Volcano near Kalpakkam Nuke Plant? - Public Interest Litigation

In the High Court of Judicature at Madras

(Special Original Jurisdiction)

W.P. No.                       of 2013

M.Vetri Selvan

Advocate

1-P, Pandu klix Plaza,

330/168, Thambu Street,

Chennai - 600001                                                                       .. Petitioner

vs

1.  Union of India

represented by the Secretary to Govt. of India

Department of Atomic Energy

Anushakti Bhavan

Chatrapathi Shivaji Maharaj Marg

Mumbai 400 001

2. Union of India

represented by the Secretary to Govt.

Ministry of Environment and Forests

Paryavaran Bhawan

CGO Complex, Lodhi Road

New Delhi 110 003

3.The Chairman

Atomic Energy Regulatory Board

Niyamak Bhavan

Anushaktinagar

Mumbai  400 094   

4. The Chairman and Managing Director

Nuclear Power Corporation of India Limited

Nambhkiya Urja Bhavan

Anushakti Nagar

Mumbai  400 094

5.  The Member Secretary

Tamil Nadu Pollution Control Board

Guindy, Chennai  600 032                                                 ...Respondents

AFFIDAVIT

       I, M.Vetri Selvan, S/o S.Muthuraj, aged about  31 years, having office  at 1-P, Pandu klix Plaza, 330/168, Thambu Street, Chennai - 600 001 do hereby on solemn affirmation state as under:

1.                 I am the petitioner herein.  I am conversant with the facts of the case.  I am competent to file this affidavit.

2.                I state that I am an advocate having a standing of more than five years. I am also actively associated with “Poovulagin Nanbargal”, a registered public trust working for the protection of environment and forests. I am initiating this Public Interest Litigation in discharge of my fundamental duties under Article 51-A (g),   (h) and (j) of the Constitution.    Earlier I have filed a public interest litigation  viz.  WP No. 26097 of 2011 questioning the failure of the respondents to implement the Guidelines on Management of Nuclear and Radiological Emergencies with regard to Madras Atomic Power Station, Kalpakkam, Kancheepuram District.

3.                I state that the Madras Atomic Power Station (MAPS) is located at Kalpakkam, about 70 kms from Chennai City.  The power station consists of two units viz.   MAPS-1 and MAPS-2. MAPS-1 and MAPS-2 went critical in 1983 and 1985 respectively.  At Kalpakkam, there are seven nuclear organizations including MAPS viz. Bharatiya Nabhikiya Vidyut Nigam Ltd. (HQ), Indira Gandhi Centre for Atomic Research, PFBR Project (IGCAR), Nuclear Desalination Demonstration Plant (BARC), Kalpakkam Fuel Reprocessing Plant (BARC) and General Services Organisation.  Presently, the MAPS produces 440 MW of electricity from the two reactors.  It is learnt that the Union of India has plans for an additional 500 MW capacity in MAPS. 

4.                I state that on 26 March 1999 there was Heavy water leaks in MAPS and seven people received a full radiation dose. According to Dr. A. Gopalakrishnan, former Chairman of the Atomic Energy Regulatory Board, in the early 1980s, the discovery of some pieces of zircalloy in a moderator pump in MAPS Unit 1 was traced to the problem of substantial crackingof the reactor inlet manifold and an identical problem surfaced in MAPS-2 also almost during the same period and that the synergy of different kinds of serious safety issues in MAPS 1 and 2 put the station at a higher risk than acceptable anywhere else in the world.  Frontline, a fortnightly in English, (March 16-23, 1999) reported  about Dr. A. Gopalakrishnan’s view about the said heavy water leak in MAPS: 

“Gopalakrishnan said that going by the initial estimates given by MAPS, several tones, possibly 14 tonnes, of heavy water leaked out.  “For this number the declaration of a plant emergency makes sense,” he said.  “You will not declare a plant emergency if just one bucketful of heavy water leaks or about 10 workers are concerned.  A very large amount must have gone into the drain and spread out.  The (tritium) release must have also been sucked into the ventilation system.”  It reports further:  “Tritium is highly radioactive, with a half-life of over 12 years.  Tritium content in heavy water increases with the number of years the reactor operates.  Almost all the tritium continues to be in the heavy water even if the reactor is shut down for a couple of months.  When there is a spillage of heavy water, the tritium affects the plant personnel.”  Dr. A. Gopalakrishnan, on account of the fact that micro-cracks in the coolant tubes would ultimately lead to a fire in the reactor, expressed great concern about the workers also.  The report says: “He demanded that personnel in MAPS be given the data on the release of radiation and be told how much radiation they had ingested.  He said that he was deeply concerned about the use of contract labour for cleaning jobs because they were often overexposed to radiation.”

5.                 I state that even after such caution by the former Chairman of Atomic Energy Regulatory Board, there were two more incidents in 2001 and 2002.  On 30 May 2001, one Mr.S. Sivakumar, a worker, suffered internal contamination after a neoprene glove was punctured.  On 7 July 2002, one Selvakumar, a worker, burnt his left hand after he picked up a radioactive substance.  Moreover, as reported in Tehelka (2010), the General Secretary of the BARC Facilities Employees Association in his letter dated 24 January 2003 addressed to the Director of Bhabha Atomic Research Centre (BARC) recounted in detail a significant nuclear accident that took place on 21 January 2003 at MAPS where one worker named Raju and 5 others including a woman were exposed to high levels of radiation.  After about eight months of the accident, Mr.B. Bhattacharjee, then Director of BARC, termed it “the worst accident in India’s nuclear history.”

6.                  I state that an estimated 30,000 workers live in the five villages that fall within the 5 km radius from MAPS.  There is a DAE township which accommodates thousands of permanent workers and their families.  Within the 16 km to 20 km radius from MAPS, there are about 60 villages where more than 1 lakh people live.  Since plant operations begain in the early 1980s, incidents of cancer and auto-immune thyroid diseases in the surrounding villages have increased.  A contract labour’s three year old child has been diagnosed with retinoblastoma or cancer of eyes.  Radiation from the nuclear plant is responsible for the child’s condition, doctors say.  Life of thousands of innocent people living in the villages which are within the radius of about 16 km to 20 km from MAPS is at stake. 

7.                     I state that the world was shocked to view the unprecedented nuclear disaster occurred on March 11, 2011 at Fukushima Dai-ichi Plant, Japan. An estimated 11,000 people were evacuated in a 20-km radius around the nuclear plant immediately after the accident.  United Kingdom, France and some other countries told their nationals to consider leaving Tokyo with a view to escaping from radioactive contamination.  Large amounts of radioactive isotopes were also released into the Pacific Ocean.  As of July 2011, the Japanese government found it impossible  to control the spread of radioactive material into the nation’s food and  radioactive material was being  detected in a range of produce, including spinach, tea leaves, milk, fish and beef, up to 200 miles from the nuclear plant. Inside the 12-mile evacuation zone around the plant, all farming was abandoned. As of August 2011, the crippled Fukushima nuclear plant was found still leaking low levels of radiation and areas surrounding it was found   uninhabitable for decades due to high radiation. According to experts, it would be at least 20 years before the residents could safely return to this area where high level radiation still prevails. This nuclear disaster made the respondent-Nuclear Power Corporation of India (NPCIL) on 15^th March, 2011 constitutes four Task forces to review consequences of Fukushima similar situations in Indian Nuclear Power Plants under operation. One among the Task Force comprising an Executive Director, Technical Services Superintend, MAPS, and three Additional Chief Engineers has been constituted for “Safety Evaluation of Indian Nuclear Power plants PHWRs at Madras Atomic Power Station (MAPS)”. This Task Force has submitted an Interim Report by the end of March 2011. The Task force has made 12 Short term recommendations and 8 long term recommendations to be carried out in the MAPS.  The NPCIL-Task force report concludes stating: “The recommendation of the task forces have been reviewed and discussed. Action plans for the near term and long term are being worked out. As brought out earlier, this report is an interim one. As the event at Fukushima further unfolds and additional information is available, the recommendations will be revisited and changes, if any, will be incorporated.” The report also fixes timeline for completion of the recommendations. The maximum period given for fulfilling the recommendations is 14 months. It appears that no final report has so far been submitted by the Task Force to the respondent-Union of India with regard to the completion of recommendations made by the respondent NPCIL-Task force report.

8.                I state that respondent-Atomic Energy Regulatory Board (AERB) constituted a committee on March 19, 2011 to review the safety of Indian Nuclear Power Plants against external events of natural origin, in the light of the Fukushima accident. The committee has submitted its report on 31^st August, 2011. At paras 4.17 and 4.18, under the heading “Spent fuel storage facilities”, the report reads:

“4.17.   For the spent fuel storage pools at our NPPs it is seen that the stored fuel remains submerged in water for a period ranging from 9 to 16 days in the older plants viz. TAPS-1&2, RAPS-1&2 and MAPS-1&2, and for over one month in other plants, without any cooling or addition of water. Nevertheless an external water hookup provision for changing water in the pools for all the operating plants should be implemented. This make up capability should remain unaffected by the external events and SBO. Provision for monitoring the level and temperature of pool water and radiation fields inside the spent fuel storage buildings under SBO should also be made. 4.18. Detailed site specific safety assessment of spent fuel storage bays should be carried out with respect to structural integrity and leak-tightness of pools, loss of pool water from sloshing and, stability of fuel racks and mechanical handling equipment in case of extreme earthquake event”.

Further the committee has also recommended as follows:

“4.24. The practice of storing spent radioactive ion exchange resins in underground tanks should be discontinued as in case of earthquake or severe flooding this can cause spread of radioactive contamination. The resins presently stored in such tanks at TAPS and MAPS should be appropriately treated and disposed off. 4.25. Functional integrity of radioactive liquid effluent storage tanks and surrounding dykes at NPPs should be assessed under beyond design basis external events and corrective measures implemented as necessary”.

Annexure 5 to the AERB committee’s report under the caption “8. Working group to review safety of near surface radioactive waste disposal facilities and liquid waste storage tanks at NPP sites against external events” reads:

“At TAPS (1&2) and MAPS (1&2), spent resins generated from the reactors are stored in underground tanks. The ingress of water into the storage tanks or failure of storage tanks has the potential of spreading contamination in the surrounding environment. At present the radionuclide monitoring data in bore wells around the spent resin storage facility shows safety of storage as activity levels are below the detection limit (BDL). This establishes the integrity of storage tanks. The practice of storing spent resin in water at underground tank needs further investigation. However, early immobilization of these resins and discontinuation of practice of storage of spent resins in underground tank is recommended.”

9.       I state that the respondent-AERB has vide its communication dated 31 May 2013 addressed to me under the Right to Information Act made it clear that all the recommendations of NPCIL Committee/Task Force and the high level AERB Committee constituted  post-Fukushima  disaster have not so far been implemented with regard to MAPS.  The AERB has also admitted in the said communication : "AERB is aware of the information in the Smithsonian's Global Volcanism Program official website about the reported volcano (in 1757) located at about 100-110 km from Kalpakkam with status uncertain.  ...  ... However, GSI and others have recommended for further data/analysis in view of an inferred high density material intrusion of remnant magnetisation based on magnetic and gravity anomalies around the said location.   Based on the above feedback, AERB has asked the utilities at Kalpakkam to undertake detailed study through expert agencies.  The work in this regard is in progress."    

10.               I state that the schedule to 2006 notification viz. Notification dated 14th September 2006 issued under the Environment (Protection) Act, 1986 contains an entry "Nuclear power projects and processing of nuclear fuel".   "Spent fuel", stored in MAPS, satisfies the expression "Processing of nuclear fuel". Rule 2 (t) of the Atomic Energy (Radiation Protection) Rules, 2004 defines nuclear fuel cycle to mean among other things "radioactive waste management".   "Unstoppable and Unstorable" nuclear waste would always have environmental impact demanding fresh Environment Impact Assessment and further demanding fresh Environmental Clearance.  Moreover, any environmental clearance granted under the said notification for nuclear power project would be valid only for a period of five years.  No environmental clearance has so far been obtained for storing spent fuel in MAPS.  The AERB Committee has vide its recommendations with regard to storage of spent fuel in MAPS emphasises that the practice of storing spent radioactive ion exchange resins in underground tanks should be discontinued as in case of earthquake or severe flooding this can cause spread of radiocative contamination. Fresh environment impact assessment would be the need of the hour viewed in the light of the stand of AERB that a detailed study with regard to the presence of volcano about 100 - 110 kilometers near MAPS is in progress. Hence this Writ Petition in public interest on the following ground : 

GROUND

          It is submitted that the recommendations of the NPCIL Committee / Task Force and the AERB Committee constituted post - Fukushima disaster have not so far been fully implemented by the AERB and other respondents.   It is admitted by AERB vide its communication dated 31.05.2013 addressed to the petitioner under the Right to Information Act that detailed study into the presence of volcano near Madras Atomic Power Station, Kalpakkam is in progress.   It is also admitted by the AERB that no Environmental Clearance with regard to storage of spent fuel in MAPS has ever been obtained by the respondent - authorities.   Obviously, unstoppable and unstorable nuclear waste would always have environmental impact.   It is saddening to note that without any Environmental Clearance, Madras Atomic Power Station (Units.I & II) is functioning for more than three decades.   The Supreme Court has in G.Sundarrajan Vs Union of India and others : (2013) 4 MLJ 46 (SC) held : "No plant specifically the one dealing with radioactive materials can be allowed to function or commission even if it has been cleared by AEC, AERB, NPCIL etc. unless it strictly conforms to the standards set by the statutory authorities like MoEF, TNPCB etc. and follow the environmental laws".  The failure of the respondents to make a fresh Environment Impact Assessment and obtain a fresh Environmental Clearance with regard to Madras Atomic Power Station, Kalpakkam Units I & II would be violative of Articles 14 and 21 of the Constitution.

11.     I state that I have no personal interest in the case.  I have earlier filed a couple of public interest litigations viz. WP No. 14866/2009 (M.Vetri Selvan Vs. Union of India and others: 2010 (4) CTC 465) and W.P. No. 19192 of 2010 decided on 16.11.2010.  I have also filed WP No. 8034/ 2011 decided on 01.04.2011 (Manivannan Vs. Union of India and others: 2011 (3) CTC 785).  I undertake to pay the costs, if any, if this PIL is found to be intended for personal gain or oblique motive.  I have filed this petition from my own funds.  To my knowledge, no PIL arising on the issue raised in this petition has been filed anywhere.  This public interest litigation is maintainable in law. The contents of this paragraph are in compliance with the Rules to regulate the Public Interest Litigations filed under Article 226 of the Constitution of India.

Solemnly affirmed at Chennai                                      Before me

this the 10th day of September 2013

and signed his name in my

presence.                        

:                                                             Advocate, Chennai

MEMORANDUM OF WRIT PETITION

UNDER ARTICLE 226 OF THE CONSTITUTION

In the High Court of Judicature at Madras

(Special Original Jurisdiction)

W.P. No.                       of 2013

M.Vetri Selvan

Advocate

1-P, Pandu klix Plaza,

330/168, Thambu Street,

Chennai - 600001                                                                       .. Petitioner

vs

1.  Union of India

represented by the Secretary to Govt. of India

Department of Atomic Energy

Anushakti Bhavan

Chatrapathi Shivaji Maharaj Marg

Mumbai 400 001

2. Union of India

represented by the Secretary to Govt.

Ministry of Environment and Forests

Paryavaran Bhawan

CGO Complex, Lodhi Road

New Delhi 110 003

3.The Chairman

Atomic Energy Regulatory Board

Niyamak Bhavan

Anushaktinagar

Mumbai  400 094   

4. The Chairman and Managing Director

Nuclear Power Corporation of India Limited

Nambhkiya Urja Bhavan

Anushakti Nagar

Mumbai  400 094

5.  The Member Secretary

Tamil Nadu Pollution Control Board

Guindy, Chennai  600 032                                                 ...Respondents

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION

1..      The address for service of the petitioner is that of his counsel M.Radhakrishnan, Advocate, 134, Thambu Chetty Street, Chennai. 600 001.

2..      The address for service on the respondent is as stated above.

3..      For the reasons stated in the accompanying affidavit, it is prayed that the Hon’ble Court be pleased to issue a WRIT OF MANDAMUS forbearing the respondents from running the Madras Atomic Power Station (Units I & II), Kalpakkam, Kanchipuram District without first obtaining Environmental Clearance with regard to MAPS in accordance with law,  and thus render justice.

Dated at Chennai, this the 10th day of September 2013

Counsel for the petitioner.

MEMORANDUM OF MISCELLANEOUS PETITION

UNDER ARTICLE 226 OF THE CONSTITUTION

In the High Court of Judicature at Madras

(Special Original Jurisdiction)

M.P. No.          of 2013

in

W.P. No.                       of 2013

M.Vetri Selvan

Advocate

1-P, Pandu klix Plaza,

330/168, Thambu Street,

Chennai - 600001                                                                       .. Petitioner

vs

1.  Union of India

represented by the Secretary to Govt. of India

Department of Atomic Energy

Anushakti Bhavan

Chatrapathi Shivaji Maharaj Marg

Mumbai 400 001

2. Union of India

represented by the Secretary to Govt.

Ministry of Environment and Forests

Paryavaran Bhawan

CGO Complex, Lodhi Road

New Delhi 110 003

3.The Chairman

Atomic Energy Regulatory Board

Niyamak Bhavan

Anushaktinagar

Mumbai  400 094   

4. The Chairman and Managing Director

Nuclear Power Corporation of India Limited

Nambhkiya Urja Bhavan

Anushakti Nagar

Mumbai  400 094

5.  The Member Secretary

Tamil Nadu Pollution Control Board

Guindy, Chennai  600 032                                                 ...Respondents

PETITION FOR INTERIM DIRECTION

UNDER ARTICLE 226 OF THE CONSTITUTION

          For the reasons stated in the affidavit filed in support of the Writ Petition it is prayed that the Hon'ble Court be pleased to grant an interim direction directing the respondents to take immediate steps for disposal of radioactive waste stored in and around Madras Atomic Power Station (Units I & II), Kalpakkam, Kanchipuram District as mandated by the Atomic Energy Regulatory Board vide its report dated 31 August 2011 pending disposal of the Writ Petition and thus render justice.

Dated at Chennai, this the 10th day of September 2013

Counsel for the petitioner. 

National Interest Trumps Human Safety - The Supreme Court's decision on Koodankulam fails to address concerns about nuclear energy.

The decision by the Supreme Court (SC) to allow commissioning of the Koodankulam nuclear power plants might have been expected but is still disappointing. The disappointment comes not from the decision in and of itself, but in the logic that has been used to justify it. Nevertheless, it is worth noting some good points in the judgment. While the Court’s decision has been widely seen as a blanket endorsement of the project, the Court laid down 15 directions as conditions to be fulfilled as part of operating the plant. Specifically, it has asked the Nuclear Power Corporation of India Limited (NPCIL), the Atomic Energy Regulatory Board (AERB), the Ministry of Environment and Forests, and the Tamil Nadu Pollution Control Board to file a report pertaining to safety and environmental impact before commissioning the reactor. The Court also called for the withdrawal of all criminal cases filed against those protesting the plant, albeit in a guarded fashion. The Court directed NPCIL, AERB and the government to take steps “at the earliest” to comply with all the 17 recommendations made by the AERB following the Fukushima accidents.

However, even in the case of good points made by the Court, it has not been forceful in insisting on these. For example, it points out that to deal with radioactive nuclear waste, “NPCIL does not seem to have a long term plan, other than, stating and hoping that in the near future, it would establish a DGR (Deep Geologic Repository)”. Its directive that “DGR has to be set up at the earliest” does not specify a date nor make it a necessary condition before NPCIL embarks on new nuclear reactor construction.

In doing so, the SC is forgetting its own history, in particular, the first prominent legal challenge involving nuclear power that it came to examine. This case concerned the Kaiga nuclear reactors and resulted from a public interest litigation case filed in 1990 by the Samaj Parivartana Samudaya, a grassroots group from Dharwad. On 7 May 1993, the SC directed the central government, that is, the Department of Atomic Energy (DAE), to “take cognizance of...the petitions submitted on the question of re-siting the Kaiga plant”. In legal terms, this was a victory for the movement challenging the Kaiga plant, but in practical terms it meant little – the DAE simply maintained that they had taken into account the concerns of the petitioners and continued building the reactors. The Court ought to have been far more specific this time around, but failed to do so.

The SC’s uncritical reliance on the opinions of the nuclear establishment and its complete disregard of the absence of public trust in the regulatory agency is the more serious problem with the judgment. It quotes extensively from AERB documents, especially safety codes, yet overlooks the fact that AERB and NPCIL do not often follow their own safety rules. The most pertinent example is that of Koodankulam itself, when AERB allowed the loading of fuel into the reactors even though NPCIL had not complied with its safety recommendations following the Fukushima nuclear accidents.

The Court did not even acknowledge, let alone examine, the questions surrounding the independence and effectiveness of the AERB, and instead claimed that the AERB has been “regulating the nuclear and radiation facilities in the country very effectively”. Last year, the Comptroller and Auditor General (CAG) pointed out that AERB “continued to be...an authority subordinate to the central government”, putting a big question mark over its independence as a regulator. Its actions in the case of Koodankulam, unfortunately, do not enhance the credibility of the AERB. The Court claims that the AERB “has, over the years, issued a large number of codes, standards and guides”, while the CAG pointed out that the AERB had failed to prepare “a radiation safety policy even after three decades of its existence”.

The Court’s decision is also disturbing because it casually makes various assertions that are not just debatable but are the very reasons that the petitioners appealed to the judiciary in the first place. For example, the Court states “nuclear energy…is a clean, safe, reliable and competitive energy source”. In contrast, the petition by G Sundararajan that the Court was examining starts with characterising nuclear power as “the most dangerous means of producing energy with a serious potential for catastrophic accidents causing severe damage to life and property, with cost of reparation running into lakhs of crores of rupees”. Given this starting point, it is surprising that the Court’s judgment blandly accepts nuclear energy as “safe” without any reasoned justification.

Safety concerns remain paramount in the minds of the citizens living in the vicinity of Koodankulam. These have not been adequately acknowledged by the Court, which did not even see fit to mention the problems with valves that the AERB disclosed, or the news reports of corruption in supplier companies in Russia. The Court’s call to “educate the people” smacks of condescension, which is anachronistic for a democracy and inexplicable when seen in the context of this well-informed and widely-participated movement against the Koodankulam reactors.

The 6 May decision represents yet another judgment when a narrow notion of national interest has been used to quash genuine and justified public concerns. But this should not be surprising in light of an earlier decision by the SC in 2004, where it ruled that information relating to nuclear installations not be made public due to national security reasons. As with the earlier decisions on Bhopal and Narmada, it will lead to further erosion of trust in the justice system among the citizenry. Is there any surprise that the grass-roots groups have vowed to continue their protests against Koodankulam?

-Editorial Article of Economic Political Weekly,

dated May 18, 2013 

To read the full judgment click here.

PIL filed to revoke Cr.P.C. 144 order at Koodankulam

In the High Court of Judicature at Madras

(Special Original Jurisdiction)

W.P. No. 7520 of 2012

P.Pugalenthi,  

Advocate

No.5, 4^th Floor,

Sunkurama Street,

Chennai.600 001                                                              .. Petitioner

Vs

1)   State of Tamil Nadu

represented by the

Chief Secretary to Government,

Secretariat,

Chennai.600 009

2)   The District Collector,

Tirunelveli District

Tirunelveli.

AFFIDAVIT

          I, P.Pugalenthi, S/o  Pandian, aged about 36 years, residing at No.97, Bangaru Street, Ellis Road, Anna Salai, Chennai.2,    do hereby on solemn affirmation, state as under:

1.. I am the petitioner herein.  I am conversant with the facts of the case.  I am competent to file this affidavit.

2..      I submit that I am an advocate having a standing of about 10 years.    I am also  the Director of the Prisoners Rights Forum, Chennai which is a registered public trust  (Regn. No.4319/2008).   I am the Secretary of Tamil Nadu Peoples Rights Forum which is a human rights organization. I have initiated a number of Public Interest Litigations before the Hon’ble Court concerning enforcement of human rights, fundamental rights and Constitutional rights of the citizens as well as the foreigners.   In the Writ Petitions filed by me in public interest , the Hon’ble High Court has been pleased to pass several orders directing the State to discharge its public duty in tune with the command of the Constitution.  To cite an instance, when a woman prisoner was tortured in Vellore Central Prison, I rushed to the Hon’ble Court with  a Writ Petition for the purpose of enforcement of her rights under Article 21 of the Constitution and the Hon’ble High Court was pleased to award the woman prisoner a compensation of Rs.50,000/- for the injuries suffered by her at the hands of prison officials and was also appreciative of my efforts to bring to light the ghastly incident which had taken place inside Vellore Prison.

3.    I state that “The Hindu”  dated 20 March 2012 reported that a prohibitory order under Section 144 C. P.C. was clamped on Radhapuram Taluk, Tirunelveli District.  Radhapuram Taluk comprises about 50 villages.  According to the press reports the prohibitory order would remain in force until 2^nd April 2012.   The order was passed by respondent No.2 only with a view to preventing the villagers of the entire Radhapuram Taluk from moving from one place to another.   In other words, thousands of people residing in those villages of Radhapuram taluk have been virtually under house arrest since yesterday.   Hence this Writ Petition in public interest for a direction to the State of Tamil Nadu to immediately lift the prohibitory order passed under section 144 Cr. P.C. and allow the people of Radhapuram Taluk to move freely on the following amongst other grounds.  

GROUND

a)       It is submitted that the “Wise Indian Chief of Seattle” (USA) once replied to the “Great Wise Chief in Washington” when he offered to buy the land of native Red Indians. “Every part of the earth is sacred to my people, every shiny pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people.  The sap which courses through the trees carries the memories of the red man.”  The people of almost 50 villages of Radhapuram Taluk have today lost their villages, lost their land, and lost every amenities of life because they are made incapacitated to move from one place to another.   It is no exaggeration to say that Radhapuram Taluk has gone out of the map of India today.    One would recall the colonial days when people were not allowed to move freely and were treated like slaves at the command of the State.  The press reports and visual media reports appearing today are an indication that the women folk and the children are afraid of the huge police force deployed in and around Idinthakarai village and they are unable to go even to buy Milk.  Their day today life is in danger.  They are scared of the police personnel numbering more than 5000.   The respondent – State of Tamil Nadu has no justification whatsoever to deploy large number of police personnel in and around the villages of Radhapuram Taluk.  The Supreme Court has in Gulam Abbas and others vs State of UP and others : AIR 1981 SC 2198 held :

“The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions, and annoyances with a view to secure the secure the public weal by maintaining public peace and tranquility. Preservation of public peace and tranquility is the primary function of the government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the executive magistrate to override temporarily private rights and in a given situation the power must extend to restraining individual from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private interest the former must prevail.”

Here, in the case of Radhapuram Taluk, respondent No.2 has, in the guise of exercising his powers for maintaining public peace and tranquility, deprived the people of Radhapuram Taluk of their basic and most valuable fundamental right to move freely from one place to another.   Under Section 144 Cr. P.C., private rights of the people can be curtailed by the executive magistrate, certainly not fundamental rights of the people.   Preventing people from moving from one place to another can never fall within the realm of reasonable restriction.   When an authority of the State prevents a person from moving from one place to another the authority concerned  is virtually arresting that person and does not allow him to move for no fault of his.   All the people of Radhapuram Taluk are today under house arrest by virtue of a single order by respondent No.2 passed under Section 144 Cr. P.C.    No material whatsoever was disclosed by the respondent – State of Tamil Nadu to the people of Radhapuram Taluk explaining the necessity of imposing this unreasonable restriction on the people’s movement from one’s house from other places.    Since the prohibitory order under Section 144 Cr.P.C. operative today in the entire territory of Radhapuram Taluk is in gross violation of Article 21 of the Constitution, the order cannot be allowed to stand even for a moment and deserves to be declared by the Hon’ble Court to be null and void.

b) It is submitted that more than 3000 people, largely women who are participants in the protest against commissioning of Koodankulam Nuclear Power Plant in Idinthakarai village including the children who came to meet their parents near the place of protest have no option but to remain in the place of protest without food and other basic amenities.   Admittedly the protest which is alleged to be posing a threat to public peace and tranquility is a non-violent protest.   No untoward incident whatsoever has so far been reported from any corner.   The protest has been going on for months together.   Even the Chief Minister of Tamil Nadu was pleased to meet the representatives of the protestors including Advocate Sivasubramaniam, now arrested  on charges of sedition, not long ago and considered their legitimate grievance against the dangers of nuclear power plant.   Respondent No.2, who has now exercised his powers under Section 144 Cr. P.C. never found that the protestors were ever the cause of any unrest in the society.   There is no reason whatsoever why a prohibitory order under Section 144 Cr. P.C. should have been clamped on the entire Radhapuram Taluk. Instead of giving adequate protection to the people living in about 50 villages of Radhapuram Taluk, and instead of allowing them to enjoy their fundamental rights guaranteed under the constitution the respondent- State of Tamil Nadu has made them prisoners.  Therefore, the prohibitory order under Section 144 Cr. P.C. deserves to be declared null and void.

c)       It is submitted that until the conclusion of Sankarankoil bye-election on 18.03.2011, the respondent – State of Tamil Nadu remained satisfied that Radhapuram Taluk is a peaceful place.    The moment the bye-election was over, the respondent – State of Tamil Nadu came to a conclusion that there was no public peace nor was there tranquility in the entire Radhapuram Taluk and that therefore the people of Radhapuram Taluk should be imprisoned in the place where they are and should not be allowed to move from one place to another.   All of a sudden, the entire Radhapuram Taluk became a place of riot and chaos in the opinion of the law enforcement authorities.  The only report that was made available to the people of Tamil Nadu by the State Government is that the commissioning of Koodankulam nuclear power plant may go on in view of the report of the Expert Committee headed by Dr.Iniyan. Nowhere the respondent – State of Tamil Nadu has taken a stand that there has been unrest in Radhapuram Taluk for quite some time and that therefore a large contingent of police personnel would be posted near Idinthakarai village.    In the absence of any decision based on relevant materials, deployment of about 5000 armed police and para-military personnel near Idinthakarai village and prevention of the people of the entire Radhapuram Taluk to move from one place to another and continuance of such deployment of armed police personnel in the said place without any threat perception in the locality, would be not only unjust, unfair and unreasonable and would be violative of Articles 14, 19 and 21 of the Constitution. 

d)       It is submitted that the respondent – State of Tamil Nadu uses tax payers’ money and deploys large contingents of police personnel only with a view to curtailing the fundamental rights of the people who are the masters of the state.   There is no difference between a foreigner ruling the country with the funds of the natives and the police personnel ruling the country who are paid by the people for whom they exist.   In the event of the police personnel being allowed to take law into their own hands and to put all kinds of restrictions on the exercise of the basic fundamental right to move freely from one place to another, the day would not be far off where the constitutional machinery would totally fail in the state of Tamil Nadu.    In the circumstances, the prohibitory order under Section 144 Cr. P.C. deserves to be declared by the Hon’ble Court, void.

e)       It is submitted that it is learnt from the press persons stationed in Idinthakarai village that all mediapersons have been instructed by the police not to move beyond A.V.Thomas Mandapam which is about 4 Km away from Idinthakarai where the protest against Koodankulam Nuclear Power Project is going on.   The protestors, largely women, who have been on this peaceful and non-violent protest for more than six months are today not allowed to move freely from the place of protest to their residence and come back to continue their protest. No power in the state however great it may be can curtail the fundamental right of the people to speech and expression.    By not allowing the protestors and the people to move from one place to another, the respondent – State of Tamil Nadu has made them deaf and dumb.   A country which boasts of a great democratic constitution in the world is now under the shackles of ‘near-dictatorship’.    No expression would be adequate to describe the state of affairs of Radhapuram Taluk where thousands of people residing in about 50 villages are made to live like slaves. Depravation of one’s fundamental rights to speech and expression and to live with human dignity can never be compensated by any remedial action of the State.  Once freedom is lost, it is lost forever.  The Hon’ble Court being the custodian of the Constitution would be pleased to declare that  a wholesale prohibitory order like the one clamped on Radhapuram Taluk, Tirunelveli District, Tamil Nadu would be violative of all canons of democratic polity and would ring a death knell to democracy in the country.  

4.       I state that I have not filed any other petition in the Hon'ble Court or in any other Court regarding the subject matter of this Writ Petition.

5.  I state that I have no personal interest in the case.     I have earlier filed  many public interest litigations in the Hon’ble Court.   One such Public Interest Litigation relating to public employment is WP No.110/2010 challenging the decision of the Government of Tamil Nadu in G.O. Ms. No. 170 dated 18.12.2009 to fill up the vacancies for various posts by appointing retired government servants and those retiring from quasi government organisations on contract basis.  Pursuant to the said public interest litigation, the Government of Tamil Nadu issued a fresh G.O. viz. G.O. Ms. No.15 dated 03.02.2010 to the effect that the contract of retired persons already appointed 

would be terminated on the availability of eligible persons and the Hon’ble Court disposed of the said W.P. on 30.03.2010.     I undertake to pay the costs, if any, if this PIL is found to be intended for personal gain or oblique motive.  I have filed this petition from my own funds.    To my knowledge, no PIL arising on the issue raised in this petition has been filed anywhere.   This public interest litigation is maintainable in law. The contents of this paragraph are in compliance with the Rules to regulate the Public Interest Litigations filed under Article 226 of the Constitution of India.

Solemnly affirmed at Chennai                                             Before me

this the 21^st March 2012

and signed his name in my presence.      

Advocate, Chennai

In the High Court of Judicature at Madras

(Special Original Jurisdiction)

W.P. No. 7520 of 2012

P.Pugalenthi,  

Advocate,

No.5, 4^th Floor,

Sunkurama Street,

Chennai.600 001                                                              .. Petitioner

Vs

1)   State of Tamil Nadu

represented by the

Chief Secretary to Government,

Secretariat,

Chennai.600 009

2)   The District Collector,

Tirunelveli District

Tirunelveli.

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION

1..      The address for service of the petitioner is that of his counsel M.Radhakrishnan, Advocate, 134, Thambu Chetty Street, Chennai. 600 001.

2..      The address for service on the respondent is as stated above.

3..      For the reasons stated in the accompanying affidavit, it is prayed that the Hon’ble Court be pleased to issue a WRIT OF DECLARATION that the action of respondent No.2 of clamping an order under Section 144 Cr. P.C. on the entire Radhapuram Taluk, Tirunelveli District  which is in force till April 2, 2012 is null and void, and thus render justice.

Dated at Chennai this the  21^st day of March 2012

                                                                             Counsel for the petitioner

In the High Court of Judicature at Madras

(Special Original Jurisdiction)

M.P. No. 1 of 2012

in   

W.P. No.  7520 of 2012

P.Pugalenthi,  

Advocate,

No.5, 4^th Floor,

Sunkurama Street,

Chennai.600 001                                                              .. Petitioner

Vs

1)   State of Tamil Nadu

represented by the

Chief Secretary to Government,

Secretariat,

Chennai.600 009

2)   The District Collector,

Tirunelveli District

Tirunelveli.

PETITION OF DIRECTION UNDER ARTICLE 226 OF THE CONSTITUTION

1..      The address for service of the petitioner is that of his counsel M.Radhakrishnan, Advocate, 134, Thambu Chetty Street, Chennai. 600 001.

2..      The address for service on the respondent is as stated above.

3..      For the reasons stated in affidavit filed in support of the Writ Petition, it is prayed that the Hon’ble Court be pleased to grant an interim direction directing the respondents to give adequate protection to all the people of Radhapuram Taluk including the protestors against Koodankulam Nuclear Power Plant at Idinthakarai Village, Tirunelveli District and all other citizens to move freely pending disposal of the writ petition, and thus render justice. 

Dated at Chennai this the  21^st day of March 2012

                                                                             Counsel for the petitioner 

The Nuclear Safety Question

Hearing a recent PIL against India’s current nuclear policy and the need for an independent nuclear regulator, the Supreme Court wanted to know about a few examples of an independent regulatory mechanism. Top nuclear expert A Gopalakrishnan presents the French , the Canadian, and the U.S.models

Nuclear safety regulator: The US model

 Background: 

The Indian government intends to replace the Atomic Energy Regulatory Board with a newly proposed Nuclear Safety Regulatory Authority to strengthen the administration of nuclear safety. The NSRA Bill, 2011, was introduced on September 7 and is currently before the Parliamentary Committee on Science & Technology. In the meantime, while hearing a public interest litigation on nuclear issues on December 5, Chief Justice SH Kapadia is reported to have said, ‘Have a public debate. Come out with a concrete solution till Parliament considers the (NSRA) Bill and suggest a regulatory model or a framework and then we can consider.’ (The Hindu, December 5) Adjourning the case for a month, the court told the petitioners they could suggest some regulatory models independent of the government, adopted in countries like the US, France, the UK and Canada, which it would then ‘recommend’ to the government. (Indian Express, December 6) For an informed debate to be conducted, one needs to first place before the Indian public certain salient aspects of the nuclear regulatory structures in some advanced countries that rely heavily on nuclear power.

This article is the first in a series that I intend to publish to initiate a public understanding and debate of the kind the Hon’ble Chief Justice of India suggested on foreign nuclear regulatory frameworks. In preparing this article , I must acknowledge that I have directly used substantial portions of existing factual reports from the Organisation for Economic Cooperation and Development document (2008) on ‘Nuclear Legislation in OECD Countries: United States’, as well as from the website of the US Nuclear Regulatory Commission. This had to be done to keep the contents totally factual in every detail, without inadvertent distortions coming in while paraphrasing them in my own language.

The US Nuclear Regulatory Commission

 Formation and Responsibilities:

In the US, until 1974, the Atomic Energy Commission served as the umbrella agency charged with responsibility for all civilian and military projects on atomic energy. That year, the AEC was abolished and the regulatory responsibilities of the erstwhile AEC were assumed by the Nuclear Regulatory Commission.

The NRC’s primary responsibilities include ensuring that the use of nuclear materials and facilities is consistent with the protection of public health and safety, the common defence and security of the US and protecting the environment. The NRC acts through setting standards and rule making, technical reviews and studies, issuance of licences, permits and authorisations, inspection and investigations, evaluating operating experience and undertaking confirmatory research. NRC maintains an active inspection and enforcement program, and it investigates violations and initiates enforcement proceedings. The NRC can seek judicial remedies like injunctions and can assess fines and penalties. The violation of some NRC regulations can also result in criminal prosecution. Lastly, the NRC is authorised to investigate the causes of major nuclear incidents and accidents and report their findings to the US Congress. 

NRC Organisational Structure:

The NRC was created under the Energy Reorganisation Act, 1974, as an organisation that exercises considerable independence in nuclear regulatory matters. NRC has five commissioners, of whom no more than three may be members of the same political party. The US president, with the Senate’s advice and consent, appoints the commissioners, who must be US citizens. Each commissioner serves for five years and, during that time, may not engage in any other business or vocation. The president appoints one of the NRC’s commissioners as chairperson, who acts as the principal executive officer and the official spokesman of the commission. The president may remove a commissioner only for neglect of duty, inefficiency or malfeasance in office, and the Senate has to ratify this action.

In contrast to the above, the Indian Nuclear Safety Regulatory Authority Bill proposes that the chairperson and members of the NSRA shall be finalised by a Council of Nuclear Safety, under the prime minister’s chairmanship, and they are appointed by the government for an initial three-year period. Furthermore, the chairperson and NSRA members can be removed from office by the government, even for trivial reasons. As per the Bill, there is no requirement to inform the Parliament or get approval for their appointment or removal.

The NRC chairperson is responsible for preparing policy planning and guidance for commission consideration, and for conducting the administrative, organisational, budgetary, and certain personnel functions of the NRC. Each commissioner has equal authority and responsibility in decision-making. For the NRC to act, a majority of members present must concur, with a minimum of three commissioners needed for a quorum. A few senior officials and offices also report either directly to the chairperson or to the commission. 

The NRC Office of New Reactors is one such office which is of special relevance to India in today’s context, with the Government of India embarking on importing first-of-a kind foreign nuclear reactors, without involving the AERB to even cursorily examine the safety of such reactors

.
NRC Office of New Reactors:

The NRO was formed in 2006, to take the responsibility to ensure the safety of any new nuclear reactor facility, of US or foreign design, even before a licence application is entertained to build the first of its kind on US soil. For such reactor installations, the NRO is responsible for pre-evaluations and regulatory activities in the areas of sitting, licensing and oversight to protect public health, safety and the environment. One of the first steps in this NRC evaluation is a ‘design certification’ for approval of a standard nuclear power plant design of that type, independent of a specific site approval application or an application to construct or operate a plant. The design certification application to the NRC from the reactor manufacturer will have to include details similar to what is normally expected in a final safety analysis report for an established reactor type. The application to the NRC from the manufacturer must also include a detailed probabilistic risk analysis and an evaluation of design alternatives to mitigate the impact of severe accidents.

AREVA, the French developer of the European Pressurised Reactor, has been wanting to sell four of their EPRs to US utilities for some time now, but they are still waiting for the NRC to complete a design certification of the EPR for building it in the US, even though Finland, France and China are in different stages of constructing EPRs. The NRC is not expected to finish their certification before end-2012, and only thereafter can the licensing procedure for building an EPR at a specific US site can start.

In stark contrast to the above, our prime minister has in 2007-08 itself taken a unilateral political decision to buy six EPRs for the Jaitapur site, purely as a quid pro quo for the French government’s help in facilitating the India-US nuclear deal. The Atomic Energy Regulatory Board was never informed or consulted, and no safety evaluation was done by them or the Department of Atomic Energy. The PM and his government have shown scant regard for public safety in taking this decision.

NRC Advisory Committee on Reactor Safeguards:

The ACRS is NRC’s only statutory advisory committee, constituted under the 1972 US Federal Advisory Committee Act. It is mandatory under the FACA that the membership of any federal advisory committee is fairly balanced in terms of the points of view represented and the functions to be performed by that committee. The Act further requires that the Rules under which the ACRS or any such committee is formed ‘contain appropriate provisions to assure that the advice and recommendations of the committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.’ The ACRS, accordingly constituted, has a maximum of 15 members with expertise in scientific and engineering disciplines, and it provides advice on potential hazards of proposed or existing reactor facilities, the adequacy of proposed safety standards and such other matters that the NRC may request. It is important to note that most of the ACRS deliberations are totally open to the public and any member of the public may request an opportunity to make an oral statement during the committee meeting. I don’t think I will live long enough to see something like this happening in India.

Unfortunately, in India we do not have a legislation similar to the US Federal Advisory Committee Act. Therefore, our government gets away by forming totally biased committees and commissions in very crucial areas involving public safety. The Atomic Energy Commission of India is a classic example, manned by few designated senior secretaries of the central government who are under instructions from the Prime Minister’s Office to support his views, and a set of pliable and unethical nuclear scientists who are more than willing to raise their hand in support , in return for a Padma Vibhushan, a continuing pay cheque well beyond their normal retirement age, or the award of a well-paying Bhabha Professorship or a Ramanna Fellowship which is within the powers of the DAE to grant. Thus, we have the AEC going along with illogical and often unsafe decisions like the import of untested foreign reactors from France and the US, without even squirming about not evaluating their absolute need or safety. Similarly, we have almost all AERB Advisory Committees stacked with vast majority of Ex-DAE personnel, who all jointly skew their opinion mostly in the DAE’s favour.

NRC’s Transparent Functioning:

The US Nuclear Regulatory Commission, as part of its value system and principles of good regulation, believes that public involvement in, and information about, NRC activities are the cornerstones of strong and fair safety regulation. Consistent with that belief, the NRC provides ample opportunities for the public to participate meaningfully in NRC’s decision-making process. NRC strongly considers that nuclear safety regulation is the public’s business, and it must be transacted publicly and candidly.

Commission meetings are usually held with the NRC staff and/or outside parties to discuss issues for action. Members of the public are welcome to attend and observe these public Commission meetings held at the NRC headquarters. Unofficial transcripts are produced for each public meeting and are made available on the NRC website for public viewing, two days after each meeting. There are vast numbers of current NRC records like action memoranda, commission voting record on each issue, meeting slides, transcripts, etc uploaded on the NRC website, which the public can access. There are several public hearings in a year, dates of which are announced in advance, and the public are welcome to attend them.

One can go on describing many more of NRC’s transparency and public outreach activities, for which procedures and rules are well laid out and announced. In contrast, the AERB in India keeps all its documents, meeting records, etc confidential by citing the Official Secrets Act. AERB hardly ever organises a press conference or conducts a public hearing. Let us not forget that the Americans too have a stringent Official Secrets Act, and the NRC interactions and openness described above take place despite that. The NRC does not see openness in safety regulation as conflicting with the US secrecy laws in any way. In India, we have indeed a very long way to go in this regard.

At the December 5 hearing of the PIL against the current nuclear policy or the lack of it and the need for an ‘independent’ nuclear regulator, the Supreme Court bench is reported to have remarked, ‘We want to know what mechanism for independent regulation there is’, ‘please show us one or two examples of an independent regulatory mechanism’, and ‘what is the nature of independence you are seeking? Please produce before us the model.’ (LiveMint.com) .

Through this article containing some of the highlights of the US Nuclear Regulatory Commission’s operational philosophy and procedures, I hope I have provided some insight into a nuclear regulatory organisation that is truly independent from the government. One can argue that India cannot have a regulator like the US NRC overnight, by passing a new law, but certainly we must strive to reach that level of independence at least in a decade from now. That will be impossible unless we now put in place an NSRA Act that will enable the system to move steadily and systematically towards meeting that objective.

The success of French nuclear safety regulation

 Background

The French nuclear safety regulatory practice is one of the best in the Western world. A distinguishing feature of the French regulation is the legislative emphasis in the associated Act under which transparency and public communication are institutionalised through structured clauses, rules and procedures specifically created for this purpose.

France has 58 nuclear reactors, situated in 19 sites, generating almost 80% of the country’s total electricity production. Their nuclear power program, started in 1970, has a remarkable safety record and their regulatory agency enjoys wide public acceptance in the country and in Europe, mainly because it is lauded as truly independent and transparent. This article highlights just a few salient aspects of this success story, which provide a stark contrast to their parallels in India.

In preparing this article, I must acknowledge that I have directly used substantial portions from existing documents, including a 2011 report from the Organisation for Economic Cooperation and Development titled ‘Nuclear Legislation in OECD Countries : France’, as well as from the publications of the French government, the French Nuclear Safety Authority, and the International Atomic Energy Agency. This was done to keep the contents totally factual in every detail, without inadvertent distortions coming in while paraphrasing them in my own language.

TSN Act (2006) and the Nuclear Safety Authority (ASN)

Independence of the ASN:

The first nuclear regulatory authority in France was created in 1973 as a department of the industry ministry. In 1991, it became a division of the same ministry, but became increasingly answerable to the environment ministry as well. In 2002, through a presidential decree, the Directorate General for Nuclear Safety & Radiation Protection was created, reporting to both the industry and environment ministries and with responsibilities for both nuclear and radiation safety. Then, on June 13, 2006, the French parliament adopted, and the president promulgated, the Act on Transparency and Security in the Nuclear Field (TSN Act, 2006).

Under this act the Nuclear Safety Authority was established as an independent entity, not answerable to the government’s ministers but as part of the French state, answering to the French parliament. This ensures the ASN’s effective independence from any governmental structure charged with the promotion of nuclear energy.

The ASN board has five members appointed by decree on account of their competence in the field of nuclear safety and radiation protection. Three members, including the chairman, are appointed by the president of the republic. Two others are appointed respectively by the president of the National Assembly and the president of the senate. The tenure of the members is for six years.

The effective independence of the nuclear regulatory body continues to represent a significant challenge for countries like India. The mere act of administratively separating the regulator totally from agencies that promote the setting up and operation of nuclear facilities is only part of the solution. What is important is that regulators have to be able to work without pressure from the promoters of nuclear energy. The effective independence of a regulatory body needs to be both de facto and de jure. The regulator should not be subject to political or corporate influence, pressure or indirect threats. Unfortunately, the Nuclear Safety Regulatory Authority Bill, 2011, currently in Parliament, violates this dictum in many ways.

Outside Technical Support to the ASN

In some countries like the US, regulatory bodies are rather large and self-sufficient in technical staff. In France, however, the ASN is a relatively compact organisation and they need the help of Technical Support Organisations to carry out the comprehensive and wide-ranging technical evaluations that are required in the course of its work. ASN primarily seeks this support from the Institute for Radiation Protection and Nuclear Safety, which is a state-owned establishment working under the joint authority of the ministers of defence, environment, industry, research and health. The IRSN employs about 1650 persons, 1000 of whom are graduates. They provide their research and consultancy services not just to the ASN, but also to other governmental organisations and industry, including even ASN’s licensees like EDF & AREVA. These services span areas like nuclear safety, radiation protection, security of nuclear installations, and security of radioactive and fissile materials during transport against malicious acts, etc.

Under these circumstances, various steps have been taken to ensure that there is no potential conflict of interest in IRSN providing technical support to both ASN and the nuclear industry at the same time. To meet this objective, a detailed memorandum of understanding has been signed between the ASN & IRSN, which represents a code of conduct governing their relationship, under which the IRSN has agreed not to take up any technical support activity for any ASN Licensee, other than purely generic research assignments. IRSN has also set up ‘firewalls’ within their organisation, so that their employees who support the regulatory technical tasks from ASN are never employed at any time to assist in a support job for nuclear industry or other parts of government . Recently, about 400 of the IRSN staff were working full time for ASN on regulatory tasks and 50 ASN staff were seconded to IRSN to participate in related research tasks.

In India also, the nuclear regulator (AERB) does not have the comprehensive scientific and technological capabilities or in-depth experience required to carry out much of the safety analyses and evaluations needed. Therefore, almost 95% of the members in AERB’s review and advisory committees are drawn from among retired employees of the Department of Atomic Energy, either from one of their research institutes like the Bhabha Atomic Research Center or a power generation company like the Nuclear Power Corporation of India Ltd. Having worked for 30 to 40 years in the Department of Atomic Energy (DAE) organisations before retiring, and continually enjoying all the retirement benefits from the DAE, including family medical support in their old age, the loyalty of most such review committee members is likely to be with the DAE and rarely can one expect impartial regulatory reviews from them. And yet , there are very few non-DAE national experts in nuclear engineering within the country, because the DAE has been systematically discouraging the higher institutes of engineering in India from starting and expanding post-graduate programs in nuclear engineering. While we wait to get this done over the next decade or more, we must insist that AERB elicits the help of ex-DAE personnel under a strict contract of service and code of ethics which minimise the chances of conflict of interest, somewhat akin to the formal understanding under which the French ASN and the IRSN co-operate.

French Council for Nuclear Policy (CPN)

France established the Council for Nuclear Policy in April 2008, to lay down the broad courses of action concerning nuclear policy and to ensure their implementation in the area of exports and international co-operation, industrial and energy policy, and policies for research, security, safety and environmental protection. Chaired by the French president, the council has 12 members: the prime minister, the ministers of energy, economy, industry, external trade, research and finance, as well as the ministers for foreign affairs and defence, the army chief of staff, the secretary general for defence & national security, and the head of the Atomic Energy Commission. If the chairperson desires, the CPN may also hear submissions from qualified eminent persons and top industrialists in the nuclear sector.

Among other matters, the French CPN is able to discuss overall nuclear power policy within the context of the country’s overall energy policy and electricity requirements. The council is powerful enough and has all the concerned senior politicians and their advisers as members, and they are able to take major overall decisions on nuclear power, and concurrently review the safety implications of those decisions. The current Nuclear Safety Regulatory Authority Bill, however, suggests the formation of a Council of Nuclear Safety, ostensibly to show emphasis on safety, but in reality for serving the narrow interest of creating a NSRA Board to the government’s liking and to keep a strict control over it. While the country has no agreed overall nuclear power policy or a rational and justifiable reactor import strategy, this anxiety to create a Council of Nuclear Safety does not make sense. Like the French, what India needs is a cabinet-level Council for Nuclear Policy. As in France, this council can indeed oversee nuclear safety as well, without in any way exerting direct administrative control over the NSRA.

ASN’s Public Outreach and Transparency

A detailed Title- III of the French TSN Act 2006 is on ‘Information of the Public as Regards Nuclear Safety’. Under that, Article 18 says ‘The State is responsible for informing the public about the procedures and results of the surveillance of nuclear safety and protection.’ Article 19-I states ‘Any person is entitled to obtain from the licensee of a basic nuclear installation — the information held — on the risks related to ionising radiations that can result from this activity and on the safety and radiation protection measures taken to prevent or reduce these risks or exposure —.’ And, Article 19-II states, ‘Pursuant to this Article, disputes relative to refusals to communicate information are brought before the administrative court in accordance with the procedures set forth —.’

What is unique about the French nuclear law is that it spells out in detail the instruments & procedures through which this openness is to be fully implemented. It does not leave any wriggle room for the nuclear operator or for the government to evade this responsibility. Thus, Article 22 is a step-by-step legislative recipe to form Local Information Committees (LICs) in the neighbourhood of each and every nuclear facility site, with wide-ranging membership of officials of local self government, local members of parliament and state assemblies, local economic & commercial interest groups, local trade union representatives, local medical doctors and environmentalists, etc.

Each committee will have to be formed by the equivalent of our district magistrate or his senior representative, while the ASN representative, the representatives of the facility licensee and the state services involved shall attend in advisory capacity. In pursuit of its mission, the LIC can have assistance of consultancy services, to get epidemiological studies done or to have any measurements or analysis of the environment made. All LIC expenditures will be met by the state or territorial authorities of the region. All relevant safety-related information sought by the LIC will have to be provided, within a stipulated time, by the nuclear facility management.

Article- 23 of the Act has created at the national level a High Committee for Transparency and Information on Nuclear Security, as an autonomous body. This committee may be called upon to examine any matter relating to information concerned with nuclear safety and its control, by the ministries responsible for nuclear safety, the chairpersons of parliamentary committees, chairpersons of any LIC, or the operators of major nuclear installations. The opinions and the Annual Report of the High Committee are made public. Persons responsible for and promoting nuclear activities, the Nuclear Safety Authority and other government departments have to furnish all information and answers sought by this Committee.

Lessons from Canada on nuclear safety

Background

About 15% of Canada’s electricity comes from nuclear power, with 18 operating power reactors in three provinces providing over 12,600 MWe of power capacity. Besides these, there are eight research reactors, two at the Chalk River Laboratories of the Atomic Energy Canada Limited, a public sector corporation owned by the Canadian government, and the remaining six in various universities. All these reactors are owned by the government.

Since May 2000, Canada’s Nuclear Safety and Control Act (hereinafter called the ‘Act’) has been in force as the applicable nuclear safety regulatory legislation. This comprehensive law replaced the erstwhile Atomic Energy Control Act, first adopted in 1946, as the means by which the Canadian nuclear industry is regulated. The Act establishes the Canadian Nuclear Safety Commission (hereinafter called ‘CNSC’), replacing the erstwhile Atomic Energy Control Board (AECB) as the regulatory body, clearly distinguishing the regulatory role of the CNSC from that of AECL, which is a federal R&D and marketing organisation.

In writing this article, I must acknowledge that I have directly used substantial portions from existing documents, including a 2009 report from the Organisation for Economic Cooperation and Development titled ‘Nuclear Legislation in OECD Countries: Canada’, as well as direct quotes from the publications and websites of the IAEA, CNSC and AECB. This was done to keep the contents totally factual in every detail, without inadvertent distortions coming in while paraphrasing them in my own language.

Structure and Independence of CNSC 

The CNSC is an independent federal government agency, and consists of two components: a commission tribunal and a staff organisation. The Commission tribunal has the responsibility 1. to establish regulatory policies on matters relating to health, safety, security and environment, 2. make legally binding regulations, and 3. make decisions based on laws and regulations. The staff organisation has technical experts in various disciplines of nuclear safety and control. Both components of CNSC report to the president and chief executive officer of the CNSC. The CNSC, in turn, reports to the Canadian Parliament, through the minister of natural resources in the Cabinet.

Section 8(2) of the Act states that the commission ‘is for all purposes an agent of Her Majesty the Queen and may exercise its powers only as an agent of Her Majesty. The commission consists of not more than seven permanent members to be appointed by the governor ‘in Council’ (hereinafter meaning the governor, on the advice of Cabinet), and he designates one of the permanent members as president & CEO of the CNSC. Section 10(5) of the Act states that each permanent member holds office during good behavior for a term not exceeding five years and may be removed at any time by the governor, on the advice of the Cabinet, for cause.

Section 19 of the Act allows the governor in council may, by order, issue to the commission directives of general application on broad policy matters with respect to the objectives of the CNSC and these orders are binding on the commission. A copy of all such orders shall be published in the Canadian gazette and laid before both houses of Parliament. Interestingly, though the CNSC reports ultimately to the Parliament, the cabinet and the governor do not seem to require the prior approval of parliament to appoint or dismiss the president and members of the CNSC or for giving binding directives from time to time, though post-facto all such actions have to be laid before both Houses of Parliament. The IAEA, in reviewing the CNSC structure on request, has remarked that though the separation of nuclear regulatory and promotional functions in Canada appear to exist, both these aspects are represented by the common ministry through which the CNSC reports to the Parliament. Overall, the independence from the government enjoyed by the US NRC and the French ASN is somewhat more effective & complete than in the case of Canada.

Transparency and Public Interactions of CNSC 

Section 9(b) of the Act requires the CNSC to disseminate objective scientific, technical and regulatory information to the public concerning the activities of the commission and their effects on the environment and on the health and safety of the persons. As a federal institution, the CNSC follows the principles of the government of Canada’s policy on communication to openly inform the public. Furthermore, the Access to Information Act sets forth the principle that every person in Canada has a right, upon request, to be given access to records under the control of CNSC, unless it is restricted.

The CNSC communicates actively with many external stakeholders, including individuals, community groups, public interest groups, NGOs, professional & scientific associations, etc. In Canada , there is a well-established Canadian Association of Nuclear Host Communities, which is a not-for-profit association that has been set up to provide a forum through which communities who have nuclear-related operations and facilities within or in close proximity to their municipal boundaries can discuss issues and concerns of mutual interest. The CANHC maintains a website (http://www.canhc.ca/) and conducts annual national meetings. The CNSC maintains open lines of communication with CANHC and the CNSC president and senior officials interact with them from time to time. Besides, CNSC’s website (www.nuclearsafety.gc.ca) is one of the most comprehensive and informative nuclear regulatory websites I have come across. It has uploaded Annual Reports of the AECB and CNSC from 1946 till today, historical information, news bulletins, all environmental assessment reports, etc. On most of these, the CNSC solicits comments from the public via e-mail and responds with more information or documents as needed.

CNSC Actions Following the Fukushima Incident

Following the Fukushima Daichi nuclear incident in Japan as a result of a major earthquake and tsunami, all nations having nuclear reactors took their own steps to re-examine the safety preparedness of each one’s nuclear installations. In India too, the NPCIL and the AERB have carried out safety audits and have released reports, but the public has no knowledge as to how the audits were carried out and what the follow-up steps and their time schedules are going to be. It will be a study in contrast to see how the Canadian nuclear regulator handled the same situation with total openness.

From March 11, when the nuclear incident occurred in Japan, CNSC started posting detailed progress reports on the event, along with factual comparisons of the Canadian CANDU reactors and the Fukushima BWRs, to alleviate any public concerns about the likelihood of similar incidents happening in their reactors.

CNSC also posted the daily radiation dose rates measured in various cities and towns to display that the incident in Japan has not affected Canadians health-wise. The unabridged minutes of the Commission meetings, where Fukushima problem was among topics discussed, are available on the website, as usual.

On April 20, CNSC uploaded the memo through which a Task Force on Fukushima Impact was formed, along with its terms of reference. In between, on June 23, they uploaded the 2010 Annual CNSC Staff Report on the Safety Performance of Canadian Nuclear Plants, and requested the public to send in their comments and questions.

On August 9, the CNSC Board constituted an External Advisory Review Committee to examine CNSC’s own responses and actions related to this incident, to evaluate whether these are indeed adequate and comprehensive. This committee consisted of independent & distinguished experts in energy, innovation, engineering, governance and safety, selected from outside the nuclear and government sector. On October 28, CNSC posted on their website the full report of the Post-Fukushima Task Force. In releasing the report, they also announced that CNSC has voluntarily decided to invite International Atomic Energy Agency experts to carry out an Integrated Regulatory Review Service mission in Canada, to carry out a second independent appraisal to assess whether the CNSC actions taken and intended to be taken in view of the Fukushima incident are indeed adequate according to the best of international standards and expertise. The Task Force Report released in October will be presented to the Commission at a public meeting scheduled for February 15, 2012, to finalise the Action Plans to be followed by all nuclear power plants. Comments from the public on this report have been solicited through the website in early November itself and responses were to be sent in before December 1. The CNSC staff will take all such comments also into account before the meeting on February 15, 2012. Lastly, the CNSC has already announced that they will be submitting, on their own accord, a detailed report on the lessons learned from the Fukushima nuclear incident to the Convention on Nuclear Safety in Vienna, at their meeting in August 2012.

The above two paragraphs amply bring home the transparency and competence with which one of the world’s best nuclear safety regulators protect the interests of the people of their country. The step-by-step intimation to the public of CNSC’s actions and their outcome in the nuclear safety area, on a real-time basis, brings confidence and comfort to the people and enhances the prestige of Canada in the comity of nations. 

-A Gopalakrishnan  

 

(The author is a former chairman, Atomic Energy Regulatory Board, Government of India)

Courtesy: Daily News & Analysis