In my recent article (IE October 2008) I complimented the government for getting international commerce opened up for the Indian nuclear industry. I briefly dealt with the further steps required. I elaborate on those steps.

Robust planning is required in the areas of legislation, regulatory licensing and on setting up national outfits to support a large program me. We need to organize infrastructure in areas such as fuel fabrication, fuel storage, reprocessing, waste management, waste repositories and decommissioning. Till now many of these aspects had been treated as an in-house problem of Department of Atomic Energy (DAE). Naturally many of these aspects are anchored on the national nuclear research centre, the Bhabha Atomic Research Centre (BARC). The implications of separating the civil and strategic nuclear activities in the country necessitated by the recent international agreements with BARC being kept as an un-safeguarded installation, need to be analysed deeply and necessary structural changes will have to be made.

Nuclear energy production in private sector

As per the Indian Atomic Energy Act all nuclear operations are under the control of governmental agencies. With the opening up of the atomic energy operations and plans on capacity enhancement of nuclear power, it is desirable to induct private sector units in areas such as nuclear power plant erection and operation. This will inject a more healthy competition in this field as we have noticed in other fields such as tele communications. But various related aspects such as waste management, fuel storage, safeguards and safety need to be carefully structured. Large- scale installation of nuclear electricity capacity calls for changes in legislation to enable private participation in this sector for the healthy growth of this sector. But this is bound to have implications which need to be foreseen: There would be need not only for regulation but also for operational control in certain areas such as back end of the fuel cycle, overseeing of radiation safety and safeguards. In the United States not only front end of nuclear power production but also the back end has private participation. In India’s case, it may be desirable, for the time being, to allow only nuclear power reactor installation and operation in the private sector. For taking care of back end operations, there should be planning for national set ups the cost for which should be borne by the reactor operators.

If the responsibility of erecting and operation of nuclear power reactors is also to be given to private sector, legislation has to be suitably amended. In this respect a comparative study of the atomic energy acts of the USA and India will serve as a guideline.

Required changes in the present structure

As per the Atomic Energy Act 1962 the entire gamut of activities connected with nuclear energy, beginning from uranium and thorium mining, is the government's monopoly and only a government company can set up nuclear plants and generate power. Under the present Act, the "Centre has the exclusive power to produce, develop, use and dispose of atomic energy either by itself or through any authority or corporation established by it or a government company and carry out research into any matters connected therewith."

When the industry was an insulated one under governmental controls, such issues could be covered internally by the government at times invoking secrecy clauses even in case of the operations which are civilian in nature. But with the opening up and with projected private participation, the issues involved would become more global and the necessary legislation has to be updated/enacted.

The firefighting nature of initiating charges issuing piecemeal circulars and notifications would lead to complications. An example of this is the Gazette notification issued by DAE in 2006 on the guidelines for nuclear exports which was necessitated by the ongoing discussions for an agreement with USA. 'Nuclear explosives' are mentioned in this notification but no mention is found in the Act. The Act needs amendment to incorporate such features to avoid possible contradictions and inconsistencies.

In this respect differing signals are emanating from the government. These are even suggestions that no changes in the Act were required. If the government envisages continuing with the present set up under the public sector undertakings, keeping direct governmental controls and giving only sub contracts to the private sector, then, with the huge outlays on nuclear power production envisaged, it will end up with unnecessary burden on the public sector undertakings and govern-mental agencies; we may lose the advantage of opening up of healthy competition and a higher degree of accountability.
All these issues need to be considered by expert groups and through public discussions. The process will be time-consuming but postponing decisions on the issue will not be desirable.

It is a good augury that there is a clear understanding and appreciation of the situation in governmental circles.

Underwriting risks and IPR issues

In case of nuclear power, underwriting of collateral damage is an important aspect. At present, the state-owned Nuclear Power Corporation is the only entity in nuclear power generation. So indirectly, it is the Central government which is underwriting such risks. Once private entities enter the arena, how the issues of damages and rehabilitation can be resolved need to be looked into. It is interesting to note how this is dealt with in the US laws wherein licences are given to private operators for running nuclear power stations and even back end facilities, but the state is responsible for the safety of waste-storage and associated risks and the "generator of the waste shall reimburse the cost for disposal of wastes."
IPR and patent rights are also important for atomic energy operations and have been kept out of the purview of the Indian Atomic Energy Act. As has been opined by experts on patent rights, if India wants to export its own reactors, there are aspects such as zirconium for cladding of fuel would invite IPR issues. Similarly many of the components used in the Indian programme have been copies or may seem to be copies of items under international patents.

Incorporate strategic applications in the Act

After India gate-crashed into the Nuclear Club in 1998, there was a need to make this an accepted fact in our Atomic Energy Act. Incidentally this may have helped us to some extent in the two year long discussions with the USA on nuclear co-operation. The USA, on its part, was backed by its atomic energy act and it further came with an amendment of the same to enable it to open nuclear commerce with India. But no corresponding steps were taken by India. And we found ourselves in the midst of a fluid political situation in which taking such steps was difficult. But that should have been foreseen earlier.
It is pertinent to note that while international agreements have now recognised India as a weapon state, Indian legislation does not take cognizance of that. The preamble to the Atomic Energy Act 1962 mentions the application of atomic energy exclusively for 'peaceful purposes' and to "control and use of atomic energy for the welfare of the people of India and for other peaceful purposes." The Act was originally enacted in 1948 and replaced by the Act of 1962 to give exclusive authority to the state in this field.

Separation of regulatory control for civilian and strategic applications

The Atomic Energy Regulatory Board (AERB) was constituted in 1987 to carry out regulatory and safety functions covering all the nuclear activities in the country. After India announced its emergence as a nuclear weapon country in 1998, the need for separating the control of safety in nuclear operations became clear. Subsequently efforts to separate the regulatory control of strategic applications and civilian applications were attempted. Regulatory control of safety for BARC facilities is now handled by a separate council outside the purview of the AERB. Though the BARC Safety Council was constituted in 2000 by a DAE notification, this bifurcation has not yet been appropriately incorporated in the Atomic Energy Act. Any operation/plant under BARC is being kept outside the purview of AERB even if the application is in a civilian domain such as medicine and industry. The bifurcation based on an institution rather than on the nature of the application (strategic or civilian) can bring in complications if something went wrong. AERB has a good website which gives the Atomic Energy Act, amendments, its rules, regulations, codes and guides as well as the circular of its formation in its site but not on the bifurcation of responsibilities.

Back end nuclear fuel cycle facilities…

Further in the current set up practically all the operational responsibilities of the back end of the nuclear fuel cycle are centered on the Bhabha Atomic Research Centre. BARC, under the agreed protocol of separation under the Indo-US nuclear co-operation agreement, will be kept out of civilian applications. Various aspects of nuclear fuel cycle are now evolved interdependently. Even when the separation of civil and strategic facilities was discussed during the Indo-US collaboration discussions, it was clear that this will pose some problems. Take the case of waste management. Though the NPC plants have their own set ups for the waste management, they are somewhat fluidly connected with BARC for technical application. The back end of the fuel cycle is with BARC which is bound to create complications. For example, how the wastes or spent fuel generated by a safeguarded nuclear power plant managed by a private operator would be taken care of?

Another aspect is radiation-safety. Now the major responsibility for radiation safety for the entire nuclear operations is with BARC. Since BARC is to be kept out of the purview of safeguards, the current set up can lead to difficulties. So there is a need to enhance the purview of the regulatory set up for taking care of aspects such as regulatory compliance inspections, safety evaluations, etc, if some of the nuclear power stations have to be operated outside the purview of NPC. Waste management and decommissioning are features which have to be given due thought. On the other hand, if the government contemplates continuing the whole operations under NPC, it might result in a non-viable proposition and the advantage of competition and opening up will be lost.

Thus aspects such as back end of the fuel cycle, radiation safety, regulatory surveillance and even some aspects of fuel production, all interlinked with BARC facilities, may have to be re-organized. This would also be required when nuclear power production graduates to full commercial scale. Further, private operators should be made responsible for the back end and decommissioning expenses.

Comparison with US Atomic Energy Act…

In comparison, the US Atomic Energy Act originally enacted in 1954 and amended from time to time is more comprehensive and deals with every aspect of the issue. It is a voluminous 580 page document available in the NRC website. The regulatory powers of NRC are derived from this Act. The US Act also deals with the safety aspects of the defence-related applications and gives authority to a specially constituted Defense Nuclear Facilities Safety Board which exercises regulatory control over the defence nuclear facilities which are beyond the purview of the NRC.

On the other hand, the Indian Atomic Energy Act is a very brief one and seems to be patterned differently. It gives the government powers to undertake activities to control radioactive materials and plants and do the "needful to achieve the objectives including safety of operations." Issues such as uranium mining occupy the major part of the Act while it deals with power production and safety only summarily. This is understandable since it was instituted in the very early stages of the programme.

No regulatory requirements are mentioned in the Act. The institution of various set ups to achieve the basic principles mentioned in the Act is implemented by virtue of government notifications issued as and when required and derives the power from Article 27 of the Act. Thus the regulatory body AERB, which is analogous to NRC, was formed in 1987 by a notification of the Department of Atomic Energy referring to Article 27 of the Act.

In India also we have a set up analogous to the Defense Safety Board of USA formed after the formal entry of India as a nuclear weapon state in 1998. This is generally described as a BARC Safety Council. It was formed by a Gazette notification in 2000. But this covers all BARC facilities, even civilian facilities run by BARC in the public domain. What is required is a separation of the regulatory responsibilities from the point of view of its being civilian or strategic. There are bound to be some grey areas in responsibility. For example, transportation of radioactive materials connected with such operations might have some implications in the public domain in case of an accident. In the US Act there is certain amount liaison envisaged with the NRC for such exigencies. However, these features have not yet been appropriately incorporated in the Indian Atomic Energy Act.

All these calls for a comprehensive review of the subject and appropriate incorporation in the Act, This assumes importance and is necessitated also by the separation of civilian and strategic applications of nuclear energy envisaged in international documents such as agreements with IAEA, NSG and several bilateral agreements. Robust planning is required in legislation, regulatory control, safety, safeguards... to support a large nuclear power programme in the public and private sectors. Also needed is national industrial level infrastructure in areas such as fuel fabrication, fuel storage, reprocessing, waste management, decommissioning and regulatory compliance.