of natural or
depleted uranium, since the level of radioactivity is low and there are no criticality
risks, are also
excluded.
59
55
See HORBACH, N., HANEBURG, E. Legal Aspects of the Decommissioning of Nuclear Facilities:
A Comparative View,
Nuclear Law Bulletin,
1996, at p. 39.
56
This moment represents another point where the liability regime established by the Vienna Convention
is being interconnected with national public law regulating nuclear safety, in particular with the
permit issued by the competent authority in order to phase out the installation. See IOIRYSH, A., I.,
SUPATAEVA, O. A., CHOPORNIAK, A. B.
Otvetstvennosti za iadernyi ushcherb
, Moskva: Nauka,
1993, at p. 112.
57
See OECD (ed.):
Paris Convention. Decisions, Recomendations, Interpretations.
Paris: OECD, 1990,
at p. 8, and see
ibidem
Annex III Contracting States Authorised to Exclude Installations Being
Decommissioned, at p. 22.
58
See HORBACH, N., HANEBURG, E. Legal Aspects of the Decommissioning of Nuclear Facilities:
A Comparative View,
Nuclear Law Bulletin,
1996, at p. 39.
59
Similarly, risks which arise in respect of radioisotopes usable for any
industrial, commercial, agricultural,
medical, scientific
or
educationa
l purposes are excluded from the scope of the Convention. Further,
where materials, such as uranium salts, are used incidentally in various industrial activities not related to
the nuclear industry, such usage does not bring the plant concerned within the scope of the Convention.