Dynamics of legal regime on safety of nuclear power plants in India after Fukushima disaster

Abstract

In view of the Fukushima disaster of 2011, it has become a necessity to review the legal regime pertaining to safety of nuclear installations in not only every country but also at the international level. Given the vast energy needs of India and abysmally low availability at present, diversification of different sources of power, including nuclear, is vigorously pursued. However, the legal regime in India is undergoing a challenge from the recent dynamics of international law regarding safety of nuclear power plants, regulatory institutions and transparency. The recent public protests at Kudankulaum and Jaitapur has shown that safety of nuclear reactors for the public and transparency in nuclear power activities are very important concerns. The higher judiciary has also tried to mantle this new approach by allowing some of the petitions filed by the members of civil society, including activists and by examining its merits and demerits. This paper attempts to examine the dynamics of national and international law on safety of nuclear plants as well as the issues related to regulatory institutions and transparency in nuclear power. In doing so, the paper analyses several issues of power structure within regulatory institutions, regulatory independence, peer review system in international law and its effectiveness, reservation to treaties, extent of revealing information related to nuclear activities, and reticence of the judiciary to examine scientific reports.

Keywords:

• India
• nuclear safety
• national and international law
• regulatory institutions
• transparency issues
• judicial approach

Notes

1. Ministry of Power. Government of India Press release (18 May 2012).

2. The Chernobyl Accident occurred on 26 April 1986. Chernobyl is in Ukraine (at the time of incident, it formed part of the former USSR).

3. ‘Latest Status’ at IAEA’, accessed www.iaea.org/Publications/Documents/Conventions/cacnare_status.pdf.

4. India’s reservation at the time of signature on 29 September 1986, accessed www.iaea.org/Publications/.../Conventions/cancare_reserv.pdf.

5. Article 8, IAEA Assistance Convention deals with Privileges, Immunities and Facilities and its paragraph 2 and 3 deals with immunity from arrest, detention, legal process, and exemption from taxes.

6. Article 10 deals with Claims and Compensation and its paragraph 2 provides for legal immunity in case of death or of injury to persons, damage to or loss of property, or damage to the environment caused within its territory.

7. Article 13 deals with Settlement of Disputes and paragraph 2 provides for the dispute settlement before International Court of Justice in case negotiation, and arbitration fails.

8. Supra n 30, at 4.

9. The Convention entered into force on 24 October 1996. As of May 2013, there are 76 Contracting Parties. 10 Signatory Countries have not ratified this Convention.

10. Article 17 of the Convention provides for standards related to reactor siting.

11. Article 18 provides for standards related to design and construction.

12. Article 19 deals with the standards related to the operation of the reactors.

13. Existing Conventions dealing with nuclear safety either covers post-accident aspects (such as liability, information, and assistance) or are concerned merely with the protection of nuclear installations against military attack. See e.g. Convention on Civil Liability for Nuclear Damage (1963).

14. Adopted on 22 March 1985 1987.

15. Adopted on 9 May 1992.

16. According to Art. 32, amendments to the Convention require either consensus or a two thirds majority.

17. Provisions on ‘General Safety Considerations’ are contained in Articles 10–16.

18. Provisions on ‘Safety of Installations’ are laid down in Articles 17–19.

19. From Articles 10–19, the words used are ‘the appropriate steps’.

20. Supra n. 40, at 879.

21. Convention on Nuclear Safety (1994), Article 5.

22. Ibid., Art. 20.

23. Report of the INSAG on the Proposed Nuclear Safety Convention (1993). INSAG played a crucial role in the IAEA’s review of the Chernobyl accident.

24. This was the conclusion arrived at IAEA Ministerial Conference on Nuclear Safety (15–16 December 2012) at Fukushima. See, ‘Rewriting the Nuclear Safety Rulebook’ (XXXX).

25. Ibid.

26. Supra n. 33.

27. As the power to inspect India’s nuclear power plants is given to Atomic Energy Regulatory Board under the Charter of AERB, the IAEA visiting team requests the Government of India, which in turn, recommends the AERB to allow access. See www.aerb.gov.in/cgi-bin/rti/info.asp.

28. ‘Prescribed Substance’ means any substance including any mineral which the Central Government may, by notification, prescribe, being a substance which in its opinion is or may be used for the production or use of atomic energy or research into matters connected therewith and includes uranium, plutonium, thorium, beryllium, deuterium or any of their respective derivatives or compounds or any other materials containing any of the aforesaid substances.

29. ‘Radioactive substance’ means any substance or material which spontaneously emits radiation in excess of the levels prescribed by notification by the Central Government.

30. S. 3, Atomic Energy Act, 19.

31. S.17, Ibid.

32. S.24, Ibid.

33. S.30, Ibid.

34. On Three Mile Island Accident, see Rees (1996).

35. For example, Code of Regulation of Nuclear and Radiation Facilities (2000), Consenting Process for Nuclear Fuel Cycle Facilities and Related Industrial Facilities other then Nuclear Power Plants and Research Reactors (2006), Consenting Process for Nuclear Power Plants and Research Reactors (2007).

36. However, there is enough literature which suggests that India’s nuclear power plants are badly managed and safety measures which were suggested were never undertaken. See, Kumar and Ramana (2008), Ramana and Kumar (2010), Gopalakrishnan (1999), Gopalakrishnan (2000), Sunderrajan, Parthasarthy, and Sinha (2008), Mishra (2011).

37. ‘Japan Panel: Japan Nuclear Disaster ‘Man Made’ (2012); Fukushima Reactor Meltdown was a Man Made Disaster (2012).

38. ‘Final Report of the Investigation Committee on the Accident at the Fukushima Nuclear Power Stations of Tokyo Electric Power Company (TEPCO)’. 23 July 2012. available at www.kantei.go.jp/foreign/link/org/index.html; Fukushima Report: Key Points in Nuclear Disaster Report (2012).

39. Out of the 13 members of the SARCOP, including its Chairman, Vice Chairman, and Member Secretary, four have the AERB background and seven have BARC (Bhabha Atomic Research Centre) background. BARC is controlled by the Government of India. Again, out of the 13 members of the SARCAR, five have the AERB background, two have the BARC background, and three are doctors from the private and Government hospitals. See www.aerb.gov.in/cgi-bin/committees/sarcop.asp.

40. Article 8(1) provides: ‘Each Contracting Party shall establish or designate a regulatory body entrusted with the implementation of the legislative and regulatory framework referred to in Article 7, and provided with adequate authority, competence and financial and human resources to fulfill its assigned responsibilities.’ Article 8 (b) further provides: ‘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 organization concerned with the promotion or utilization of nuclear energy.’

41. Common Cause v. Union of India (2011); Also see, ‘Apex Court Favors Independent Safety Regulator for N-plants’ (2012).

42. Sec. 3 ©, Atomic Energy Act, 1962.

43. Sec. 18, Atomic Energy Act, 1962.

44. Ibid.

45. Ibid.

46. See the letter written by the Office of Director General of Metereology, Delhi to NPCIL, available on www.npcil.nic.in/main/Siesmic_Zone_of_JNPP.pdf. Also see, Raghunath (2010), Bilham and Gaur (2011), Jayaraman (2011). However, many other scholars contradict it and according to them, Jaitapur is in seismic zone III, See Ghate (2011).

47. This Act was passed in 2005 (Act 22 of 2005) by the Indian Parliament.

48. Section 8, The Right to Information Act 2005.

49. These clauses are mentioned before while discussing the Right to Information Act.

50. S.P.Udaykumar (Dr.) v. S.K. Srivastava (2012) CIC 6963.

51. Ibid.

52. Ibid.

53. Ibid.

54. W.P. © 3353/2013 Del HC; CM No. 6380/2013.

55. ‘Press Release: National Committee in Solidarity with Jaitapur Struggle’, Delhi (26 August 2012).

56. People’s Union for Civil Liberties v. Union of India (2004) 2 SCC 476; Also see, Mannully (2010).

57. Ibid., paragraph 64.

58. (decided on 31 August 2012) Madras High Court.

59. These reports were prepared , inter alia, by Former Chairman of the Atomic Energy Commission Prof. M.R. Srinivasan, Dr. D. Arivuoli (Professor of Physics, Anna University), experts constituted by AERB, and Tamil Nadu Pollution Control Board.

60. Secretary and Curator, Victoria Memorial Hall v. Howrah GanatantrikNagrikSamity 2010, 732.

61. University of Mysore v. C.D.GovindaRao 1965; State of Bihar v. Dr. Asis Kumar Mukherjee 1975, 602; DalpatAbasahebSolunke v. Dr. B.S. Mahajan 1990; Central Areca Nut & Cocoa Mktg. & Processing Coop. Ltd. v. State of Karnataka 1997, 31; Dental Council of India v. Subharti K.K.B. Charitable Trust 2001, 486

62. G. Sundarrajan v. Union of India (Civil Appeal No. 4440 of 2013) SC.

63. Ibid., paragraph 188.

64. Ibid., paragraph 230.

65. Writ Petition (Civil) No. 464 of 2011.

66. Ibid.

67. Supreme Court order (16 March 2012).

68. Doubts on independent review process of the IAEA have been raised by many activists in India, such as PrafullBidwai (senior journalist), SowmyaDutta (scientist), KumarSundaram; by organizations, such as People’s Union for Civil Liberties (PUCL), Coalition for Nuclear Disarmament and Peace (CNDP). In Switzerland, nuclear expert Bruno Pellaud has criticized the review process of IAEA, See www.swissinfo.ch/eng/science_technology/Ex-IAEA_official_urges_global_nuclear_reviews.html. Professor Menno T. Kamminga has also reiterated this view. Professor Norbert Pelzer has also called for the same.