Hindi version availble on *Irresponsible Advocates of Nuclear Security* http://www.visfot.com/index.php/voice_for_justice/3041.html
Revised version available on Rediff.com Nuclear Liability Bill needs scrutiny<http://toxicswatch.blogspot.com/2010/02/nuclear-liability-bill-needs-scrutiny.html> *It's absolutely essential, "If there was not a cap and if there was not suitable legislation insurance in place, then we wouldn't be in the nuclear industry."* Peter Mason, president and chief executive of nuclear supplier GE-Hitachi Nuclear Energy Canada explained to the Parliamentary Standing Committee of the Canadian House of Commons on Natural Resources that is dealing with Bill C-20, their Nuclear Liability and Compensation Act, November 2009 *Bill to Protect Nuclear Companies from Legal Harm* Of all the 36 Bills listed for introduction in the current session of parliament, the move to introduce the Nuclear Liability Bill, a pre-condition for entry of US companies in the Indian civil nuclear sector, is of the most significant nature. Civil society groups and opposition parties are alarmed at the swiftness with which the Bill is being introduced to facilitiate entry of of US nuclear power companies in India. One of the biggest myths being propagated is that nuclear cooperation with US is the answer to India’s energy crisis, which in any case would not see the light of the day before 2016. Also Indian parliament and citizens have been kept in dark about the cost of electricity from foreign-built nuclear power reactors. Unmindful of the fact that all the countries that produce nuclear energy are facing crisis in the management of the nuclear wastes, India is taking the same route, that too with a plan of 25k Megawatt by 2020. In an interview conducted by Ms. E.G. Weymouth, Editor-at-Large of Newsweek, USA on November 16, 2009, Prime Minister Manmohan Singh said, "we had a watershed and a landmark agreement with the United States on nuclear cooperation. We would like to operationalise it and ensure that the objectives for the nuclear deal are realised in full merit. My sincere hope is that we can persuade the US Administration to be more liberal when it comes to transfer of dual-use technologies to us. Now that we are strategic partners these restrictions make no sense. India has an impeccable record of not participating in any proliferation of weapons of mass destruction. So, that is my number one concern." This was in reference to the consent agreement that the US President would have to sign and send to the US Congress. Responding to the question about the need for Indian Parliament to pass a liability agreement in the matter of nuclear cooperation with US, the Prime Minister said, "We will do that. Our Cabinet will be taking a decision. I do not see any difficulties in honouring our commitments." Notably, when the Prime Minister was asked about the role of the Indian parliament, he appears to have underlined the supremacy and superiority of Union Cabinet as if the supreme legislature of the country is merely a rubber stamp of decisions taken by the Cabinet. On October 1, 2008, Nuclear Cooperation Approval and Non-Proliferation Enhancement Act (NCANEA) came into effect after it was passed by the US Senate. While the role of the US legilslature is quite manifest the Indian Parliament has not been allowed any role to play, not even to examine the deal’s provisions and now wants Indian legislturte to pass a special law to provide foreign companies with liability protection in case of nuclear accidents. This is being done because nuclear companies of US which are in the private sector are demanding it. So far in India are nuclear companies quite ike the French and Russians are state-owned. The proposed Civil Liability for Nuclear Damages Bill, proposed to be introduced in the current Parliament session is an exercise to provide state subsidy to foreign-nuclear reactor builders from the onus of the financial consequences of nuclear disasters, accidents and incients by shifting the onus for accident liability from the foreign builders to the Indian state and citizens. The Three Mile Island nuclear plant in Pennsylvania led to 14 years of clean-up costing $1 billion. US interests are seeking to avoid open market competition by their companies. Although US assumes liability for any nuclear catastrophic damages from an accident only above the $10.5 billion figure that is inflation-adjusted every five years and thus variable, which itself is quite low, through its machinations, it denies India even that relief which it provides to its own companies. The Bill must be revisited in the light of the intrernational nuclear accidents world over before it is even tabled in the parliament. The proposal of the Indian National Congress led United Progressive Alliance government to have The Civil Liability for Nuclear Damage Bill, 2009 is ridden with glaring loopholes and booby traps because it insulates nuclear energy companies from punitive legal consequences. The Bill seems to pretend the non-existence of Report of the US President's Commission on The Accident at Three Mile Island that happened in 1979. To begin with it should be renamed as Liability from Nuclear Damage Bill and it must explicitly inform the parliament and the citizens what all lessons from the Report has been incorporated in the Bill. Mere civil liability is totally unacceptable because clearly it has not factored in all the nuclear accidents which has happened in India and the world. Most importantly, before a Bill of this nature is brought in, central government must come out with a white paper on the status of relief to radioactive radiation victims and the liability therein with regard to existing facilities. The Bill must include mining sites of radioactive minerals like uranium in its definition of nuclear facility. The Union Cabinet cleared the text of The Civil Liability for Nuclear Damage Bill on November 19, 2009 for introduction in the Parliament. The passage of the Nuclear Liability Bill will allow India to join the international convention on civil liability for nuclear damage. So far this Nuclear Bill is not in public domain. While placing a cap on the compensation to be paid in the case of an accident at a nuclear site, the proposed legislation puts the responsibility for paying this compensation on the operator and not the suppliers or foreign companies installing the reactors in India as has been demanded by the Multinational Corporations like Union Carbide Company and Dow Chemicals Company. This provision is not in public interest. Nuclear power companies in general and US nuclear companies like GE Hitachi Nuclear Energy, Westinghouse and Babcock & Wilcox intend to invest in India if and only they are provided anticipatory bail for their legal liability for nuclear accidents in future. US Assistant Secretary of State for South and Central Asian Affairs Robert Blake informed a US House committee: “… we are hoping to see action on nuclear liability legislation that would reduce liability for American companies and allow them to invest in India…” US nuclear industry is addicted to special laws made by the US government that limits their liability from nuclear radiation accidents. It wishes to be operated under the law which has been shaped by it. It has been noted that US companies who are part of a US commercial nuclear mission to India organised jointly by the Nuclear Energy Institute and the US India Business Council (USIBC) has informed media that they are satisfied over the nature of the Bill and are in active discussion with Nuclear Power Corporation, Tata Power, GMR, Jindal, NTPC, L&T to explore business potential. Clearly, the US nuclear companies have seen the Bill (may have drafted it as well) which has not even been tabled in the Indian Parliament. Notably, Federation of Indian Chambers of Commerce and Industry (FICCI)’s 25 member Working Group on Civil Nuclear Energy –2009 under the Chairmanship of Dr. S.K. Jain, CMD, Nuclear Power Corp. of India Ltd came out with a 57 page report wherein the format of the proposed The Civil Liability for Nuclear Damage Bill, 2009. FICCI report has an annexure that is about “Domestic Legislation Dealing with CNL” (Civil Nuclear Liability) wherein it states, “As a natural corollary to the liberalization of the nuclear sector in India, the government of India is mooting the idea of a CNL Bill. Aligning to any international CNL treaty would involve the enactment of a domestic CNL legislation with appropriate provisions. There being no explicit statute or legislation in India, either creating or limiting liability of persons engaged in nuclear installations till now, liability would stand determined by courts, pursuant to actions in tort.” The names of the members of the FICCI’s Working Group on Nuclear Energy merits attention for it reveals the business interests and their claimed expertise in nuclear energy. The members included G.R. Srinivasan, Advisor (Nuclear Power Business), GMR Energy Ltd., Anil V. Parab, General Manager- Nuclear Power Plant Equipment Busin, Larsen & Toubro Ltd, P.K. Agarwal, General Manager (Marketing), Bharat Heavy Electricals Ltd, Sudhinder Thakur, Executive Director (Corporate Planning), Nuclear Power Corporation of India Ltd, M. K. Chowdhury, Associate Director (Procurement), Nuclear Power Corporation of India, M.K. Kannan, Associate Director (Business Development), Nuclear Power Corporation of India Ltd, Dr VK Chaturvedi, Director (NPI), Nuclear Power Initiative Department, Reliance Energy Ltd, V. K. Seth, OSD (Nuclear Power Initiative Group), Reliance Infrastructure Ltd, A. R. Gore, OSD (Nuclear Power Initiative Group), Reliance Power Ltd, S.A. Bohra, Advisor, Tata Power Co. Ltd, O P Goyal, Power Specialist, GMR Energy Ltd, Ajit Kumar, General Manager (Nuclear), NTPC Ltd, Kaustubh Shukla, Chief Operating Officer-Industrial Products Division, Godrej & Boyce Mfg. Co. Ltd, V.K. Sharma, President – Operations, Gammon India Ltd, Sushil Kumar Chhada, Advisor (Energy), Bharat Forge Limited, D. Raghunath, Director, Avasarala Technologies Ltd, K.S. Reddy, General Manager (QA), MTAR Technologies Pvt. Ltd and S. K. Shirguppi, Director Operations (Sales & Marketing), Rolta India Ltd. Other members included Pradeep Ganorkar, 20. Mr. Pradeep Ganorkar, Sr. General Manager (Marketing) Special Products Division, Walchandnagar Industries Ltd, S. K. Ghosh, Advisor to MD & CEO (Nuclear Business, Walchandnagar industries Ltd, Suhaan Mukerji, Principal Associate, Amarchand & Mangaldas & Suresh A, V. K. Topa, Advisor to Secretary General, FICCI, Vivek Pandit, Additional Director & Team Leader Energy, FICCI and Tavleen Kaur, Deputy Director, FICCI. The lack of rigor in the report illustrates that the working group did not have the competence to pontificate on nuclear liability issues in particular. FICCI’s Working Group on Nuclear Energy suggests, “The directions and observations of the Hon'ble Supreme Court in Charan Lal Sahu's case should serve as the object and purpose for enacting such CNL legislation” This entails the basis for damages in case of leakages and accident should be statutorily fixed taking into consideration the nature of damages inflicted, the consequences thereof and the ability and capacity of the parties to pay. Such law should also provide for deterrent or punitive damages. A law should be enacted to ensure immediate relief to victims – viz. By providing for the constitution of tribunals regulated by special procedure for determining compensation to victims of industrial disasters or accident. The law should also provide for interim relief to victims during the pendency of proceedings. The law should provide for the establishment of a statutory 'Industrial Disaster Fund', contributions to which may be made by the government and industries, whether they are of transnational corporations or domestic undertakings, public or private. The Public Liability Insurance Act has been constituted pursuant to this, but it excludes damage from accidents caused by radioactivity.” In the United States, liability for nuclear accidents is set at $10 billion (US), while in Japan the cap will be doubled next year to roughly $1.47 billion (Canadian). Whether a nuclear accident is a $650 million event or a multi-billion dollar catastrophe is determined by the direction and speed of the wind that carries the radioactive radiation. Currently, Canada is seized with a Nuclear Liability and Compensation Act wherein the bill raises the cap on liability to $650 million from the $75 million limit established in 1976. The damage from Chernobyl is estimated at some $250 billion. In Germany, there is no cap on nuclear liability but an operator must be able to cover at least $4 billion but the civil liability is estimated at Euro 2000-5000 billion. The international conventions which provide for liability regime also favour the industry and not the possible victims and provides for indemnity to the global nuclear industry: the Paris Convention (1960), the Vienna Convention (VC) revised in 1997 and the Convention on Supplementary Compensation for Nuclear Damage (CSC). FICCI suggestions for “Domestic legislation dealing with CNL” may incorporate the following: Single point liability for the operator of the nuclear installation ("Operator"); Liability of non-operators transferred to the Operator; Exceptions to liability to include standard force-majeure provisions with specific emphasis on terrorist and anti-social activities; Capping of liabilities according to internationally adhered benchmarks may be adopted with the government prescribing the threshold limit; Prescribed liability for the plant must be benchmarked to the risk-magnitude of the installation. Factors such as technology utilized, the siting and demographic of the plant and its operations to be taken into consideration whilst formulating a policy in this context; Financial security, upto the prescribed threshold limit, to be maintained by the Operator by the way of insurance or any other manner deemed fit by the Government; State liability to provide for claim amounts awarded by a competent court over and above the liability of the operator; Clear and precise definition of 'nuclear incident' and 'nuclear installation'; FICCI has recommended that the Government of India should ratify the VC on an immediate basis and the CSC later on in a phased manner deemed fit, supplemented by incorporating appropriate internationally-accepted provisions in the consequent /parallel CNL domestic legislation. The CSC limits the compensation payable by the operators of nuclear plants for any accidents or damage to $450 million, leaving the responsibility for the rest to national governments almost in the range of compensation paid to the victims of the Bhopal’s industrial disaster ($470 million) wherein victims were turned from citizens into subjects of the ruling regime. Not surprisingly, in its report FICCI feigns ignorance about all the nuclear accidents in the world and has repeatedly cited the Supreme Court order in the Charan Lal Sahu, Petitioner vs. Union of India, Respondent case in which the validity of the doctrine of parens patriae was upheld but the remains a matter of judicial scrutiny by jurists all over the world. The Petitioner in this case had challenged the validity of the doctrine invoked through Bhopal Gas Disaster (Proceedings of Claims) Act, 1985 in the Supreme Court. The Supreme Court held that the Act was valid and that the State had rightly taken over the exclusive right to represent and act on behalf of every person entitled to make a claim, as a majority of the victims were poor and illiterate. Consequently, the exclusion of the victims from filing their own cases was held to be proper. It is now well known that 'hazardous corporations' are a fit case for the application of the principle of Absolute Liability and multinational enterprise liability because they are neither 'restricted by national boundaries' nor effectively controlled by international law' because of their complex corporate structure with 'networks of subsidiaries and decisions which make it 'exceedingly difficult or even impossible to pinpoint responsibility for the damage caused by the enterprise'. They operate through a neatly designed network of interlocking directors', a 'common operating system', global distribution and marketing systems', design development and technology worldwide, financial and other controls and highly sophisticated and technologically capable machines and working staff. Consequently, victims of such daily actions are unable to identify which unit of the enterprise caused the harm. Therefore, faults by even a local subsidiary must be attributed to the parent company because their duty too is non-delegable. Notably, the Supreme Court also held that the Act only deals with civil liability and as such does not curtail or affect rights in respect of criminal liability. The Civil Liability from Nuclear Damages Bill must be redrafted to include both criminal liabilities and deterrent civil liabilities. Defence Research and Development Canada, Canadian Department of Defence has suggested that a severe nuclear accident results in wide contamination. The research looked at the impact of a relatively small dirty bomb going off in downtown Toronto. It estimated that cleaning up the contamination using the most stringent standards could cost up to $250 billion, and that the economic toll could reach $23.5 billion. The research was commissioned in 2007. No such research has been commissioned in India. The institutional accountability for Bhopal and Kaiga like disasters rests with Cabinet Committee on Economic Affairs and Civil Liability from Nuclear Damages Bill shows that it has not learnt any lessons because it has not been made accountable for its past lapses. Private companies who want to do business with India have been seeking a liability law that protects their nuclear energy business at any cost. Foreign companies wanting to supply nuclear reactors and other equipment have been pressing India for the speedy passage of this crucial Bill. Indian government is required to make some changes in its Atomic Energy Act as well. In such a context, the report of the investigative commission appointed by US President Jimmy Carter immediately following the accident must be studied by the drafters of Green Tribunal Bill and the Civil Nuclear Liability Bill. President Jimmy Carter had appointed a 12-member commission which submitted its Report of the President's Commission on The Accident at Three Mile Island-The Need for Change: The Legacy of TMI in October 1979. It is advisable to learn from the blunders of the past. The Nuclear Liability Bill must take note of the environmental hazards from the nuclear facilities and potential nuclear accidents and incorporate stringent criminal and civil liability provisions taking lessons from worst accident at a civilian nuclear power plant in Three Mile Island (TMI) occurred on March 28, 1979 in US and the Chernobyl disaster, a nuclear reactor accident that occurred on 26 April 1986 at the Chernobyl Nuclear Power Plant in Ukraine. This nuclear accident led to a cessation of new nuclear plant construction in the US. Indian government and the parliament must be lessons from these tragedies and accidents to avoid legislative and future judicial disasters through these Bills which does not have the power to prevent Three Mile Island, Bhopal, Chernobyl & Kaiga like accidents. The Bill must make special provision for transnational corporations. Parliamentary deliberations in countries like Canada and Germany on liability and nuclear energy issues must be factored in before admitting any Bill under the influence from FICCI and other vested interests in supreme public interest. FICCI’s report which has some seven page note on the legal framework does not inspire even an iota of confidence even from the point of professional competence. An independent and credible multi-disciplinary commission should be constituted with immediate effect to ascertain the potential consequences of nuclear accidents or ‘incidents’ and liability arising out of it. Gopal Krishna -- Gopal Krishna New Delhi Mb: 9818089660 Skype id: witnesskrishna E-mail: krishna2...@gmail.com Blog: toxicswatch.blogspot.com -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To post to this group, send an email to greenyo...@googlegroups.com. To unsubscribe from this group, send email to greenyouth+unsubscr...@googlegroups.com. For more options, visit this group at http://groups.google.com/group/greenyouth?hl=en-GB.
