Weaken the regulator, compromise safety: The case of nuclear technology in India

Dr. E A S Sarma


Former Union Power Secretary, Govt of India

Know more about Dr. Sarma HERE.

The latest report submitted by C&AG to the Parliament on “Performance Audit of Atomic Energy Regulatory Board (AERB)” assumes considerable importance in the ongoing debate on the safety of nuclear power.

The three earlier reports on irregularities in the sale of 2-G spectrum, improprieties in the allotment of captive coal blocks and imprudence in granting concessions to Ultra Mega Power Projects (UMPPs) have prompted a responsible UPA Minister to castigate C&AG by saying that he had exceeded his “Constitutional mandate” by making such reports public.

Apparently, the Minister had failed to do his homework well enough by going through the relevant provisions of the Constitution on the role of C&AG and the authority conferred on him by the Parliament under Clauses (a) and (b) of Section 13 of C&AG’s (Duties, Powers and Conditions of Service) Act, 1971 to “audit” all public expenditure and all transactions of the Union government. Under Article 19 of the Constitution and under the Right to Information Act, 2005, the citizen is entitled to know the contents of the audit reports.

Simultaneously, the same Minister also conveniently ignored the fact that the political executive, to which he belonged, too had its own Constitutional obligations. It failed to respect its obligation under Article 39 to ensure “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good” and “that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.” The political executive is similarly under an obligation to respect the citizen’s fundamental right to life under Article 21. C&AG’s three reports deal with the lapses of the executive in discharging these Constitutional responsibilities. For the UPA government to find fault with C&AG is like the pot calling the kettle black!

But for the occasional interventions by the judiciary, the illuminating reports of C&AG and the investigative journalism of the media, the people of this country would never have come to know as to how the political executive had no hesitation in plundering our natural resources and how the nuclear establishment had no compunction in endangering the lives of the people to benefit the western MNCs.

The issues raised by C&AG in these three reports revolve around malfeasance in governance and an outright breach of the trust reposed by the people in the government to manage their resources and safeguard their welfare. In the instant case of C&AG’s audit of the performance of Atomic Energy Regulatory Board (AERB), some startling facts have emerged about how callous the Department of Atomic Energy (DAE) has been in ensuring the safety of the nuclear facilities in the country and the welfare of the people in general and more particularly those residing in the immediate vicinity of the nuclear installations.

Following the Fukushima nuclear disaster that continues to traumatise the Japanese even today, the two questions that rankle the mind of the ordinary Indian is whether nuclear power is safe per se and whether the government has done everything possible to preempt the occurrence of a Fukushima-like accident in India. Instead of taking the people of the country into confidence, the DAE, headed by no less a person than the Prime Minister himself, has been trying hard to obfuscate the main issues by underplaying the safety concerns and projecting the mythical virtues of nuclear technology as though it is infallible.

The frenzy with which such an indiscriminate campaign is pursued is evident from the fact that those who have opposed nuclear power are routinely branded as “anti-development’ and even “anti-national”! They are subject to unending, senseless persecution. Comically, those who have sung encomiums for nuclear technology, in the words of our esteemed Prime Minister, belong to the “thinking” section of the society! Certainly, the Prime Minister has provided an innovative definition of “wisdom”.

Against this background, C&AG’s report should serve as an eye-opener for the government, especially the Prime Minister who presides over the Department of Atomic Energy (DAE) and who is constantly at the receiving end of the incomplete information provided by the DAE establishment.

C&AG’s report has highlighted the following points.

1. AERB was set up in 1983 under Atomic Energy Act, ostensibly to regulate the nuclear facilities from the point of view of safety. In reality, however, it was deliberately created as an authority subordinate to DAE. This is typical of a regulator controlled by the regulated. It enjoyed only such powers that DAE thought it fit to grant it. It had no authority whatsoever to frame or revise the rules concerning nuclear and radiation safety.

2. Even in cases of serious infringement of safety requirements, the penalties under the Act are far too lenient to serve as deterrents. AERB had neither any role in deciding the quantum of the penalties nor in enforcing them.

3. As per the charter assigned to it at the time of its inception, AERB was expected to put in place a nuclear and radiation safety policy, which it never did, apparently at the instance of its peer, DAE.

4. AERB was required to develop safety documents (27 in all) for the nuclear facilities. Several high-level committees (including Raja Ramanna committee) reminded AERB about the importance of such safety documentation but AERB had no inclination or support to develop the same.

5. AERB had no role in radiological surveillance of nuclear power plants and in monitoring the health of the workers there, as DAE had no intention to assign any such role to the regulator.

6. The regulator had no inventory of radiation sources in the country. It was therefore not possible for the regulator to ensure effective compliance of the safety requirements for the custody and transportation of the sources and the disposal of the disused sources. There is no regulatory mechanism to trace orphan radioactive sources. Missing radioactive material has serious implications, as it can easily get into the hands of anti-social groups.

7. AERB has no direct involvement in overseeing on-site emergency drills at the various nuclear power plants nor it has the authority to secure compliance in getting the inadequacies in emergency preparedness appropriately corrected. There are serious gaps in emergency preparedness at the nuclear power plants.

8. Decommissioning aging nuclear power plants is a complex exercise riddled with several kinds of risks. There is need for an elaborate legislative framework within which such plants can be decommissioned. There is no legislative framework in position. No comprehensive decommissioning plans are in place today. Nor, such plans were in evidence in the case of the plants already closed down.

9. The regulatory practices of AERB have not been subject to periodical peer reviews by independent professionals, both domestic and external. Perhaps DAE felt such reviews were not necessary!

There are other equally serious concerns that C&AG had no occasion to mention in his report.

For example, the non-disclosure provision under Section 18 of Atomic Energy Act has enabled DAE to function in a highly opaque environment, exempting itself from public scrutiny and public accountability. Even in matters that affected the health of the people at large and the well being of the persons working at nuclear installations, DAE could flaunt this draconian provision to keep the public in the dark. It is ironic that this provision should remain unaltered even after the landmark interpretation provided by Hon’ble Supreme Court of the citizen’s right to information guaranteed under Article 19.

To cite one glaring example, in reference to the safety audits conducted at the existing nuclear facilities in the past, the Prime Minister’s Office assured the public on April 26, 2012 that “action taken on previous safety reviews will be put in the public domain.” Till date, DAE has not condescended to fulfill this assurance that its own Minister had chosen to give, one and a half years ago!

From DAE’s point of view, nuclear technology is far too sacrosanct to be subject to any kind of a doubt about its safety. The words “national security” and “sensitivity” are flaunted often to escape any kind of questioning from the affected sections of the public. Since 1983 when AERB was constituted, the Board has become DAE’s fig leaf for safety, though for all practical purposes, it has remained a titular, defanged regulator.

In his report, C&AG has rightly emphasised the need for an independent regulatory authority for ensuring the safety of the activities in the nuclear installations in the country. As usual, DAE has ready answers to this. It has already come up with the Nuclear Safety Regulatory Authority (NSRA) Bill to be enacted by the Parliament.

How efficacious is NSRA going to be?

The Parliamentary Standing Committee has since examined the Bill in detail, in consultation with several independent professionals, and made a number of illuminating observations on its strengths and weaknesses. In particular, in their dissenting note, two of its Members, Dr. Anup Kumar Saha and Shri Saman Pathak have suggested some basic changes in the Bill to ensure that the new regulator functions independent of the executive, in a transparent manner, so as to elicit public credibility.

Some of the worrisome aspects of this Bill and the need to correct the same are considered below.

(a) The way the Bill is drafted shows the vise like grip that DAE wishes to maintain even on the new regulator. The Bill provides for “other regulators” over and above the head of NSRA implying that it will be once again in the discretion of DAE to demarcate the boundaries of NSRA’s authority. This will erode the autonomy of NSRA and needs to be done away with.

(b) Instead of trusting NSRA with oversight on all matters of safety, the Bill has provided yet another higher body, the Council of Nuclear Safety (CNS), a body consisting mostly insiders of the political executive and the bureaucracy, “to oversee and review the policies with respect to radiation safety, nuclear safety.” This is highly regressive. Unfortunately, CNS, in its present form, is also given the task of setting up search committees to select members of NSRA. CNS should not be a part of the Bill and it should not oversee nuclear safety. Considering the dire need of imparting independence to NSRA, it is necessary for involving the leader of the Opposition and the Chief Justice of India in selecting candidates for NSRA.

(c) Section 14 lays down the circumstances under which the members of NSRA can be removed. NSRA members should have a fixed tenure, not routinely renewable and the Parliament should be kept informed of the reasons for their removal or renewal. NSRA’s expenses should be charged to the budget, not left to the mercy of the executive. NSRA should have the authority to frame rules on safety and review them, subject only to Parliamentary scrutiny. NSRA’s functioning should be transparent to the public and should, if necessary, be subject to public consultation.

(d) Section 21 of the Bill is bizarre. It reads as “the Authority, while discharging its powers and functions, shall not act against the interest of the sovereignty and integrity of India, the security the State, friendly relations with foreign States, public order, decency or morality”. These words betray the inherent lack of conviction on the part of DAE in the need for a regulator and an implicit mistrust of it! With the nuclear power sector thrown open to foreign players on a very large scale, the UPA government has, in its own volition, introduced the proverbial ‘”foreign hand” into the hitherto closely guarded establishment of atomic energy. This particular Section therefore illustrates the confusion that prevails in the mind of DAE.

(e) Section 42 empowers the government to issue “directions” to NSRA without defining the nature of such directions. In the case of most statutory regulators, such an open-ended direction-issuing power in the hands of the executive has played havoc with their autonomy. This single clause is sufficient to destroy the autonomy of the regulator. It should be dropped. At best, the direction-issuing authority, adequately defined to determine its ambit, should rest in the Parliament and none else.

Apparently, in its present form, NSRA Bill will create a regulator who will be as ineffective and powerless as its previous avatar of AERB. If what the Standing Committee has recommended, in conjunction with what the two dissenting members have proposed, were to be adopted and the Bill modified suitably, one could expect the semblance of an independent regulator.

There are other aspects of safety of nuclear power which are of equal importance, if not more.

The civil nuclear liability law, with its ridiculously low cap on accident liability that can be passed on to the reactor suppliers, coupled with the further dilutions surreptitiously introduced through the rules framed under it, have not only cast a huge contingent accident liability on the taxpayer but also introduced an element of moral hazard that will prompt the reactor manufacturers to cut the corners in reactor design and compromise the safety of the reactors. The law in its present form negates the well established judicial principle that “polluter should pay”. Unless this law is reviewed and suitably altered, there is going to be no guarantee for safety of nuclear power.

The contingent liability estimated on the basis of the costs so far evident from experience with Fukushima works out to Rs.33 crores per MW, a truly mind boggling figure!

C&AG’s reports on coal and UMPPs have dealt with government’s improprieties and the losses accruing to the public exchequer. If C&AG had examined the large scale import of nuclear reactors proposed by the UPA government to add a staggering 60,000MW of capacity through non-transparent procedures, he would have perhaps commented on an emerging scam that will surely outpace both 2-G spectrum sale and allotment of captive coal blocks. Considering the incremental cost of imported reactors, the potential value of this could be around Rs.3,90,000 crores, more than twice the magnitude of the loss in coalgate alone! One should remember that the potential losses on account of the civil nuclear liability law would far exceed this and would add to this!

Perhaps, the implications on account of the civil nuclear liability law and the incremental cost of the new nuclear power plants, should be taken up together by C&AG for an immediate detailed audit.

One should not be surprised if C&AG uncovers a “nucleargate” this time!




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