AERB And Regulatory Capture In India: Conflict of Interest?
By Buddhi Kota Subbarao. Ph.D.
12 August, 2012
Countercurrents.org
Indian nuclear regulator known as Atomic Energy Regulatory Board (AERB) is the watchdog of nuclear safety in India. Both under the Indian Law and the International Conventions signed by India, there are obligations which are required to be fulfilled by AERB. On both counts, AERB has not measured up to fulfilling those obligations while allowing the construction and now the commissioning of the Russian designed nuclear power plant at Koodankulam in Tamilnadu, Southern India, with VEER type reactors 2x 1000 MWe. It leaves a question mark whether AERB is serving the interests of Indian people.
The Charter of duties and functions of AERB includes, [1]
- Issuing authorisations for construction, commissioning and operation of nuclear power plants, other nuclear facilities and radiation installations;
- Ensuring compliance by the licensees with the stipulated safety requirements;
- Keeping the general public informed of major issues of radiological safety significance.
But while issuing authorisation for the construction of Koodankulam N-Plant which has potential of high radiological safety significance, the AERB never informed the general public the basis on which it issued authorisation to commence the construction of the N-plant. It is mandatory for AERB to inform the public. In the United States, the Nuclear Regulatory Commission (NRC) takes several steps to inform the public and allows the public to have access to all relevant documents prior to the commencement of the construction of any nuclear power plant.
There are valid grounds to question the legality and propriety as well as the professional satisfaction of AERB for granting clearance on August 10, 2012 for ‘Initial Fuel Loading' (IFL) and ‘First Approach to Criticality' (FAC) of Unit-1 of Koodankulam Nuclear Power Project.
The point of legality and propriety arises because the issue whether the Koodankulam N-Plant would be halted or commissioned is before the Madras High Court which has reserved its judgment upon hearing all sides on a batch of petitions. The judgment of High Court is awaited. AERB clearance for IFL and FAC amounts to making High Court judgement redundant.
According to the Organisation known as People's Movement Against Nuclear Energy (PMANE) which is spearheading the opposition to Koodankulam N-Plant, “AERB has given assurance to the Madras High Court that the post-Fukushima taskforce's recommendations would be fully implemented in all the nuclear installations in India and that no fuel loading decision at the KKNPP would be taken until then.” PMANE goes on to state, “The current permission to load fuel at KKNPP is a gross violation of that commitment made at the Court and the sentiments of the struggling people.”
Since the judgment of Madras High Court is yet to come as of now (August 12, 2012) it is not known whether the Judges of Madras High Court have arrived at their judicial satisfaction that the AERB has really fulfilled its assurance given to the Court. From these facts it is clear; AERB for reasons best known to itself, rushed to grant clearance and thereby prejudged the outcome of the judgment of Madras High Court. This is a serious matter, which the Honourable Judges of Madras High Court are expected to take judicial notice of, lest it should affect the trust, faith and confidence of common people in the judiciary.
AERB Press Release dated August 10, 2012 states that AERB in its 107 th Board Meeting held on August 9, 2012 considered the application of Nuclear Power Corporation of India Ltd (NPCIL) and reviewed the reports of related safety committees and recommended the clearance. [1a].
"Yes, based on the recommendations of the Advisory Committee, we have granted permission for fuel loading," AERB Chairman S S Bajaj told PTI from Mumbai on August 10, 2012. [1b]
The method and the manner in which the AERB rushed to grant sanction for IFL and FAC of Koodankulam N-Plant calls for a critical examination. Whether there is “capture” of regulator and “conflict of interest” in India as in Japan.
Similarities of Regulator “Capture” in Japan & India
Several analysts looked at what happened at Fukushima in Japan and concluded that the nuclear regulator in Japan was “captured” by the industry and was no longer an effective independent regulator.
Nuclear regulatory capture is a real and legitimate concern for all regulators and industry. What are the causes of such “capture”?
In countries like Japan and United States, where private industry builds and operates nuclear power plants, the regulatory “capture” is measured mainly by two norms.
The first norm is whether the regulator and industry are providing jobs for each other. In substance, the regulator is either from industry directly, or guaranteed a position within the industry after departing the regulator. In Japan a typical example is that of TEPCO ( Tokyo Electric Power Company) and NISA (Nuclear and Industrial Safety Agency). NISA's role includes nuclear regulation. Departing senior members of NISA were guaranteed to be given a position on TEPCO's board of directors known as “the chair of heaven”.
The second norm is payment by the industry to the regulator directly or indirectly.
Stunning similarities exist between the Indian Nuclear Establishment and the Japanese nuclear power industry and the regulators of both countries. The role of companies like TEPCO in Japan is played in India by the Department of Atomic Energy (DAE) and Nuclear Power Corporation of India Ltd (NPCIL). The nuclear regulator “captured” is NISA in Japan and AERB in India.
The former Prime Minister of Japan, Naoto Kan, has given striking testimony to his country's Parliament, in which he accepted blame for his own poor response during the Fukushima meltdown, but also revealed the disturbing characteristics of the nuclear power industry and its enormous influence on all walks of life in Japan. This aspect is true in India as well because India's Department of Atomic Energy (DAE) has enormous influence on the Central Government and on Indian Prime Minister who holds direct charge of DAE. The sweep of DAE can be understood even from a cursory glance of DAE site ( http://www.dae.nic.in/ ) , with links to POWER SECTOR , RESEARCH AND DEVELOPMENT SECTOR , INDUSTRIES AND MINERAL SECTOR , PUBLIC SECTOR UNDERTAKINGS , SERVICE ORGANIZATIONS , AIDED INSTITUTIONS AND OTHER ORGANIZATIONS OF DAE , OTHER LINKS . With its enormous budget, the DAE has captured the goodwill of almost all research and academic institutions in the country including IITs. Among these institutions, it is difficult to find a publicly visible dissenting voice against DAE even if there is something to dissent.
Japan's former Prime Minister Naoto Kan urged his country's Parliament to abandon nuclear power. He referred to the detrimental domination of the Tokyo Electric Power Company (TEPCO) and the other Electric Power Companies of Japan. Kan's testimony recorded:
“ TEPCO and the Electric Power Companies of Japan have dominated the nuclear power industry for the last 40 years. Through this nuclear clique and the rules they created, they expelled and isolated industry experts, politicians and bureaucrats who were critical, while the rest just looked on because of self-protection and an attitude of peace-at-any-cost. I'm saying this because I feel partly responsible .” [2]
Former Prime Minister Naoto Kan pointed out the nuclear clique created by vested interests and urged his parliament to totally destroy and eradicate the organizational structure of the vested interests and influence it has on the public. He said, “ I think this should be the first step in reforming the nuclear industry.” [2]
Prime Minister Kan's testimony further recorded:
“In Japan, the term "The Atomic Village" refers to an isolated elite that has formed around the country's nuclear complex. ...It's as if Austrian writer Robert Jungk's horrific vision of the "nuclear state" had become reality....Even many media organizations, as recipients of generous payments for the electricity industry, are part of the cartel...."Our country was literally brainwashed," says Taro Kono, a member of the lower house of the Japanese Diet for the conservative LDP. "Atomic energy is a cult in Japan." ...Many scientists, especially at the University of Tokyo, are partial to TEPCO. The company contributes millions to the university and supports many associations, think tanks and commissions....Meanwhile, the Japanese government has begun asking Internet providers to remove "false reports" about Fukushima from the web...In Japan, the insiders who talked about the abuses at TEPCO were intimidated, as were journalists who reported on these abuses....” [2]
“The Atomic Village " in Japan is akin to “India's Nuclear Estate”. Both shine with “isolated elite ” that has “formed around” respective “country's nuclear complex.”
As much as in Japan, in India also “many media organizations, as recipients of” generosities from the DAE and NPCIL systematically ensure, “country was literally brainwashed” in favour of nuclear power.
Very similar to the position in Japan where “Atomic energy is a cult”, in India also Atomic Energy has become a “cult”, especially after the Indo-US Nuclear Deal.
While the “scientists, especially at the University of Tokyo, are partial to TEPCO” in Japan, in India very many scientists and engineers at every Indian Institute Technology (IIT) in India and at several Indian Universities have become captive scientists of the Department of Atomic Energy (DAE) which dolls out research funds (of course public money) only to those who toe the line of the DAE. This is a well-known phenomenon in India.
But the similarity does not extend to the Prime Ministers of Japan and India while they talk to their respective parliamentarians. Instead there is a stark contrast.
While the former Japanese Prime Minister Naoto Kan could give testimony on May 28, 2012 to the Japanese Parliament explaining the rot in the Japanese nuclear power industry and could even urge the Parliament to end the nuclear power , the Indian Prime Minister Dr.Manmohan Singh pushed under the carpet all the mismanagement in the Department of Atomic Energy which he himself holds under his direct charge and misinformed and misdirected the Indian Parliament on May 16, 2012 on the functioning of the DAE with regard to the nuclear power plants. Thereby, Dr.Manmohan Singh showed his determination to keep the flag of Indo-US nuclear deal high and to flood India with imported nuclear power plants. It is difficult to understand how noted economist Dr.Manmohan Singh could think of making India a market place for nuclear power plants wherein the country not only would be saddled with nuclear radiation dangers but also the budget for renewables like hydro, wind and solar would be curtailed.
NRC captured?
Applying the two norms (first norm – job transfers between the regulator and the regulated, second norm- payment from the regulated to the regulator), Margaret Harding, energy analyst, examined whether the Nuclear Regulatory Commission (NRC) of the United States also suffers from regulatory capture.
Harding finds that in general, the NRC rarely hires from industry in any place other than entry level review positions. Commissioners of NRC also very rarely come from industry. The current five commissioners have virtually no experience in the nuclear industry. They come from government (DOE, military, or congressional aides) or academia. Former commissioners have frequently gone back to academia or retired. Occasionally, they have become consultants, but with rare exception, NRC commissioners, or other high level staff, have not ended up in high level industry positions. Those exceptions have been looked at quite carefully (Richard Meserve, for example) and, to date, allegations of inappropriate ties have not been borne out by the Justice Department. [3]
As regards the second norm of payment from industry to the regulator, Harding notices that the industry pays fees and review costs and funds a large fraction of the NRC's operating budget. However, Harding observes that NRC operates with funds approved by the U.S. Congress that come directly from the U.S. Treasury. The fees collected have no effect on the approved NRC budget. The fees paid by licensees go directly to the U.S. Treasury. [3]
According to Harding's analysis, more problematic is the area of new technology. The NRC has so little funding from the government that isn't tied to income from industry that the efforts to develop regulation for new technologies (like SMR, or Gen IV) will have to come from industry itself. This process is definitely fraught with risk that the NRC may be overly influenced by the industry itself. While the funds do not flow directly to the NRC, they are clearly aware of their own funding sources. [3]
“Capture” and “Conflict of Interest” in India
When the same two norms (first norm – job transfers between the regulator and the regulated, second norm- payment from the regulated to the regulator) are applied to nuclear regulator in India, one can see the evident “capture” of regulator and the glaring “conflict of interest.”
Nuclear Power Corporation of India Ltd. (NPCIL) is the builder and operator of nuclear power plants in India. NPCIL is like the nuclear industry in other countries which builds and operates nuclear power plants in those countries. NPCIL is a public sector undertaking fully owned by the Government of India and works under the direct control of the Department of Atomic Energy (DAE) of the Central Government of India. In India NPCIL is the major organisation to be regulated in the nuclear field. Atomic Energy Regulatory Board (AERB) is the nuclear regulator in India as of now. Persons who retire from NPCIL are employed in top positions of AERB. That is where the conflict of interests gets manifested. Whereas, in the United States, in order to avoid conflict of interest, the top positions of NRC are not filled with the persons who worked in nuclear industry.
In India, the present chairman of AERB Mr. S.S. Bajaj retired as Senior Executive Director (Safety) from Nuclear Power Corporation of India Ltd. in July 2007. Prior to joining as Chairman of the Atomic Energy Regulatory Board on January 14, 2010. Mr. Bajaj was serving under the 'Raja Ramanna Fellowship' scheme of DAE, and has been advising various Units of DAE on nuclear safety issues. The conflict of interest is obvious as this is an instance of a person who worked in senior position of the regulated organisation being employed as a senior person of the regulator.
Similarly, the Advisory Committees of AERB are filled with persons, retired from or serving in, DAE, BARC and NPCIL. The conflict of interest is obvious.
These facts show that as per the above mentioned first norm, AERB is a “captured” nuclear regulator.
The funding for AERB comes from DAE whose nuclear installations are required to be regulated by AERB. In the process, the independence of AERB is severely compromised under the second norm mentioned above.
The effect of this “capture” and “lack of independence” is visible from several of the acts and omissions of AERB of which a few are recalled below:
· It is the duty of AERB to inform the public fully if there is any violation of any of the terms of the trade treaty between Russia and India in respect of the components of the nuclear power plant to be supplied under the agreement and if there are any deviations in the manufacture of reactor pressure vessel to be supplied for Koodankulam N-Plant. There are reasons to believe that AERB compromised on serious deviations and violations that could affect the safety of the Koodankulam nuclear power plant and the public is left in the dark.
· According to documents published in 2006, there was no weld on the beltline (middle portion) of the Reactor Pressure Vessel (RPV) to be deployed in Koodankulam N-Plant. Recently, AERB admitted there are two welds on the beltline of the RPV installed at KKNPP, but contended that it poses no danger. This is a serious compromise.
VVER beltline welds are prone to serious consequences. They cause accelerated aging of Reactor Pressure Vessel (RPV) from neutron bombardment known as neutron embrittlement. The Impurities and alloying elements in the base metal and weld metal also cause accelerated RPV aging. Accelerated aging could lower the design life of RPV and cracks in RPV could develop earlier than expected. Failure of the integrity of RPV leads to very serious consequences of nuclear safety. The recent practice is to avoid beltline welds and to have lower concentration of aging-elements. AERB should have checked thoroughly and demanded a new RPV from Russia instead of assessing the supplied RPV to be satisfactory. In the process, AERB failed to take firm steps to ensure the safety of Indian people.
The general public can understand the importance of Reactor Pressure Vessel (RPV) integrity from a recent event. Belgium has temporarily shut down one of its seven nuclear power plants after the country's atomic energy regulator FANC discovered “several anomalies,” including possible cracks, in the vessel containing the reactor's core, casting doubt over the government's plan to keep it open until 2022 [4]
· There are reasons to believe that AERB has not taken necessary and sufficient steps to ensure that there is adequate supply of water at the Koodankulam N-Plant as laid down by the Rules and Recommendations of AERB.
Conclusions :
(i) There are valid grounds to question the legality and propriety as well as the professional satisfaction of AERB for granting clearance on August 10, 2012 for ‘Initial Fuel Loading' (IFL) and ‘First Approach to Criticality' (FAC) of Unit-1 of Koodankulam Nuclear Power Project.
(ii) The issue whether the Koodankulam N-Plant would be halted or commissioned is before the Madras High Court which has reserved its judgment upon hearing all sides on a batch of petitions. The judgment of High Court is awaited as of now (August 12, 2012). AERB clearance for IFL and FAC amounts to making High Court judgement redundant.
(iii) AERB for reasons best known to itself, rushed to grant clearance and thereby prejudged the outcome of the judgment of Madras High Court. This is a serious matter, which the Honourable Judges of Madras High Court are expected to take judicial notice of, lest it should affect the trust, faith and confidence of common people in the judiciary.
(iv) Several analysts looked at what happened at Fukushima in Japan and concluded that the nuclear regulator in Japan was “captured” by the industry and was no longer an effective independent regulator. There are two norms generally applied to measure the extent of “capture”. F irst norm is the measure of job transfers between the regulator and the regulated. The second norm is the extent of payment from the regulated to the regulator. Stunning similarities exist between the Indian Nuclear Establishment and the Japanese nuclear power industry and the regulators of both countries. The role of companies like TEPCO in Japan is played in India by the Department of Atomic Energy (DAE) and Nuclear Power Corporation of India Ltd (NPCIL). The “captured” nuclear regulator in Japan is NISA and in India it is AERB.
(v) The " The Atomic Village " in Japan is akin to “India's Nuclear Estate”. Both shine with “isolated elite ” that has “formed around” respective “country's nuclear complex.”
As much as in Japan, in India also “many media organizations, as recipients of” generosities from the DAE and NPCIL systematically ensure, “country was literally brainwashed” in favour of nuclear power.
Very similar to the position in Japan where “Atomic energy is a cult”, in India also Atomic Energy has become a “cult”, especially after the Indo-US Nuclear Deal.
(vi) AERB suffers from “capture” and “lack of independence”. There are facts to show that AERB has been compromising on several serious areas of nuclear safety in which the issue of vintage and the welds on the beltline of Reactor Pressure Vessel (RPV) deployed in Koodankulam N-Plant becomes a very serious one having potential to affect the safety of people in the long run. Instead of insisting on the Russians (who are undoubtedly good designers of nuclear power plant equipment) to supply a recent model of RPV, AERB, for reasons not known, made a compromise on the supplied vintage RPV with welds on the beltline.
(vii) Though the charter of duties of AERB requires the AERB to keep “the general public informed of major issues of radiological safety significance”, AERB has not been discharging its duties as required and the general public is mostly kept in the dark.
(viii) From all the above mentioned facts and analysis it is clear, AERB is not serving the interests of Indian people.
Buddhi Kota Subbarao is former Indian Navy Captain with Ph.D in nuclear technology from Indian Institute of Technology, Bombay . As an advocate of Supreme Court of India, he successfully argued several public interest petitions before Indian Courts. His e-mail address: [email protected]
© Copyright: Author.
References:
[1] AERB Information provided under the section 4 (I) (b) of the RTI Act
http://www.aerb.gov.in/cgi-bin/rti/info.asp
[1a] AERB grants Clearance for Initial Fuel Loading and First Approach to Criticality of Unit-1 of Kudankulam Nuclear Power Project
http://www.aerb.gov.in/t/prsrel/p10082012.pdf
[1b] Atomic Energy Regulatory Board nod for fuel loading for Kudankulam nuclear plant
[2] Bombshell: Japan PM says Japan under nuke dictatorship
[3] NRC and Regulatory Capture: Conflict of Interest?
[4] Belgium shuts down nuclear reactor over suspected vessel cracking
http://www.bellona.org/articles/articles_2012/belgium_reactor_cracks
Comments are moderated
