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 and the Canadian models

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.

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