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Gopal Krishna makes a case against the nuclear liability bill.
Even as the Parliamentary Standing Committee was busy taking submission and testimonies from citizens and experts in India in the matter of Civil Liability for Nuclear Damage Bill 2010 which concluded on August 3, Indian Ambassador to the US, Meera Shankar and the Under Secretary of State for Political Affairs of the United States William Burns, signed the Agreement on Arrangements and Procedures for Reprocessing on July 30 in pursuance to Article 6(iii) of the Agreement for Cooperation concerning Peaceful Uses of Nuclear Energy between India and the US.
While these amendments being proposed to the Nuclear Liability Bill need to be incorporated failing which the bill should be revisited, the merit of centralised power stations like nuclear power plants merits re-examination given 35-40 percent transmission and distribution loss of power.
Unmindful of such concerns its business as usual for the US nuclear companies and Federation of Indian Chambers of Commerce and Industry. A press release from the Indian Embassy in Washington, DC reads, "The historic bilateral cooperation agreement for peaceful uses of nuclear energy, the 123 Agreement that we signed two years back provided for reprocessing of US obligated nuclear material in an Indian national facility under IAEA safeguards."
It notes, "The government of India has already designated two sites for nuclear power plants to be established in cooperation with the US and the companies of the two countries are now engaged in discussions" as a follow up of the last month's Strategic Dialogue and the meeting of the CEO's Forum prior to the visit of President Barack Obama to India in November 2010.
The FICCI's 25-member working group on civil nuclear energy-2009 under the chairmanship of Dr S K Jain, chairman and managing director, Nuclear Power Corporation of India Limited came out with a 57-page report with the format of the proposed Civil Liability for Nuclear Damage Bill, 2009. Dr Jain was present during the testimony of the experts and citizens to the Parliamentary Standing Committee on Science & Technology, Environment & Forests. The government of India has an ambitious target "to increase our installed capacity more than seven fold to 35,000 MWe by the year 2022, and to 60,000 MWe by 2032." Dr Jain claimed that the health hazards from Chernobyl nuclear disaster is no more visible. Therefore, he implied the question of intergenerational adverse effects does not arise. Are his claims factual and trustworthy?
In compliance of the suggestion of chairperson, Parliamentary Standing Committee following my testimony dated August 3 and pursuant to my written submission dated July 7 the submission below is divided into two parts. One, key issues of contentious nature in the bill; two, current status of the regulatory regime and legal remedy that is relevant to the bill, the background of the liability regime for nuclear damage and specific suggestions for the committee to recommend.
Key Issues of Contentious Nature in the Bill
1. In case of nuclear damage, the first and foremost issue that merits attention is to ensure evacuation of the communities that are likely to be affected and the liability for failure to do so must be mentioned in the bill.
2. Definition of 'nuclear fuel' in Section 2 (g) must include nuclear fusion besides nuclear fission
3. Definition of 'nuclear installation' in Section 2 (i) that only includes nuclear reactor and a facility using nuclear fuel or storing it is quite narrow and is at variance with the definition in the Atomic Energy (Radiation Protection) Rules, 2004 Section 2 (zb) 'radiation installation' means any location or facility, including a mobile facility, in which a radiation generation generating equipment or plant or radioactive material is present and which in the opinion of the competent authority requires radiation surveillance for ensuring adequate protection against radiation". It also at variance with the definition of nuclear installation or institution means any location wherein the processes incidental to the waste generation, conditioning, storage and disposal are carried out in the Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987. There should be uniformity in the terms and definitions of terms in the bill and various pre-existing rules and regulations. How will nuclear installation of the bill be reconciled with the definition of plant in the Section 2 (e) Atomic Energy Act, 1962?
4. Section 3 (1) refers to the key role of Atomic Energy Regulatory Board which is to notify nuclear incident within 15 days from the date of the incident and not to notify if the nuclear incident is "insignificant". What if the AERB does not notify within 15 days or at any point in future? Will a nuclear incident become a non-incident or insignificant because of non-notification? There is reference to wide publicity for nuclear incident but only "in such manner as AERB may deem fit". It may be noted that since AERB reports to Atomic Energy Commission and Department of Atomic Energy, it is quite obvious that its notification or non-notification would be guided by its dependence on the promoters and operators of the nuclear plants or installations. This merits consideration and creates a compelling logic to make AERB an independent regulator.
5. Definition of 'prescribed equipment', 'prescribed substance' in Clause 2 (f) and (g) of the Atomic Energy Act, 1962 should be incorporated in the bill
6. Section 40 (1) deals with the offences of the company has been reproduced ad verbatim from Section 25 (1) and (2) of the Atomic Energy Act, 1962 but it is not acknowledged.
7. There should be a separate section for workmen's compensation in the bill
8. The Bill should include the definition of disaster that is there in The Disaster Management Act, 2005. It defines 'disaster' as "a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the affected area."
9. Section 12 of The Disaster Management Act, 2005 refers to the Guidelines for minimum standards of relief to the persons affected by disaster, the same should be incorporated in the Bill
Current status of the regulatory regime and legal remedy
1. Strangely, AERB monitors and regulates nuclear safety of the nuclear installations but has to report to the chairman of the AEC and NPCIL whose installations have to be monitored and regulated. In effect, the promoter and owner of the nuclear installations is the boss of the regulator. The above mentioned order has created a conflict of interest because not only is secretary, Department of Atomic Energy ex-officio chairman of AEC and NPCIL he is also responsible for the funds and manpower of AERB. This makes the entire nuclear regulation in our country a 'total farce'.
2. India does not have a contingency plan even now to deal with nuclear disasters, including evacuation plans in case of an accident in a nuclear-plant similar to Chernobyl. 3. The National Disaster Management Authority is supposed to evolve guidelines and organise training and the skeletal National Disaster Management Force which is supposed to take care of disaster relief and rehabilitation is a marginal force as of now and cannot tackle a disaster as a nuclear power plant.
4. Strangely, the National Disaster Management Policy 2005 also talks of chemical, biological, radiological and nuclear weapons system-induced disasters and not radiological/nuclear disasters per se including those in power generation plants.
5. Equally strangely, the Disaster Management Act 2005 doesn't talk of liability by private partiers where they are liable for disasters/damage, it doesn't refer to nuclear power plant accidents at all and it only has a vague provision for damages to loss of lives and property and likewise the National Disaster Management Policy 2005 has laid down some provisions for damage assessment to entitle states for some compensation from the NDMA.
6. NDMA has also evolved detailed guidelines for their investigation teams to assess damages during disasters like droughts/floods. The provision in the NDM Act 2005 relating to guidelines for minimum standards of relief given in point 12 as below is quite important and offers space for revisiting the N-Liability Bill.
7. Consequently, AERB's report titled "Safety Issues in Department of Atomic Energy installations" documented 130 issues relating to nuclear safety that was highlighted in the People's Union Civil Liberties & others vs Union of India & another in the Supreme Court has remained unaddressed.
8. Besides the issue of regulatory flaws that came to light with the writ petition (civil) No. 188 of 1999 about the burst in the tailings pipeline from Jaduguda uranium mill in 2006 and 2008 that spilled in the river and its environmental health impact. The grievance and injury that emerged from nuclear damage in this case has not been provided any legal remedy.
9. The issue of radioactive steel remains unaddressed and the legal remedy for enviro-occupational hazards to workers remains unattended.
10. The failure of the government to ratify ILO Convention on Radiation too merits attention
11. Non-existence of enviro-occupational infrastructure requires serious attention as well 12. Hypothetically projecting a possible disaster impact in the case of an accident in a N-plant located near dense urban areas like Kalpakkam near Chennai or the plants near Mumbai is required and apply NDMA guidelines and come up with possible amounts of funds to be earmarked as reserves to meet damages or even deciding the scale of National Disaster Management Fund to meet the contingencies, the proposed limit on liability -- or even a possible higher limit hiked under protests -- can be knocked off as conflicting with existing laws.
13. Does US have a similar liability law? Its unreasonable for the US to insist on liability ceiling/waiver for its corporate installing N-power reactors in foreign lands?
14. Private/corporate liability is once again on the agenda in the context of the Gulf of Mexico oil spill and this hypocrisy of "What is good for US is not good for an Indian" can be invoked to challenge India passing such a law with a provision on the ground of unfair trade practice also.
15. It has been noted by some officials that this N-Liability Bill violates the detailed guidelines evolved by the DAE itself for safety in the N-reactors though these guidelines are not available in the public domain.
16. These guidelines should put in the public domain.
17. Parliamentary committee system also its own politics -- with different levels of powers to alter or propose changes to the bills by different committees and so on and this committee politics should also be kept in mind/taken into consideration while making a presentation before the committee.
18. In any case, since the Nuclear Suppliers' Group has given the waiver for India in 2008 itself.
19. Nuclear Liability Bill is some kind of precondition by the US to clear investment by US companies in setting up N-power projects.
20. As the UPA claims the n-deal's 'final formalities' do not depend on this bill and it has relevance only with regard to attracting promised US corporate investments in N-power plants in India.
21. Even without liability foreign investment can come to India even in setting up nuclear reactors.
William Burns, the US official observed, "These arrangements and procedures will enable India to reprocess US-obligated nuclear material at a new national reprocessing facility in accordance with the US-India Agreement for Nuclear Cooperation, representing another significant step in the overall implementation of our historic civil nuclear cooperation initiative It is also significant in practical terms. It will create new opportunities for firms in the United States and India in the energy sector, generating thousands of jobs in both countries. It will also help make available affordable energy and electricity for all Indians."
These developments are in tandem with the 'atomic economics' as enunciated by Bush administration's blueprint for nuclear power policy but it is far from clear whether or not it suits India's supreme public interest. The Bush administration's 'Nuclear 2010' program was an effort to subsidise the development of new nuclear power plants by the end of the decade.
The atomic component of the Bush-Cheney energy agenda led to the US administration's request for $38.5 million for the 2010 program in its fiscal 2003 Energy Department budget. This funding request was cleared by US House and Senate committees with ease apparently because this nuclear energy program is a public policy by and, for corporations. The program was based on a report by the Near Term Deployment Group, a panel co-chaired by executives from nuclear powerhouses Duke Energy and Southern Nuclear Operating Co. Of the panel's 13 members, at least 10 are either directly employed by the nuclear industry or have consulted for it.
It is noteworthy that although it was prepared by corporate executives and their advocates, the NTDG's report-titled 'A Roadmap To Deploy New Nuclear Power Plants in the United States by 2010' is candid about the numerous economic reasons why new nuclear power plants should not be built. Summing up the sanity of new plant construction, the Bush administration's blueprint stated that 'economic viability for a nuclear plant is difficult to demonstrate.'
The panel had estimated that new plants could cost as much as a staggering $2,128 per kilowatt of electricity generated. Natural gas fired plants, by comparison, are likely to top out under the most expensive scenarios at $682 per kilowatt. Even the NTDG's lowest estimate comes in at $1,000 per kilowatt of generating capacity -- 46 percent higher than the highest estimate to build a gas-fired plant. Using a more realistic cost of gas-fired plant construction of about $500 per kilowatt -- a cost for which, unlike nuclear power, there is a track record in the real world -- a nuclear plant project built under optimum circumstances would still cost twice as much as building a gas-fired plant.
Investors too are wary because nuclear power plants take a long time to build; and by the time they actually start generating electricity, more power may be available on the market, rendering the new plants even more of an economic white elephant. While it has been admitted officially in the US that economic viability and affordability for consumers cannot be demonstrated, yet Burns argues that it will be affordable for Indians.
The corporate crimes of nuclear corporations like Exelon, the mother of all nuclear power corporations, which had walked away from a pebble-bed demonstration project in South Africa where it is reported to be proposing to build a nuclear reactor without a containment dome which was deemed ludicrous and the US Nuclear Regulatory Commission analysed the technology in anticipation of a design application.
The NTDG had analysed economic competitiveness of several large-scale reactor designs, including the Westinghouse AP-600 and AP-1000. Those reactors now appear to be the most likely candidates in the Nuclear 2010 initiative. But Westinghouse estimates that an AP-1000, the cheaper of the two thanks to economy of scale, would cost $1,657 per kilowatt of electricity generating capacity -- more than three times the going rate for gas-fired plants. The NTDG doesn't think that the market price of electricity will cover the costs of such an expensive project.
It is feared that Indian consumers would be forced to buy power from the new nuclear plant, even if other, lower-cost options are available. Such purchase power agreements could be foisted on hapless consumers by state or regional regulators. But even then the new plants would need millions in taxpayer subsidies.
It appears that the citizens and the legislatures in India have been taken for granted in the matter of the permitting and approval process of nuclear installations to avoid cogent questions about safety, security or other issues get raised.
It is contended that the proponents of the nuclear power plants are putting profit ahead of public safety. The Nuclear 2010 blueprint for US prepared by the NTDG attempted to rationalise the economics of nuclear power plants by asserting repeatedly that, despite the frightening economics of nuclear plant construction, the projects will be competitive over the long term.
There is a need for a white paper on the economic track record of nuclear power plants is characterised chiefly by cost overruns, unexpectedly high operation and maintenance costs, expensive unscheduled shutdowns, and an overall failure to perform competitively.
As recently as 1999, the US Nuclear Regulatory Commission was predicting early retirement for nuclear plants because the plants couldn't compete economically. It must be noted that nuclear companies have themselves gone to great lengths to convince regulators in state after state that nuclear power plants could not compete with other energy sources in a deregulated electricity environment.
The corporations were fighting to ensure that as states deregulated their markets, electricity consumers -- not nuclear power corporations -- would get stuck with the lingering debt on nuclear plants. Such stranded costs are estimated to have cost consumers tens of billions of dollars nationwide, including $28 billion in California alone as per a 2002 report.
In the light of the might of nuclear corporations, which pose a challenge to the authority of the government and the parliament to a trial of strength and to bid defiance to the laws of the country, the Parliamentary Standing Committee has been provided a historic opportunity to take step to factor in US President Eisenhower's farewell speech, wherein he made an appeal to 'guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex'.
It is now well known that 'hazardous corporations' are a fit case for the application of the principle of absolute liability and multinational enterprise liability because they are neither 'restricted by national boundaries' nor effectively controlled by international law' because of their complex corporate structure with 'networks of subsidiaries and decisions which make it 'exceedingly difficult or even impossible to pinpoint responsibility for the damage caused by the enterprise'.
They operate through a neatly designed network of interlocking directors', a 'common operating system', global distribution and marketing systems', design development and technology worldwide, financial and other controls and highly sophisticated and technologically capable machines and working staff.
Consequently, victims of such daily actions are unable to identify which unit of the enterprise caused the harm. Therefore, faults by even a local subsidiary or the operator must be attributed to the parent company or the supplier of the technical design because their duty too is non-delegable. The security if individuals, communities, workers and environment must not be subordinated to the profit motive of nuclear industrial enterprises.