Transparency in nuclear safety regulation

Background: The Nuclear Safety Regulatory Authority (NSRA) Bill, 2011, is being discussed by the parliamentary committee on science, technology, environment and forests. The government intends to replace the current nuclear safety regulator, the Atomic Energy Regulatory Board (AERB), with the proposed NSRA, ostensibly being created to strengthen  implementation  of nuclear safety. Meanwhile, hearing a public interest petition on nuclear issues in the Supreme Court on December 5, 2011, 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 framework and then we can consider” (The Hindu, December 5). Adjourning the case for a month, the court told the petitioners that 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. (The Indian Express, December 6).

To create wider public understanding of nuclear safety regulation in some developed countries, and to initiate informed debate along the lines suggested by the Supreme Court, I had published the following three articles in DNA: ‘Nuclear Safety Regulator: The US Model’ (December 13); ‘The Success of French Nuclear Safety Regulation’ (December 19); and ‘Lessons from Canada on Nuclear Safety’ (December 19). One could gather a glimpse of the salient best practices of the developed world’s nuclear regulators from these three articles. A common emphasis noticeable in these practices is the matter of openness and transparency in safety regulation. In this article, I propose to bring out the stark contrast between the world’s best practices of nuclear transparency and what the government of India is proposing to implement through the current bill.

NSRA should oversee only civilian facilities: When it comes to transparency and openness of safety regulation and the applicability, if any, of the Official Secrets Act, civilian and military nuclear facilities and programmes will necessarily have to be dealt with differently. Combining these two types of facilities and programmes under the same regulatory act will sharply cut down the transparency of regulation of the civilian sector.

Primarily for this reason, all countries which have civilian and military nuclear facilities handle their nuclear safety regulation process for each of these two types strictly under separate legislations, through the creation of separate regulatory authorities.

The NSRA Bill is silent on the specific nuclear facilities and programmes over which the new authority would exercise control. Currently, the AERB has jurisdiction over only civilian facilities and programmes. These shall be formally brought under the NSRA. To accomplish this, a new section, 18(1)(e), shall be included in the bill to read: “All facilities and programmes currently under the purview of the Atomic Energy Regulatory Board shall be transferred to the jurisdiction of the authority and deemed to be governed by this act.” Also, section 25 of the bill provides for creating new regulatory bodies, under which a new regulatory body shall  be created without delay to oversee solely the safety of military nuclear installations and programmes and existing military facilities shall be placed under that future regulatory agency.

Contrast in regulatory transparency
In the NSRA Bill, the only mention of transparency is in section 20(2)(c) which states: “The authority shall ensure transparency by systematic public outreach on matters relating to nuclear safety without disclosing sensitive information and compromising confidentiality of commercially sensitive information of technology holders.” At least, as a minimum, the principal means by which the authority is to “ensure transparency and public outreach” could have been briefly spelt out as guidance, upon which operational rules can then be framed later.

In contrast, the French TSN Act on Transparency, under which the French Nuclear Safety Authority (ASN) is created, has its entire Title III consisting of 10 articles, arranged in three chapters, devoted to information exchange with the public on nuclear safety. The US and Canadian practices on transparency in nuclear safety regulation are similarly enacted so that these practices of transparency are mandatory  under law.

Against this backdrop, it is a matter of regret that our government, in its corresponding NSRA Act, could devote only a brief sub-section, consisting of just three lines, to transparency. The entire purpose of this sub-section appears to be to caution the public what it cannot expect to receive from the authority by way of information. The disdain with which the government seems to view civilian nuclear transparency is clear from its treatment in this bill.

Openness and transparency in regulation
A former member of the US Nuclear Regulatory Commission has elaborated that there are two key  components to enhancing public confidence in nuclear operations. One is ‘openness’ and the other is ‘transparency’, which are distinct. Openness involves the idea of public access to normal documented  information. This is something a regulator can practise with ease by making information available to the public, say, through its website. But it is the second component, transparency, that goes a long way towards building public confidence. Transparency means the process of explaining to the public the decision-making process of the  regulator while using  the information they have to come to safety-related conclusions. In short, the public must not only be provided with the same information base as the  regulator but must also understand the decision-making scheme that the regulatory body employs to arrive at its conclusions. Thus, transparency and openness are complementary to each other, and go hand in hand towards the regulator achieving  credibility and public acceptance. This is exactly where the Indian government and the nuclear establishment  have failed decade after decade because of their close-minded operation, arrogance, and general disdain for the public’s need and ability to understand the process of resolution of nuclear safety issues.

With increasing inter-connectivity in the world today, mainly through the World Wide Web, the potential benefits and dangers of nuclear facility  operations, past nuclear accidents and their aftermath, and the best practices of the world’s nuclear safety regulators, etc, are all becoming increasingly known to the Indian public. The contrast between how nuclear regulators in the best of democracies openly interact with their peoples and how the DAE and the AERB shrink from the public is quite apparent to all, and this is increasing the disaffection and distrust of the Indian public for all nuclear operations and their safety. The government must realise that the days of asking the public to have “faith” in the nuclear establishment and its safety regulator are gone.

Instead of exhorting the public to have ‘faith’ in the safety regulator, they ought to build public ‘trust’ based on everyday actions and accountability. The ‘closed-door’, opaque operations of the DAE, NPCIL and the AERB is merely asking the public to have faith, without realising that building trust will need an open, transparent operation.

NSRA Bill must enact specific transparency steps
To correct existing anomalies, there is a clear need to enact in the NSRA Bill certain prescriptive sSections aimed at compelling the authority to implement openness and transparency in nuclear safety regulation. The mere statement of goodwill in section 20(2)(c) that “the authority shall ensure transparency by systematic public outreach” will not suffice. It shall be supplemented with at least few of the main operational sections to enact how this outreach should be implemented.

The current NSRA Bill has to be, therefore, modified through the inclusion of the following three specific sections aimed at making it mandatory under law that the NSRA’s regulatory actions shall be transparent and open to the public:

Section 20(2)(u)
The authority shall maintain a website which can be accessed by the public who seek information on basic documents relating to nuclear safety regulation such as acts, rules, notifications, directives, newsletters, press releases, monographs, annual reports, etc as well as the salient minutes and proceedings of the various safety evaluation committees, the environmental impact assessment (EIA) reports, the site evaluation and approval reports, summaries of the preliminary and final safety analysis reports (PSARs & FSARs), and the probabilistic safety analysis (PSA) reports, minutes of the advisory committees on project safety review (ACPSRs), periodic regulatory inspection reports for facilities, reports of the environmental survey laboratories and the radiological and derived radiation dose data from all sites. Before uploading these at the authority’s website, each of these documents shall be screened carefully to make just the minimum deletions required to preserve the confidentiality of proprietary data and information as well as to sift out sensitive information and data which, if made publicly available, could be harmful to the protection of physical security of the facilities and personnel.

Section 20(2)(v)
To implement regular and periodic exchange of information and data related to public safety and the environment between the management of a nuclear facility, or a group of facilities in close proximity with each other, and the representatives of the local population and civic bodies in its neighbourhood, the authority shall create a local information body (LIB) for each facility or cluster of facilities. A senior official from the headquarters of the authority or from the regional office of the authority under whose regulatory purview the said facility or facilities belong shall head the LIB. The members of the LIB shall include a senior representative of the district magistrate concerned, senior  representatives  from the nuclear facility management, resident inspector of the authority who is stationed at the facility concerned, representatives from a few of the panchayats and gram sabhas in the vicinity, prominent local citizens like teachers, doctors, local mediapersons, trade union leaders, etc. The membership shall be finalised by the authority in consultation with the district magistrate concerned.

The LIB shall meet at intervals not exceeding three months and this forum will discuss the reasonable needs of the local representatives for safety-related data, information and explanations and the time schedule in which the facility management shall provide these requirements. In case of any dispute or disagreement between the facility management and the local representatives in this regard, which cannot be locally resolved, the matter shall be placed before the chairperson of the authority, and his or her decision shall be final in the matter. Appropriate rules shall be framed in detail under this section of the act to streamline the operations of the LIB and these rules shall be placed before both houses of Parliament for their approval.

Section 20(2)(w)
The authority shall conduct open public hearings before approving key milestones in the course of each nuclear facility project after giving advance notice to the public and providing them with summary documentation on the subject matter of each hearing. As a minimum, the authority shall conduct such hearings just prior to the granting of siting consent for the facility, the granting of permission to start construction, granting of permission to erect major equipment, granting permission to load nuclear fuel, and granting permission to start up (initial approach to criticality) . At one or more of these hearings, the authority shall summarise and present the findings of important facility documents like the preliminary and final safety analysis reports (PSAR & FSAR) as well as the probabilistic safety analysis (PSA) report. The scope and number of public hearings may be changed from time to time and from project to project at the discretion of the authority. The authority shall also frame the generic rules which shall govern public hearings, and place them before both houses of Parliament for their approval.

(The author is a former chairman of the Atomic Energy Regulatory Board.)