The parliament’s Committee’s report on the nuclear liability rules, along with the CAG’s report on nuclear safety in India and the Madras High Court’s observations on Koodankulam are the voices of  our collective conscience against leaving Indian people’s safety and future hostage to nuclear predators. It will be suicidal to ignore them.

P K Sundaram

The Indian nuclear establishment’s best attempts at circumventing the democratically mandated legislation to safeguard people’s interests in the event of a nuclear accident have met yet another roadblock: the Indian parliament’s Committee on Subordinate Legislation.

In its report on the draft Civil Liability for Nuclear Damage (CLND) Rules 2011 to support the Civil Liability for Nuclear Damage Act 2010, the Committee headed by Mr. P Karunakaran, a senior member of the Indian parliament, has criticised the Department of Atomic Energy(DAE) for diluting and contradicting the spirit of the Act itself.

DOWNLOAD the Parliament’s Committee’s Report

Other useful resources:

Civil Liability for Nuclear Damage Act 2010

Civil Liability for Nuclear Damage Rules 2011

Liability Rules: Delayed and Still Incomplete?

The Committee has openly criticised the DAE for inordinate delay in framing the CLND Rules, reflecting its “lackadaisical” approach. The Rules should have been framed along with the drafting of the Act itself in 2010. Although the DAE in its clarification has cited “legal consultations”, the Rules are far from complete even after 13 months! The DAE is yet to frame rules under Section 11 and 12 of the Act dealing with the terms and conditions of service of the Claims Commissioner. The parliament’s Committee has said that it is ‘distressed’ by such delay.

The actual reasons for this delay in drafting the CLND Rules have been the essentially political designs to out-manoeuvre  the Indian parliament in order  to provide the international nuclear suppliers a liability-free playing field.

To achieve a seat on the elusive high table of nuclear weapon states, the Indian elite has been using the safety, lives and livelihoods of Indian common people as a bargaining chip in the international negotiations. The Manmohan Singh’s government under UPA-I promised to buy 10,000 MWs each from the US and French nuclear corporations on the eve of  NSG clearance in September 2008. This was done without any independent assessment of  nuclear power’s role and desirability in catering to India’s energy needs. Since then, the Indian nuclear story has its proverbial horse behind the cart.

So, after the global nuclear cartels are allowed entry into India, the need for having a liability legislation was felt. Definitely not for safeguarding the Indian people’s lives and safety. After all, there was no nuclear liability mechanism for last 60 years and the Supreme Court’s “polluter pays” directive and other laws of the land would have come to people’s rescue, notwithstanding the nuclear establishment’s attempts to callously play down any such accident, as it has done in the past with many minor and major accidents. Understandably, the Civil Liability for Nuclear Damage Act 2010 had to be brought actually to define and limit the supplier’s liability so that they don’t get caught into any Bhopal-like criminal legal case haunting Dow Chemicals even today.

As an aside, the Nuclear Safety Regulatory Authority (NSRA) Bill, currently under discussion in the parliament, was claimed to be the government’s attempt to beef up nuclear safety in India post-Fukushima. But even this piece of legislation is actually going to be instrumental in enabling foreign nuclear suppliers’ entry in India. The existing AERB, although very limited in its scope and entirely dependent on the DAE for its staff and resources, starts regulating the nuclear power plants at the inception itself – at the planning and site selection stage and is supposed to licenses any design only after thoroughly examining it all. The proposed NSRA’s mandate prevents it from looking into the preliminary decision to import a particular reactor for a given site. It will start looking into safety aspects of the projects once the decision to import is taken by the government. Apart from other dangerous loopholes in the proposed NSRA Bill, this is definitely something which can be envisaged only when the policy makers take the nuclear imports such as Areva’s reactors in Jaitapur as non-negotiable.

There is a distinctive pattern of keeping the foreign corporates’ interests first at every important juncture over the last 7 years.

And reasons for this are not difficult to understand. The delay in framing the CLND Rules bears that unmissable stamp: as recently as June this year, the US Assistant Secretary of State Robert Blake mentioned some “unresolved” concerns over the nuclear liability. Even the French and the Russian Ambassadors and officials in New Delhi have gone public in demanding a liability-free business.

If even after 13 months, some parts of the Rule have remained incomplete, the DAE should clearly be accused of trying to buy more time probably to accommodate the foreign suppliers’ interests further.

Indemnifying the Nuclear Suppliers: Liability as “Reimbursement”

The Committee has exposed the government’s attempts to further dilute the suppliers’ liability, albeit already limited under the section 17 (A) of the CLND Act 2010.  The same dichotomy was underlined by Mr. Soli Sorabjee, India’s former Attorney general, when he asserted that the CLND Rules are ultra virus of the Act and are thus invalid.The Rules put further limitation of suppliers’ liability in 2 ways:

– by bringing in the “product liability period”, maximum of 5 years, when the supplier can be held liable. The DAE’s lame defense before the Committee betray its true loyalty: within 5 years, the skilled operator and the regulator would find any major latent and patent defects, hence no need to tie the supplier!

– by further capping the liability to the value of the contract or the liability of the operator, whichever is less. So, even in a clear case of accident ascribed to the supplier’s fault, it will be liable to pay only the price of its equipment even if the total damage runs into crores. “A criterion such as the value of the contract has no rational nexus to the object sought to be achieved and hence there is no rational basis for curtailing supplier’s liability” – was Justice Soli Sorabjee’s remark on this dichotomy.

The operator’s maximum liability in case of a commercial reactor is kept 1500 crores while for spent fuel pool and research reactors it is capped at Rs. 300 and 100 crores. So if a catastrophic accident in a spent fuel pool causes damage worth billions of dollars, the supplier will still be liable for a maximum of Rs. 300 crores!

However, the DAE’s clarification to the Committee reduced liability into “reimbursement”! In its note, the DAE has said, “It is a kind of reimbursement. You can’t reimburse an amount larger than what you have paid”

The clarification on capping liability ends with an emphatic”that’s all.”

The DAE must acknowledge that liability is not a largesse. It is also a mechanism to ensure that the companies adhere to best safety practices.  The IAEA itself has underlined these roles of nuclear liability mechanisms- to protect the public, the environment and to enhance nuclear safety. After Fukushima, the need to revisit and revise the nuclear liability regulations has been widely recognised. As Mark Cooper noted in his article in Bulletin of the Atomic Scientists,

[warning]When governments socialize risk — shift it from the private sector to the public — they create what economists call moral hazard. This is the hazard that the private actor, who no longer bears the risk, will do more risky things than he would have done, if he had borne the full liability of his actions. It is a moral problem; the irresponsible actions of one person or entity harm an innocent bystander. It is also an economic problem because it induces firms to engage in uneconomic activities.[/warning]

The parliament’s Committee has frowned over the fact that there is no clarity over the definition of “legal representative” of the potential victims. It has also highlighted the unnecessary reference to other legislations such as the Atomic Energy Act 1962 and the Atomic Energy (Radiation Protection) Rules of 2004.  In its clarification, the DAE has said that a reference to these legislations would mean that “any change therein will Automatically be reflected in the Rules”. Isn’t it then like keeping back-doors open for introducing further changes silently? Evidently, the Committee has found the DAE’s clarification “not convincing”.

Notification of Nuclear Accident: Time and Scope for Playing Down

The Committee has expressed concern regarding the period of 15 days for notification of a nuclear accident as it is “on the higher side”. It has emphasised that such accidents should be handled at “war footing”. The DAE has cited “complex technical issues, analysis of data, deliberations by experts, decisions by the AERB” as well as a complete analysis of the radiation distribution in the area and pathological determination of the radiation inhaled by people.

It is noteworthy that the analysis of radiation distribution in Fukushima is still in process and it will take years and probably decades to determine the total radiation inhaled by people and absorbed by the immediate atmosphere, water and land. Evidently, all this cannot be done in 15 days. In fact to notify an accident, one doesn’t need to do all this. The operator would know the extent of damage done to the reactor and the amount of radiation released by its plant. Based on which, it can notify about the accident and later even revise the notified scale of accident as happened in Fukushima. But in India, the DAE would take 15 days for notification and make it subject to pathological assessment of radiation inhaled which obviously can be manipulated and downplayed.

Responding to Dr. Kalam’s article supporting Koodankulam Nuclear Power Project, M V Ramana rightly argued:

[warning]“If there was really a “0% chance” of an accident, why would nuclear vendors work so hard to indemnify themselves?…….. When nuclear companies are unwilling to stake their financial health on these claims of “100% safety,” how can the government ask local residents to risk their lives?”[/warning]

Despite the shadow-boxing on the liability for still-under-consideration Reactors 3 & 4 in Koodankulam, our Prime Minister has avoided any mention of liability for the Reactors 1 and 2 which his government is bent on commissioning despite massive protests and objections raised by independent experts and members of GoI’s own National Expert Committee like Ms. Aruna Roy.

The parliament’s Committee’s report on the nuclear liability rules, along with the CAG’s report on nuclear safety in India and the Madras High Court’s observations on Koodankulam are the voices of  our collective conscience against leaving Indian people’s safety and future hostage to nuclear predators. It will be suicidal to ignore them.