- 8-29-2012
- Categorized in: NUCLEAR POWER
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.
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.
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 Blakementioned some “unresolved” concerns over the nuclear liability. Even the French and the RussianAmbassadors 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,
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.
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:
“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?”
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.
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