Mrs. Pratibha Patil
President of India
New Delhi – 110 004
Date: 1st September, 2010
Subject- Nuclear Disaster Liability Bill & Lessons from Chernobyl
This is with reference to the passage Civil Liability for Nuclear Damage Bill, 2010 from Lok Sabha and Rajya Sabha on 25th August and August 30, 2010 respectively and how “In the end, we all live near Chernobyl”.
Pursuant to my application to National Human Rights Commission (NHRC) and written and oral testimony to Parliamentary Standing Committee on Science & Technology, Environment & Forests regarding environmental hazards from radioactive radiation and nuclear wastes, now that Lok Sabha and Rajya Sabha have passed the Civil Liability for Nuclear Damage Bill, 2010, I solemnly and earnestly urge you to send the Bill back to the Parliament and the Union Cabinet for reconsideration.
On behalf of ToxicsWatch Alliance and public interest groups and individuals who are deeply concerned about the possible devastation of human life and ecosystem due to nuclear disaster, nuclear radiation and nuclear wastes, I respectfully ask that you order an open and transparent review of how nuclear power installations including uranium mines have been operating in the country before proceeding with new nuclear power plants. A White Paper on the current status of nuclear installations is a must for undertaking future operations.
I submit that the legal design of the Bill is flawed as it favours nuclear suppliers and nuclear exporters and the victims. Except for the appointment of Claims Commissioner as provided in clause 9 and the constitution of a Nuclear Damage Claims Commission as provided in clause 19 to adjudicate and award compensation for nuclear damage within a period of three months, there isn’t any other feature in the Bill that will protect the interests of the victims of disaster.
I submit that Union Cabinet must be asked to take steps to prevent the human cost of industrial disasters by recommending unlimited liability for companies in both Nuclear Liability Bill and the proposed Companies Bill, 2009. A beginning can be made by making these legislations victim centric and legal-artificial persons accountable to our legislatures. Neither Nuclear Liability Bill nor the proposed Companies Bill, provide for tracing the Companies or suppliers which become invisible or hide behind corporate veils after disasters or may not be in business after that.
I submit that before deciding on this pro-supplier Bill passed by the Parliament due to an unholy collaboration, Hon’ble President must consult experts like Dr. V. Maitreyan, an oncologist, former Chairman, Parliamentary Standing Committee on Science & Technology, Environment & Forests and currently Member, Rajya Sabha. Dr Maitreyan was trained by Dr. Robert Peter Gale, the world renowned medical oncologist who did bone marrow transplants on the Chernobyl nuclear accident victims. In his speech on 30th August in the Parliament he quoted Dr. Robert Peter Gale book "Final Warning -- The Legacy of Chernobyl" saying nuclear accidents happen, "In sum, accidents happen. This is why the nuclear industry continues to insist upon laws limiting its liability for damages arising out of nuclear accidents". At the conclusion of the Chapter, Dr. Gale says: "As for Chernobyl, it may be that the greatest contributions made at Hospital Number 6 were not the lives saved but the lives lost. For the failure to save lives demonstrated how deadly nuclear power can be and how helpless the world is when radiation rages wild. In the end, we all live near Chernobyl."
I submit that incidents such the leaky valves and malfunctioning of pumps and fuel bundles had almost shutdown one of India's first nuclear reactors at Tarapur in 1973, as has claimed been claimed by The Week magazine in one of its recent cover stories have remained outside the parliamentary scrutiny. "In September 1973, the inevitable happened. The malfunctioning of pumps, valves and fuel bundles at TAPS (Tarapur Atomic Power Station) led to the radioactive levels rising far greater than those laid down by the International Commission for Radiation Protection." The then Prime Minister Indira Gandhi had summoned Atomic Energy Commission (AEC) Chairman Homi Sethna and Bhabha Atomic Research Centre (BARC) Director Raja Ramanna to convey her "acute concerns" on the matter. "Eminent scientists, both pleaded with her not to pronounce what would have been a death sentence on the credibility of the country's nuclear programme," the report said quoting Ashok Parthsarathi, then the Scientific Assistant to Gandhi. A High Powered parliamentary team should be given the task of examining such pitfalls so as to incorporate lessons from them in the Bill.
I submit that Union Cabinet should agree to set up a committee to study the effects of nuclear damage on India before rushing through the Bill. This Committee should consist not only of nuclear scientists and engineers, but also economists, agricultural scientists and public health experts. As has been admitted by the Government of India that, “in a sense the elected political class of the country let down the victims of Bhopal," because we did not have adequate liability laws, the passage of Civil Liability for Nuclear Damage Bill appears to be doing the same again through this “insurance for the protection of suppliers and operators in the case of a nuclear accident” and through signing Convention on Supplementary Compensation for Nuclear Damage although there is no need for India to join it which has been ratified by only four out of thirty nuclear power countries.
I submit that many other countries have unlimited liability, capping the liability of the operator of the plant at a very small level of Rs.1, 500 crores is uncalled for. The Government of USA forced BP to set aside an amount of USD 20 billion in an escrow fund to settle claims. Indeed a serious nuclear accident will have consequences that are much more severe than this oil spill. Does Government of India believe that Indian lives and property are less precious than lives of those of citizens of USA? The total liability for each nuclear incident remains capped at 300 million SDR, that is, Rs.2122.40 crores or $455 million as per clause 6 (1). The amount is less than even the Bhopal settlement of $470 million, which has been acknowledged as grossly inadequate by the Government itself. Such cap on liability will also have an impact on the safety of nuclear installations in the country. This is because the cost of a single nuclear reactor can be as high as Rs.30,000 crores as in the case of the reactor planned at Jaitapur by AREVA, a French public multinational industrial conglomerate headquartered in the Tour Areva near Paris.
Consequently, the cost of a reactor can be 20 times the maximum amount of liability. It means that it might be cheaper for the operator to take the risk of paying the maximum liability than to spend, say, 10 per cent extra in adding safety features to the plant. The Bill passed by the Lok Sabha and Rajya Sabha includes a right of recourse for the operator but the liability of the supplier is limited to Rs.1,500 crores which is the maximum third party damage that the operator will have to pay. The supplier may sell a plant for Rs. 30,000 crores but will be liable for a maximum of only 5 per cent of that amount.
It is submitted that the preparations for the visit of President of United States of America (USA) occupied Union Cabinet so much that it failed to consult the secretaries of ministries/departments of government of India on the draft nuclear liability bill. The Parliamentary Standing Committee referred to how secretaries of ministries of health & family welfare, agriculture, labour & employment, food & public distribution, etc. who were ignored in the drafting of the Bill as a very serious lapse of the Union Cabinet. Starkly enough, none of the concerned Chief Secretaries or Chief Ministers of the relevant states been consulted either. The Parliamentary Standing Committee, therefore, recommended that “the government should consult all such ministries/departments which are even remotely concerned with the provisions of a proposed legislation", the same has not been done. Not only that the submissions of secretaries of home ministry, water resources, ministry of health, agriculture ministry, department of food and public distribution etc have not been incorporated by the Lok Sabha and Rajya Sabha. Notably, Secretary, ministry of health said, “Since the response system to deal with any kind of emergency of such type, the hospitals are not well-equipped, it is natural that mortality and morbidity due to multiple burn, blasts, radiation injuries and psycho-social impact could be on very high scale and medical tackling of such a large emergency could have enough repercussions in the nearby areas of radioactive fallout. She also mentioned that in the entire bill, there is not a single clause which speaks about taking health care during radiological emergencies. It reflects only about payment of compensation due to health impacts of such radiation. She suggested while setting up nuclear plants consideration may also be given to the fact that there should be a hospital having trained doctors near such establishments and arrangements should also be made for free treatment of people who are affected by serious nuclear fallout." She confessed that “her ministry is nowhere to meet an eventuality that may arise out of nuclear and radiological emergencies.” Similar testimonies from secretaries of other ministries provide a chilling and prophetic forewarning.
In compliance of the suggestion of Chairperson of the Parliamentary Committee during my testimony on August 3, 2010 and pursuant to my written submission dated July 7, ToxicsWatch Alliance (TWA) had specifically drawn the attention of the committee with regard to the narrow definition of the word 'installation' and conflict of interest ridden existence of the AERB. In a letter to the committee dated August 12, TWA has highlighted the backdrop of the deliberations on the Civil Liability for Nuclear Damage Bill. TWA has questioned the merit of centralised power stations given 35-40 percent transmission and distribution loss from power grids. The Secretary, financial services, ministry of finance submitted before the committee that "any increase in premium of insurance will lead to increase in the cost of production of electricity for nuclear power. It is argued that higher the liability limit higher will be the insurance premium and subsequently higher will be the cost of electricity production." It has been noted in the Rajya Sabha that as far as the cost difference between hydro, thermal and all the available options vis-à-vis nuclear electricity is concerned, the cost difference is 1:3. If the objective of wanting to generate 40,000 MW of nuclear power in the next two decades is considered, the cost difference between conventional and nuclear electricity would be more than Rs. 3,00,000 crores (Rs. 3 lakh crores) . This amount can build 20,000 hundred-bedded modern hospitals all over the country and 2.5 lakhs of Navodaya Vidyalayas with boarding facilities for 100 students all over the country.
Testimony after testimony before the committee had asked for deletion of the word terrorism from the bill but the same is not reflected in the committee's report despite the fact that Defence Secretary Pradeep Kumar categorically stated, "under different layers of protection, nuclear assets including nuclear installations are being protected through defence. However he admitted that absolute and fool proof protection cannot be guaranteed for any nuclear or other assets in the country during peace or war." Exceptions for acts of terrorism can easily be used by the supplier and the operator to wash their hands off any nuclear disaster.
I submit that section 46 of the Bill suggests that existing criminal laws can be used only against the operator. The existing criminal laws, including section 304 and section 304A of the India Penal Code should be applicable to the supplier as well.
Earlier 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.' He said so in an interview conducted by EG Weymouth, editor-at-Large of Newsweek treasured on Prime Minister’s website on November 16, 2009.
The reason for such tearing hurry and nervousness in passing Civil Liability for Nuclear Damage Bill can be traced to the visit of President of United States of America to India and in a press release from the Indian Embassy in Washington which notes, "The historic bilateral cooperation agreement for peaceful uses of nuclear energy, the 123 Agreement that we signed two years back provided for reprocessing of US obligated nuclear material in an Indian national facility under IAEA safeguards." A letter written by the then Foreign Secretary to the US Under Secretary on 10th September, 2008 says, "India also recognizes the importance of establishing an adequate nuclear liability regime and it is the intention of the Indian Government to take steps to adhere to the Convention on Supplementary Compensation for Nuclear Damage." This letter was quoted in Rajya Sabha on 30th August, 2010. Further evidence is visible, in an interview on 10th March, 2010 the US Secretary of State says, "Our interests are to ensure that the Bill that is ultimately enacted is complaint with the international standards in this area which is a Convention on Supplementary Compensation. That is our chief interest." That is why the clause 7(a) in Civil Liability for Nuclear Damage Bill, where it says explicitly, "If there is an explicit contract between the operator and supplier....". This merits high level of parliamentary scrutiny. These are certain things which still required to be considered, keeping in mind the plight of those persons who are, finally, going to be the sufferers if some nuclear disaster takes place. The press release from Washington observes, "The government of India has already designated two sites for nuclear power plants to be established in cooperation with the US and the companies of the two countries are now engaged in discussions" as a follow up of the Strategic Dialogue and the meeting of the CEO's Forum prior to the visit of President Barack Obama to India in November, 2010.
I submit that the influence of Federation of Indian Chambers of Commerce and Industry (FICCI)’s draft of the Civil Liability for Nuclear Damage Bill and Union Cabinet’s preparations for the visit of Barack Obama, President, United States of America to India in November, 2010 did provide sufficient time to dwell adequately on even the submissions of secretaries in the event of a nuclear disaster of the Chernobyl type. The Union Cabinet has ignored that since 1980, the United States of America has not added a single megawatt of nuclear power in their country taking lessons from The Three Mile Island nuclear accident.
I submit that in order to complete the journey which the Prime Minister Dr Manmohan Singh had undertaken to USA five years ago most concerns have disregarded due to the role of FICCI which is the largest and oldest business organisation of the country claiming to be a "non-government, not-for-profit organisation" with direct membership from the private as well as public sectors, including MNCs, and an indirect membership of over 83,000 companies. Clearly, with the passage of this Bill FICCI’s efforts on its own and on behalf of the multinational nuclear companies have succeeded despite India’s exemplary poor safety record with no database of radioactive radiation victims who appear to be deemed collateral damages for ‘development’ any cost based on nuclear power at any exorbitant cost.
In such a grim context, Hon’ble President may consider sending the Bill back to the Parliament for recommending re-consideration, formation of a Joint Parliamentary Committee sans conflict of interest to examine the current liability regime for nuclear disaster in the world besides constituting a high-powered trans-disciplinary independent experts committee to study true economics of nuclear power at leisure so that present and future generations and their ecosystem doesn’t suffer due to the myopia of FICCI, Union Cabinet and their unsound business sense.
-Mrs Sonia Gandhi, Chairperson, National Advisory Council, Government of India & MP, Lok Sabha
-Mr Rahul Gandhi, General Secretary, Indian National Congress & MP, Lok Sabha