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LATEST NEWS UPDATES | Accent on safety by R Ramachandran

Accent on safety by R Ramachandran

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published Published on Sep 21, 2011   modified Modified on Sep 21, 2011

The Nuclear Safety Regulatory Authority Bill is a first step towards granting functional autonomy to the country's nuclear regulator.

THE true independence and functional autonomy of the existing Atomic Energy Regulatory Board (AERB) has been questioned for long. The issue gained further importance in recent months after it was raised in many quarters in the wake of the Fukushima nuclear disaster in March in Japan. To allay public fears as well as to answer revived criticism of the existing regulatory structure, Prime Minister Manmohan Singh assured the country in April that an independent nuclear regulatory body would be set up. In accordance with that, the government introduced the Nuclear Safety Regulatory Authority (NSRA) Bill in the Lok Sabha on September 7, a day before the House adjourned at the end of the monsoon session. The Bill had been cleared by the Union Cabinet on August 30. It will now be referred to the Parliamentary Standing Committee before it is passed by the two Houses. The Department of Atomic Energy (DAE) would like to have the Bill passed before the end of the year.

By the very manner in which it was set up, the AERB has been a subordinate entity of the DAE, and therefore lacking in strict functional independence and autonomy. But the “Statement of Objects and Reasons” of the NSRA Bill asserts that the AERB “has functional independence”, a statement that its critics would reject forthwith. The AERB was constituted on November 15, 1983, by an executive order (see Gazette Notification No. 25/2/83) under Section 27 of the Atomic Energy Act (AEA) of 1962. Section 27 allows the DAE, which administers the Act, to create a suitable authority to discharge its duties concerning nuclear safety under Sections 16, 17 and 23 of the Act. The AERB reports to the Atomic Energy Commission (AEC), whose Chairman is the Secretary of the DAE. That is, the regulatory agency reports to the very body whose functioning and operations it is supposed to regulate and monitor in the public interest.

Additionally, the AERB does not have its own technical staff and facilities to support its regulatory duties. Given the absence of expertise regarding nuclear matters outside the DAE system, the AERB has to rely on the scientists and engineers of DAE institutions to serve on its evaluation committees. In fact, A. Gopalakrishnan, former Chairman of the AERB (1993-96), has alleged ( Frontline, March 26, 1999) that this dependency was deliberately exploited by the DAE management to influence the AERB's safety evaluations and decisions. “The interference,” he wrote, “has manifested itself in the AERB toning down the seriousness of safety concerns, agreeing to the postponement of essential repairs to suit the DAE's time schedules, and allowing continued operation of installations when public safety considerations would warrant their immediate shutdown and repair.”

In fact, in November 1995, Gopalakrishnan, under the apparent directives of the Prime Minister's Secretary and the Cabinet Secretary, submitted to the AEC an AERB document titled “Safety Issues in DAE Installations”, which covered about 130 safety-related concerns, 95 of which had been classified as “top priority”. Even though the DAE had then asserted that all these deficiencies were being looked into, there has not been a subsequent comprehensive report on how the identified problems were rectified. Of course, the much improved performance of nuclear power plants (NPPs) in recent years probably suggests that these problems have been attended to satisfactorily in these intervening 15 years. Apparently, Prime Minister Rajiv Gandhi had wanted the AERB to be made an autonomous body. According to Gopalakrishnan, in 1996 the then Cabinet Secretary initiated moves towards this end but they were scuttled by the DAE.

But, more pertinently, Article 8.2 of the international Convention on Nuclear Safety (CNS) of the International Atomic Energy Agency (IAEA) of 1994 (INFCIRC/449), of which India is a signatory, states: “Each Contracting Party shall take the appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organisation concerned with the promotion or utilisation of nuclear energy.” The extant Indian regulatory structure would seem to contradict this. In fact, in view of this, an AERB committee in 1996 came up with a report titled “Code for Governmental Organisation for Regulation of Nuclear and Radiation Facilities”, which recommended a “functionally autonomous body” to carry out the regulatory functions. But this report was not acted upon. Now, with the renewed impetus to the longstanding criticism of the AERB's apparent subordinate role in ensuring nuclear safety after Fukushima, the government move to put in place a truly independent and autonomous nuclear regulatory body has not come too soon. But it is not clear whether the structure articulated in the new NSRA Bill has anything in common with that 15-year-old report, though one DAE source said that there was an effort to take care of all the concerns expressed by people such as Gopalakrishnan in the new Bill.

As the title of the Bill implies, the government seeks to establish a NSRA comprising a chairperson, two whole-time members and not more than four part-time members who will be selected by a search committee constituted for the purpose. The general structure is similar to that of the AERB though the total number of members envisaged now is more than what the AERB is allowed to have. The original order required that the total Board strength not exceed five, including a Member-Secretary. However, since 1987, the Secretary has been accorded a non-member status and the Board had five members excluding the Secretary. Post-Fukushima, the strength has been changed to six since, according to S.S. Bajaj, the present Chairman of the AERB, it was felt that the Board should also have an expert on earth sciences as a member.

As per Section 18 of the Bill, as and when the NSRA gets established, the AERB will stand dissolved and all assets, liabilities and nearly all functions of the AERB, including notifying and reporting to the National Disaster Management Authority (NDMA) in case of a nuclear accident as mandated under the Civil Liability Bill for Nuclear Damage, 2010, will be transferred to the Authority. The functions of the Authority include taking within its jurisdiction appropriate measures “to ensure that the use of radiation and atomic energy is safe for the health of the radiation workers, members of the public and the environment”. While Section 20 of the Bill spells out these functions in detail, an explanatory note to Section 20 (1) says: “[T]he functions of the Authority shall be confined only to ensure radiation safety and nuclear safety during activities relating to production, storage, disposal, transport, transfer by sale or otherwise, import, export and use of any material, radioactive material or any other substance or equipment, and physical security of nuclear material, radioactive material and radiation and nuclear facilities, and in no case shall extend to functions or any other matter which the Central government is required to discharge under the AEA, 1962.” The italicised word “nearly” above is to emphasise that there is a subtle difference between the Board and the Authority in terms of their functions.

The AERB's mandated responsibilities included developing safety policies keeping in view recommendations and evolving standards of international bodies as well as local requirements. Now this aspect relating to evolving policies on nuclear and radiological safety will be entrusted with a new overseeing body called the Council of Nuclear Safety, which the Bill seeks to establish. “The Council,” Section 7 of the Bill says, “shall oversee and review the policies with respect to radiation safety, nuclear safety and other matters connected therewith or incidental thereto….” The Council will have the Prime Minister as its chairperson and will include at least the Union Ministers in charge of environment and forests, external affairs, health, home affairs and science and technology, and the Cabinet Secretary and the Chairman of the AEC. The Bill also allows the Council to include an unspecified number of eminent experts to be nominated by the government.

In principle, one could question the need for such a Council if the Authority is going to be vested with full autonomy. In fact, Gopalakrishnan has already voiced his criticism of this aspect in recent media reports that in some sense it makes the Authority weaker than the AERB. Indeed, an explanatory note to Section 8 makes the desired autonomy of the Authority explicit by saying: “For the removal of doubts, it is hereby clarified that notwithstanding anything contained in Section 7 [on the Council], the Authority shall be autonomous in the exercise of its powers and functions under this Act.” But, more specifically, the Authority will not report its activities to the Council but to Parliament (Sections 38 and 39), including every rule and regulation that it promulgates (Article 52). Though the Authority will not be under any Ministry, and will strictly be an independent body, its budgetary allocations will come from the annual budgetary grants of the DAE. For the year 2012-13, when the NSRA is expected to begin functioning, it is estimated that Rs.37 crore will be required for establishing the Authority, according to the Financial Memorandum appended to the Bill. For the entire Twelfth Plan period, the estimated budget is Rs.164 crore “for strengthening and expanding the activities of the Authority”. This may be compared with the current AERB annual budget of about Rs.25 crore. This structure is somewhat similar to that of the Reserve Bank of India, which, though fully autonomous, comes under the Finance Ministry for funding purposes.

One of the simplest functions of the Council is to constitute search committees to choose the Chairman and members for the Authority and to fill vacancies as and when they arise, which, in any case, in the absence of a Council or an apex Ministry, some other government body will have to do. Besides the above, the idea of the Council, which will include the perspectives of Ministries such as health, environment and science and technology as well as external experts, is to have a comprehensive view across the spectrum of areas that nuclear activities impinge upon and evolve appropriate safety policies, according to Srikumar Banerjee, Chairman, AEC. The Council will serve as a body to ratify various standards and codes that the Authority will develop. “This will be to a great advantage,” Banerjee said. In addition, the Council will also be involved when disputes arise. Towards this the Council will, as per Section 35, constitute an appellate authority consisting of a chairperson and not more than two members.

The phrase “within its [NSRA's] jurisdiction” italicised above needs some explanation. Section 19 says: “ Save as otherwise provided in Sections 25 and 27, the jurisdiction of the Authority shall extend to all areas to which this Act is applicable and activities relating to production, development or use of atomic energy and radiation in all its applications, or transport (within India or outside India), transfer by sale or otherwise, import, export or storage or disposal of nuclear and radioactive material.” Sections 25 and 27 deal with aspects of national security and defence. This, of course, implies activities and areas relating to the nuclear weapons programme that has been put in place since the Pokhran-II nuclear tests of 1998 involving the DAE, the Defence Research and Development Organisation (DRDO) and the military.

It may be recalled that on April 25, 2000, the Bhabha Atomic Research Centre (BARC), the nerve centre of India's weapons programme, was removed from the AERB's purview through an office memorandum ( Frontline, July 7 & 21, 2000). Such exempted activities/areas existed even earlier, following Pokhran-I but, being not as widely distributed as perhaps they are now, were kept outside the AERB's jurisdiction by informal arrangements. Now with the separation of regulatory activities from the DAE, a formal arrangement that demarcates regulatory activities relating to civilian and military programmes is being envisaged in the Bill as it is in other nuclear weapon states (NWSs). The Bill has proposed, under Section 25, establishing “one or more regulatory bodies” through government order(s) that will carry out safety regulatory functions. Section 27 envisages a possible expansion of such activities/areas when it says “the Central government may, for the purposes of national defence and security, by order, exempt any area, nuclear material, radioactive material , nuclear facility or plant from jurisdiction of the Authority or other regulatory bodies under this Act and carry out those functions itself in relation thereto, which, but for such exemption, would have been carried out by the Authority or other regulatory bodies under this Act” (emphasis added).

Section 33 vests the Authority with powers of “inspection, search and seizure” subject to the provisions of Section 100 of the Criminal Procedure Code (CrPC) in case of any suspicious radiation and nuclear-related activities. It says: “( 1) The Authority or any other officer specially authorised by it in this behalf may carry out such inspection or inquiry as may be necessary, enter any building or place where the Authority has reason to believe that any document or object relating to the subject matter of the inquiry may be found, and may seize any such document or object… ( 2) For the purpose of subsection ( 1), the Authority shall have power of access to – ( a) premises and places, vehicle, vessel or aircraft where radiation is present or used or proposed to be used; and ( b) documents, drawings, photographs, plans, models or any other form which relates to or represents or illustrates any existing or proposed plant, used or proposed to be used for the purpose of producing, developing or using atomic energy or radiation.”

Some observers have also voiced criticism against Section 48 of the Bill, which too, it is argued, is intended to prevent the Authority from exercising complete freedom and autonomy. Clause 48 (1) gives powers to the Central government to supersede the authority by notification for a period not exceeding six months if, in the government's opinion, “( a) the Authority has acted in a manner inconsistent with the provisions of this Act or rules and regulations made thereunder; or ( b) that on account of circumstances beyond the control of the Authority, it is unable to discharge the functions and duties imposed on it by or under the provisions of this Act; or ( c) that the Authority has persistently made default in complying with any direction issued by the Central government under this Act or in the discharge of the functions and duties imposed on it by or under the provisions of this Act and as a result of which default, the financial position of the Authority has suffered or the administration of any radiation or nuclear installation has deteriorated; or ( d) that circumstances exist which render it necessary in the public interest so to do…” Though the provision requires the government to reconstitute the Authority within the notified period, Clause 48 (3) allows for the extension of the period of supersession for further slabs of six months until a new Authority is reconstituted.

It may be argued that this section gives the government arbitrary powers to dissolve the authority and replace it with a more pliant authority. Provision (d) above is particularly likely to invite criticism. However, 48(1) does require that, before issuing the notice of supersession, “the Central government shall give a reasonable opportunity to the Authority to show cause as to why it should not be superseded, and shall consider the explanations and objections, if any, of the Authority.” Also, most importantly, Clause 48(4) requires the following: “The Central government shall cause a notification issued under subsection ( 1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament at the earliest.” In the absence of an apex Ministry for the Authority, such a provision in the Bill is perhaps required to guard against gross failures or inefficient functioning of the Authority in detriment to the safety of workers and the public. However, it is to be hoped that the provision is not misused towards some ill-conceived strategic and political ends.

One could, of course, argue that the Authority be made a constitutional body like the Election Commission or the Comptroller and Auditor General (CAG). Then the natural counter question would be – why not other regulatory bodies such as the Securities and Exchange Board of India (SEBI) or the Telecom Regulatory Authority of India (TRAI)? The point is that there is a government and any such autonomous body that is sought to be created has to be constituted by the government through an Act of Parliament, and the body will have to function within the guidelines stipulated by the government and be made answerable only to Parliament and not to any Ministry or another apex body.

In sum, the proposed Bill is a fairly satisfactory first step towards granting independence and functional autonomy to the nuclear regulator, and this certainly can be an evolving process depending upon domestic and international experiences over time, with increasing nuclear power generation here and elsewhere (and associated safety-related events if any) in the coming years.

Frontline, Volume 28, Issue 20, 24 September-7 October, 2011, http://www.frontline.in/stories/20111007282011100.htm

Tagged with: Energy



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