The nuclear liability bill needs a rethink

There is an urgent need for a Joint Parliamentary Committee to examine the current liability regime besides a high-powered trans-disciplinary independent experts committee to study the issue, says Gopal Krishna.

While British Petroleum is facing a bill of up to $34 billion (about Rs 170,000 crore) from the Gulf of Mexico oil spill disaster after US senators demanded the oil company deposited $20 billion (about Rs 100,000 crore) into a ring-fenced account to meet escalating compensation costs, the way Indian legislators are agreeing to a Rs 1,500 crore cap on nuclear disaster from large nuclear power plants, Rs 300 crore cap for institutions involved in reprocessing fuel and a Rs 100 crore cap for small research reactors is unacceptable and condemnable.

Srikumar Banerjee, chairman, Atomic Energy Commission and ex-officio secretary, Department of Atomic Energy, one of the drafters of the bill is guilty of ignoring the consequences of possible nuclear disaster because his text has privatised profits and made liabilities public.

Prime Minister Mamohan Singh who is in-charge of DAE, appears to be guilty of dereliction of duty as well. The report of the Parliamentary Standing Committee on Science & Technology, Environment & Forests chaired by T Subbirami Reddy reveals their culpability quite categorically. This report was tabled in the Rajya Sabha and Lok Sabha on August 18. What else can explain their indifference towards other concerned ministries like health, agriculture, labour, water resources etc. Aren't they relevant? What can explain the lack of consensus among the committee members even in matters of national interest? 

India's Civil Liability for Nuclear Damage Bill, 2010 is meant to pave the way for India to sign International Atomic Energy Agency's Convention on Supplementary Compensation for Nuclear Damage, 1997. The question that stares citizens in the face is: whether or not the proposed liability bill and the pre-existing IAEA's compensation treaty in the supreme interest of present and future generation of Indians?

If India decides to join the CSC, it will be an exercise in surrendering its sovereignty to a conflict of interest ridden regime like IAEA which is both the promoter and regulator of nuclear commerce. Like IAEA, the Atomic Energy Regulatory Board is dependent on the Department of Atomic Energy whose mandate is charged with promoting nuclear power in India.

The parliamentary committee inquired from Nirupama Rao, the foreign secretary "whether there are other considerations apart from the legal requirements that necessitated the bill." She informed that "since the government is operating within the ambit of international agreements and on the basis of certain principles the nation should have provisions of the nuclear liability bill."

This further corroborated by two members of the parliamentary standing committee namely, Saman Pathak and Barun Mukherji. Both have observed categorically that the provisions of the bill will unduly favour the foreign suppliers of nuclear equipment and it is being done to make the provisions compatible with the CSC. Like all Indians, both these members are not convinced with the rationale of India joining the CSC because this legislation on civil nuclear liability does not 'keep the interests of the Indian people, who may be affected in a nuclear accident, as its core concern'.

In its 25-page report on Civil Liability for Nuclear Damage Bill, 2010, Parliamentary Standing Committee on Science & Technology, Environment & Forests observes, "When the committee inquired from the secretaries of ministries/departments of government of India who appeared before the committee as to whether the draft nuclear liability bill was referred to them for their views/comments, some of them viz. ministries of health & family welfare, agriculture, labour & employment, food & public distribution, etc. replied in the negative. The committee is of the opinion that government must have sought the opinion of ministries which are even distantly related to any provision of the legislation. The committee, therefore, recommends that in future the government should consult all such ministries/departments which are even remotely concerned with the provisions of a proposed legislation."

It is noteworthy that the 25-member working group on civil nuclear energy-2009 constituted by the Federation of Indian Chambers of Commerce and Industry 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.

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." Established in pre-independent India in 1927, FICCI is the largest and oldest apex business organisation of the country. It claims to be a "non-government, not-for-profit organisation".

FICCI has direct membership from the private as well as public sectors, including SMEs and MNCs, and an indirect membership of over 83,000 companies from regional chambers of commerce.

As part of its corporate lobbying, "FICCI works closely with the government on policy issues, enhancing efficiency, competitiveness and expanding business opportunities for industry through a range of specialised services and global linkages. It also provides a platform for sector specific consensus building and networking." In such conflict of interest ridden circumstances, Dr Jain claimed that the health hazards from Chernobyl nuclear disaster is no more visible. Therefore, he implied that the questions of intergenerational adverse effects do not arise. Are his claims factual and trustworthy?

Under the influence of FICCI and US nuclear industry, those pushing for the bill have chosen not learn from the mistakes of US firms who embarked on a nuclear power strategy under the assumption that the radioactive waste management problem was not difficult and would be solved relatively quickly. Subsequent events have proved otherwise because radioactive waste management efforts are quite different from industrial and municipal waste management.

The observations of G K Pillai, secretary, home ministry illustrate how the committee has not been rigorous in the drafting of the bill. While commenting on the conditions in which the operator of a nuclear power plant, who could be made liable for nuclear damage, Pillai stated that the bill contains such terms as armed conflict, hostilities, civil war, insurrection or an act of terrorism that have wide meanings but have not been defined in the present bill. Therefore there is a need for inserting meanings of these terms from other laws, in Section 2 of this bill. Such vagueness in connotations can make the operators negligent in observing security procedures and can create situations of disputes between the operator and the central government.

It is frightening to know that any nuclear incident may induce radioactive contaminations in surface, ground water bodies, and other water resources. U N Panjiar, the secretary, water resources was of the opinion that the ministry does not have any facility for testing water quality, from point of view of nuclear contamination because this work has been done by the DAE. The efficiency of the DAE gets routinely revealed in issues ranging from radioactive steel, ship breaking industry, Mayapuri scrap market, Kaiga incident etc. Didn't AERB reveal its incompetence when it declared Mayapuri scrap market radiation free when it was proven later that the radiation still existed in the area? Didn't it do the same after inspecting the obsolete ship Blue Lady?

While secretary, DAE responded by saying that the ministry of water resources has not been involved in checking and monitoring the quality of water because this job is done by the environmental survey laboratories of the DAE, the fact remains the bill should have been sent to the water resources ministry as well because the DAE deals with point source of radioactive pollution and not with non-point source of pollution.

It is saddening that the ministry of water resources conceded that since expertise is available in DAE alone, the ministry need not be consulted. Panjiar rightly stressed upon the need to study the impact of nuclear contaminated water on human beings, animals, plants and crops. The bill does not make any provision for such efforts.

In such a context it is germane to recollect that more than 51 years ago, on May 28, 1959, the World Health Organisation's assembly voted into force an agreement with the IAEA, a UN agency that prevented the WHO from investigating, warning and revealing the dangers of nuclear radiation on health.

Coincidentally, K Sujata Rao, secretary, ministry of health while deposing before the parliamentary committee mentioned that "while drafting the bill the DAE did not consult them. Since the response system to deal with any kind of emergency of such type, the hospitals are not well-equipped, it is natural that mortality and morbidity due to multiple burn, blasts, radiation injuries and psycho-social impact could be on very high scale and medical tackling of such a large emergency could have enough repercussions in the nearby areas of radioactive fallout. She also mentioned that in the entire bill, there is not a single clause which speaks about taking health care during radiological emergencies. It reflects only about payment of compensation due to health impacts of such radiation.

She suggested while setting up nuclear plants consideration may also be given to the fact that there should be a hospital having trained doctors near such establishments and arrangements should also be made for free treatment of people who are affected by serious nuclear fallout." She confessed that her ministry is nowhere to meet an eventuality that may arise out of nuclear and radiological emergencies.

The objectives of the health ministry and the DAE are at loggerheads in the same way as objectives of WHO and IAEA are. The former is dedicated to promoting health and the latter exists to promote nuclear commerce. Under the agreement, the two UN agencies must "keep each other fully informed concerning all projected activities and all programs of work which may be of interest to both parties".

Notably, the probe into the health impacts of the Chernobyl nuclear accident in Ukraine on in April 1986 was taken over by IAEA and dissenting voices were suppressed. The health effects of the nuclear accident were the subject of two major conferences, in Geneva in 1995, and in Kiev, Ukraine in 2001. The full proceedings of those conferences remain unpublished. The Kiev conference was organised by WHO Association of Physicians of Chernobyl in co-operation with UN agencies. There is no evidence to suggest that our DAE or the parliamentary standing committee accessed the documents of these conferences and drew lessons from it. 

IAEA's International Conference on Chernobyl in Vienna, September, 2005 was a public relations exercise by the nuclear industry that promoted such risk models for nuclear radiation that understated the true hazards. Chris Busby, the scientific secretary of European Committee on Radiation Risk and visiting professor at the University of Ulster's school of biomedical sciences observes, "The subordination of the WHO to IAEA is a key part of the systematic falsification of nuclear risk which has been under way ever since Hiroshima, the agreement creates an unacceptable conflict of interest in which the UN organisation concerned with promoting our health has been made subservient to those whose main interest is the expansion of nuclear power. Dissolving the WHO-IAEA agreement is a necessary first step to restoring the WHO's independence to research the true health impacts of ionising radiation and publish its findings."

Disregarding lessons from 26 years of the Bhopal disaster, even in the 24th anniversary year of the Chernobyl disaster the WHO-IAEA agreement is yet to be abandoned. ECRR has called for its abandonment. India too should call for freeing WHO from hiding facts about health effect from nuclear hazards due to the agreement. 

Amidst a public relations blitzkrieg of nuclear companies, it is not surprising that Banerjee, secretary, DAE expressed his touching faith in the nuclear power companies of all ilk and informed the parliamentary committee that the "Reactor at Chernobyl did not have a containment, while old reactors in India have containments and, therefore, Chernobyl type incident can never take place in India."

Is it because of such divine belief in the nuclear technology that he was starkly negligent in choosing not to consult revenant ministries while drafting the bill? Is it for this very reason that doctrine of 'absolute liability' for the operator, supplier, builder and owner has been subverted? Business enterprises are "strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liability," as per Supreme Court's order. The liability of the operator should be made "absolute" to ensure that there are no exceptions.

The bill ignores the fact that Union Carbide Corporation was also in the business of nuclear power and its current owner Dow Chemicals Company (since February 6, 2001) too offers a range of nuclear grade resins that are designed and manufactured to meet the requirements of the nuclear power industry.

Reddy, Singh and Banerjee should have recommended more openness, increased public access to information so that no agency hides problems to be solved by the future generations. The current draft of the bill is doing so. 

This is illustrated by what Alka Sirohi, secretary, department of food and public distribution informed the parliamentary committee, while explaining the functioning of her ministry, she emphasised the ill-effects of nuclear radiation on food items and its subsequent repercussions on human health and safeguards to be taken to prevent nuclear contamination of food during radiological accidents.

She further mentioned although radiological damage to food items may fall within the generic definition of the property as mentioned in Clause 2f (ii) of the bill, it would be better if the said clause could provide a separate definition food grains along with of storage of food grains. Additionally she also mentioned that safety norms, distance, location and operating procedure, which should be defined in the bill during the construction of the warehouses for food grain storage to be followed, near a nuclear facility.

She also mentioned about the establishment of laboratories for the standard testing of food articles to ascertain radiation levels. Sirohi merits appreciation for her considered submission before the committee.

The bill remains silent on the grave issues raised by Prabeer Kumar Basu, secretary, agriculture that the disaster management structure in the country is oriented in such a manner that emergencies arising out of floods, earthquakes and droughts could be managed in an efficient manner.

However, on the other hand, unfortunately the disaster management structure in the country, as per his opinion, is not well tailored in meeting radiological fall out and more unfortunate to mention that even the educated section of the people is not well aware about the implications of a serious nuclear disaster. He therefore, felt that more public awareness needs to be built in respect of nuclear disaster and its hair-raising impact on biological population.

He further pointed out that as a consequence of a nuclear disaster of the Chernobyl type, it is quite possible that agricultural crops around 30 to 100 kms from the site of the incident could be wiped out totally. This may affect seriously the biodiversity of the crops in the radiation area and the farmer may lose their traditional variety of crops. In this connection he mentioned that the National Bureau of Plant Genetic Resources and Gene Bank in the country who are keeping a sample of each variety of crops and preserve these varieties which could be planted for further production if a variety of crops is entirely lost due to radiological emergency.

He, however, mentioned that there should be suitable rules, regulations and guidelines and compensation model for agricultural damage that could be inserted at an appropriate place in the legislation which may work after a radiological eventuality takes place. 

Further revealing the criminal negligence of the drafters of the bill, Prabhat Chatirvedi, secretary, ministry of labour while referring to Clause 5 (1)(i) which provides for non-liability of operator for any nuclear damage arising out of a grave natural disaster of an exceptional character pointed out that grave natural disaster should not include earthquakes or floods. He advised the committee that if nuclear plant is placed in a seismic zone, it should be properly designed to withstand earthquake of severe character. The word natural disaster is too general. He further mentioned that concept of absolute liability of the operator in case of a nuclear damage whether it is on worker or someone else should be invoked in the bill.

The secretary, while referring to Clause 39 (1) of the bill, drew the attention of the committee that no specific monetary quantum has been mentioned in regard to the fine to be imposed under the chapter on offences and penalties. He, therefore, suggested that specific quantum of fine in monetary terms should be defined in the bill.

In compliance of the suggestion of chairperson of the parliamentary committee during my testimony on August 3 and pursuant to my written submission dated July 7, Toxicswatch Alliance had specifically drawn the attention of the committee with regard to the narrow definition of the word 'installation' and conflict of interest ridden existence of the AERB. In a letter to the committee dated August 12, TWA has highlighted the backdrop of the deliberations on the Civil Liability for Nuclear Damage Bill. Meera Shankar, Indian Ambassador to the US, and William Burns, the Under Secretary of State for Political Affairs of the United States 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.

TWA has questioned the merit of centralised power stations given 35-40 percent transmission and distribution loss from power grids.

The secretary, financial services submitted before the committee that "any increase in premium of insurance will lead to increase in the cost of production of electricity for nuclear power. It is argued that higher the liability limit higher will be the insurance premium and subsequently higher will be the cost of electricity production."

Unmindful of such concerns its business as usual for the US nuclear companies and FICCI. A press release from the Indian Embassy in Washington noted, "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 observes, "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.

Reddy, Dr Singh and Banerjee have failed to discourage nuclear power companies to locate 'sinks' like deep waters of ocean, sea, rivers, air and landfills etc in which it could dump, flush, or vent radioactive waste products. They have skirted the issue of India's radioactive waste management and it should desist from NIMBY-ism. (NIMBY stands for Not In My Back Yard). The US state of Nevada is fighting a classic NIMBY battle against the Yucca Mountain facility.

In India too communities should be empowered and not harassed for asserting their right to safe environment and the rights of future generations. It was once argued that reprocessing spent nuclear fuel was another important waste management strategy although the act of reprocessing still generated volatile waste products which exacerbated the waste management problem even as it reduced the overall volume of radioactive waste material but it only made radioactive waste problem a long-term disposal option. Notably, US itself has stopped reprocessing nuclear fuel during the late 1970s by order of President Jimmy Carter.

Reddy, Singh and Banerjee do not realise that the difficulties with radioactive waste cannot be dealt with by imposing a legislative fix on a problem that has not been clearly defined or fully understood. Such legislative fixes are hardly a solution as became evident from the US Nuclear Waste Repository Act of 1982 and a 1987 Congressional amendment to the act which mandated consideration of only one location, Nevada's Yucca Mountain as a permanent repository leading to major litigation as well as significant opposition from people in Nevada. Nuclear power cannot and should not expand in India as is the case with the US until the problem of where to dispose of radioactive waste is solved.

The secretary, ministry of power apprised the committee about the Clause 3 of the bill, wherein the notification regarding the occurrence of a nuclear incident is to be issued within 15 days by the AERB. According to him, "the nuclear power station incharge/director will immediately declare nuclear emergency, and forthwith the disaster management plan will start, without waiting for the publication of the notification and the 15 days time-period also needs to be reduced." This is quite sensible but it appears that DAE did not consult even the power ministry.

Testimony after testimony before the committee had asked for deletion of the word terrorism from the bill but the same is not reflected in the committee's report despite the fact that Defence Secretary Pradeep Kumar categorically stated, "under different layers of protection, nuclear assets including nuclear installations are being protected through defence. However he admitted that absolute and fool proof protection cannot be guaranteed for any nuclear or other assets in the country during peace or war." Exceptions for acts of terrorism can easily be used by the supplier and the operator to wash their hands off any nuclear disaster. 

In view of the above observations, there is a very urgent need for a Joint Parliamentary Committee (sans conflict of interest) to probe and examine the current liability regime in general and nuclear liability regime in particular in the developed countries besides a high-powered trans-disciplinary independent experts committee to study the status of adverse enviro-occupational hazards world over.

The human cost of industrial disasters have create compelling logic to do away with the idea of limited liability to companies, the proposed companies bill should make a beginning in order to make these legal-artificial persons accountable to our legislature.