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Re: [Arkitect India] Submission to the Parliamentary Standing Committee on Science & Technology, Environment & Forests on 'Civil Liability for Nuclear Damage Bill 2010'

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  • Sukla Sen
    Thanks a lot for the kind words. Two problems with the suggestion though. One, time is short. So it is much simpler to mail individual objections. Two, far
    Message 1 of 3 , Jul 2, 2010
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      Thanks a lot for the kind words.

      Two problems with the suggestion though.
      One, time is short. So it is much simpler to mail individual objections.
      Two, far more serious, the table cannot be accommodated in an e-petition. At least that's how I understand.

      So, those who agree should shoot off individual mails to <rsc-st@...>.

      Sukla

      On 2 July 2010 12:52, SADANAND PATWARDHAN <2Sadanand@...> wrote:
       

      Excellent work Sukla Sen. After this effort done by others & you, I find it unfair to send it in my name without the detailed study it entailed. I suggest that you run a ePetition on any site (such as http://petitiononline.com/) and collect signatures supporting the formulated amendments. I would be very happy to endorse and have others sign too.

       

      This whole game of capping liabilities in case of “industrial catastrophes” is a clever way of externalizing major costs of projects that are intrinsic to their nature & operations to a later period &  to be borne by the society at large or better still by generations to come. If these were to be fully accounted for & factored into project feasibility studies, then no Capitalist in his senses would embark on implementing them nor any consumers be willing to bear the price (and consequences that would then stand naked & exposed, and not hidden & unknown as of now) of the “benefits” they would obtain.

       

      One suggestion for improvement : Every supplier knows (hopefully) what he is peddling. So the clause,

      The contract between any and every operator and its supplier(s) (of equipment, material or services, as the case may be) must include in writing a provision to the effect that the operator shall have the right of recourse in case of an “incident” without any exception, including as regards the damage to the equipment/plant/site”.

      May be altered or supplemented by :

      Every supplier would give an undertaking to the operator to voluntarily subject himself to the provisions of this clause/ act ”.

      Regards,

      Sadanand

      +91 99 234 24 661.

      From: arkitectindia@yahoogroups.com [mailto:arkitectindia@yahoogroups.com] On Behalf Of Sukla Sen
      Sent: 01 July 2010 23:23
      To: IHRO; issueonline; arkitectindia@yahoogroups.com; national-forum-of-india@...; concrn4each@...; invitesplus@yahoogroups.com; mahajanapada; bahujan; international-peace-festival; humanrightsactivist
      Subject: [Arkitect India] Submission to the Parliamentary Standing Committee on Science & Technology, Environment & Forests on 'Civil Liability for Nuclear Damage Bill 2010'

       

       

      Dear Friend(s),

       

      The Parliamentary Standing Committee which is now examining the 'Civil Liability for Nuclear Damage Bill 2010' has, through a public notification, asked for comments from the public on the Bill by July 9 to be sent to: <rsc-st@...>.

       

      Reproduced below is a model letter.

       

      May like to directly mail the same, or on similar lines, with your name(s) and address, and date, indicated at the end to: <rsc-st@...>.

       

      Sukla

      To

      Dr. T. Subbarami Reddy,

      The Chairman,

      Parliamentary Standing Committee on Science & Technology, Environment & Forests,

      New Delhi

       

      Sub: Submission on 'Civil Liability for Nuclear Damage Bill 2010'

      Ref.: Public Notification dated June 24 2010 (Re.: <http://164.100.47.5/newcommittee/press_release/press/Committee%20on%20S%20and%20T,%20Env.%20and%20Forests/PRESS%20Release_English_.pdf>)

      Sir,

       

      Pursuant to your public notification inviting comments from the members of the general public, the following submission is made.

      The submission is divided into two parts: one, the background/explanatory notes/comments; two, updated list of specific suggestions.

       

      I. Background Note.

      The defining features of the Bill, to our understanding, are as under:

       

      One, it is an attempt to enact a law defining and tackling civil liability for nuclear damage, which does not obtain as of now, to facilitate participation of foreign players in Indian nuclear market.

       

      Two, the Bill is also a move towards joining the Convention on Supplementary Compensation (CSC) regime by enacting a law in alignment with that.

       

      Three, the Bill is a stepping stone to ensure entry of private players, whether foreign or indigenous, as "operators", as had been demanded by the FICCI in its June 2009 Report.

      But the Bill proposes to go way beyond the CSC framework to roll out a red carpet for the prospective private players to assume the mantle of "operator".

       

      Our major concerns, in brief, are as under:

       

      A. The entry of private players as "operators" is too dangerous given the unique nature of nuclear power industry and its catastrophic potentials, as chillingly illustrated by the Chernobyl Disaster on April 26 1986. The fact is that profit maximisation is the very raison d'etre of a private enterprise giving rise to the consequent innate tendency to cut corners in terms of safety measures. Regulatory mechanisms can at best only “regulate”. Hence, the envisaged ushering in of private players as “operators” of nuclear power plants is an open invitation to disaster.

      What is of great relevance here is that the CSC framework in no way obliges the country to open doors to private players, foreign or indigenous, as “operators” of nuclear power plants.

       

      B. There must not be any overall "cap" on the quantum of compensation to potential victims. That is too unjust and inhumane. It has to relate to the actual damages caused. The overall “cap” of 300 million SDR, which works out to about 460 million US$, is even lower than the compensation amount of US$ 470 million ratified by the Indian Supreme Court to the victims of Bhopal Gas Disaster way back in 1989.

      The CSC, again, does NOT so obligate. It actually allows for a three-tier compensation regime. Up to a limit, or “cap”, of 300 million SDR, in the first tier, to be paid by the “operator” or the national government, as per the law of the land. Then another tier, to a further 300 million SDR or so to be drawn from the common pool of funds maintained by the CSC. And then the national government may, at its own option, pay even beyond the upper limit of this second tier limit without any “cap” whatever.

       

      C. The Bill pegs the “liability” of the private “operator” at Rs. 500 crore per incident, with the further proviso to lower it down to even paltrier Rs. 100 crore. And the state, i.e. the Indian taxpayers/citizens, will have to pay, in case of an accident in a privately operated nuclear power plant, the amount of “liability”, i.e. compensations for damages, exceeding the “cap” for a private "operator" subject to the overall limit of 300 million SDR. 

      Even in this case, The CSC does NOT obligate to peg the "cap" for the "liability" of any "operator" any lower than 300 million SDR, which amounts to around Rs. 2,100 crore or 460 million US$. And while the CSC obligates that there must be a cap of 300 million SDR, it does not envisage any overall cap on the compensation to be made available to the victims by a member nation.

      This is evidently a brazen attempt to favour private enterprises at the cost of Indian citizens. And a lower “cap” for a private “operator” would only further strengthen its intrinsic propensity to cut corners in the realm of “safety”, with nightmarish prospects.

      II. Specific Suggestions (Updated – based on oral presentation on 24 06 2010)

       

      Contentious Clauses

      Draft Bill Provides

      Suggestion/Amendment

      Explanation/Comment

      1.

      Atomic Energy Regulatory Board to notify incident

       

      (Chapter II, Cl. 3)

       

       

       

      Any private citizen, or group, will have the right to draw the attention of the AERB to an alleged “incident’ in case it is not notified by the AERB suo moto. The AERB shall duly examine and respond to such request.

      The AERB must be made autonomous of the DAE. Its functioning must be monitored by an independent experts’ body.

       

      2.

      Channelising the liability to “operator”.

       

      (Chapter II, Cl. 4 (1))

       

       

      The operator for the nuclear installation shall be liable for nuclear damage …

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      To be further added:

      The operator shall deposit a sum of 300 million SDR in an escrow account for each nuclear reactor to be operated before start of operation.

      This is a welcome provision as otherwise there would be no pre-designated (singular) source from which the compensations for the victims to be obtained. And the whole process could turn utterly cumbersome and lengthy.

      However, there must be adequate provisions for the operator to claim compensations, in turn, from the supplier/designer/consultant etc., as the case may be, without diluting its liability to the victims.

       

      This will eliminate much of possible complications in the event of an “incident”.

       

      3.

      Exceptions to the operator as regards liability

       

      (Chapter II, Cl. 5(1) i & ii)

       

       

       

      “grave natural disaster …”

       

       

       

       

       

       

       

      The list of exceptions, under Cl. 5(1) (ii), includes “terrorism”.

       

       

       

       

      To be dropped in entirety.

       

       

       

       

       

       

      To drop “terrorism” from the list.

       

       

       

       

       

       

       

      The corresponding CSC clause - Annex, Article 3, 5. b. - provides that national law may have provision to drop such circumstances from the list of exceptions.

       

      It does not figure in the corresponding CSC clause: Annex, Article 3, 5. a.

       

      The concept of “strict liability” being the foundational concept, such exceptions, and consequent transfer of liability for damage under such circumstances to the “Central Government”, and thereby to the Indian taxpayers, in case of a private operator, is wholly undesirable and unjustified.

       

      4.

      A.

      The total cap on liability

       

      (Chapter II, Cl. 6(1)

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      B.

      Limits of liability of a (private) operator

      (Chapter II, Cl. 6(2) and 7(a) and (c))

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      C.

      Cl. 6. (2), para 4

       

       

      The maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights.

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      Rs.500 crore as operator liability ceiling, with a provision for reduction to Rs. 100 crore.

      The balance, if any, up to 300 million SDR to be paid by the Central Government.

       

       

       

       

       

       

       

       

      Provided also … cost of proceedings.

       

       

      In case of an “incident” of exceptional gravity, the cap on the liability of the Central Government shall stand withdrawn through due notification by the Claims Commission.

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      This provision to be dropped.

      The operator is to be held liable for compensation up to 300 million SDR, as in case of the Central Government as operator under Cl. 7 (b).

       

       

       

       

       

       

       

       

      Cl. 6 (2), para 2 & 3 shall be deleted, in any case.

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      To be amended as:

      Provided also that the amount of liability as provided above is exclusive of any interest or cost of proceedings.

       

      There must not be any cap on total liability.

      This, by the way, does not contradict the provisions of the CSC.

       

      Three hundred million SDR (equivalent to about US $ 450 million, depending on the exchange rate obtaining)  is, in any case, too paltry.

      In case of Bhopal gas disaster, the compensation amount settled (to be paid by the UCC) back in 1989 was 470 million US $. That was pretty much inadequate.

      In case, of oil spill in the Gulf of Mexico, the BP has committed an initial amount of US $ 20 billion. And there will be no cap. In the US, in case of a nuclear accident, the first 300 million US $ to come from the respective insurance cover, then up to US $ 10 billion from a common pool of funds maintained by the nuclear industry. Beyond that, the Federal Government, without any cap. (Ref.: P. 2/4 of ‘The Price-Anderson Act: Background Information: November 2005’ at <http://www.ans.org/pi/ps/docs/ps54-bi.pdf>.)

       

      No lower limit of liability for (private) operator.

      Clauses (6 & 7, in particular) to be modified accordingly.

       

      The Convention for Supplementary Compensation (CSC) does not obligate the GoI to go in for such differentiated liabilities, one for private operator and another for the state affiliated operator.

       

      The discretionary provision for lowering the limit any further (to Rs. 100 crore), under Cl. 6 (2), para 3, is utterly unjustified. That makes nonsense of the “cap” of Rs. 500 crore. And the whole process of determining the “cap” appears to be entirely discretionary.

      5.

      Claims Commission

       

      (Chapter III, Cl. 9 (2))

       

       

      The Claims Commission must include member(s) of the medical profession with an established track record of engaging with people’s health issues to ensure the proper assessment of the health impact of an “incident”.

       

       

      6.

      Operator’s “right of recourse”

      (Chapter IV, Cl. 17 (a), (b) and (c))

       

       

       

       

      To be added:

      The contract between any and every operator and its supplier(s) (of equipment, material or services, as the case may be) must include in writing a provision to the effect that the operator shall have the right of recourse in case of an “incident” without any exception, including as regards the damage to the equipment/plant/site.

       

       

      The reported move of dropping the Cl. 17 (b) is utterly objectionable, as explained above (at entry 2).

       

       

      This will make the supplier all the more cautious about the quality and when the Central Govt. is the operator it will not be able to waive the right of recourse clause under the pressure of lobbying or whatever.

      This evidently will benefit the Indian taxpayers in case of an “incident”.  

      7. A.

      Extinction of right to claim

      (Chapter IV, Cl. 18)

       

       

       

       

       

      B.

      The right to claim compensation for any nuclear damage caused by a nuclear incident shall extinguish if such claim is not made within a period of ten years from the date of incident notified …

       

      (Para 2)

      Provided that where a nuclear damage is caused  …. But, in no case, it shall exceed a period of twenty years …

      The limit of 10 years is too short.

      To be made 30 years at least.

       

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      Under such circumstances, the Central Government must duly examine a claim and pay appropriate compensation by routing the case through the AERB.

      This would, however, be a departure from the norms of the CSC

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      It means that in case of a damage arising out of a nuclear incident caused by some nuclear material stolen more than twenty years back, the victim will have no right to any compensation.

      That is totally unacceptable.

       

      8.

      Exclusion of jurisdiction of civil courts

      (Chapter V, Cl. 35)

       

       

       

       

       

       

       

      While no civil court must have any right to intervene in the conduct of proceedings by the claims commission and ready implementation/enforcement of its award/order, much as in case of the Election Commission; there must be provision to for appeal to an appellate authority – High Court or Supreme Court, without affecting the immediate implementation/enforcement of the award/order by the claims commission.

       

      Otherwise, it would be violation of natural justice.

       

       

      9.

      Offences and penalties (Chapter VI, Cl. 39 (1))

       

       

      … shall be punishable with imprisonment for a term which may extend to five years or with fine or both.

       

       

      To be amended as:

      shall be punishable with imprisonment for a term which may extend to ten years, with or without fine.

       

       

      The provision for penalty for not complying with the award, Cl. 36 (1) (b), for example, is too paltry.

      In any case, this is only maximum.

      And, the provision for imprisonment must not be substitutable by fine.

       

      10.

      Offences by companies (Chapter VI, Cl. 40 (1), para 2)

       

       

       

      Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act, if he proves that offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

       

       

      This has to be amended as:

      Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act, if he proves he exercised all due diligence to prevent the commission of such offence.

       

      “that offence was committed without his knowledge or”: to be deleted.

      This clause, in its present form, violates the principle of command responsibility and thereby would ensure that minions are punished in case of violations and senior officers go scot free.

       

      11.

      Immunity to Central Government and its employees

      (Chapter VII, Cl. 47)

       

       

       

      No suit … thereunder.

       

       

      This is to be dropped in entirety.

       

       

      No such immunity in operating a nuclear plant/installation is called for. Such immunity will only engender criminal negligence and worse.

      12.

      Power to remove difficulties

      (Chapter VII, Cl. 49 (1), para 2)

       

       

       

       

      Provided that no order shall be made under this section after the expiry of three years from the commencement of this Act.

       

       

       

      This para is to be dropped in its entirety.

       

       

       

       

       

      If the Indian Constitution needs be amended even after sixty years of coming into force, why the limit of “three years” here?

       

       

      13.

      General point

      Compensation for environmental damage

       

       

       

      Any public spirited group or citizen, apart from public bodies like Gram Sabha, panchayat, municipality etc. and affected persons, must be entitled to raise such claims.

      There must be a clear provision towards that.

      And, also who will receive such amount?

       

      Under “Definitions” (ref. Chapter I, Cl. 2 (f) (iv), “nuclear damage” covers “impaired environment”.

      It is, however, not provided who can lodge claims for “costs of measures of reinstatement” as mentioned therein.

       

       

      Thanking you,

       

       

       

      Date: .. 07 2010

       

      Cc.: Members of the Standing Committee:

       

      Members from the Rajya Sabha:

      1. Shri S S Ahluwalia

      2. Shri Rajiv Pratap Rudy

      3. Shri Anil H. Lad

      4. Shri Ramachandra Khuntia

      5. Prof. Ram Gopal Yadav

      6. Dr. Ejaz Ali

      7. Dr. Barun Mukherjee

      8. Shri Saman Pathak

      9. Shri Jabir Husain

       

      Members from the Lok Sabha:

      1. Dr. Rajan Sushant

      2. Shri D.V. Sadananda Gowda

      3. Shri C. R. Patil

      4. Smt. Kamla Devi Patle

      5. Shri Yashwant Sinha

      6. Shri Mansukhbhai D. Vasava

      7. Kaisar Jahan

      8. Shri Bibhu Prasad Tarai

      9. Shri S.S. Ramasubbu

      10. Shri Pradeep Tamta

      11. Shri Francisco Sardinha

      12. Shri Ninong Ering

      13. Dr. Charan Das Mahant

      14. Shri Gajendra Singh Rajukhedi

      15. Shri Akhilesh Yadav

      16. Dr. Ranjan Prasad Yadav

      17. Shri Udyanraje Bhonsle

      18. Shri Jayaram Pangi

      19. Shri A. Ganeshamurthi

      20. Dr. Mirza Mehboob Beg

      21. Shri K.C. Singh Baba

      and

      Secretary to the Standing Committee, Mr. JP Sharma.

       


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