Dr. A Gopalakrishnan is a former chairman of the Atomic Energy Regulatory Board of the Indian government

Article Courtesy:Daily News & Analysis (DNA) | Mumbai | Monday, December 5, 2011

Background:

The Indian government intends to replace the Atomic Energy Regulatory Board with a newly proposed Nuclear Safety Regulatory Authority to strengthen the administration of nuclear safety. The NSRA Bill, 2011, was introduced on September 7 and is currently before the Parliamentary Committee on Science & Technology. In the meantime, while hearing a public interest litigation on nuclear issues on December 5, Chief Justice SH Kapadia is reported to have said, ‘Have a public debate. Come out with a concrete solution till Parliament considers the (NSRA) Bill and suggest a regulatory model or a framework and then we can consider.’ (The Hindu, December 5) Adjourning the case for a month, the court told the petitioners they could suggest some regulatory models independent of the government, adopted in countries like the US, France, the UK and Canada, which it would then ‘recommend’ to the government. (Indian Express, December 6) For an informed debate to be conducted, one needs to first place before the Indian public certain salient aspects of the nuclear regulatory structures in some advanced countries that rely heavily on nuclear power.

This article is the first in a series that I intend to publish to initiate a public understanding and debate of the kind the Hon’ble Chief Justice of India suggested on foreign nuclear regulatory frameworks. In preparing this article , I must acknowledge that I have directly used substantial portions of existing factual reports from the Organisation for Economic Cooperation and Development document (2008) on ‘Nuclear Legislation in OECD Countries: United States’, as well as from the website of the US Nuclear Regulatory Commission. This had to be done to keep the contents totally factual in every detail, without inadvertent distortions coming in while paraphrasing them in my own language.

The US Nuclear Regulatory Commission

Formation and Responsibilities:
In the US, until 1974, the Atomic Energy Commission served as the umbrella agency charged with responsibility for all civilian and military projects on atomic energy. That year, the AEC was abolished and the regulatory responsibilities of the erstwhile AEC were assumed by the Nuclear Regulatory Commission.

The NRC’s primary responsibilities include ensuring that the use of nuclear materials and facilities is consistent with the protection of public health and safety, the common defence and security of the US and protecting the environment. The NRC acts through setting standards and rule making, technical reviews and studies, issuance of licences, permits and authorisations, inspection and investigations, evaluating operating experience and undertaking confirmatory research. NRC maintains an active inspection and enforcement program, and it investigates violations and initiates enforcement proceedings. The NRC can seek judicial remedies like injunctions and can assess fines and penalties. The violation of some NRC regulations can also result in criminal prosecution. Lastly, the NRC is authorised to investigate the causes of major nuclear incidents and accidents and report their findings to the US Congress.

NRC Organisational Structure:
The NRC was created under the Energy Reorganisation Act, 1974, as an organisation that exercises considerable independence in nuclear regulatory matters. NRC has five commissioners, of whom no more than three may be members of the same political party. The US president, with the Senate’s advice and consent, appoints the commissioners, who must be US citizens. Each commissioner serves for five years and, during that time, may not engage in any other business or vocation. The president appoints one of the NRC’s commissioners as chairperson, who acts as the principal executive officer and the official spokesman of the commission. The president may remove a commissioner only for neglect of duty, inefficiency or malfeasance in office, and the Senate has to ratify this action.

In contrast to the above, the Indian Nuclear Safety Regulatory Authority Bill proposes that the chairperson and members of the NSRA shall be finalised by a Council of Nuclear Safety, under the prime minister’s chairmanship, and they are appointed by the government for an initial three-year period. Furthermore, the chairperson and NSRA members can be removed from office by the government, even for trivial reasons. As per the Bill, there is no requirement to inform the Parliament or get approval for their appointment or removal.

The NRC chairperson is responsible for preparing policy planning and guidance for commission consideration, and for conducting the administrative, organisational, budgetary, and certain personnel functions of the NRC. Each commissioner has equal authority and responsibility in decision-making. For the NRC to act, a majority of members present must concur, with a minimum of three commissioners needed for a quorum. A few senior officials and offices also report either directly to the chairperson or to the commission. The NRC Office of New Reactors is one such office which is of special relevance to India in today’s context, with the Government of India embarking on importing first-of-a kind foreign nuclear reactors, without involving the AERB to even cursorily examine the safety of such reactors.

NRC Office of New Reactors:
The NRO was formed in 2006, to take the responsibility to ensure the safety of any new nuclear reactor facility, of US or foreign design, even before a licence application is entertained to build the first of its kind on US soil. For such reactor installations, the NRO is responsible for pre-evaluations and regulatory activities in the areas of sitting, licensing and oversight to protect public health, safety and the environment. One of the first steps in this NRC evaluation is a ‘design certification’ for approval of a standard nuclear power plant design of that type, independent of a specific site approval application or an application to construct or operate a plant. The design certification application to the NRC from the reactor manufacturer will have to include details similar to what is normally expected in a final safety analysis report for an established reactor type. The application to the NRC from the manufacturer must also include a detailed probabilistic risk analysis and an evaluation of design alternatives to mitigate the impact of severe accidents.AREVA, the French developer of the European Pressurised Reactor, has been wanting to sell four of their EPRs to US utilities for some time now, but they are still waiting for the NRC to complete a design certification of the EPR for building it in the US, even though Finland, France and China are in different stages of constructing EPRs. The NRC is not expected to finish their certification before end-2012, and only thereafter can the licensing procedure for building an EPR at a specific US site can start.

In stark contrast to the above, our prime minister has in 2007-08 itself taken a unilateral political decision to buy six EPRs for the Jaitapur site, purely as a quid pro quo for the French government’s help in facilitating the India-US nuclear deal. The Atomic Energy Regulatory Board was never informed or consulted, and no safety evaluation was done by them or the Department of Atomic Energy. The PM and his government have shown scant regard for public safety in taking this decision.

NRC Advisory Committee on Reactor Safeguards:
The ACRS is NRC’s only statutory advisory committee, constituted under the 1972 US Federal Advisory Committee Act. It is mandatory under the FACA that the membership of any federal advisory committee is fairly balanced in terms of the points of view represented and the functions to be performed by that committee. The Act further requires that the Rules under which the ACRS or any such committee is formed ‘contain appropriate provisions to assure that the advice and recommendations of the committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.’ The ACRS, accordingly constituted, has a maximum of 15 members with expertise in scientific and engineering disciplines, and it provides advice on potential hazards of proposed or existing reactor facilities, the adequacy of proposed safety standards and such other matters that the NRC may request. It is important to note that most of the ACRS deliberations are totally open to the public and any member of the public may request an opportunity to make an oral statement during the committee meeting. I don’t think I will live long enough to see something like this happening in India.

Unfortunately, in India we do not have a legislation similar to the US Federal Advisory Committee Act. Therefore, our government gets away by forming totally biased committees and commissions in very crucial areas involving public safety. The Atomic Energy Commission of India is a classic example, manned by few designated senior secretaries of the central government who are under instructions from the Prime Minister’s Office to support his views, and a set of pliable and unethical nuclear scientists who are more than willing to raise their hand in support , in return for a Padma Vibhushan, a continuing pay cheque well beyond their normal retirement age, or the award of a well-paying Bhabha Professorship or a Ramanna Fellowship which is within the powers of the DAE to grant. Thus, we have the AEC going along with illogical and often unsafe decisions like the import of untested foreign reactors from France and the US, without even squirming about not evaluating their absolute need or safety. Similarly, we have almost all AERB Advisory Committees stacked with vast majority of Ex-DAE personnel, who all jointly skew their opinion mostly in the DAE’s favour.

NRC’s Transparent Functioning:
The US Nuclear Regulatory Commission, as part of its value system and principles of good regulation, believes that public involvement in, and information about, NRC activities are the cornerstones of strong and fair safety regulation. Consistent with that belief, the NRC provides ample opportunities for the public to participate meaningfully in NRC’s decision-making process. NRC strongly considers that nuclear safety regulation is the public’s business, and it must be transacted publicly and candidly.

Commission meetings are usually held with the NRC staff and/or outside parties to discuss issues for action. Members of the public are welcome to attend and observe these public Commission meetings held at the NRC headquarters. Unofficial transcripts are produced for each public meeting and are made available on the NRC website for public viewing, two days after each meeting. There are vast numbers of current NRC records like action memoranda, commission voting record on each issue, meeting slides, transcripts, etc uploaded on the NRC website, which the public can access. There are several public hearings in a year, dates of which are announced in advance, and the public are welcome to attend them.

One can go on describing many more of NRC’s transparency and public outreach activities, for which procedures and rules are well laid out and announced. In contrast, the AERB in India keeps all its documents, meeting records, etc confidential by citing the Official Secrets Act. AERB hardly ever organises a press conference or conducts a public hearing. Let us not forget that the Americans too have a stringent Official Secrets Act, and the NRC interactions and openness described above take place despite that. The NRC does not see openness in safety regulation as conflicting with the US secrecy laws in any way. In India, we have indeed a very long way to go in this regard.

Concluding Remarks:
At the December 5 hearing of the PIL against the current nuclear policy or the lack of it and the need for an ‘independent’ nuclear regulator, the Supreme Court bench is reported to have remarked, ‘We want to know what mechanism for independent regulation there is’, ‘please show us one or two examples of an independent regulatory mechanism’, and ‘what is the nature of independence you are seeking? Please produce before us the model.’

Through this article containing some of the highlights of the US Nuclear Regulatory Commission’s operational philosophy and procedures, I hope I have provided some insight into a nuclear regulatory organisation that is truly independent from the government. One can argue that India cannot have a regulator like the US NRC overnight, by passing a new law, but certainly we must strive to reach that level of independence at least in a decade from now. That will be impossible unless we now put in place an NSRA Act that will enable the system to move steadily and systematically towards meeting that objective.