Application for a provisional disposition ( 24 June 2011 )

Application for a provisional disposition

　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　24 June 2011
To: Koriyama Branch, Fukushima District Court
Petitioners: 14 children who attend elementary/junior-high schools in City of Koriyama
The other party: Koriyama City Council

　　　　　　　　　Purpose of this application

1 The other party must refer to the attached table of environmental radiation monitoring results and must not enforce educational activities for these petitioners in school facilities at which average radiation dose as stated in the attached table of Environmental Radiation Monitoring Results exceeds 0.2microsievert(mSv) per hour, either at 50cm or 1m above ground.
2　The other party must implement educational activities for the petitioners. This should be done using school facilities at which average radiation dose does not exceed 0.2mSv/h.
We ask Koriyama District Court to judge upon these appeals.

　　　　　　　　　　Reasons for the appeal
Ⅰ Concerned parties
1　Petitioners
Children from Koriyama City who are attending local elementary schools or junior-high schools.
2　The other party
Education Committee of City Council of Koriyama, which is a competent authority that is supposed to implement appropriate education for the children in the city’s elementary and junior high schools, nursery schools and kinder gardens.

Ⅱ Sequence of events
1　Location of Fukushima Daiichi Nuclear Power Plant
Fukushima Daiichi Nuclear Power Plant is a nuclear power plant that belongs to Tokyo Electric Power Company in City of Ookuma, Futaba-gun, Fukushima prefecture.

2　Fukushima Nuclear Accident
Following Great Northeastern Earthquake and tsunami that occurred on 11 March 2011, external power supply was lost in the reactors that had been in operation at Fukushima Daiichi Nuclear Power Plant. Emergency diesel generators did not work, and the plant lost all of its power supply. As a result, the reactors and spent fuel pool lost the crucial coolant system, leading to the most deadly nuclear accident in the world history since Chernobyl. Suppression chambers were damaged in two of the reactors, followed hydrogen explosions inside the reactor buildings. As a result, massive amount of highly radioactive materials from the fuel rods began to leak into the outside environment. It has not been converged yet, still leaking this very day into the air and the sea water. Such an accident is clearly unprecedented in the world history, simply beyond Chernobyl.

3　Spreading of radioactive elements into the environment caused by the Fukushima accident
Fukushima nuclear accident has contaminated vast area of Japan, mainly Tohoku (northeastern areas of Japan) and Kanto region (the Greater Tokyo Area and seven prefectures: Gunma, Tochigi, Ibaraki, Saitama, Tokyo, Chiba, and Kanagawa) and the Pacific Ocean. Food products, tap water, sea water and soil have been seriously contaminated. The extent of the problem is just phenomenal.

4 Counter measures taken by the Japanese government
Japanese government has issued an evacuation order to areas within 20km (a concentric circle) from the Fukushima Daiichi Nuclear Power Plant on 12 March, which was followed by “indoor evacuation order” on 15 March to areas within 30km from the plant. On 22 April, the 20km zone was declared as a “no-go zone”.

5　Counter measures taken by Japan’s Ministry of Education, Culture, Sports, Science and Technology(MEXT)
Radioactive contamination swallowed school facilities too and for each school building and playground, it was deemed necessary to make a decision as to whether or not they could be used for educational purposes. On 19 April, Ministry of Education, Culture, Sports, Science and Technology, or MEXT, issued a notice addressed to Education Committee of Fukushima’s prefectural government, in which it was stated that if cumulative dose was predicted to be between 1 and 20 mSv per year, the facility can be used for education. This was “an interim criterion”. Then, the MEXT made an amendment on 27 May, declaring that they shall “aim to” regard 1mSv as an acceptable yearly limit for schools.


Ⅲ Rights to be protected
１　General remarks
However, annual cumulative dose since the first day of the Fukushima nuclear accident is going to be higher than 1 mSv in most of the Fukushima prefecture. Considering the health effects of radiation, the possibility for the children to suffer from radiation-induced diseases such as cancer or leukemia in the future will be quite high, if they continue to attend elementary/junior high schools, nursery schools and kinder gardens in the prefecture. For the children, moral interests are life, body and health, but all of them are now facing a serious threat.

2　Health effects of radiation
(omitted)
6.Conclusion
We have already reached a point where cumulative annual dose since the first day of Fukushima nuclear accident would exceed 1 mSv in the Fukushima prefecture. The children are of course still growing physically, with frequent cell divisions occurring inside their bodies, hence the most vulnerable. If they continue to attend elementary/junior high schools, nursery schools and kinder gardens in the Fukushima prefecture, as recommended by the MEXT, there is a possibility that they will suffer from diseases including cancer or leukemia as late radiation injury. Genetic effects can also be caused by radiation, which would then remain in the DNA for generations. It is an indisputable fact that life, body and health of the children, the most valuable moral interests, are facing a serious threat at this moment.

3　Basis for “1 mSv/Year” standard
Introduction
Scientific opinions are still divided as to what would be the acceptable annual dose limit for the public to protect their health. The MEXT claims to follow recommendations by International Commission on Radiological Protections (ICRP), which is basically 1 mSv per year.
ICRP2007 recommendations
After international criticisms mounted for some time, the ICRP admitted in the 1985 statement issued in Paris that its annual dose limit of 5 mSv, which was what they had recommended back in 1977, was too high for the public, and they lowered the limit to 1mSv. To this, Radiation Health Protection Agency of the UK made a response by recommending a stricter limit of 0.5mSv per year, reflecting the contamination caused by Sellafield nuclear fuel reprocessing plant.
Also there was Professor Alice Stewart. She was the first scientist in the world who discovered the health effects of exposure to low-level radiation. She was also the first scientific secretary of European Committee of Radiation Risk (ECRR). Prof. Stewart submitted an open letter of inquiry to the ICRP, asking for a substantial revision of the standard. But they refused it, claiming that it was satisfactory enough that they had already lowered the limit from 5 mSv to 1 mSv per year. As a result, ICRP1990 recommendation held the same limit of 1mSv, which was then inherited onto ICRP2007 recommendation. The latter was merely a slight revision of the previous recommendations.
ECRR2010 recommendations
However, European Committee of Radiation Risk (ECRR) argued in its 2010 recommendations as follows; “The total maximum permissible dose to members of the public arising from all human practices should not be more than 0.1mSv, with a value of 2 mSv for nuclear workers” (14., Executive Summary, ECRR2010). So, only a tenth of the ICRP limit. The ECRR claimed that “this would severely curtail the operation of nuclear power stations and reprocessing plants, and this reflects the Committee’s belief that nuclear power is a costly way of producing energy when human health deficits are included in the overall assessment. All new practices must be justified in such a way that the rights of all individuals are considered. Radiological exposures must be kept as low as reasonably achievable using best available technology. Finally, the environmental consequences of radioactive discharges must be assessed in relation to the total environment, including both direct and indirect effects on all living systems”. ( ibid.)
Reflecting ICRP2007 recommendation onto domestic regulations
Basic Group from the MEXT’s Radiation Committee came up with a report called “Reflecting ICRP2007 recommendations (Pub.103) onto domestic regulations (Second Intermediary Report)” on 12 January 2011, which was then approved on 28 January at its Board meeting. In this report, the Group recommended and explained that the purpose was “to rigidly follow the 1mSv rule as an annual dose limit for the members of the public”.
Domestic laws
Current Japanese domestic laws are also constituted on the basis of this 1mSv annual dose limit for the public.

4　Cumulative dose
Introduction
Since 11 March 2011, the children in the Fukushima prefecture have been continuously living in a dangerous situation where they have been receiving both types of radiation exposure; internal and external. In order to save them immediately, we shall calculate the cumulative dose by just concentrating on the external exposure. Since the internal exposure is considered to be the more dangerous than the external exposure, it should mean that the situation is indeed extremely hazardous for the children if the level of external exposure is proved to be dangerous enough on its own
.
Cumulative dose at seven elementary/junior high schools that the petitioners attend
In order to calculate the cumulative dose at seven elementary/junior high schools that the petitioners attend, we shall utilize a table called “Estimation of cumulative dose at various locations of Fukushima Prefecture” that the MEXT has made. It is based on the results of measurements that the MEXT carried out between 0600hours of 12 March 2011 and 2400hours of 25 May at Toyoda-machi, Koriyama City. This was a good basis, because all the school facilities that the petitioners attend are located within 5km distance from this geographical point. As a result, we found out that cumulative dose at this point between 12 March and 25 May 2011 (75 days) was as high as 2.9 mSv. Moreover, radiation dose at the very schools that the petitioners attend turned out to be about 1.3-2.3 times higher than that of Toyoda-machi. That means cumulative dose between 12 March and 25 May at the petitioners’ schools must have been at least 3.8 mSv (2.9 mSv×1.3) and could have been 6.67 mSv (2.9 mSv×2.3) at maximum.
Therefore, the petitioners have been exposed to cumulative dose of between 3.8mSv and 6.67mSv just for 75 days, 3.8-6.67 times over the annual exposure limit of 1mSv. That is significant, considering the fact that it was for external exposure only. And the calculation was unfairly done too, since we adopted the MEXT’s method and used “shielding coefficient” of 0.6 for wooden buildings (The MEXT seems to claim that wooden buildings have such a shielding effect against radiation).
Estimation of total cumulative dose per year
In the MEXT’s table “Estimation of cumulative dose at various locations”, there are two sets of results. One is “Cumulative dose between 12 March and 25 May” and the second is “Estimated total cumulative dose per year”. We can assume what the “Estimated total cumulative dose per year” would be by searching for the most approximate “Cumulative dose between 12 March and 25 May” on the table. So in that way, cumulative dose for a year up to 11 March 2012 at seven schools that the petitioners go to would be as much as 12.7-24mSv. That is, again, just for external exposure, and even with using the “shielding coefficient”.

Schools in the Fukushima prefecture at which cumulative dose per year would be estimated to exceed 1mSv:
At locations where average radiation dose was measured to be higher than 0.2mSv/hour between 23 and 25 May, we can assume that cumulative dose per year would certainly be higher than 1mSv. 55 out of 60 locations in Koriyama City exceeded 0.2mSv/h. Five locations in the City did not reach 0.2mSv/h, but 0.17mSv/hour was measured at three out of that five. It is highly likely that annually they would exceed 1mSv. All of 32 locations measured in Fukushima City exceeded 0.2mSv/h.
(Omitted)
Conclusion
There are 266 schools in the Fukushima prefecture. And there are 243 locations where it is assumed that the yearly cumulative dose would exceed 1mSv for certain. At 18 locations, the possibility of exceeding 1mSv/year is quite high and there are 5 locations where it is unlikely to be so.
Health effects of radiation are caused by different types of radiological exposure and can take many routes. As for the external exposure, we must not forget that radioactive materials that have fallen onto the ground must also be taken into account, apart from just looking at “dose” measured in the air. As for the internal exposure, we must note that radioactive materials can get into human body through breathing, eating and drinking.
For the children of Fukushima to be protected, all of these must be considered and the level of radiological exposure they get must stay under 1mSv annually in total. It is not easy to measure the levels of exposure in each route accurately. But obviously the level of total radiological exposure for the children will greatly exceed 1mSv if they are to receive education at school facilities within areas where the “dose” on its own is already higher than 1mSv.
Therefore, if the authorities continue to implement educational activities in areas where it is already certain or predictable that the cumulative annual dose exceeds 1mSv/year, it is clear that the children will face great danger of developing cancer and leukemia from radiation exposure. And that is only by attending these elementary/junior high schools, nursery schools and kindergarden in the region. This act seriously violates children’s moral interests; life, body and health.

Ⅶ　The rights of children in the Fukushima prefecture
The right to receive education
First clause from Article 26 of Japanese constitution stipulates that “All people shall have the right to receive an equal education correspondent to their ability, as provided by law.” Then in the latter half of its second clause, “Such compulsory education shall be free”. The right to receive education naturally includes “right to receive education safely”. So it is constitutionally guaranteed that the children have the right to receive education without damages to life, body and health. This needs to be realized especially in the circumstances since Fukushima nuclear accident.
The right to life (moral interests)
Article 25 of Japanese constitution stipulates that “all people shall have the right to maintain the minimum standards of wholesome and cultured living” and “in all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health”. Article 13 stipulates that “All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs”. Therefore Japanese people naturally and clearly have the right to be protected from any damages to life, body and health that are caused by massive amount of radioactive materials released from Fukushima nuclear power plant.
Health measures at school
Article 12 of School Education Law stipulates that the providers of education must implement regular health checks and other necessary measures to protect and promote children’s health. It means that children and their parents have the right to demand implementation of appropriate health measures.
The best interests of the children
The first clause of Article 3 from Convention on the Rights of the Child is absolutely crucial for resolving this matter: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Ⅷ　Duties of the other party
Duty to give safety considerations
The Japanese government, Fukushima Prefectural government and local municipalities within the Fukushima prefecture must fulfill the rights of the children that we noted so far, especially the one based on Article 26 of the Japanese constitution. They have a duty to give safety considerations and to take necessary measures so that life, body and health of the children are protected.
Since 11 March, the situation in the Fukushima prefecture is the one where great amount of radioactivity has been continuously leaking into the environment from the nearby Fukushima Daiichi nuclear power plant. They must actively take necessary measures to prevent implementation of educational activities in the red zone, so that the children will not develop radiation-induced cancer or leukemia later. Life, body and health of the children must not be damaged.
Article 26 of School Health Safety Law stipulates that “Education providers must implement necessary measurements to fully maintain its facilities, equipment and the management system, so that children can be prevented from danger caused by any potential accidents, attacks or disasters. They must be able to deal with any potential danger or hazard caused to the children by accidents etc.”. This is clearly a reflection of the previously-mentioned “duty to give safety considerations”.
Locations of elementary and junior high schools
Regarding the locations of schools, Article 38 of School Education Law states that “local municipalities must build schools in the local areas for the children to attend”, which is of course just a general rule. It is acceptable to give educational activities outside the local areas, if it is inevitable, as written in a notice issued by the MEXT on 23 April 1959.
Even just between 12 March and 25 May 2011, cumulative dose at the petitioners’ schools reached 3.8 mSv at minimum, and 6.67 mSv at maximum, because of the massive fallout from the Fukushima nuclear power plant. The level is 3.8-6.67 times higher than the 1 mSv annual dose limit for the public, creating an extremely hazardous situation endangering life, body and health of the children.
Conclusion
It is a duty of the other party to give safety considerations and to protect life, body and health of the petitioners. Providing education in a red zone is a violation of this duty and it is totally unacceptable. They have a legal obligation to move elementary and junior high schools to outside areas immediately. And local municipalities must bear the costs, since it is stipulated in Article 26 of the Japanese constitution that the compulsory education is free.
If the authorities continue to provide educational activities in areas where it is already certain or predictable that the cumulative dose exceeds 1mSv annually, the petitioners (children) will face great and concrete danger of developing cancer and leukemia from radiation exposure. Life, body and health of the children will be damaged. Unless evacuation measures are taken immediately, with the government and local municipalities paying the cost, this situation cannot be resolved. It is the only way.