New nuclear safety regulator: old wine in old bottle
For how long can the Prime Minister afford to play the role of an Ostrich, Gopal Krishna asks. he is an environmental and civil rights activist and can be contacted at firstname.lastname@example.org.
Within a week of introduction of a legislation for the creation of a nuclear safety regulator in the Indian Parliament, the world witnessed yet another nuclear accident in France.
A nuclear plant’s waste facility Marcoule nuclear site near Nimes in southern France operated by Centraco, a subsidiary of French energy company EDF suffered an explosion on September 12, 2011. So far it has come to light that the blast happened in a furnace in the facility that was used to incinerate or melt nuclear waste. This has caused death and injury. This site was once a military site for research into the atom bomb when it opened in 1956. It is spread over 140 hectares in the Languedoc-Roussillon region. This site provided nuclear electricity to France for the first time.
The fact that in France they have a nuclear waste melting or incinerating facility raises a question whether or not India too has similar facilities. Do we know about it? Clause 20 2 (k) of The Nuclear Safety Regulatory Authority (NSRA) Bill, 2011 refers to “nuclear and radioactive wastes” among other things. Will someone reveal where is a nuclear and radioactive waste facility in India similar to the one in France which Central Government’s proposed NSRA is supposed to regulate? It is high time the Central Government came out with a white paper on how it has dealt with the nuclear waste since 1948.
The NSRA Bill was introduced on September 7, 2011. The Bill’s preamble states that “India has excellent record in nuclear safety and radiation safety” but to make further improvements in its pre-existing perfection, the Bill has been introduced in the Parliament to establish an Authority and “such other regulatory bodies” for regulation of radiation safety or nuclear safety” in nuclear industry. The Hindi and English version of the Bill is attached.
NSRA is meant to “discharge its functions and powers in a manner consistent with the international obligations of India”. It has to apprise, from time to time, the National Disaster Management Authority (NDMA) regarding nuclear safety and radiation safety measures and management of disaster arising from nuclear incident notified under clause 3 of the Civil Liability for Nuclear Damage Act, 2010 and coordinate with the said Authority (NDMA) in the case of such disaster and notify nuclear incident as required by clause 3 of the Civil Liability for Nuclear Damage Act, 2010.
The Bill’s Statement of Objects and Reasons states, “The Fukushima incident in Japan has led to worldwide concerns and apprehension on safety issues relating to nuclear power. The Government of India attaches highest importance to nuclear safety and considers it expedient to establish statutory regulatory bodies to further strengthen regulation of radiation and nuclear safety in the country. Hon’ble Prime Minister has made a statement on the floor of the Lok Sabha on 14th March, 2011 and assured that India’s nuclear safety regulatory framework would be strengthened.”
This means that in the event of Fukushima like disaster or Marcoule like explosion, NSRA and NDMA will have to coordinate efforts and ascertain ‘nuclear damage’.
Unlike Japan, which decided against nuclear energy, Indian Prime Minister’s Office (PMO) through a statement issued on April 26, 2011 made a passing reference to “safety concerns arising out of the nuclear accident at Fukushima in Japan and their impact on India’s overall nuclear energy programme” that is hardly sincere. Following the disaster in Fukushima Daiichi nuclear plant on 11 March 2011, in April this year, the measurement of severity of the disaster was found to be 7 and not 5, the highest rating on the International Nuclear Event Scale (INES). The Chernobyl nuclear disaster of 1986 too was measured 7 on the INES.
The NSRA Bill wants “to ensure that the use of radiation and atomic energy in all its applications is safe for the health of the radiation workers, members of the public and the environment”. It is also to establish a Council of Nuclear Safety (CNS) “to oversee and review the policies relating to radiation safety and nuclear safety and to provide for matters connected therewith or incidental thereto.” CNS will consist of the Prime Minister of India as its Chairperson and Union Ministers of Ministry of Environment and Forests, External Affairs, Health, Home Affairs, Science and Technology, Cabinet Secretary and Chairman, Atomic Energy Commission as members besides any other Union Minister to be nominated by the Central Government and eminent experts as may be nominated. The mandate of the CNS is to oversee and review the policies with respect to radiation safety, nuclear safety and other matters. This creates a conflict of interest because customarily, Prime Minister is the head of the Department of Atomic Energy, which promotes nuclear commerce. How can a promoter of nuclear trade and activity be a regulator as well?
As per the Bill, the Nuclear Safety Regulatory Authority (NSRA) will replace the “Atomic Energy Regulatory Board” which was constituted vide notification of the Government of India in the Department of Atomic Energy dated the 15th November, 1983.
CNS will constitute a Search Committee for the selection of Chairperson and another Search Committee for the selection of Members of the NSRA. The Chairperson of the NSRA will be a member of the Search Committee constituted for the appointment of members. NSRA will consist of a Chairperson, two whole-time Members; and maximum four part-time members. This seems to undermine the independence of the members of NSRA.
The NSRA Bill proposes an “Appellate Authority” to be constituted by the CNS in consultation with the Chief Justice of India or his nominee. This Authority will comprise of a Judge of the Supreme Court or Chief Justice of a High Court and two other Members who are eminent scientists in the field of nuclear or atomic energy. This is to enable the Central Government or any person aggrieved by the order of the NSRA to file an appeal to the Appellate Authority and to provide for the offences and penalties for contraventions of the provisions of the Act once enacted. Thus, NSRA has been made subservient to CNS and the Appellate Authority. In effect, both the chairperson and the members of NSRA will be selected by interested parties and project proponents or promoters.
The Bill provides that “Any person holding any office (whether as an employee or an officer or a director or managing director or secretary or manager or in any other capacity) under the Central Government or State Government or in a company (including a Government Company referred to in clause 617 of the Companies Act, 1956) or in any other institution, organisation, society or University or Board, shall, on his selection as the Chairperson or a whole-time Member, be required to seek retirement or resign from the services of such Central or State Government or company or institution or organisation or society or University or Board, as the case may be, before accepting the employment as such Chairperson or as the case may be, the Member”. But the Bill makes two serious omissions. It does not lay down the same condition for even the part-time members. The Bill also does not reveal whether or not nuclear energy promoters soon after retirement or resignation can become regulators by joining CNS, Appellate Authority, Search Committee or NSRA?
Clause 13 of the Bill provides that the Chairperson or a whole-time Member, ceasing to hold office as such, shall not accept any employment with (a) any person who has been granted consent for any activity under this Act; or (b) any person who has been associated with the person referred to in clause (a); or (c) any person who has been connected with the management or administration of the person.
It provides that the Chairperson or a Member, ceasing to hold office as such shall not, (a) act, for or on behalf of any person or organisation in connection with any specific proceeding or transaction or negotiation or a case to which the Authority is a party and with respect to which the Chairperson or the Member, before cessation of his office, had acted for, or provided advice to, the Authority; or (b) give advice to any person (including his client, business associate or employer) using information which was obtained in his capacity as the Chairperson or a Member and being not available or cannot be made available to the public; or (c) enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office as such, without the approval of the Central Government.
The question is how they undertake such tasks even with the approval of the Central Government. Also what is the remedy for the residual interests of Chairperson or a Member from their previous occupations prior to their employment with NSRA?
After the establishment of the NSRA the Atomic Energy Regulatory Board shall stand dissolved and the Chairman and Members of the Board shall be transferred as such to function as Chairperson and Members under this Act and be deemed to be the Chairperson and Members of the Authority under this Act until the Chairperson and Members of the Authority are appointed in accordance with the provisions of this Act. After the dissolution of the Board, the functions and powers of the Board will get vested in the NSRA.
The jurisdiction of the NSRA “shall extend to all areas to which this Act is applicable and activities relating to production, development or use of atomic energy and radiation in all its applications, or transport (within India or outside India), transfer by sale or otherwise, import, export or storage or disposal of nuclear and radioactive material” except for the exemptions provided in Clauses 25 and 27 for the purposes of national defence and security.
Clause 2 (j) of the Bill defines “radiation worker” as “any person who is occupationally exposed to Radiation”. There are legislations regulating nuclear industry since 1948. Does the Parliament know of the number of “radiation workers” who suffered from radiation induced diseases? If it does not have that data, will its current initiative inspire any confidence? Or is that such data a classified document from the point of view of “national defence and security” that can “not be called in question before any court of law.” Citizens of India deserve to know as whether or not the Central Government has a register of radiation exposed victims and workers.
The fact is radiation workers’ body burden is the first biological indicator of radiation exposure. If this indicator is taken cognisance of members of the public and the environment who suffer exposure when ‘certain activities’ like production of radioactive minerals, storage, disposal, transport (within India or outside India), transfer by sale or otherwise, import, export and use of any nuclear material, radioactive material or any other substance, or equipment used for production or use of radiation or atomic energy takes place, they can be safeguarded and secured.
The NSRA Bill does not seem to have factored in International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources (BSS) that provides a worldwide basis for harmonized radiation protection standards that complement the International Labour Organisation (ILO)’s Convention No. 115 and for the protection of workers engaged in nuclear and radiological emergency operation.
The Bill fails to specify as to how NSRA will deal with events like radioactive contamination of sources of water, agricultural and non-agricultural land.
This Bill has 54 clauses, a note to the clauses and 2 Schedules wherein First Schedule deals with oath of secrecy and fidelity and the Second Schedule provides for four parts, each dealing with proposed amendments in related and pre-existing legislations. Part-I of the Second Schedule provides for amendments to the Atomic Energy Act, 1962, Part-II thereof provides for amendments to the Right to Information Act, 2005, Part-III thereof provides for amendments to the Disaster Management Act, 2005 and Part-IV thereof provides for amendment to the Civil Liability for Nuclear Damage Act, 2010. The Hindi version has 24 pages and the English version has 41 pages. Are all nuclear installations only in Hindi and English speaking areas?
As per Clause 20 (c) of the Bill, NSRA’s responsibility is to “ensure transparency by systematic public outreach on matters relating to nuclear safety without disclosing sensitive information and compromising confidentiality of commercially sensitive information of technology holders” wherein the expression “sensitive information” is defined as information pertaining to (i) physical security of nuclear material and facilities, or (ii) reprocessing of spent fuel, enrichment of fissile material or heavy water production technologies; (iii) any information under clause 26 which has been accessed by the Authority or has come to its knowledge or made available to it in the discharge of its functions”.
What to make of these provisions when to begin with the drafting process of the Bill and pre-legislative consultation itself is non-transparent. Will it not be appropriate to send the Bill to the State Governments for their opinion on such a critical issue like nuclear safety? Legislations like these illustrate whether the Central Government draws its mandate from less democracy or more democracy.
This Clause also provides for NSRA to “interact with other bodies and international organisations engaged in activities relevant to the functions of the Authority including nuclear and radiation safety, physical security of nuclear material and facilities, transportation of nuclear and radioactive materials and nuclear and radiation safety and regulation” This has to be carried out subject to the prior approval of the Central Government. It would be in fitness of things to reveal the role of Nuclear Suppliers Group, International Atomic Energy Agency, World Health Organisation and bilateral agreements in the matter of nuclear commerce instead of keeping it vague as is currently the case in the Bill.
NSRA is given the task to advise the Central Government with respect to measures to implement and coordinate a nationwide programme for environmental surveillance to check any harmful build up of radioactivity in the environment and measures to ensure establishment and maintenance of appropriate mechanisms, plans for preparedness in response to nuclear and radiation emergencies and to notify the limits of radiation exposure to radiation workers and the members of the public.
It is supposed to “develop and notify the standards and codes, and develop and publish other supporting documents for safety in design, siting, construction, commissioning, operation, quality assurance, decommissioning, storage, transportation and other activities related to plants, facilities, nuclear and radioactive wastes, radiation sources and radioactive materials and issue, renew, modify, suspend and revoke consents with specified conditions for conduct of any activity which come under its jurisdiction for the production, storage, disposal, transport (within and outside India), transfer by sale or otherwise, import, export and use of any nuclear material, radioactive material or any other substance, or equipment used for production, or use of atomic energy”. Prior to NSRA, it was Atomic Energy Regulatory Board which was undertaking these tasks.
NSRA has the responsibility of notifying “measures for physical security within the area of main plant boundary, physical protection of nuclear and radioactive materials under storage as well as transport (within and outside India), and nuclear and radiation facilities”. But Clause 20 (3) seems to undo the above provision by providing for exemption “from the applicability of any of the provisions of the safety related regulations or orders issued under this Act” in the matter of “any radioactive material, any class or classes of radioactive material or any radiation generating plant”.
It is strange that NSRA has been put under the obligation to forego truth about nuclear safety issues if its discharge of its powers and functions becomes contrary to “friendly relations with foreign States, public order, decency or morality.”
The Bill provides for NSRA to “advise the Central Government to take control of the radioactive material or radiation source if owner thereof cannot be identified.” The NSRA can “direct any owner of, or holder of the consent or any person dealing with radioactive material, radiation source or facility to hand it over to the Central Government if, in the opinion of the Authority, continuation of such material or facility under the control of its owner or the holder of the consent or any such person is detrimental to the safety and physical security of such material or facility, or has a potential to be detrimental to the safety of public or the environment”.
It provides that “No authority under the Factories Act, 1948 shall have jurisdiction in respect of functions of NSRA such as enforcement of its provisions, including the appointment of inspecting staff, in any factory engaged in the development, production and use of radiation and atomic energy or any facility engaged in research and development activities related to radiation or atomic energy, and owned or administered by the Central Government or any other authority or corporation established by it or a Government company under the jurisdiction of the Authority or the regulatory bodies, as the case may be.”
The NSRA may by order in writing (a) call upon any owner or any person in charge of or managing director, director, secretary or other officer of radiation or nuclear facility at any time to furnish in writing such information or explanation relating to its activities as the Authority may require to carry out its functions under this Act; or (b) appoint one or more persons to make an inquiry in relation to the affairs of any radiation or nuclear facility; and (c) direct any of its officers or employees to inspect the books or other documents of any radiation or nuclear facility.
The NSRA or any other officer specially authorised by it in this behalf may carry out such inspection or inquiry as may be necessary, enter any building or place where the Authority has reason to believe that any document or object relating to the subject matter of the inquiry may be found, and may seize any such document or object subject to the provisions of clause 100 of the Code of Criminal Procedure, 1973 in so far as they may be applicable. And for this purpose it shall have power of access to (a) premises and places, vehicle, vessel or aircraft where radiation is present or used or proposed to be used; and (b) documents, drawings, photographs, plans, models or any other form which relates to or represents or illustrates any existing or proposed plant, used or proposed to be used for the purpose of producing, developing or using atomic energy or radiation.
Clause 41 of the Bill provides for offences by companies. It provides that where an offence under the Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. However, nothing contained in the clause shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. But where an offence under the Act has been committed with the consent or connivance of, or attributable to any neglect on the part of, any director, manager, secretary or other officer or employees shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
It is noteworthy that the preamble of the NSRA Bill that proposes to set up NSRA also proposes to set up “such other regulatory bodies” but does not explicitly reveal what these entities are. Clause 5 (c) of Bill’s Statement of Objects and Reasons of the Bill refers to “the establishment of other regulatory bodies for the purpose of national defence and security”.
Clause 25 of the Bill states that “The Central Government may, by notification, specify that the provisions of this Act shall, subject to such modifications or conditions or adaptation as it may specify, apply to such regulatory bodies. Clause 26 (2) states that “No Chairperson or Member or officer or other employees or consultant or expert shall, either during his employment with such regulatory bodies or after cessation of such employment, disclose any confidential information relating to activities falling under the jurisdiction of regulatory bodies.” This reveals that “such other regulatory bodies” too will have their own office bearers but their eligibility, role, responsibility and liability is not disclosed. Clause 27 further clarifies that there will be NSRA and “other regulatory bodies under this Act” but for the purposes of national defence and security, there will be exemption to “any area, nuclear material, radioactive material, nuclear facility or plant from jurisdiction of the Authority or other regulatory bodies”. Clause 44 provides that no civil court shall have jurisdiction in respect of any matter which the NSRA or other regulatory bodies are empowered by or under the Act to determine.
In an explicit undemocratic exercise of subordinate legislation, Clause 52 provides that every rule and regulations made under the Act shall be laid before each House of Parliament. This is not sufficient especially in the matter of nuclear safety. The rules and regulations must be presented to the Parliament before its notification and not post event.
Provisions of the Clause 54 appears to be a case of expression of disregard towards the Parliament because it provides for removal of “difficulties” within the legislation on its own by the Central Government within three years from the date of commencement of the Act. It further provides that every order made under this clause shall, as soon as may be after it is made, be laid before each House of Parliament. Why should such ‘difficulty removal’ engineering with the legislation and orders passed after such action be presented to the Parliament post event?
This is the case when the preamble of the Bill of the Central Government refers to “continued excellence in nuclear safety and radiation safety in all applications of radiation and atomic energy on a large scale”. It pats itself in the back by claiming in the preamble that “such excellent safety record in nuclear safety and radiation safety is required to be sustained for growth in the nuclear energy sector” and categorically states “India has excellent record in nuclear safety and radiation safety.” This is done amidst reference to “international obligations of India” and “international organizations”. Indian National Congress led Central Government’s transparent regime ought to define these obligations and specify these organizations in the Bill itself.
The Statement of Objects and Reasons of the Bill states “The Atomic Energy Act, 1962 was enacted, after repealing the Atomic Energy Act, 1948, to provide for a legal framework for the development, control and use of atomic energy for the welfare of the people of India and for other peaceful purposes” disregarding the considered opinions of at least eight secretaries of Government of India given to the Parliamentary Standing Committee on Environment, Forests, Science & Technology in the matter of Civil Liability for Nuclear Damage Bill, 2010.
The views of these senior officials revealed that the “use of atomic energy” is contrary to the “welfare of the people of India”. The Parliamentary Standing Committee had observed that these concerned secretaries were not consulted while drafting the Bill. It had recommended that they should be consulted in future. There is nothing in the NSRA Bill that reveals that these secretaries were consulted. This reveals contempt towards such recommendations of the Parliamentary Committees. In order to rectify such omissions, the Bill must be referred to a reconstituted and conflict of interest free Parliamentary Standing Committee on Health and Family Welfare.
As to “other peaceful purposes” of atomic energy, nuclear accidents across the globe from Chernobyl to Fukushima to Marcoule reveal the truth about claims of it being peaceful.
Italian Prime Minister’s plans to resume the country’s nuclear programme has been voted against, Swiss government is also phasing out nuclear plants, Germany too has decided to abandon nuclear power by 2022 due to wide spread rejection of atomic energy in Europe after Fukushima but our Prime Minister has chosen to adopt an ostrich policy. When threatened, the Ostrich, a flightless bird either hides itself by lying flat against the ground, digs its head in the sand or runs away.
A conflict of interest free nuclear safety regulator is required for existing nuclear installations but proposing it for future nuclear projects is akin to the act of the flightless bird.