Floating nuclear power plants

Floating nuclear power plants US and international

regulations

John Warren Kindt

This article examines the legal regime for floating nuclear power plants (FNPs), in view of the absence of specific US legislation and the very limited references to artificial islands in the Law of the Sea Convention. The environmental impacts of FNPs are examined and changes in US regulation following the Three Mile Island accident and recent US court decisions are described. References in the Law of the Sea Convention relevant to FNPs are outlined and the current status of international law on the subject is analysed. Keywords: Nuclear power stations; Artificial islands; Law of the Sea John Warren Kindt is Associate Professor of International Law and Business, 350 Commerce West, 1206 South Sixth Street, University of Illinois,

Champaign,

(Tel: (217)

II 61620,

USA

666-6366).

‘Order of 11 December 1981, In the Matter of Offshore Power Systems, Docket No. STN 50-437 MP (Atomic Safety and Licensing Board); see Large, ‘Approval of offshore nuclear plants nears, but possible buyers shy away’, Wall Street Journal, 13 November 1981, Section 2, p 1. zlnitial Decision, 30 June 1982, In the Matter of Offshore Power Systems, Docket No. STN 50-437 ML (Atomic Safety and Licensing Board).

90

The United States Nuclear Regulatory Commission (NRC) is considering giving Offshore Power Systems, Inc, final approval to manufacture eight floating nuclear power plants (FNPs) within a 1Cyear period. On 4 December 1981, the Atomic Safety and Licensing Board (Licensing Board) held the final hearing on a few technical matters and then closed the record on the application.’ On 30 June 1982, the Licensing Board recommended that the Director of Nuclear Reactor Regulation issue a licence to Offshore Power Systems to manufacture FNPs.~ Floating nuclear power plants were originally proposed in 1969 by Richard Eckert, an engineer with the Public Service Electric and Gas Company of New Jersey. New Jersey Electric interested Westinghouse Electric and Tenneco who in 1971 jointly formed Offshore Power Systems, Inc, to develop the idea. In 1972 New Jersey Electric ordered twin reactors from Offshore Power Systems to be sited 2.8 miles off the coast of New Jersey, north-east of Atlantic City. Offshore Power Systems applied for the manufacturing licence in 1973, and New Jersey Electric applied for a licence to build the Atlantic Generating Station Site in 1974.3 Delays in the licensing process and problems with financing the venture caused Tenneco to withdraw from Offshore Power Systems. Finally, in 1978 New Jersey Electric cancelled its contract because the demand for electricity during the early 1970s did not increase as rapidly as had been projected. To date, Offshore Power Systems has continued to press for the manufacturing licence .4 The construction and operation of FNPs will necessarily involve some environmental problems which are not involved in land-based nuclear plants. During the last decade of licensing procedures, no special legislation specifically regulating FNPs has been enacted. The existing legislation which would govern FNPs is an assortment of separate laws. In general, the problems associated with FNPs were not even considered when these various laws were enacted.5 Any examination of the existing legal controls over FNPs must examine these various, tangential laws. This article examines the recent judicial trends and legislation which potentially govern FNPs. First, the environmental problems caused by the construction and operation of FNPs are summarized; second, the rules and regulations relating to FNPs which have been formulated by the

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0 Butterworth & Co (Publishers) Ltd

Floaringnuclear power plants

NRC since the accident at Three Mile Island are examined; third, recent court decisions relating to the classification of FNPs as vessels or as artificial islands are reviewed.

Environmental impacts of FNPs Design features of FNPs

3See

Kindt, ‘Ocean resources development: the environmental considerations involved in the offshore siting of nuclear power plants’, SufM TransnationalLaw Journal, Vol 3, 1979, pp 35, 47-46;

Selfridge, ‘Floatingnuclear

power plants: a

Floating nuclear power plants were proposed as a solution to two major limitations involving land-based nuclear plants. Land-based plants required 400-500 acres of land and one million gallons of cooling water per minute.6 Sites which met these requirements were becoming scarce, especially on the densely populated east coast of the USA. The ocean provided both the space and the water necessary for the nuclear production of electricity. Floating nuclear power plants were designed to consist of uniformly constructed nuclear reactors floating on barges. The barges were developed to be moored at selected sites in the ocean and then surrounded by permanent protective breakwaters. The electricity was to be transmitted to onshore facilities through cables beneath the ocean floor, or, if the FNP was located near shore, cables would pass over a causeway from the FNP to the onshore facilities.’ The NRC considered four 3?NP siting options in ocean waters, estuaries and rivers. These options included: (1) ‘offshore’, at sites several miles from the shoreline; (2) ‘nearshore’, at sites within one mile of the shoreline; (3) ‘alongshore’, at sites adjacent to the shoreline; and (4) ‘inshore’, at sites which were excavated within the shoreline itself.8 Because of the differing to~~aphies of these various siting options, it was predicted that there w&id be different environmental impacts. In addition, some possible design changes were to be made in the overall concept of F’NPs to accommodate placing FNPs at the various sites.9 Originally, the FNPs had a number of advantages over land-based plants. They had a standard design. This reduced production costs and lead times, and it helped to prevent potential production errors and defects.lO When the FNP concept was originated, it was also predicted that licensing delays and costs would be less than for land-based plants once the initial manufacturing licence was granted. l1

fleet on the horizon?’ Envj~~n~ Law. Vol6,1976, pp 791,794; General Account: ing Office, Before Licensing Floating Nuclear Powerplants, Many Answers Are Needed, GAO, Washington, DC, 1976, PP l-3. %arge, op cit. Ref 1. 5The legislators who enacted the Energy R~~aniza~ Act of 1974 ~t~plat~ FNPs, but did not sPecificallyaddress the problems associated with them. See Energy ReorganizationAct of 1974. Pub. L. No. 93438, Section 2, 88 Stat. 1233 (codified at 42 U.S.C. Sections5801-56Qt (1975)). Impact of FNP construction dfice of Technology Assessment, Coastal Effects of Offshore Enemv The construction and preparation of the mooring site for an FNP would Systems, Washington, DC, 1976, p 197.-’ disrupt the existing marine environment. The construction of the break‘Ibid, pp 212-l 3. 100 acres of benthic infauna; @Nuclear Regulatory Commission, Fina/ water would destroy approximately Addendum to Final EnvironmentalState- however, a reef-like community should eventually become established at ment related to the Manufactureof Floating the mooring site because of the protective breakwater. Theoretically, the Nuclear Power Plants by OffshornPower would compensate for the Systems, NRC, Wait, DC, 1978, biomass produced by the reef co~unity benthic infauna destroyed. *2 FsZt2. . P 1.

%ae

lOSee Energy Systems, op cii, Ref 6, pp 212-13. l%Mridge, op tit, Ref 3, pp 795-96; GAO Report, op tit, Ref 3, pp 4-6. ‘2Nuclear Regulatory Commission, final Effvimn~n~l Statement: M~u~~~~ of Floating Nuclear Power Plantsby Offstrom Power Systems, Part II, NRC, Washington, DC, 1976, p iv; Final Addendum,op tit, Ref 8. D iv. 13See Final Addendum,op tit, Ref 8, p iv.

MARINE POLICYApril1993

In addition, dredging operations for an offshore FNP would disrupt about 550 acres of ocean bottom during construction. These dredging operations would include site preparation both for the breakwater and for the seabed route of the transmission cables going to shore. More dredging would be necessary if an F’NP were to be sited nearshore, alongshore or inshore. A 500-foot-wide access channel would need to be dredged to accommodate floating the FNP to its mooring. Assuring economic feasibility limits the length of the channel to three miles, in this instance dredging for site preparation would cover 180 acres.13 91

Floating nuclearpowerplants

The major damage caused by the dredging operations would result from the destruction of the benthos and from the turbidity and siltation. Once the dredging ceased, the effects on the marine environment around an offshore FNP should be minor. However, dredging operations for nearshore, alongshore, and inshore FNPs pose additional problems, especially in estuarine sites. The siltation, the turbidity, and the change in flow rates may have lasting effects upon the terrestrial and aquatic characteristics of the shore zone. Moreover, release of heavy metals and pesticides which may have settled in the ocean bottom could have substantial environmental impacts. Of course, the environmental impact on coastal acres in which dredging is already being conducted should be less than the impact on pristine areas.14 Other major impacts resulting from the construction of the FNP would involve erosion and sediment accretion. The seaward side of the breakwater would be an area of active erosion, while sediment accretion, several feet thick, should occur to the lee of the breakwater. No significant environmental effect is predicted for an offshore FNP, because the accretion zone dimensions should be stable. However, if the FNP were located near-shore, there would probably be significant adverse environmental impacts. The breakwater would alter the circulation and wave patterns, resulting in noticeable accretion. This accretion would also disrupt the transportation routes around the FNP, and additional dredging, with its potential environmental impacts, would be necessary. l5 The construction of the onshore facilities which service the FNP would have a major impact. First, the transmission lines between the FNP and the onshore facilities could cross barrier islands. Unless restoration to a pre-existing state is assured, disturbing barrier islands should be avoided. l6 Second, construction of the onshore facilities would require penetration of the littoral zone. Third, the support facilities for the FNP would require roads, transmission lines and facilities for the workers. These onshore changes could disrupt the ecological balance of the littoral zone, especially ecologically sensitive areas such as wetlands and uplands. I7 Operational

impacts of FNPs

There are four basic operational impacts which FNPs would have on the environment. First, FNPs would discharge small amounts of chlorine and corrosive products such as nickel and copper. *s These discharges should be limited to acceptable rates as defined by the National Environmental Protection Act (NEPA) and other relevant laws. Second, the lowlevel radiation emissions, known as perimeter contamination, would Vbid, Chapter 2, pp 15-21. WSee Final EIS. Part II. on cit. Ref 12, allegedly be minimal with regard to both direct effects on humans and Chapter 7, pp 6-7; Final Addendum, op cir, impacts on other life forms. l9 Ref 8, pp iv-v. The last two operational impacts of FNPs involve the operation of the leThe barrier islands could also bs system. Because of the once-through cooling system, disturbed by the construction of inshore or heat-dissipation alongshore FNPs and by the construction ‘entrainment’ and ‘impingement’ of small marine life would occur as of cooling water intake and discharge the seawater passed through the cooling system. For an offshore FNP the pipes. Final Addendum, op tit, Ref 8, productivity of the coastal waters should not decrease, but the population Chapter 2, p 18. “Final EIS, Part II, op tit, Ref 12, Chapter of certain marine biota could decrease near the FNP.zo 6. D 13. However, inshore, alongshore and nearshore FNPs have the potential Ii/bid, Chapter 6, pp 41-46. for causing greater adverse impacts with regard to entrainment and 1%~ ibid, pp iv-v; Final Addendum, op tit, Ref 8, Chapter 2, p 32. impingement. Of course, the severity of these would depend upon the *OSee Final EIS. Part II, on cit. Ref 12, degree of environmental sensitivity exhibited by individual sites.21 Chapter6, pp2til. . Finally, thermal stress would be an important impact of the operation Vinal Addendum, op tit, Ref 8, p vii. MARINE POLICY April 1983

Floating nuclear power plants

of an FNP. The once-through cooling system would heat the cooling water to 16” degrees fahrenheit above the intake temperature and then discharge it back into the ocean. FNPs at offshore sites and on large, deep sounds and bays would be expected to have acceptable impacts,22 but for some nearshore, alon~hore and inshore sites, FNP design changes would be needed to limit the adverse impacts of the heat dissipation systems. Submerged intake and discharge systems, located offshore, should have minimal aquatic impacts, similar to offshore FBPs.23 In addition, cooling towers have been considered as an option for alongshore and inshore FNPs .24 The use of cooling towers would reduce the problems of thermal stress and of entrainment and ~pingement. Even so, the salt drift from the towers could damage crops in the vicinity. 25

t2Final EIS, Part II, op cif, Ref 12, p v. ZJSea Final Addendum, op tit, Ref 8, Chapter 2, p 28. 241bid,pp 26-32. Vbid, p vii. *%ee Nuclear Regulatory ~mi~ion, Final Environmental statement: Menufacture of FloatinG M&ear Power Piants by O&&ore Power Systems Part l/i, NRC, Washington, DC, 1978; Kindt,op cir, Fief3, pp 67-68; Selfridge, op tit, Ref 3, pp 800801. Overall risks are defined as the product of potentialconsequencesand the likelih~ of the accident happening. Final EIS, Part Ill, p xii. Tree Final EIS, Part Ill, op cir, Ref 26, p xii; Nuclear R~u~to~ Ernst, squid Pathway Generic Study, NRC, Washington, DC, 1978. 28FinalEIS, Part Ill, op tit, Ref 26, p xii. =/bid. 3’Jfbid,Chapter 3, p 4. Ibid, p xii. %ea Kindt, op cif, Ref 3, p 68; Setfridge, op tit, Ref 3, p 601. 33Seeop cif, Ref 27, AppendixE, pp 4-11. Wbid, pp vi-vii. Ibid, p viii. Wbid. 37FinalEIS, Part Ill, op tit, Ref 26, pp xivxv. s8Nudear Regulatory Commission,Safety Evel~a~~ Repott related to OKshore Power Systems Floating Nuclear Power P/ants, NRC, Washington, DC, 1960, Supplement 3, p 1.

MARINE POLICYApril1983

A major concern over FNPs involves the overall risk of any possible accidental release of radioactivity. 26 The NRC studied the overall risks both for an accident in which the radioactivity remains in the ‘design basis’ and for a core meltdown at an FNP (which the NRC regards as a ‘Class 9’ accident). Then the NRC compared these FWP risks to the overall risks for the same type of accidents at a land-based plant.27 For the design-basis accident at an FNP the risks were low and comparable to the risks for a land-based plant. The major risk was from airborne radioactive release, but this risk was still considered to be low.** The risk of a release to the hydrosphere was also considered to be insignific~t for both the FNPs and the landbased plants.29 Theoretically, a radioactive release into the hydrosphere from a design-basis accident at an FNP would have less impact on the population than a comparable accident at a land-based plant because a release from an FNP would probably not contaminate the supply of drinking water. Thus, one less exposure pathway to the population would exist.30 For the core meltdown, the overall risks would be greater for an FNP accident than for an accident at a land-based nuclear plant because the consequences would be greater. 31 It is postulated that if a meltdown occurred at a land-based plant, the radioactive core debris would melt into the rock below the plant, and the heat would melt the rock into an insulating glaze around the core .32 The radioactivity would be released slowly into the environment, which would allow for measures to counteract the radioactivity.33 On the other hand, if a core meltdown occurred at an FNP, the radioactivity would be released immediately into the hydrosphere and would disperse more quickly .34 The impacts would be larger and more stressful, particularly on those species and organisms which had a low tolerance to radioactivity. Even so, the NRC postulated that these effects should be both transient and reversible.35 This hypothesis by the NRC appears to be vulnerable to a challenge by environmentalists. The NRC further concludes that although preventive measures probably could not be taken at the source of the FNP meltdown, measures could be taken to prevent adverse impacts on the human population.36 Since these NRC studies were published, the NRC has required that the FNP design be changed so that any core meltdown would be delayed within the hull of the FNP.37 Originally, a concrete pad, which was four feet thick, was to be built into the base of the reactor vessel. A core meltdown would rapidly melt through this pad.38 Currently, the FNP 93

Flouting nuclearpo werplants

design has been modified to include a magnesium oxide containment pad beneath the reactor vessel. This magnesium oxide will retain the core debris within the FNP for a period of from two to seven days. Additionally, unlike a concrete pad, the magnesium oxide pad will not react with the core debris to form gases39

Regulation after Three Mile Island

39tbid,p i. “aThe President’s Commission on the Accident at Three Mile Island, Report on the Accident at Three Ma Island: The Need for Change, The fegacv of Three M/e island, I.%3 Govern-merit Printing Office, Washington, DC, 1979, pp 10-11 (hereina~er cited as Kemeny Rert); see Nuclear Regulatory Commission, Three Mile /s/and. Vol 1. NRC. Washinaton. DC. 1980, p 96, (co&mon& known & the ‘Rogovin flew). 41KemenyReport,op tit, Ref 40, pp 10-l 1. 42ibid, p 7. 43Nuclear R~u~to~ Commission, Licensing R~ui~rnen~ for Pending Applications for ConstructionPermits and Manufacfurfna License. RevisiMl 1.Vol46, NRC, Washin-son, DG.1981, p 18645. “Federa/ Recrister.Vol46. D MO45.1981. This new rul< althbugh ndt‘final, is’part of the basis of reviewfor pendingspplicatiis. 4SNuclear Regulatory ~rni~~, Safety Evaluation Report related to offshore Power Systems Floating Nuclear Plants, l-8, Supplement 4, NRC, Washington,DC, 1981 (hereinafter cited as Safety Evaluation, Supp 4). 46Federal Register, Vol46, p 18045, para (e)tMi).

94

On 28 March 1979, a series of equipment failures and human errors caused the most serious (or, at least, the most publicized) accident of the nuclear power industry at the Three Mile Island, Unit 2, nuclear power plant (TMI). This accident generated a re-evaluation of the l~elih~d of a major accident and prompted the development of new rules and regulations. These rules now provide extra safety measures for preventing a major accident, and, consequently, they also provide for more environmental protection. While the alleged causes of the accident were equipment failure and operator error, the TM1 accident also resulted from serious deficiencies within the nuclear industry. The President’s Commission which investigated the accident issued a report (co~only referred to as the Kemeny Report),40 which cited four causes of the operator error which compounded the consequences of the equipment failure. First, the operators were ~su~cie~tly trained. Second, the inst~~ions which directed the operators’ response to this type of accident were confusing. Third, the experiences and lessons learned from past accidents, which could have mitigated the consequences of the TM1 accident, were not passed on to the TM1 operators. In an earlier accident which involved similar problems to those which confronted the operators at TMI, the operators of another nuclear piant had turned off the emergency core cooling system. An engineer from the Babcock and Wilcox Company (the company which supplied the nuclear steam system) emphasized that this was an improper response and that it could have had disastrous consequences. Approximately 13 months later the operators at TMI, without knowing about the previous accident, turned off the emergency core cooling system. A fourth cause of operator error was the fact that the control panel was poorly designed, since it neither coherentiy nor adequately displayed all of the information necessary to analyse and prevent the accident41 Hence, ‘to prevent accidents . . . fundamental changes [were needed] in organization, procedures, and practices - and above all - in the attitudes of the NRC and, to the extent that the institutions . , . investigated are typical, of the nuclear industry’.42 In response to the criticisms and recommendations in the Kemeny Report and its own internal investigation into the TM1 accident,43 the NRC proposed a new rule which would affect both land-based nuclear plants and FNPs, and which would therefore require the compliance of Offshore Power Systems before it could receive its manufactu~g licence.‘+4 Offshore Power Systems complied with all of the relevant provisions of the proposed rule.45 To improve the training received by operators in nuclear plants since TMI, the NRC now requires the establishment of a programme to improve plant procedures, including operator training, by the time the operating licence stage is reached. 46However, this training programme is not as extensive as that recommended by the Kemeny Report. The MARINE POLICY April 1983

Flogging nuclear power plants

47KemenyReport, op tit, Aef 40, pp 70-71. 4*1bid. 49Fede~al ~~~s~r~

Vol 45, p 18045, para @)(2)0). Wemeny Report, op tit, Ref 45, pp 11, 29-30.72-73. SlFederai Regfster, Vol45, p 18045, para (e)(2)~iv). -52S~&~i&>d, para (e)(2)(v) and (xi). %afety Evaluation,Supp 4, op tit, Fief45, PM. s4KemenyReport, op tit, Ref 40, p t 1. 55Federai Register, Vol46, P 18045, paras (e)(l)~iiiXiv). 56fbid, pare (e)(l)(i). %afety Evaluation, Supplest 4, op tit, Ref 45, p H-6. 58KemenyReport,op tit, Ref 40. pp 59-70.

MARINE POLICYApril1983

Kemeny Report recommended the establishment of accredited institutes from which the operators had to graduate prior to being licensed, and it suggested continued training by the utilities.47 The Kemeny Report also recommended the use of control room simulators to train operators.48 The NRC has required that these simulators be available before any FNP is licensed to operate, but, since this is only required of the company that applies for a construction licence, Offshore Power Systems need not comply. Tberefore, the utilities which buy the FNPs must provide the control room simulator.49 The new rule added specific requirements for the design of the control panel and the control room itself. The Kemeny Report discovered that the control panel at TM1 did not incorporate modem information technology; that during the first few minutes of the accident over 100 alarms, some of them not visible to the operators, sounded; and that the operators could neither suppress any irrelevant alarms nor quickly diagnose trends.5* Currently, the control panels are being updated and s~plified. A ‘parameter display console that will display to operators a minimum set of parameters defining the safety status of the planV5* is to be included. For safety reasons, this console must be capable of showing the full range of data. In addition, the operating status of the safety system must be indicated in the control room.52 The impact of these requirements on Offshore Power Systems was not as great as might have been expected. Offshore Power Systems was not required to make these changes immediately, and the company only had to show its approach to meeting these requirements before the operating licence stage and to provide prel~~a~ design ~fo~ation,53 Several provisions of the proposed rule now require Offshore Power Systems to conduct risk studies on the FNP. The Kemeny Report criticized the NRC’s preoccupation with large-break loss of coolant accidents and stated that the NRC had not given enough attention to the ‘small-break accident’ similar to the TM1 accident.s4 The new rule requires the ~mpletion of a risk analysis of both the impact and the likelihood of a small-break accident .55 In addition, a general risk assessment is required for the PNP design; the goal of such a study being the improvement of the reliability of the core’s heat-removal system to prevent core damage.56 The results of this study are to be incorporated into the final design. Offshore Power Systems must complete this study within two years of receiving the manufac~~ng Iicence.5’ In addition, the Kemeny Report suggested changes designed to facilitate better quality and safety control within the management structure of utility companies. For each plant, the Kemeny Report proposed a safety group which would oversee procedures and operations and which would report directly to the higher levels of a utilities’ m~agement. Furthermore, an industry-wide system to gather and disseminate safety information was recommended. The Kemeny Report discovered that the several corporations which build a particular nuclear power plant needed to integrate their managements in such a way that the responsibility for safety rested in one organization during all of the design, construction and operation stages. Although one specific management scheme was not favoured over another, the Kemeny Report suggested that a ‘turn-key’ contract for design and ~nst~~tion be used; or at least that the expert. opinions of the designers, contractors and operators be effectively communicated to each other.58

Floating ~uclearpower

pans Although the new NRC rule did not strictly follow the Kemeny Report’s recommendations, it did attempt to remedy the same problems. The rule required that applicants for licences show that prior to the operating stage they would have established ‘a program . . . for integrating and expanding current efforts to improve plant procedures’,59 including: (1) reliability analysis, (2) human engineering, (3) operations training, (4) crisis m~agement, (5) emergency procedures, and (6) coordination with the Institute of Nuclear Power Operations and other industry organizations. 6o In addition, the rule demanded the establishment of administrative processes to evaluate the design, construction, and operating experience and to ensure dissemination of this information to the proper authorities .@ These requirements were designed both to heighten the awareness of safety issues and to prevent the same breakdown of communication which compounded the TM1 accident.

US court decisions: classification of FNPs as artificial islands

Vederaf

Register, VoI 46, p 18045, para

~~~~(ii). 61fbidipara (e)(3)(i).

62See Morris and I
96

Since FNPs are not regulated by any specific legal regime, the question of whether FNPs should be classified as vessels or artificial islands is important.62 The NRC has the authority to grant licences to FNPs, and during the licensing pmcess it must consider enviro~ental problems. However, the NRC has no real ale-m~ing power over the environmental problems of FNPs and this factor sets an FNP apart from other types of nuclear power plants. 63 The FNP must be regulated by a patchwork of tangential US laws. The applicability of many of these laws depends upon the classification of FlWs. US courts have not yet had the op~~uni~ to rule on the issue of whether FNPs should be classified as vessels or as artificial islands. Even so, similar questions have often been litigated with reference to barges. In 1974 the US Coast Guard and the Atomic Energy Co~ission agreed that FNPs should be considered part of the barge on which it floats.64 This provides the court with a useful analogy on which it could base its classification of FNPs. Historically, barges have been held to be vessels,65 ~thou~ there have been some exceptions .66 This question most often arises in ~tigation ~on~eming the Jones AC&~’ which provides compensation for the death or injury of a seaman. In order to receive compensation as a seaman under the Jones Act, a person must be permanently connected with a vessel. The test for determining when a water craft constitutes a vessel under the Jones Act requires an examination of the purp0se for which it was made and of the business in which it was engaged.68 Generally, if a barge was used for transportation, then it was considered a vessel under the Jones Act. US courts have recognized that sOme barges are constructed for special purposes which do not include notions of transportation, yet should still be considered to constitute ‘vessels’ under the Jones Act.69 In Offshore Co v Robinson,‘0 the Fifth Circuit held that a mobile drilling barge was to be considered a vessel. The barge was equipped with na~gational lights, anchors, bilge pumps and a raked bow. Also, it faced the same perils of the ocean as vessels.‘* This rationale was applied again in the case of a submersible barge. ‘* Recently, the US courts have emphasized the tests which were delimited in O@hore Co v R~b~~o~ and subsequent cases to distinguish vessels from non-vessels. A submersed barge was not a vessel because it MARINEKMJCY April1983

FIoating nuclear power plants

?3lanchard v Engine & Gas Compressor Serv, 575 F.Zd i 140, 1142 (5th Cir. 1978); see Smith v Texaco, lnc, 524 F. Supp 1313 (E.D. La 1981 f. Cf. Watkinsv Pentzien. fnc. &O F.2d 664 (5th Cir 1981) (semis

permanent construction barges in river were not vessels); BefffM v American Gommercial Barge Lines, 509 F. Supp. 734 (ED. La. 1981)(pontoonwasnotavessel); Myrick v Teledyne Movable Offshore, Inc., 516 F. Supp. 602, 605 (S.D. Texas 1981) (permanent drillingand productionplatform was not a vessel). These last three cases did not focus on the navigationalapparatus with which the barae was eauiooed. but on other design features which i&&ted its

navigability. 74Wjlke~o~ v Teledyne Movable O~ho~, Inc, 496 F. Supp. 1279, 1283 (E.D. Texas 1960). See also Sohyde Ddl~i~g& Madne

Co v Coastal Sfafes Gas Pmd, 644 F.2d 1132,1137 (5th Cir. 1981). 75P.W. Bimie, ‘Legal problemsconcerning artificial islands’, in Industrial islands, Instituteof Mechanical Engineers,London, UK, 1982, pp 9,10. ??odrique v Aetna Cas. & Sur. Co, 395 U.S. 352,366-66 (1969). See also Terryv Raymond /nt’/, 656 F.2d 398,404 (5th Cir. t981); Wilkerson v Teledyne Movable Offshore, Inc, 496 F. Supp. 1229 (ED. Texas 1980). ‘U&?d States v Ray, 294 F. Supp, 532, 539 (S.D. Fia. 1969). ‘*Pub. L. No. 83-81 67 Stat. 29 (1953), 43 U.S.C. Section 130~(1976). BIbid, Exec. Order No. 9633,3 C.F.R. 437 ( 1945) (the Truman Proclamationof 1945). 804.3U.S.C. Section 1332, 1333(a) (1976); see Morris,op c/r, Ref 82, p 306; Selfridge, op tit, Ref 3, p 823. WC3U.S.C. Section 1333(a). **Morns, op c/t, Ref 82, pp 305-W *%ee generally, Selfridge, op tit, Ref 3, pp 811-27. @Birnie,op tit, Ref 75, p 9. %ee ibid, pp t 1-l 4. 86UN Dot A/CONF.62/L.78, 1983 (hereinafter cited as LOS envoy). *7UN Department of Pubtic lnfo~a~, Press Release No. SW494,30 April1982,

P f (h++?retnafter cited as UN press

Release); ‘Law of the Sea treaty Okd despite opposition by U.S.‘, Chicago Tribune, 1 May 1982, Section 1, p 4. **UN Press Release, op tit, Ref 87, p 1. @Statement by Ambassador James L. Malone, LOS Conference, 30 April 1982 (US Press Release USUN 25 (82)).

MARINE POLICYApril 1993

was not equipped with navigational lights, anchors, or a raked bow. Also the barge was permanently submersed.73 However, a submersible drilling rig equipped for navigation was a ‘vessel’. 74 By comparison, in the UK ‘actual navigability (including towing) is the basic test . . .‘.75 In the same way, when deciding whether a watercraft is a vessel US courts now seem to have moved away from the narrow transportational test to a broader navigability test, and the US courts have focused on the design of the particular craft. Under this Jones Act test, an FNP could only be considered to be a ‘vessel’ while being towed to its mooring site, because the FNP is not designed to be navigable although theoretically an FNP could be moved from site to site despite the alleged ‘permanent breakwater’. However, once the FNP is moored, it is designed to be pe~anently attached to the continental shelf. This permanent attachment to the continental shelf would then cause the PNP to be classified as an artificial island. Fixed offshore oil drilling rigs have been classified as artificial islands.“j Other types of permanent fixtures to coral reefs have also been classified as artificial islands.77 As an artificial island, the question of jurisdiction is uncertain. Within the three-mile limit of the territorial seas of the USA, the Submerged Lands Act7* gives the states control over exploitation and use of the seabed.79 Beyond the three-mile limit, the Outer Continental Shelf Lands Act (OCSLA)*O claims jurisdiction over the continental shelf, its resources, and ‘all artificial islands . . . which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom . . .‘.*I However, since FNPs do not theoretically ‘develop’ the resources of the continental shelf, OCSLA could not be invoked to establish jurisdiction over FNPs.*~ Thus, without a clear indication of jurisdiction, there is uncertainty with regard to the application of various laws which might be appropriate to remedy the environmental problems presented by FNPs.*~

FNPs and the Law of the Sea International law provides little assistance in defining what constitutes an ‘artificial island’ vis-a-vis a ‘natural island’. The existing framework of intemational

of the freedom

law was built on the basis of the doctrine of the high seas, minimally encroached by coastal states,

accompanied by a simplistic definition of islands in natural terms; it does not provide a secure base for development of artificial islands other than those for continental

shelf resource

exploitation.

To secure these new activities new

international law needs to be promulgated either by UNCLOS or by separate treaty.” H

owever, although it has adopted a Convention which makes some provision in general terms for artificial islands and includes other relevant provisions, the Third UN Conference on the Law of the Sea (UNCLOS III)85 has not fully succeeded in assisting in the development of a de~nitional framework and a legal regime for artificial islands. On 30 April 1982 the text of the Convention on the Law of the Sea*6 was approved only by a vote of 130 in favour to 4 against, with 17 abstentions.87 The four countries voting against the text of the LOS Draft Convention were Israel, Turkey, the USA and Venezuela,** although these negative votes were not due to concerns involving artificial islands. The US vote was predicated on what the USA perceived to be adverse provisions involving deep-seabed mining.89 97

Floating nuclear power plants

~29 April 1958, [1964] 2 U.S.T. t606, T.I.A.S. No. 5639. 516 U.N.T.S. 206 (entered into force ’ 10 September 1964) (hereina~er cited as Territorial Sea Convention). 9Vbid, Article 10, para 1. 9*See N. Papadakis, The lntemational Legal Regime of Artificial Islands, Sijthoft, Leyden, 1977. 9329 April 1958, [iQ64] 1 U.S.T. 417, T.I.A.S. No. 6576, 499 U.N.T.S. 311. Entered into force 10 June 1964 (hereinas Continental Shelf after cited Convention). “Ibid, Article 5, para 2. 9bid, Article 5, para 3. 9%ae Bimie, op tit, Ref 75, p 11. g7LOSConvention,op tit, Ref 66, Art& 8, paral. 9Y%e Moms, op tit, Ref 62, pp 319-l 1. 99LOS Convention,op tit, Ref 86, Article2, paras 1-3. r’JOTerritorial Sea Convention, op tit, Ref 90, Articles l-2. ‘O’LOS Convention,op tit, Ref 66, Article3. Wbid, Articles 17-33, 37-45, 52; see Territorial Sea Conv~tion, op tit, Ref 90, Articles 14-23. **3LOS Convention, op tit, Ref 66, Article 33, para 2; sea TerritorialSea Convention, op c/t, Ref 90. Article 24, para 2. lwLOS Convention, op tit, Ref 86, Article 33, para l(a); Territorial Sea Convention, op tit, Ref 90, Article24, paras l-2. *OSConvent~ on the High Seas, Article 2, 29 April 1956, [1962] 2 U.S.T. 2312, T.I.A.S.No.5200,45OU.N.T.S.82(entered into force 30 September 1962). ro6LOS Convention, op tit, Ref 86, Article 87, para 1(d). V%e Final EIS, Part II, op tit, Ref 12, chapter 3, pp 1-3. ro*See Bimie, op tit, Ref 75, p 12.

98

Pending the entry into force and the wide rati~~tion of the Law of the Sea (LOS) Convention the basis of the applicable international law must be sought in custom and the relevant Geneva Conventions. Article 10(l) of the Convention on the Territorial Sea and the Contiguous Zone90 (Territorial Sea Convention) defines an island as ‘a naturally formed area of land, surrounded by water, which is above water at high tide’.gl The definition in the Territorial Sea Convention is clearly referring to ‘natural islands’, and FNPs would not be included in this category. For purposes of international law, once an FNP is situated behind its breakwater, it should be classified as an ‘artificial island’.p2 Article 5(2) of the Convention on the Continental Shelf93 (Continental Shelf Convention) entitles a coastal state ‘to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the exploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection’.g4 This provision not only allows such ‘artificial islands’ as PNPs, but also provides for the establishment of ‘safety zones’, which would be essential to protect FNPs. Under Article 5(3) the safety zones may ‘extend to a distance of 500 metres around the installations’.95 It is a well-established international principle that the internal waters of a country are exclusively within the jurisdiction of that country.96 The Territorial Sea Convention acknowledges that state sovereignty extends to internal waters, and pursuant to Article 8(l) of the Law of the Sea Convention, it is provided that except in the area of archipelagic countries, ‘waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State’.g7 FNPs located within the internal waters of a country would be exclusively within the control of that country, but the country which had the FNP would still be liable for any of the various kinds of pollution which were mentioned earlier if that pollution impacted on other countries or the international co~unity as a whole.98 In a similar way to internal waters, the territorial waters of a country are subject to the exclusive sovereignty of that country under Article 2 of the Law of the Sea Conventiong9 and under Articles 1 and 2 of the Territorial Sea Convention, loo The rn~~~ territorial sea which can be claimed by a country is 12 nautical miles, ‘0%although a few states do claim territorial seas of up to 200 miles. As long as the FNP does not interfere with the rights of innocent passage and transit passage through the territorial seas and narrow straits ~2 the FNP may be situated in these waters. A contiguous zone out to 24 nautical miles is permitted under the LOS Convention,ro3 but the provisions involving the contiguous zone deal basically with customs inf~ngementl~ and other ~ctional jurisdictions, and they do not really affect FTJPs. No country may exert sovereignty over the high seas. *OSUnder Article 87( 1) of the LOS Convention, ail countries are guaranteed the traditional freedom of the high seas including the ‘freedom to construct artificial islands and other installations permitted under international law’,1w subject to those provisions of the LOS Convention which relate to the outer continental shelf. Under current technology FNPs must be situated in 40 to 70 feet of water;lO’ therefore, it is unlikely that they would be located in a high seas area. If technology changed and if FNPs were to be situated in the high seas, they might then raise the same issues as seabed mining. lo8 MARINE POLICYApril 1983

Floating nuclear power plants

The exclusive economic zone (EEZ)l@ delimited under the LOS Convention ‘is an area beyond and adjacent to the territorial sea’,“0 which shall not extend beyond 200 nautical miles from the territorial sea baselines’. 111Within this 200-mile zone, the coastal state has ju~~iction over ‘the establishment and use of artificial islands, installations and structures . . .‘.l12 Under Article 60 of the LOS Convention, a coastal state has ‘the exclusive right to construct and to authorize and regulate the construction, operation and use of . . . artificial islands . . .‘.l13 Article 60 of the LOS Convention provides for a 500-metre safety zone around artificial islands,*14 similar to the 5~metre safety zone permitted under the Continental Shelf Convention.l15 Therefore, FNPs could be sited in the EEZ as long as they did not interfere with navigation116 and other residual freedoms of the high seas protected under the LOS Convention. It should be remembered that as artificial islands, FNPs ‘do not possess the status of islands’*17 and do not affect the del~itation of the territorial sea.118 ‘Article 60 applies muturis mutandis to artificial islands, installations and structures on the continental shelf . *l9 The continental shelf includes the seabed and subsoil extending from the territorial sea to the outer edge of the continental margin or 200 nautical miles, whichever is greater. 120 The coastal state has jurisdiction over exploiting the natural resources of the continental shelf,12’ but since jurisdiction is over ‘the seabed and subsoil’ and since theoretiially only the FNP breakwater would have an impact on the seabed, the FNP should be regulated under a different section of the LOS Convention. Because of these ambiguities, FNPs as artificial islands: are more likely to be placed in the EEZ proposed in the UNCLOS text, which defines the high seas as beginning where the EEZ ends, or on the Continental shelf. The legal position differs according to whether the structures are on the seabed or exclusively in the waters above but FNPPs (FLoating Nuclear Power Plants) are partly floating, partly behind fixed breakwaters, which further confuses the issue.122

Since Article 80 of the LOS Convention applies Article 60 mututi mutczndis to the continental shelf, there can be future challenges to artificial islands located on the continental shelf - and to FNPs in particular. Article 80 should have been as specifically written as Article 60. Therefore, under the LOS Convention, FNPs should probably be treated as ‘artificial islands’. The provisions regulating the economic zone *@The ‘ecf3nomic zone’ is frequently would appear to be the most relevant provisions and would appear to referred to as the ‘exclusive econcnnic zone’ (EEZ), but since coastal state rights provide the greatest stability of expectations; that is, if an FNP were in the economic zone are by no means situated outside the territorial waters of a coastal state. ‘exclusive’, the belter terminology is ‘economic zone’. *lOLOS Convention, op cif, Ref 66, Article 55. llilbid, Article 57. *12/bid. Article 56. Dsra 1(bWil. *13/bidiArticle60; bara 1iaj: ’ lt4/bid, Article 60, paras 4-5. 115ContinentslShelf Convention,op cif, Ref 93, Article 5, pars 3. “6LOS Convention,op tit, Ref 66. t Tbid, Article 60, para 8.

1‘aibid. Article 60. Article 76, para 1. Article 77, para 1. ‘22Bimie.op cif, Ref 75, pp 12-13. lVbid, Vbid, Vbid,

MARINE FOLJCY April t 983

Since the early 1970s the concept of the floating nuclear power plant has been nurtured by Offshore Power Systems during a lo-year licensing process. On 4 December 1981, the record on Offshore Power Systems’ application for a manufacturing licence was closed, and the NRC entered the final stage for deciding whether it should grant a manufactu~ng licence to Offshore Power Systems. During this decade of delay, little progress has been made toward regulating the special problems involving FNPS. Since FNPs would be necessarily sited in ecologically-sensitive coastal 99

Floating nu~Iea~powerp~~~

‘23M~rri~, op cir, Fief 62,

pp 308-319.

waters and would be surrounded by breakwaters, they have raised environmental concerns which differ from those of land-based plants. ~onst~~tion of an FNP would require dredging for both the breakwater and transmission lines. The breakwater would change erosion patterns. Radioactive releases, thermal stress, and entrainment and impingement, would all result from the operation of the FNP. The ~ssibiiity of a major accident at an FNP should always be viewed within the context of the ecosystem surrounding it, because of the potential for severe environmental impacts. Following the accident at Three Mile Island, the NRC has proposed new regulations to foster safety in nuclear power plants in general; however, no overall or specific regulatory scheme has been developed for FNPs. With regard to the question of whether an FNP should be classified as a ‘vessel’ or as an ‘artificial island’, recent decisions in US courts could be extrapolated to indicate that an FNP should probably be classified as a ‘vessel’ while being floated to its mooring site. Once the FNP is moored behind its breakwater, the FNP should then be classified as an ‘artificial island’. However, as an artificial island, the US Outer Continental Shelf Lands Act would not apply to an FNP, because an FNP would only ‘utilize’ and not ‘develop’ the resources of the US continental shelf. Furthermore, if FNPs are to be developed in future, the special environmental problems associated with them would only be regulated by a body of tangenti~ly-related US laws. During a decade of licensing, FNPs and their environmental impacts should have received more attention from both the US Congress and various US agencies. Even now, as the question of whether the m~ufactu~ng licence should be given to Offshore Power Systems is being decided, a specific regulatory scheme should also be considered. The lack of regulatory attention directed at FNPs by the USA has been mirrored by international attention to the problem. Ostensibly, FNPs would be treated as artificial islands under the provisions of the Convention on the Law of the Sea adopted by UNCLOS III. For FNPs outside territorial waters, the provisions relating to the EEZ appear to provide the most appropriate regulatory framework; however, the Convention is replete with ~biguities, and the announcement by President Reagan on 9 July 1982 that the USA will neither sign nor ratify the Convention intensifies these ambiguities. Earlier suggestions for a regulatory framework for FNPs have been generally overlooked.lz3 If FNPs remain chained to economic constaints a legal regulatory framework may not be necessary. However, if economic conditions change, as they invariably do, then the need for a regulatory regime for FNPs will quickly arise.

MARINE POLICY April

1983