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Nuclear Safety Regulatory Authority – A Pipe Dream

The Parliament is sitting on the Nuclear Safety Regulatory Authority Bill since 2011, fighting to keep nuclear bodies out of RTI, and has approved a liability law seen as a corporate sell-out

Nirupama Sekhri
Publish Date: Sep 7 2016 12:47PM | Updated Date: Sep 7 2016 1:43PM

Nuclear Safety Regulatory Authority – A Pipe Dream

 A nuclear plant is as safe as its last accident. The lull on safety issues after the Three Mile Island (TMI) nuclear meltdown in 1979 in Pennsylvania, USA, and Chernobyl in the former USSR in 1986, was rudely shattered in 2011 by Fukushima, Japan. Succumbing to powerful civil society pressure, most developed countries have pledged to move away from nuclear energy dependence. Yet, India persists. Given that the Parliament is still sitting on the Nuclear Safety Regulatory Authority Bill since 2011, fighting to keep nuclear bodies out of the RTI ambit, and has approved a liability law seen as weak by members of the Government itself, this is an area that requires far greater attention by media and the public

 
Two facts first. Nuclear energy generation involves such intricately complex chemical systems that planning and ensuring an accident-free operation is impossible. Fukushima was a ‘safe’ plant yet the accident spiralled into a whopping, maximum scale of 7 on the International Nuclear Event Scale.
 
Secondly, the financial and human cost of clean-up are gargantuan; legacy issues are still being tracked, even in the TMI and Chernobyl regions. According to an article in Forbes, the direct costs of the Fukushima disaster will be about $15 billion in clean-up over the next 20 years and over $ 60 billion in refugee compensation.
 
And who pays the cost? The corporate and the government, which is eventually the money of the people, so, it’s obvious that people should have a powerful say in the approval, planning and tracking of nuclear energy plants, especially if in their regions. 
Unfortunately, in India, the attempts to involve the people have been feeble at best. The Atomic Energy Commission (AEC) was established in 1948 under the Atomic Energy Act as a policy body.  In 1954 the Department of Atomic Energy (DAE) was set up to encompass research, technology development and commercial reactor operation.
 
The DAE was set-up under the direct charge of the Prime Minister through a Presidential Order, and according to a resolution passed in Lok Sabha in 1958, the Secretary to the Government of India is ex-officio Chairman of the Commission. The other Members of the AEC are appointed each year on the recommendation of the Chairman, AEC and after approval by the Prime Minster.
 
Responding to calls to set-up a more autonomous body to guide and track nuclear plants, the Atomic Energy Regulatory Board (AERB) was formed in 1983, which still falls under the AEC but is independent of DAE. It is responsible for the regulation and licensing of all nuclear facilities and their safety, and carries authority conferred by the Atomic Energy Act for radiation safety and by the Factories Act for industrial safety in nuclear plants. 
 
However, it is not an independent statutory authority, and its 1995 report on a safety assessment of DAE's plants and facilities was reportedly shelved by the AEC. In April 2011 the government announced that it would legislate to set up a new independent and autonomous Nuclear Regulatory Authority of India that will subsume the AERB, and that previous safety assessments of Indian plants would be made public.
 
One of the initiatives undertaken by the AERB was commissioning an Integrated Regulatory Review Services (IRRS) Mission between March 16 to 27, 2015, specifically for nuclear power plants in India. This was in direct response to the Fukushima accident The full IRRS report was made public and can be viewed on the AERB’s website.
 
Interestingly, one of the recommendations the IRRS made was to “embed through legislation the AERB as an independent regulatory body that is in law separate from other entities having responsibilities or interests that could unduly influence its decision-making.”
 
In 2011, a Nuclear Safety Regulatory Authority (NSRA) was proposed to be set-up. It was envisaged to be an independent body that would subsume the AERB and be responsible for ensuring radiation safety and nuclear safety in all civilian sector activities. However, the bill lapsed and the government expected to reintroduce it in a 2013 session of parliament, but it was still pending at the end of 2015. 
 
According to the World Nuclear Association, “In August 2012 a parliamentary report from the Comptroller and Auditor General (CAG) on the AERB pointed out serious organisational flaws and numerous failings relative to international norms. The most fundamental issue highlighted by the report was the unsatisfactory legal status and authority of the AERB. Despite India's international commitments, awareness of best practice and internal expert recommendations, the report said, "the legal status of AERB continued to be that of an authority subordinate to the central government, with powers delegated to it by the latter." The CAG report emphasized the need to make the regulator independent of industry and government and insulated from commercial or political interference.” 
 
Parliament’s stand on the NSRA Bill was sharply brought into question when  Information Commissioner Shailesh Gandhi wrote a letter, dated March 26, 2012 to the then Prime Minister Manmohan Singh. The letter raised concern over the Government’s proposed two amendments to the RTI Act. 
 
The first sought to remove from the scope of the RTI Act sensitive information relating to nuclear and radiation safety issues. The second sought to shield regulatory bodies that oversee nuclear facilities established for strategic and defence purposes.
 
Gandhi wrote that there was already adequate protection in the Act to prevent disclosure of sensitive information, especially concerning matters of intelligence and security. He made a strong case for the need of transparency:
 
“The government should realise that when there is lack of transparency, protests erupt at a later stage resulting in high cost to the economy and to itself. Therefore, being transparent is in the interest of the government and the economy. When there is opacity, the total cost of everybody becomes high and the trust deficit between the government and citizens keeps increasing.” 
 
The result has been that the Bill is still languishing.
 
During the monsoon session of Parliament this year, Dr. Shashi Tharoor, MP from Thiruvananthapuram did raise the question of an independent body. 
 
He asked whether the country has an independent regulatory authority to enforce safety standards and regulate the function of Nuclear Power Plants (NPPs) and if so, the details thereof, as well as if the Government proposes to consider urgent measures to either restructure the AERB to make it autonomous or constitute an independent nuclear safety authority to implement strict safety protocols throughout the country.
 
The response he was given was that the Government of India has established the Atomic Energy Regulatory Board (AERB) as a regulatory body empowered to enforce safety standards and regulate the functioning of Nuclear Power Plants (NPPs). AERB is functionally independent from the Government and the facilities it regulates and has adequate powers with respect to its mandate of enforcing Safety regulation of nuclear and radiation facilities in the country, and that the Integrated Regulatory Review Service (IRRS) mission has acknowledged that AERB has functional independence as the regulator.
 
The proposal for setting up a Nuclear Safety Regulatory Authority has been under consideration. Accordingly, Government had introduced the Nuclear Safety Regulatory Authority Bill, 2011 (NSRA) in the Lok Sabha in September 2011. The Bill could not be taken up for consideration before the dissolution of 15th Lok Sabha and expired. A fresh Bill is under examination and processing.
 
However, the Government has gone ahead with the Civil Liability for Nuclear Damage Bill, 2010 which was seen as highly controversial in light of the Bhopal chemical tragedy. That accident was widely seen as a botched-up management by the government and Union Carbide, which escaped paying up to its responsibility. So the need for a strong liability bill was seen as important.
 
According to PRS Legislative Research the following were key challenges in the Bill: 
 
•The liability cap on the operator (a) may be inadequate to compensate victims in the event of a major nuclear disaster; (b) may block India’s access to an international pool of funds; (c) is low compared to some other countries.
 
•The cap on the operator’s liability is not required if all plants are owned by the government. It is not clear if the government intends to allow private operators to operate nuclear power plants.
 
•The extent of environmental damage and consequent economic loss will be notified by the government.  This might create a conflict of interest in cases where the government is also the party liable to pay compensation.
 
•The right of recourse against the supplier provided in the Bill is not compliant with international agreements India may wish to sign.
 
•The time-limit of ten years for claiming compensation may be inadequate for those suffering from nuclear damage. 
 
•Though the Bill allows operators and suppliers to be liable under other laws, it is not clear which other laws will be applicable.  Different interpretations by courts may constrict or unduly expand the scope of such a provision.
 
This is what former BJP Minister Yashwant Sinha flayed in an interview with The Citizen magazine recently. He said, “On the nuclear front there has been abject surrender by the Government of India under Prime Minister Narendra Modi to US interests, I have no hesitation in saying this publicly.” 
 
However, this pick and choose of issues to praise or condemn seems more driven by political expedience and opportunism than any real commitment to looking out for people’s interest. Which right now is in having the NSRA Bill to be debated in Parliament, and allowing for greater voice of the people to be heard above government tom-tomming of its nuclear energy visions.