A Toothless Nuclear Safety Authority

The agitations in Jaitapur and Kudankulam have shown that mere assurances of safety of nuclear plants are not enough for the people. After Fukushima, unless the Government creates a credible regulator, the resistance to nuclear plants is only likely to grow.

Any nuclear legislation today gets enmeshed in Manmohan Singh Government’s nuclear deal with the US. As we all know, the Liability Act watered down the liability of the nuclear suppliers, which has been weakened even further by a set of Rules that the former Attorney General, Soli Sorabjee has termed as “.. ultra vires the said Act and is invalid ”. As a part of the India-US nuclear deal, the Manmohan Singh Government had given assurances to the US that it would buy 10,00 MW of nuclear plants from the US. It had also given similar assurances to the French and the Russians. For Manmohan Singh and his Government, fulfilling these assurances appear to be more important than the safety of the Indian people. That is why we see a concerted attempt to remove liability of the US and other suppliers and now a proposal for a toothless regulator.

The basic principle for regulation is that there should be regulatory independence, transparency in regulations and the regulator should have teeth to enforce the decisions taken. Unfortunately, the proposed Bill is lacking on all these counts.

There are three provisions in the Bill that makes the regulator subservient to the Government of the day. The first is that the provision of a Council of Nuclear Safety, headed by the PM, some central ministers, and the Head of the Atomic Energy Commission. This body will “oversee and review policies with respect to radiation safety and other matters connected therewith and incidental thereto”. Clearly, by this provision, the Head of Atomic Energy Commission, the body that runs all nuclear facilities has been placed above the body that is supposed to regulate it!

One of the problems with the earlier regulatory body was precisely this – the Atomic Energy Regulatory Board (AERB) was reporting to the Atomic Energy Commission. By this clause, the hierarchy of regulation – the regulator is above the body that he is regulating has been again reversed. As per this Bill, the head of the body that is being regulated will have oversight over the regulator and will also decide on its policies. If such a Council is required – and frankly I do not see its purpose – then both the Heads of the Regulatory Body and the Atomic Energy Commission should be ex officio members of the Council.

The second provision that goes against the independence of the regulator is in Clause 42 – by virtue of this clause, the Central Government has kept to itself the right to issue any directive it may deem necessary and the Authority is bound by such directions. It is important to note that this clause is not restricted to policy alone but applies to all matters and is final. Under this clause, the Central Government, for example, may direct the Authority not to look at safety aspects of Areva or Westinghouse reactors and the Authority is bound by this directive.

We are all aware that the Liability Act and the Rules were drafted in consultations with the US authorities and suppliers. It is this that fuels the suspicion that such provisions may be there to remove from the regulator’s jurisdiction for actions that the Manmohan Singh has already committed in its deals with the US.

The Central Government can also dissolve the regulatory body whenever it wants. Clause 48 (d) gives it the right to supersede the authority at any time for a period of up to 6 months. Again such rights appear to be unfettered and would seriously impair the independence of the regulator.

Apart from these aspects, the other part where the Bill has serious problems is with respect to a provision it calls “Other Regulatory Bodies”. While what the regulator will do and what it will make public has been clearly spelt out for the main regulatory body, nothing has been specified for these “other Regulatory Bodies” It is clear that from other provisions in the Bill, that defence installations will not come under the proposed regulator and “Other Regulatory Bodies” is meant to cover such facilities. The problem here is that some of these facilities are identical to civilian nuclear facilities – a nuclear reactor that is kept outside the civilian sector may be identical to a reactor that for instance produces fissile material for the nuclear weapons program. What will be the safety standards for such a reactor – will it be different from that of this identical civilian reactor? Are the people of these area to be kept in the dark and will the authorities running these facilities have no responsibility to inform the people in case of accidents?

While one can accept that the demand for transparency in defence related installations are different from that of civilian facilities, the standards for safety and reporting after an accident involving release of nuclear materials to the atmosphere cannot be different. In fact the Liability Act makes clear that all its provisions apply also to defence facilities, with the exception of nuclear submarines. However, by this provision, the Government is putting safety of such nuclear installations beyond any serious safety scrutiny.

The other measures that are weak in the Bill relate to what the Authority is supposed to do before passing an order. It should be clear today – after Jaitapur and Kudankulam – that people need to be involved in the decisions relating to nuclear plants. Public hearings are not just for some tamasha but an important mechanism of allaying peoples doubts on the safety of nuclear plants. Therefore, the Bill should spell out that before any order of the regulatory authority, there should be mandatory public hearings.

The other serious problem is with the Appellate Authority that the Bill seeks to create. Regulating safety of the nuclear facilities is a technical issue requiring highest technical competence. The Bill has spelt out in details the need for knowledge of nuclear safety and its various aspects for the members of the regulatory body. While the chairperson and the member of the regulatory body would have the necessary competence, the chairperson and members of the appellate body would have no such competence. Why there is a need for such an appellate body is not clear, when the Bill does not even propose to have a permanent appellate body. It is to be created as and when it is required. If we recognise that this body is only required in exceptional circumstances, what is the need for such a body at all? Why cant the courts address such disputes? In any case, if there is a dispute r between the regulator and the authorities running nuclear plants egarding what constitutes safety of a nuclear installation, should this be indeed be subject to a quasi judicial procedure with an appellate body who does not have the necessary competence?

If such an Appellate body is indeed required, then it certainly should have its powers and terms defined properly and not as an afterthought as it appears to be in the Bill.

The central problem with the Regulatory Bill as drawn up by the Government that it does not seem to understand that Safety is not just another regulatory subject – such as electricity or telecom tariffs. An accident can kill thousands of people and create enormous damages. The Fukushima accident has created damages worth more than $50 billion already and the bill is still growing. In such an area, the regulator has to be have much more powers than a tariff regulator and be seen to be far more independent than he is currently or is proposed in the Bill. Without such a regulator, an ambitious nuclear energy program will not be credible to the people. If we are asking the people of an area to bear the risk of a nuclear plant close to where they live, it is necessary that we give them guarantees that we are making all efforts that we can in ensuring its safety. It is the attempt to manipulate public opinion, disregard the will of the people and even that of the Parliament that that is damaging the prospects of nuclear energy in the country. The Government and the atomic energy establishment can either have an expanded nuclear program in which they take the people along or they can continue on their current course of extreme secrecy and lack of accountability. Unfortunately, the current Bill show that neither the Manmohan Singh Government nor the nuclear establishment is willing to learn from recent events. That is the real tragedy.