Regulating India’s nuclear estate(Nuclear Policy, Defense)

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For the country’s nuclear energy sector plans to be effective, the government should lift the veil of opaqueness surrounding its civilian programme. The first step would be to establish an autonomous, transparent and accountable regulatory institution

The 2014 Nuclear Materials Security Index prepared by the Washington-based Nuclear Threat Initiative (NTI) has ranked India 23rd out of 25 countries with weapons-usable nuclear materials. While the NTI ranking has been criticised for a variety of reasons including inadequacies in its methodology, it has rightly pointed out the absence of an independent nuclear regulatory mechanism in India with the mandate to ensure that high standards of safety and security are observed in India’s civilian nuclear facilities. Even though many Indian analysts and officials dismiss the NTI ranking as being uninformed, New Delhi needs to take such criticism seriously given its long-standing desire to mainstream itself into the global nuclear order including gaining membership to key international export control cartels such as the Nuclear Suppliers Group (NSG). Given this context, there is a need to take a critical look at the proposed Nuclear Safety Regulatory Authority.
Background to the Bill

Currently, the Atomic Energy Regulatory Board (AERB), established in 1983 through a gazette notification, is tasked with regulating the safety and security aspects of the country’s civilian nuclear facilities. However, it is not an autonomous body as it depends on the Department of Atomic Energy (DAE) for all practical purposes. It has, as a result, been unable to perform its regulatory functions effectively. The demand for establishing a truly autonomous nuclear regulatory authority has been a long-standing one. In 1997, the Raja Ramanna Committee report had recommended that the Atomic Energy Act (1962) should be amended to enhance the effectiveness of the nuclear regulatory system in the country. Even though the Union government, in 2000, had directed the DAE to suggest the necessary amendments to the 1962 Act, nothing substantial happened for almost a decade. Finally, it was the Mayapuri radiation accident (New Delhi) in 2010 and the Fukushima disaster (Japan) of 2011 that served as a wake-up call for the DAE.
 “Since the NSRA Bill will now have to be reintroduced in Parliament, the Department of Atomic Energy should try and accommodate the eminently useful suggestions given by the standing committee and other independent experts” 
In 2011, the Nuclear Safety Regulatory Authority (NSRA) Bill was drafted by the DAE and submitted to the Union Cabinet for approval. The DAE note that sought approval from the Cabinet to introduce the Bill in Parliament had cited both the Mayapuri and the Fukushima accidents as the factors that contributed to the urgency to strengthen the country’s nuclear regulatory mechanism. However, even the NSRA, as currently envisioned by the DAE, does not propose the establishment of a truly autonomous regulatory authority. The Bill, first introduced in the Lok Sabha in 2011, has now lapsed and will have to be reintroduced in the new Lok Sabha. Before the NSRA Bill is reintroduced in Parliament, there is a need to strengthen the powers of the regulatory authority that it proposes to set up.
CAG and Committee reports

Even as the DAE was preparing to table the NSRA Bill in Parliament, the Comptroller and Auditor General (CAG) of India had undertaken a “Performance Audit on Activities of Atomic Energy Regulatory Board.” The CAG report, tabled in Parliament in August 2012, concluded that “the legal status of AERB continues to be that of an authority subordinate to the Central Government, with powers delegated to it by the latter,” and recommended to the government to “ensure that the nuclear regulator is empowered and independent. For this purpose, it should be created in law and should be able to exercise necessary authority in the setting of regulations, verification of compliance with the regulations and enforcement of the same in the cases of non-compliance.”
Following the CAG report, the Public Accounts Committee (PAC) of Parliament also produced a report in 2013 entitled “Activities of Atomic Energy Regulatory Board” in which it agreed with the view taken by the CAG on the functioning of the AERB. The PAC also highlighted the observation made by the “Parliamentary Standing Committee on Science and Technology, Environment and Forests” in 2012 that the NSRA lacks autonomy. The PAC, in the light of the observations made by the standing committee and the CAG, was critical of the functioning of the AERB as well as the proposed NSRA Bill and stated in its report that the “DAE should seriously re-examine the provisions of the Bill and take necessary steps urgently so as to ensure that the nuclear regulator becomes an independent and credible body at par with similar regulators in other Countries.” In other words, the NSRA Bill, as it stands today, is far from satisfactory even though the DAE has made the assurance that the Standing Committee’s recommendations would be seriously considered.
Issue of authority

The Council of Nuclear Safety to be established by the NSRA Bill — with the Prime Minister as the Chair and mostly government representatives as members — will be a very powerful body with the power to appoint the chairperson and members of the new regulatory body. This will diminish the powers of the regulator since it will be subordinate to the Council chaired by the Prime Minister. We will, as a result, end up having a government-controlled regulator all over again. The NSRA Bill is explicit on the ability of the government to control the regulator: “the Central Government may, by notification, supersede the Authority for such period, not exceeding six months, as may be specified in the notification.”
The NSRA also does not say which facilities would be put under the new authority — currently, the AERB can only oversee the civilian facilities. The Bill states that “the Central Government may, for the purposes of national defence and security, exempt any nuclear material, radioactive material, facilities, premises and activities; the premises, assets and areas associated with material and activities from the jurisdiction of the Authority.” So, the question is this: who will oversee the safety and security of the strategic facilities and programmes for which there is currently no regulatory authority? The Bill mentions that new regulatory bodies can be created to regulate the strategic programmes. The Department-Related Parliamentary Standing Committee had recommended the creation of other bodies to do so. However, there has not been any movement so far on that front. Another issue is the exclusion of the NSRA from the purview of RTI Act, thereby reducing the requirement for the regulator to be transparent.
This is not to say that the NSRA Bill is not an improvement from the existing AERB. Clearly, there are significant differences between the two. For one, while the AERB was set up by a government order, the new regulator will be established by an Act of Parliament, thereby making it more powerful. More so, while the AERB reported to the AEC, the new authority will not report to the AEC but will submit its report to Parliament.
Way ahead

It is unknown how many of the amendments suggested by the standing committee have been incorporated by the DAE. Since the Bill will now have to be reintroduced in Parliament, the DAE should try and accommodate the eminently useful suggestions given by the standing committee and other independent experts. The new government should encourage the DAE to carry out at least the following three amendments: one, the new regulatory body should be given complete financial, administrative and institutional autonomy from the Central government and made accountable to Parliament; two, the new regulatory body should also include persons from outside government such as scientists, civilian auditors, environmentalists and independent experts; three, given the crucial role that the NSRA will play in the years to come, the selection of its members should be done by a body comprising the Leader of the Opposition and the Speaker of the Lok Sabha.
If India’s plans to drastically expand its nuclear energy sector have to be effective, and acceptable to the people at large, it should bring the country’s civilian nuclear establishment out of the thick layers of secrecy and opaqueness within which it has traditionally operated. The first step in that direction will be to establish a genuinely autonomous, transparent and accountable institution that is capable of regulating the country’s “nuclear estate.”
The words of Professor Kiyoshi Kurokawa, who chaired the Fukushima Nuclear Accident Independent Investigation Commission are eminently appropriate in the Indian context as well: “What must be admitted — very painfully — is that this was a disaster ‘Made in Japan.’ Its fundamental causes are to be found in the ingrained conventions of Japanese culture: our reflexive obedience; our reluctance to question authority; our devotion to ‘sticking with the program’; our groupism; and our insularity … nuclear power became an unstoppable force, immune to scrutiny by civil society. Its regulation was entrusted to the same government bureaucracy responsible for its promotion.”
(Happymon Jacob teaches Arms Control and Disarmament at the School of International Studies, Jawaharlal Nehru University, New Delhi. E-mail: happymon@gmail.com)
Keywords: Atomic Energy Regulatory Board, Department of Atomic Energy, Nuclear Threat Initiative, 2014 Nuclear Materials Security Index, PAC, CAG report, Nuclear Safety Regulatory Authority (NSRA) Bill, Fukushima Nuclear Accident Independent Investigation Commission
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