“We will strengthen the Atomic Energy Regulatory Board (AERB) and make it a truly autonomous and independent regulatory authority. We will ensure that it is of the highest and best international standards.” This is what Prime Minister Manmohan Singh announced on March 29, while addressing the scientists in the Department of Atomic Energy (DAE).

In India, the AERB reports to the Secretary, DAE, who is also responsible for the Nuclear Power Corporation of India Limited (NPCIL), which executes nuclear power programmes. Thus, the promotion and safety regulation are both in the hands of the DAE. From 1996, after retiring as chairman, AERB, I have been steadfastly arguing that the AERB be made independent of the DAE and the Atomic Energy Commission (AEC). It was in vain, till now.

I understand that a draft bill, called the ‘Atomic Energy Regulatory Authority (AERA) Bill 2011’ is being prepared for setting up an autonomous AERA. It would, therefore, be helpful at this stage to mention a few essential elements needed in the legislation to strengthen it along the lines of the best international practices.

Organisational structure and independence:

Some of the best examples to benefit from are the legislative frameworks for the US Nuclear Regulatory Commission (US NRC), the French Nuclear Safety Authority (ASN), the Canadian Nuclear Safety Commission (CNSC), and the Nuclear Directorate within the United Kingdom Health & Safety Executive.

All the above regulatory bodies and others have somewhat similar organisational structures, but the most important common features include the guarantee of their independent statutory status under the legislation, their mandate to keep the public fully informed on matters of nuclear safety, sharing of joint responsibility to ensure physical security of installations, the authority to penalise offenders who violate the provisions of the act, and the submission of annual reports of their activities to parliament and from there to the government. It should also have a legal mandate to maintain the highest levels of ethical standards and transparency in all operations, and functioning without using the Official Secrets Act as a crutch to deny the public the reasonable information and data that relate to the potential adverse impact of nuclear activities. While the AERB Constitution Order of November 1983 does not reflect any of the above, the AERA Bill 2011 should legislatively assure all of the above.

The AERA Act should ensure that the AEC, DAE, and NPCIL, and other offices like the Prime Minister’s Office (PMO), the Cabinet Secretariat, the Planning Commission, etc, shall exert no influence or authority over the AERA, directly or indirectly. The President of India shall appoint the chairman and members of AERA on the advice of the cabinet and after approval by Parliament. The AERA chairman shall have a direct reporting status somewhat akin to that of the Central Vigilance Commissioner or the Chief Election Commissioner, but in no case shall the AERA or its chairman be made answerable to the prime minister, any member of the cabinet, or any subordinate office under the cabinet.

Enable AERA to cleanse the nuclear sector:

The AERA must be strengthened by enacting certain specific features of similar regulatory organisations in other democracies, especially in view of the suspected corruption and lack of ethics in certain higher echelons of our government, business houses and their federations, and even the once-revered scientific and engineering organisations like the DAE and NPCIL. It now appears that during the 2005-2008 period, the DAE and NPCIL created a distorted nuclear power policy in collusion with the PMO merely to justify the immediate import of foreign nuclear power reactors at a very high cost to fulfil the unilateral promises given by the prime minister to subserve his personal desire to get the Indo-US nuclear deal cleared. These imports were agreed to without the AERB’s knowledge and in the absence of even a cursory safety evaluation. The continued silence of the government in the face of this pointed criticism and the PM’s steadfast refusal to initiate an open debate of his post-2008 nuclear power policy only strengthen the veracity of this belief.

Periodically review the nuclear power plans:

As a continuing national responsibility, the AERA must have the final and over-riding say in the matter of nuclear power planning from the standpoint of nuclear safety and environment protection, right from the beginning. Today, the decision to import reactors is taken by the PMO and the DAE without even a prior reference, leave alone any in-depth safety evaluation, by the AERB. The AERB is brought in at a late stage and asked to go through the motions of a regulatory approval, after the reactor choice is finalised without taking public safety aspects into consideration. This practice must stop.

Involving the regulators in nuclear power planning has established precedents. While creating the US Nuclear Regulatory Commission , Section 207 of the US Energy Reorganization Act 1974 specifically authorised and directed the NRC to conduct similar comprehensive studies on setting up of nuclear energy centres jointly with other federal and state agencies, and periodically updating such studies. In India, the AERA should do this work in conjunction with the DAE, NPCIL, the Department of Power, Ministry of Environment and Forests, the Central Electricity Regulatory Commission, and the state authorities concerned.
From the point of view of near- and long-term public safety, the AERA must have the legislated power of veto on deciding the kind of imported or indigenous reactors that the government can set up, their location and power rating, whether to site reactors alone or in a ‘nuclear park’, as well as the plans for spent-fuel storage, reprocessing and radioactive waste disposal.

Transparency in nuclear safety matters:

All nuclear regulatory agencies emphasise their duty to keep the public informed on all aspects of their deliberations, decisions, and status of compliance of their licensees in matters of safety because of their impact on public welfare. The French Act on Transparency and Security in the Nuclear Field (TSN Act 2006), for example, mandates the establishment of local information committees (LIC) near major nuclear sites, tasked with obtaining and reviewing safety and environment related information and data from the site authorities. These committees, in turn, shall widely disseminate all such material to the public. The LICs typically include representatives from the local self-government, local legislators, NGOs, trade unions, medical professionals in the area, etc. The nuclear site authorities are legally bound to respond to the LIC’s information and data requests within eight days. The LICs are funded by the State and can engage limited consultancies and use independent test laboratories to make radiation surveys and other appraisals on their own, if needed. The act must also mandate that open public hearings shall be held at specified stages of the review and approval process throughout the installation life.

I would strongly urge that the AERA Act 2011 legislate similar provisions in the act to establish LICs at Indian nuclear sites. A central committee on nuclear transparency must also be created, again mainly consisting of non-governmental members, to which the LICs can appeal their grievances, if need be.

Whistle-blower protection:

There have been past instances where the deliberate violations of safety norms by the top managements of our nuclear installations have resulted in serious accidents. The Narora fire incident and the Kaiga dome collapse incident were clearly avoidable if only middle- and lower-level employees, contractors, or consultants had spoken out on the risks that their senior officials were taking without the consent or knowledge of the AERB. In my subsequent conversations with these employees who failed to come forward and report this risk-taking to the regulators, it was clear they were afraid that it would have resulted in victimisation from their managements, loss of promotions, or transfers to other sites.

Under the circumstances, it is essential to legislate through the AERA Act adequate and total protection to any honest employee, contractor, or consultant (‘whistle-blower’) who brings out significant safety deficiencies, management inactions, risky operations, improper maintenance, etc, in any nuclear installation or allied services to the notice of the regulatory authority. Such whistle-blowers must not be subject to any type of harassment or victimisation from his or her employers or senior officials.

A comprehensive example of such legislation can be found in Section 211 of the US Energy Reorganization Act of 1974. Similar provisions are found in the Canadian and French legislations as well. The drafters of the AERA Bill 2011 must draw on this established experience and include a similar section in our bill.

by Dr . A. Gopalakrishnan

The author is a former chairman, Atomic Energy Regulatory Board of the Government of India

Article originally published in DNA – http://www.dnaindia.com/india/analysis_lessons-from-abroad-for-an-autonomous-aerb_1547509