The decision of the Department of Atomic Energy to divest the Atomic Energy Regulatory Board of its jurisdiction over BARC installations stems basically from its desire to announce its weaponisation programme to the world.
R. RAMACHANDRANTHE April 25 decision of the Department of Atomic Energy (DAE) to divest the Atomic Energy Regulatory Board (AERB) of its jurisdiction over the activities and facilities of the Bhabha Atomic Research Centre (BARC) on grounds of national security raises f undamental questions about the regulatory framework and implementation of safety standards, codes and procedures that govern nuclear activities in the country. It has been done because of the government's increased weapons-related activities following th e Pokhran-II tests and its stated policy of nuclear deterrence.
Even within the context of civilian nuclear activities, the independent authority of the Board was a matter of controversy and debate because the Board came directly under the Atomic Energy Commission (AEC) and the Chairman of the Commission was also the Secretary of the DAE, whose activities the AERB was supposed to regulate and oversee. The Board depends on the DAE for its finances and technical support. The removal of the BARC, whose activities constitute a major part of nuclear activities in the cou ntry, from the purview of the AERB amounts to further erosion of its independent status.
The AERB was constituted on November 15, 1983 by a constitutional order (vide Gazette Notification No. 25/2/83) under Section 27 of the Atomic Energy Act of 1962, which allows the government to create a suitable authority to discharge its duties under th e Act. Sections 16, 17 and 23 of the Act stipulate the responsibilities of the government to carry out certain regulatory and safety functions on nuclear and radiation installations in the country. The regulatory authority of the AERB is derived from the rules and notifications promulgated under the Atomic Energy Act and the Environment Protection Act of 1986.
The statutes under the notification vest the AERB with "jurisdiction over all the units of the DAE and all radiation installations of the country". The statutes also appoint the AERB Chairman as the Competent Authority under other safety- related rules s uch as Radiation Protection Rules, 1971; Atomic Energy (Safe Disposal of Radioactive Waste) Rules; Atomic Energy (Factories) Rules, 1984; and Atomic Energy (Working of Mines, Minerals and Handling of Prescribed Substances) Rules, 1984. These Rules are f ramed under Sections 17 and 30 of the Atomic Energy Act, which gives powers to the government to enact suitable rules in discharging safety-related functions.
From the enacted statutes, it is clear that the AERB has the powers to exercise its authority over all nuclear - civil or military - activities of the DAE. Therefore, taking out specific units of the DAE by an Office Memorandum (O.M.) - and not a corresp onding gazette notification to amend the powers - is clearly violative of the statutes constitutionally vested with the AERB.
The BARC is the chief unit of the DAE where all nuclear-related research and development (R&D) is carried out, and the bulk of it happens to be civilian. Indeed, the inclusion of all BARC facilities in this decision means that besides the various civilia n research activities within the BARC complex in Trombay and, more importantly, the waste management facilities at Kalpakkam and Tarapur, even units such as the sewage treatment facility in Vadodara, the high-altitude cosmic ray research facility in Gulm arg and so on will be out of the AERB's purview.
Indian nuclear weapons-related activities are known to have been going on since the Pokhran-I test of May 1974. According to A. Gopalakrishnan, former AERB Chairman, these had been kept outside the purview of the AERB until now under some informal unders tanding. For example, the Radio-metallurgy Division of the BARC, where reprocessed plutonium is fashioned into weapon cores, has always been out of bounds for the AERB. It is learnt that whenever the AERB asked for visits to the division, it was refused on some pretext or the other, such as maintenance. Except monitoring its effluent discharges, the AERB too, it appears, did not press the issue as it was a single unit within the sprawling Trombay complex.
There have been other units of the BARC as well to which access has been denied - for example, the actual centrifuge operation area of the uranium enrichment facility at the Rare Materials Project (RMP) near Mysore or wings of the reprocessing facility w ithin Trombay or PREFRE in Tarapur or KARP in Kalpakkam where weapons-related activities are carried out. But not the entire unit. For example, at the RMP the AERB had access to the hydrogen flourination plant - there is no nuclear component here, howeve r - for monitoring its safety operations. According to Gopalakrishnan, the AERB had to be satisfied with the radiation and discharge data provided by the BARC (as monitored by its internal safety personnel) and had no independent authority to verify them . In fact, even this limited access to the AERB came only after the public disclosure of the existence of the enrichment facility by P.K. Iyengar, former AEC Chairman, in 1992.
There is one other defence-related nuclear activity that had been kept under wraps until 1994 but was widely known to be going on. This is the nuclear submarine or the Advance Technology Vehicle (ATV) project, a programme of the Defence Research and Deve lopment Organisation (DRDO) being jointly carried out by the DRDO, the Indian Navy and the BARC. During his tenure, Gopalakrishnan had apparently sent a letter to AEC Chairman R. Chidambaram seeking permission to implement safety procedures in the ATV pr oject. The letter was apparently sent back with a remark that the AERB should consider that such a project did not exist. Interestingly, Gopalakrishnan had once been part of the project itself during his earlier days with the DAE.
However, the project acquired the status of official acknowledgement on December 8, 1994 when M.R. Srinivasan, who preceded Chidambaram as the AEC Chairman, wrote a detailed article about the project in The Hindu. But the ATV project remained out of bounds to the AERB. It was argued by some people in the DAE then that the project was actually under the DRDO and the AERB's jurisdiction was only over "all units of the DAE". But its jurisdiction includes all radiation installations in the country as well. Although this is interpreted by the AERB only to cover X-ray installations, radiation is defined in the Atomic Energy Act to include all nuclear radioactive emissions. From this perspective, the ATV project should have come under the purview of th e AERB.
From a safety perspective, perhaps it is better that the nuclear weaponisation programme is under the DAE rather than Defence Ministry as one would expect. Criticisms against the proposed "Internal Safety Committee" of the BARC notwithstanding, the Minis try of Defence or the DRDO would have even less expertise or experience with monitoring nuclear activities. (According to reliable sources within the BARC, the new system basically reverts to what prevailed before the AERB came into being with the head o f the Health Physics Division heading the Internal Safety Committee which would include members from various divisions of the BARC.)
According to AERB sources, the present curtailing of the AERB's jurisdiction has been effected through an O.M. signed by the AEC Chairman himself. This is unusual, according to Gopalakrishnan. Usually, the O.M. of the department is apparently signed by t he Director (External Relations) of the DAE. According to S.P. Sukhatme, the present AERB Chairman, the decision was apparently taken in consultation with the AERB and the order is stated to have the approval of the Prime Minister, the Union Minister in charge of Atomic Energy.
However, it appears that the move did not go through the process of first being discussed by the AEC, as one would expect. When asked, C.N.R. Rao, a member of the AEC, said: "The AEC does not have the mandate to discuss military issues." However, on poin ting out that all the activities and facilities of the BARC have been removed from the AERB's purview, he said that he was not aware of that decision.
On the other hand, Raja Ramanna, a former AEC Chairman and a current member of the AEC, refused to answer any questions on the matter except saying that it was the decision of the AEC which was taken in the last meeting of the Commission. According to th e Secretary of the Commission, K. Muralidhar, the last meeting took place in May. Interestingly, Chidambaram's O.M. is dated April 25. So, if at all the matter had the approval of the AEC, it was a post-facto decision after perhaps the Chairman, h aving obtained the Prime Minister's approval, presented the matter to the Commission as a fait accompli. It seems C.N.R. Rao did not attend the May meeting but events imply that the minutes of AEC meetings - which take place once in four months - are not circulated or conveyed to its members. Faxed or telephonic queries to the other members of the AEC - the Cabinet Secretary, the Principal Secretary to the Prime Minister and the Finance Secretary - did not elicit any response.
Interestingly, in the past no notifications or such O.M.s were issued to keep military-related nuclear activities out of the AERB's purview and it was being done on the basis of an informal understanding between the DAE and the AERB. The question that na turally arises is what made it necessary now? Sukhatme stated that this removed the "fuzziness" that existed before.
An implication of this - particularly after the National Broadcasting Corporation's (NBC) claim that India's nuclear arsenal is much smaller than Pakistan's - is that reprocessing capacity is being greatly increased and new facilities are probably being proposed to be established to produce weapons-grade fuel. Interestingly, and somewhat surprisingly, the 1999-2000 DAE Annual Report has stated: "Following the successful nuclear tests in May 1998 at Pokhran, implementation of the programe to meet the nat ional policy of credible minimum nuclear deterrence, in terms of necessary R&D as well as manufacture, is being pursued."
It stands to reason that civilian and military nuclear activities should be clearly separated. But this should not be at the cost of compromising on safety issues. But the manner in which this separation is being brought about gives enough ground for dou bts - notwithstanding the technical capability that is available within the DAE system - that an effective safety system, from the perspective of both the public and the radiation workers in these units, will be put in place. The least such a step would have required is the enactment of a separate technically comprehensive regulatory framework following extensive interactions with the AERB and safety experts.
Muralidhar, the AEC Secretary, justified the move by saying: "The system is still in the stage of evolution. One can keep arguing whether such a demarcation should have been made after 1974, or after May 1998, or after detailed technical discussions. As things evolve, the right balance would be achieved. And as regards the legality of the O.M., the Atomic Energy Act is sufficiently broad for the government to make rules to implement safety guidelines."
While it is true that under the Act the government has powers to make rules, Section 30(1) states that it has to be through a notification. Further, Section 30(4) states: "Every rule made under this Act shall be laid as soon as may after it is made, befo re each House of Parliament while it is in session for a total period of 30 days which may be comprised in one session or in two consecutive sessions, and if before the expiry of the session in which it is so laid or the successive sessions aforesaid, bo th Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall therafter have effect only in such modified form or be of no effect, as the case may be." The Budget session ended on May 17 and the April 25 O.M., if it is to be interpreted as a notified rule, was not placed in Parliament. On the contrary, it is being held confidential.
While there is no denying that weapons programmes in other countries - the United States is cited by the DAE - are under regulatory structures separate from those that oversee civilian activities, they are open and transparent like the Defence Nuclear Fa cilities Safety Board (DNFSB) of the U.S. The DAE is not even willing to disclose the composition of the Internal Committee whereas the DNFSB gives the full composition of its Board and the members' biodata and areas of expertise. The DNFSB, as pointed o ut by Gopalakrishnan in Frontline (July 7, 2000), also holds public hearings. The DNFSB has a web site and on it are posted the weekly safety reviews, the various technical reports pertaining to safety operations and even the correspondences of th e Board with relevant officials concerned with safety (see box). Besides, there are always periodic reviews by external agencies such as the General Accounting Office (GAO). In India there is no such mechanism.
National security and the Official Secrets Act (OSA) are invoked indiscriminately to avoid providing information in the public domain. It is always possible to allow adequate transparency without compromising national security so that safety issues do no t become a casualty. All that needs to be done is to create a special cell or group with appropriate insurance on confidentiality of information. The OSA can always be invoked against the members of such a group if the code is violated.
The government should stipulate policy guidelines on how to enforce safety regulations on military-related nuclear installations. The necessary rules or constituting independent authority should come only afterwards. Here everything has been turned on it s head. A few successful nuclear tests are being used by nuclear scientists as licence to take the government and the public for granted and make unilateral decisions. The present move and the open declaration in the Annual Report seem to stem more from the DAE's arrogant desire to announce its weaponisation programme to the world rather than any sincere considerations on issues of safety.
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