Former TEPCO executives to be tried for Fukushima negligence

Three former TEPCO executives — Tsunehisa Katsumata (ex-chairman), Ichiro Takekuro (ex-vice president) and Sakae Muto (ex-vice president) — are being tried in the Tokyo District Court starting June 30 for criminal negligence for failing to take certain safety measures that may have prevented the triple meltdowns at Fukushima No. 1.

More background information is available in this New York Times article.

Who’s responsible for the Fukushima disaster? — column by The Japan Times

” The International Atomic Energy Agency released its comprehensive — but mostly ignored — final report on Fukushima on Aug. 30.

It blamed the March 2011 triple meltdowns at Tokyo Electric Power Co.’s Fukushima No. 1 power plant on a blind belief in “the nuclear safety myth.” In other words, the myth that Japan’s “nuclear power plants were so safe that an accident of this magnitude was simply unthinkable.”

“The regulation of nuclear safety in Japan at the time of the accident was performed by a number of organizations with different roles and responsibilities and complex interrelationships,” the report said. “It was not fully clear which organizations had the responsibility and authority to issue binding instructions on how to respond to safety issues without delay. The regulations, guidelines and procedures in place at the time of the accident were not fully in line with international practice in some key areas, most notably in relation to periodic safety reviews, re-evaluation of hazards, severe accident management and safety culture.”

I’m sure we all remember the “unforeseeable” accident that happened in Fukushima in March 2011, an accident that will take an estimated 40 years and billions of dollars to clean up, some of it already subsidized with taxpayer money and higher electric bills.

Having restarted a reactor at the Sendai nuclear power plant in Kagoshima in August, one might suspect that the administration of Prime Minister Shinzo Abe and Kyushu Electric Power Co. don’t appear to remember this accident very well.

For a start, putting the reactor in Kagoshima back online didn’t exactly go according to plan. Despite months of inspection, seawater was detected in the reactor’s cooling system in late August. Alarm bells sounded.

In spite of all the checks and balances that were introduced in the wake of the Fukushima disaster, power utilities are continuing to drop the ball as far as their reactors are concerned. How can we ensure such oversight is avoided?

Katsunoba Onda, author of “Tepco: The Darkness of the Empire,” which predicted in 2007 the nuclear accident at Fukushima, and lawyer Hiroyuki Kawai, who established the National Network of Counsels in Cases against Nuclear Power Plants, have proposed a very simple way of ensuring this happens: hold nuclear plant operators criminally liable for negligence. The threat of incarceration might help them take their work more seriously and less likely to cut corners.

The Prosecutorial Review Board appears to back such a proposal, approving the first criminal prosecutions of three former Tepco executives last July. The board consists of a panel of 11 private citizens, who operate under a rarely used set-up in the Japanese legal system that allows outsiders to review prosecutors’ decisions.

The panel ordered that Tsunehisa Katsumata, chairman of Tepco at the time of the accident, and two former heads of the utility’s nuclear division, be charged with professional negligence resulting in death and injury.

Prosecutors, however, have to date been slow to pursue criminal liability in the case. They did accept submissions from the public but then leaked their decision not to prosecute just as Japan won the right to host the 2020 Olympic Games. The story, however, doesn’t end there.

This decision was again sent to the Prosecutorial Review Board, which again recommended that a criminal case be filed. For the second year in succession, the Prosecutorial Review Board overruled the prosecutors.

Prosecutors have reportedly continued to reject the case because “it is not possible to prove negligence.”

The IAEA report is expected to be submitted as evidence showing the exact opposite.

“When you have a disaster of this scale, isn’t it crazy not to pursue responsibility?” Kawai, who led the citizen’s group that filed charges with the prosecutors, told Nikkan Gendai. “The common sense of the people overturned the judgment of prosecutors, prosecutors who favor large companies and the powerful. Tepco knew about the possibility of a large-scale tsunami and did nothing about it. The idea that if it’s not easily foreseeable, no one is responsible is mistaken. Abe says ‘Japan has the safest nuclear standards in the world.’ He’s the only one saying it. It’s not true. The Abe administration’s push for war and for nuclear energy are very dangerous — one mistake and this country will be destroyed.”

If the Tepco executives are tried in court and found guilty, it wouldn’t be the first time nuclear power operators were convicted of criminal negligence resulting in death. In 1999, two employees died in an accident at the Tokaimura power plant run by JCO, a nuclear fuel cycle company. Six of the company’s executives were later charged and pleaded guilty to criminal charges of negligence resulting in the deaths.

They were all given suspended sentences. ”

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Proving negligence in Tepco case daunting — The Yomiuri Shimbun

” On July 31, the Tokyo No. 5 Committee for the Inquest of Prosecution announced its decision that former Tokyo Electric Power Co. Chairman Tsunehisa Katsumata, 75, and two other former company executives “should be indicted” in connection with the Fukushima No. 1 nuclear power plant disaster.

In this case the “will of the people” has spoken to counter the prosecutor’s decision not to indict, but proving culpable negligence in an accident associated with a natural disaster will be difficult. The prosecution’s designated lawyer is expected to face an uphill battle to convict the three men.

Concrete recognition

“The decision clearly states that [TEPCO] should’ve been able to foresee the onslaught of the tsunami,” said Hiroyuki Kawai, lawyer for the Complainants for the Criminal Prosecution of the Fukushima Nuclear Disaster, at a press conference held in Tokyo following the decision to indict. “The prospects for the trial are bright.”

The inquest committee and the prosecution, however, are far apart over whether the three individuals accused could “foresee” the likelihood of a massive tsunami and the ensuing disaster.

In 2008, TEPCO published the results of preliminary calculations that predicted a maximum credible tsunami of 15.7 meters based on a long-term assessment by the government’s Headquarters for Earthquake Research Promotion.

The Tokyo District Public Prosecutors Office concluded that establishing “foreseeability” meant more concrete evidence was needed beyond a vague foreboding of danger or anxiety, deemed that TEPCO’s preliminary tsunami reports couldn’t be regarded as having the scholarly persuasiveness necessary and denied foreseeability on the part of the company’s former officers and others.

The inquest committee, made up of 11 members of the public, responded that “it is sufficient that there must be foreseeability given the fact that a tsunami occurred and some sort of response was required.”

The committee stressed that the three individuals accused had a duty to exercise a high degree of care to prevent accidents since they all held positions of responsibility, and that the maximum credible tsunami report “absolutely could not be ignored.”

‘A certain extent’

Nevertheless, a big hurdle must be cleared to prove criminal responsibility for negligence when accidents occur.

“Jurists and the general public look at foreseeability and the duty to exercise care differently,” one veteran judge noted. “Proving foreseeability could be difficult to prove on the basis of preliminary tsunami calculations.”

In the JR Fukuchiyama Line derailment accident in Amagasaki, Hyogo Prefecture, three successive presidents of West Japan Railway Co. were subjected to mandatory indictment on a charge of corporate manslaughter.

The inquest committee for the case, which is currently under appeal, said, “Even in the most basic civic sense, stringent safety measures should obviously be taken as quickly as possible.”

Yet at the trial and the first appeal, the court ruled the three were not guilty as the three successive presidents could not have foreseen the accident.

The Fukushima nuclear disaster was caused by a natural phenomenon that would have been difficult to predict, making the charge even more of a challenge to prove.

“The purpose of criminal law is to pursue the responsibility of individuals,” said Tokai University Prof. Yoshihiko Ikeda, who specializes in criminal-negligence theory. “In terms of large-scale accidents related to disasters, senior management can be held responsible for negligence only to a certain extent.”

Choice of words

Now that a decision to indict has been made, the Tokyo District Court chose Friday three designated lawyers for the prosecution who will carry out supplementary investigations. The three accused might be subjected to mandatory indictment by the end of the year at the earliest.

All eyes are on what TEPCO’s former executives will say in court regarding the unprecedented accident.

Lawyer Motoharu Furukawa, a former prosecutor and author of books like “Fukushima gempatsu, sabakarenai de ii no ka” (Is it right to not take the Fukushima nuclear power plant to court?), published by Asahi Shimbun Publications Inc., says: “It’s of great importance that this be delved into publicly in court. It may even lead to a rethinking of nuclear power safety policy.”

Why did a major disaster that led to reactor meltdowns take place? Was there no way the accident could have been prevented?

Aside from the question of criminal responsibility, Katsumata and his associates need to present the full truth in court.

Doubts over system

The mandatory-indictment system was instituted in May 2009 so the “will of the people” would be reflected in judgments over whether or not to indict, judgments that hitherto had been the sole preserve of prosecutors.

While there is praise for the fact that, with this system in mind, prosecutors have become more cautious in deciding not to indict, a string of cases that used mandatory indictment have nevertheless ended in acquittals, exposing certain problems in the system.

First of all, the mandatory indictment system provides no opportunity for those under inquest to present their side of the story.

The Law for the Inquest of Prosecution makes it mandatory for a prosecutor to present the case prior to any decision to indict, but the accused forced into a public trial through a mandatory indictment has no opportunity to contest the charges beforehand.

“Would it not be a good idea to consider hearing the side of those under indictment, even if just to maintain the fairness of the inquest?” said Yasuyuki Takai, a lawyer who was involved in designing the system.

Then there’s the fact that the role of “inquest assistant,” which gives legal advice to the inquest committee, is limited to a single individual. A lawyer is appointed as inquest assistant, who responds to queries from the committee members.

Yukio Yamashita, a lawyer who has experience as an inquest assistant, pointed out that for a single individual “explaining legal arguments to the general public is difficult.”

“For a truly adequate inquest multiple assistants would be necessary,” Yamashita said.

Another problematic point is how the designated lawyer bears an excessive burden.

Proving guilt in a case where the prosecution has chosen not to indict is difficult — the maximum compensation paid to a designated lawyer for a single trial or appeal is ¥1.2 million.

The Japan Federation of Bar Associations is said to be planning to submit an opinion calling for improvements to the mandatory-indictment system this year to the Supreme Court and the Justice Ministry.

The system must be revised if it is to live up to its original goal, it seems. ”

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USS reagan sailors sue for nuclear justice

Attorney Charles Bonner gives an update on his class action litigation on behalf of 250+ named military personnel harmed by exposure to Fukushima fallout during an aid mission in March 2011. The mission was called Operation Tomodachi; “tomodachi” means “friends” in Japanese. The suit targets the plant operator and its manufacturers — GE, EBASCO, Toshiba and Hitachi. These sailors, many of whom were in their young 20s up to 35 years old during the mission, have been suffering from various forms of cancer, atrophies, cataracts, skin conditions, etc., starting within the first year after their return from Japan. Three sailors exposed to radiation have died, and one named sailor’s wife gave birth to a baby with genetic mutations.

Bonner notes that many reactors all over the United States share the same GE design as Fukushima No. 1. And guess what, they’re ALL leaking!

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Question of negligence hangs over nuclear firms in U.S. case over Fukushima fallout — The Japan Times

” Dear Minister of Economy, Trade and Industry Yoichi Miyazawa,

As you may be aware, a federal judge in the U.S. recently ruled that a class-action lawsuit filed by about 200 U.S. Navy sailors can proceed against Tokyo Electric Power Co. and other defendants they blame for a variety of ailments caused by radiation exposure following the nuclear reactor meltdowns at Fukushima No. 1.

The sailors allege that Tepco knowingly and negligently gave false and misleading information concerning the true condition of the Fukushima No. 1 nuclear power plant to the public, including the U.S. military. They further allege that Tepco knew the sailors on board the USS Ronald Reagan would be exposed to unsafe levels of radiation because Tepco was aware three nuclear reactors at the site had already melted down.

In this connection, the lawsuit notes that on Dec. 14, 2013, Naoto Kan, Japan’s prime minister at the time of the disaster, told a gathering of journalists regarding the first meltdown: “People think it was March 12 but the first meltdown occurred five hours after the earthquake.”

The sailors in question were participating in Operation Tomodachi, providing humanitarian relief in response to the Japanese government’s calls for assistance. In accordance with the U.S.-Japan Security Treaty, these sailors literally risked their lives to aid and protect the people of Japan.

The sailors accuse Tepco of negligence, failure to warn of the dangers, and design defects in the construction and installation of the reactors, among a total of nine claims for damages. To date, the sailors have experienced such illnesses as leukemia, ulcers, brain cancer, brain tumors, testicular cancer, dysfunctional uterine bleeding, thyroid illnesses, stomach ailments and a host of other complaints unusual in such young adults.

One of the major questions to be decided by the lawsuit is who will pay for the military members’ ongoing and possibly lifelong medical treatment. In addition to addressing specific illnesses, funding will be required for future medical monitoring for themselves and their children, including monitoring for possible radiation-induced genetic mutations. Some of the radiological particles inhaled by these service personnel have long half-lives, from six to 50 or even 100 years.

Needless to say, the Japanese government has a wealth of information about what actually happened, and when, at Fukushima No. 1. Thus it would seem legally as well as morally appropriate for the government to share its Fukushima-related knowledge with the Federal Court in the Southern District of California.

This could be done, for example, in the form of an amicus curiae brief — that is, a brief submitted by someone not a party to a case who nevertheless possesses relevant information that may assist the court. My first question to you, Minister Miyazawa, is: Are you and the Japanese government willing to submit such a brief?

It is significant that the builders of the Fukushima No. 1 reactors — General Electric, EBASCO, Toshiba and Hitachi — are also defendants. This is because the reactors for Units 1, 2 and 6 were supplied by General Electric, those for Units 3 and 5 by Toshiba, and Unit 4 by Hitachi. General Electric, however, designed all six reactors, and the architectural plans were done by EBASCO.

In particular, GE knew decades ago that the design of its Mark I reactors installed at Fukushima No. 1 was faulty. Thirty-five years ago, Dale G. Bridenbaugh and two of his colleagues at General Electric resigned from their jobs after becoming convinced that the Mark I’s design was so flawed it could lead to a devastating accident. They publicly testified before the U.S. Congress on the inability of the Mark I to handle the immense pressures that would result if the reactor lost cooling power.

Their concerns proved all too accurate at Fukushima No. 1, a disaster that has yet to end given the continued massive radioactive contamination of the ocean.

In light of this, Minister Miyazawa, I end this message with one final question: Why hasn’t the Japanese government, like the American sailors, filed its own lawsuits against these same companies to determine their legal liability? In other words, why are the Japanese people being forced to pay for the possibly negligent actions of some of the world’s largest corporations?

BRIAN VICTORIA

Yellow Springs, Ohio ”

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3/11 charges for Tepco execs delayed by three months — The Japan Times; Japan prosecutors set to rule on possible Fukushima indictments — Reuters

Updated Oct. 27, 2014, The Japan Times: ” Prosecutors have delayed for three months a decision on whether to charge three former executives of Tokyo Electric Power Co. for their handling of the 2011 Fukushima disaster, an official with a panel that requested the indictments said Friday.

The Tokyo District Prosecutor’s Office had been re-investigating the case after an independent judicial panel of citizens ruled in July that three former Tepco executives, including then-chairman Tsunehisa Katsumata, should be indicted over their handling of the world’s worst nuclear disaster since the 1986 Chernobyl explosion.

Prosecutors on Friday informed the Committee for the Inquest of Prosecution of its decision to extend the probe by three months through the end of January, saying it was too difficult to reach a decision by the end-of-October deadline.

By law, prosecutors can extend investigations for up to three months.

Prosecutors decided in September last year not to indict the former Tepco executives, including Katsumata, saying it had been beyond the company’s imagination to foresee the scale of the earthquake and tsunami in March 2011 that triggered the nuclear crisis.

Residents had accused more than 30 Tepco and government officials of ignoring the risks of a natural disaster and failing to respond appropriately when crisis struck. ”

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Posted Oct. 23, 2014: ” (Reuters) – Japanese prosecutors must decide this month whether to charge Tokyo Electric Power Co former executives for their handling of the 2011 Fukushima disaster, in a process that could drag the wrecked nuclear plant’s operator into criminal court.

The judicial review is unlikely to see the former Tepco executives go to jail, legal experts say, but rehashing details of the meltdowns and explosions that followed an earthquake and tsunami will cast a harsh light on the struggling utility and will not help Prime Minister Shinzo Abe’s unpopular effort to restart Japan’s nuclear reactors.

The Tokyo’s District Prosecutors Office last year declined to charge more than 30 Tepco and government officials after investigating a criminal complaint from residents, who said officials ignored the risks to the Fukushima Daiichi plant from natural disasters and failed to respond appropriately when crisis struck.

But a special citizens’ panel opened another legal front in July, asking prosecutors to consider charges of criminal negligence against three executives over their handling of the world’s worst nuclear disaster since Chernobyl in 1986.

Under the review system, the prosecutors must respond by the end of the month.

If they again decline to take up the case, as some experts expect, the 11-member panel of unidentified citizens can order prosecutors to indict, if eight members vote in favor.

Prosecutorial Review Commissions, made up of citizen appointees, are a rarely used but high-profile feature of Japan’s legal system introduced after World War Two to curb bureaucratic over-reach. In 2009, they were given the power to force prosecutions.

A panel in 2011 forced the prosecution of former opposition leader Ichiro Ozawa over political funding. He was acquitted in 2012 and remains an opposition figure.

Tepco already faces a string of civil suits, a decades-long, multibillion dollar decommissioning Fukushima Daiichi and a struggle to restart a separate undamaged power station, the world’s biggest.

NOT LIKELY

All 48 of Japan’s reactors have been idle for more than a year under a safety regime that incorporated the lessons of Fukushima, where 160,000 people were forced to flee from a huge plume of radioactive material that left large areas uninhabitable for decades.

Backed by Abe’s pro-nuclear government, Kyushu Electric Power Co recently won approval from safety regulators to restart a plant in southwest Japan but faces opposition from some neighboring communities.

Nationwide, a majority of people has consistently opposed restarting nuclear power, according to opinion polls since the disaster.

The citizens’ panel said Tsunehisa Katsumata, Tepco chairman at the time of the disaster, and former executive vice presidents Sakae Muto and Ichiro Takekuro failed to take protect the Fukushima plant despite warnings it faced big tsunamis.

The prosecutors are unlikely to change their minds, said Shin Ushijima, an attorney and former public prosecutor.

“Prosecutors exhaust all means in their investigations and certainly would have in a special case like this, so if they were convinced they could not prosecute Katsumata and the others earlier, they will not reach a decision to indict now,” he said.

“There is a 50 percent chance that some or all of the three ex-Tepco executives will be indicted and 99.9 percent chance those indicted will be found not guilty,” Ushijima said.

“How can you prove one person, Katsumata for example, is liable or guilty, when such a big organization was behind such a large accident?”

Tepco faces huge compensation claims and has set aside just a fraction of the funds needed to decommission the Fukushima plant.

A court recently ordered the utility to pay compensation to the family of a woman who killed herself after being forced from her home because of the disaster. A group of Fukushima workers is also suing the company for unpaid wages. ”

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