Tepco executives get a taste of citizens’ wrath



Three Tokyo Electric Power Co. executives are now facing criminal prosecution for negligence in failing to anticipate a monster tsunami that cut off electricity and inundated back-up emergency generators, causing a cessation of cooling in the Fukushima No. 1 nuclear plant reactors that precipitated three meltdowns in March 2011. How were they to know?

At the time, Tepco kept insisting that the 15-meter-high tsunami was sōteigai (inconceivable), an act of nature that absolved them of all responsibility. And, just in case the public was not buying this grand shirk, malicious rumors disingenuously scapegoated Prime Minister Naoto Kan, in a failed attempt to shift blame to him. Subsequently, Kan has been vindicated while Tepco remains guilty in the court of public opinion.

In mid-2012, Tepco released the results of its own investigation into the nuclear accident and, with unseemly chutzpah, absolved itself of all responsibility. It was so embarrassing in its exculpatory excesses, and thoroughly contradicted by all three of the other major investigations into the Fukushima debacle, that Tepco disavowed this whitewash in October 2012, conceding allegations of numerous failures; this mea culpa was at the insistence of a panel of international experts hired by the utility.

The court case will focus on what could have been done that Tepco knew about to better manage the risks inherent in the operation of nuclear reactors in a seismically active area with a history of devastating tsunami. As much as Tepco would like to paint this as a “black swan” once-in-a-thousand-year event — something of such low probability of occurrence that it would be a costly fool’s game to prepare for it — Tohoku’s tsunami coast was fairly recently battered in 1896 (8.5 magnitude with waves reaching 38.2 meters) and in 1933 (magnitude 8.4 with waves cresting at 28.7 meters). So it would seem that anyone operating a nuclear reactor on that coastline would have looked into the seismicity of the area and prepared accordingly.

In fact, Tepco did so in 2009 when it conducted in-house computer simulations suggesting the possibility of a 15.7-meter tsunami slamming the site of the Fukushima No. 1 nuclear plant. That information was actually provided to the Nuclear and Industrial Safety Agency (NISA) four days prior to the Great East Japan Earthquake, meaning that it was information considered vital enough to submit to the watchdog agency.

Interestingly, in February 2011 the Fukushima reactors were granted an extension to their 40-year operating license, passing a NISA safety review. But NISA was sharply critical of Tepco and called for the urgent replacement and relocation of backup diesel generators that had stress cracks and were located below, and between, the reactors and the ocean, leaving them vulnerable to inundation. In addition, NISA scolded Tepco for its lax safety practices, a clear reference to the 2002 scandal when a whistleblower revealed that the utility had falsified the repair and maintenance records for all of its nuclear reactors.

NISA, as part of the Ministry of Economy, Trade and Industry, was implicated in the attempted cover-up of that scandal and stands accused of regulatory capture, meaning it was co-opted by the utilities — a watchdog with neither bark nor bite. By not conducting rigorous oversight to ensure safety, NISA is thus also complicit in Tepco’s lack of a culture of safety, pinpointed by three major investigations as a cause of what they declared was a man-made nuclear accident.

Thus one wonders why no bureaucrats are being prosecuted. Haruki Madarame, then chairman of the Nuclear Safety Commission, testified in the Diet on Feb. 15, 2012: “Though global safety standards kept on improving, we wasted our time coming up with excuses for why Japan didn’t need to bother meeting them.” He also pointed out that back in the early 1990s, Tepco was told about the risk of a station blackout that might lead to reactor meltdowns and was urged to develop a defense in depth, meaning more backup electricity sources just in case. Tepco stonewalled safety regulators, asserting that the current systems were adequate.

So the nuclear accident at Fukushima was precipitated by natural disaster, but poor risk management and institutionalized complacency about risk were major factors increasing the likelihood of an accident and fumbling crisis response. The myth of 100-percent safety propagated by the “nuclear village” of atomic energy advocates made it taboo to question safety standards and militated against sober risk assessment and robust disaster emergency preparedness.

Not everyone was surprised by the nuclear disaster. In 1975, nuclear chemist Jinzaburo Takagi and others established the Citizens’ Nuclear Information Center (CNIC), which ever since has issued regular reports on power plant safety issues. Fukushima was the nightmare scenario that CNIC had long been predicting. In a 1995 interview, Takagi spoke about the risks of a meltdown in the event of multiple failures, as happened in Fukushima in March 2011. He correctly warned about the possibility of large radioactive releases from a meltdown resulting from a breakdown in the emergency core cooling system and the failure of back-up diesel generators.

It’s inexcusable that a nuclear accident couldn’t be managed because a major event such as the tsunami exceeded expectations,” said Yotaro Hatamura, chariman of the government’s Third Party Panel Investigation Committee, blasting Tepco’s hubris in 2012. He added that risk management means anticipating worst-case scenarios — not wishing risk away.

Hatamura pointed out that the utility was ill-prepared for the crisis, dismissing the possibility of a total loss of power, and that its workers made critical errors in shutting off automated emergency cooling systems and wrongly assumed part of the cooling system was working when it was not. These workers and their managers were inadequately trained to cope with an emergency situation and according to the panel, lacked basic knowledge concerning the emergency reactor cooling system. Their mishandling of emergency procedures contributed to the crisis.

Tepco chose to ignore centuries of geological evidence and failed to act on fresh and compelling evidence about tsunami risk, a blind spot that left the plant needlessly vulnerable. It also successfully lobbied the government’s Earthquake Research Committee on March 3, 2011, to soften a public advisory warning that a massive tsunami could hit the Tohoku coast because it might cause misunderstanding. This PR approach to risk management promoted an unjustified insouciance that cost Japan dearly. Alas, Tepco was also cutting corners, balking at the $1 billion price tag of building a higher seawall to cope with the higher tsunami projections — a bargain in retrospect.

While it is unlikely that the Tepco Three (former chairman Tsunehisa Katsumata and two former vice presidents, Sakae Muto and Ichiro Takekuro) will be convicted for irresponsibly minimizing risk in ways that endangered local residents or for cutting costs that compromised public safety, the trial will make the nuclear village squirm as the public revisits the folly of wishing risk away — and understands it is happening all over again.


Behind the Scenes / Proving negligence in TEPCO case daunting


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.

Source: Yomiuri