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22nd August 2010 Prabir Purakayastha
THE civil liability for nuclear damage bill has now gone through the standing committee of the parliament. Though some amendments have been added, the major thrust of the bill of protecting suppliers from significant damages has not only been maintained, it has even been strengthened. Unfortunately the major opposition parties such as BJP either refused to see this aspect of the bill or tacitly agreed with the government on the “need” to protect foreign suppliers. Consequently, the government has the requisite majority now in Rajya Sabha as well to pass the bill, the only significant opposition being the Left parties.
What were the major issues with the nuclear liability bill? As has been widely written about, the total liability due to a nuclear accident has now been capped at 300 million special drawing rights (SDRs) or about Rs 2,500 crore. This cap is for the operator and the government jointly – and if any accident happens whose damages run beyond Rs 2,500 crore, the people can be denied further compensation beyond this figure. If we look at the Bhopal disaster, which was from the leak of a poisonous gas and not as devastating as a major nuclear accident can be, everybody including the government now agrees that $470 million was grossly inadequate for the damages that people suffered. The total amount that the standing committee has now agreed is less even than this inadequate Bhopal amount. This is what the major parties in the parliament – the Congress as well as the BJP have now agreed. Not surprising, considering that both were involved in various stages of the Bhopal disaster and therefore have now a vested interest in not learning the lessons from Bhopal.
NO ARTIFICIAL CAP ON LIABILITIES
The Left’s position, as well as most other public voices have been very clear on this issue. There is no way the government can absolve itself of its liabilities. Therefore, there can be no artificial cap for damages.
What does this cap on liabilities mean? Does it mean telling the nuclear plants not to inflict damages beyond 300 million SDRs in case of an accident? Since this is patently absurd, all it means is that the government is putting a cap on what damages the claims commissioner can award; it is this that is being capped. The Left argues, as did others that there should be no cap on total liability at all – the government is responsible finally for addressing the peoples’ problems arising out of a nuclear accident and cannot therefore artificially cap its own liabilities.
The next question is considering what should be the operator’s liability? In the original bill, there was the possibility that private operators may enter the nuclear power sector and therefore would have only a small fraction of the total liability. The cap on nuclear operators was therefore seen as a concession to private capital, which might enter the nuclear energy scene in the future. The standing committee has now put two amendments – one is to limit this bill only to government or government companies as operators, the second is to raise the cap to Rs 1,500 crore.
It is welcome that the standing committee has plugged for now the possibility of private entry with such low operator liability caps to enter the nuclear power sector. Why then is there a separate liability cap for the operator when as per the current bill, the government in any case is the owner? Would it not have been simpler to introduce just one cap – 300 million SDRs equivalent as the operator cap? The mystery is solved when we look at the section 17 of the proposed bill – only the operator can exercise recourse from the supplier. Since the operator cannot take recover more damages than what he has paid out, the operator cap in this case is actually the supplier’s cap. Simply put, by limiting the government’s liability as an operator though not as government, the bill is capping the supplier’s liability to Rs 1,500 crore. The government may have to pay out more compensation beyond Rs 1,500 crore. However, as the bill stands, it cannot recover the amount beyond Rs 1,500 crore from the supplier.
The section 17 is the one that provides for suppliers' liability. The operator of a nuclear installation shall have the right of recourse where
(a) such right is expressly provided in the contract
17(b) the nuclear incident has resulted from the wilful act or gross negligence on the part of the supplier of the material, equipment, or provider of services or his employee
Both sections were independent - 17a and 17 b were to run independently. In the committee, it was agreed that the section 17 was weak and needed to be strengthened. This is also the view presented by the secretary, legislative department. The report states : In case an incident takes place it would be difficult to prove and establish the fact that it was a wilful act or gross negligence on part of the supplier. Hence there should be clear cut liability on the supplier of nuclear equipments/material in case they are found to be defective. Clause 17(b) gives escape route to the suppliers of nuclear materials, equipments, services of his employees as their willful act or gross negligence would be difficult to establish in a civil nuclear compensation case. Mens rea, which is only amplifying the intent in clause 17(b), as argued by the secretary (legislative department) is generally used in criminal and taxation laws, but in compensation cases the use of this doctrine is grossly inadequate and misplaced. The committee therefore recommends that clause 17 (b) should be modified as: “The nuclear incident has resulted as a consequence of latent or patent defect, supply of sub-standard material, defective equipment or services or from the gross negligence on the part of the supplier of the material, equipment or services.”
After this, the real twist took place. In the last draft submitted to the committee, an extra half sentence was introduced which read that clause 17 a end with “and”, then continue to 17b.
With this, 17b can be invoked only if 17a holds: the right to recourse exists only if it is there in the contract. This is what the US has been asking, that any recourse against the supplier should be there only if it is provided for in the contract. As it stands, it is even worse than the original provisions, where even without being in the contract, the operator could exercise his right to recourse against the suppler, even though it is difficult to prove wilful act or gross negligence.
RIGHT TO RECOURSE WEAKENED
If the stated intention of the standing committee was to strengthen clause 17, the reverse has been done – it has been weakened to make the right to recourse a mere private contractual arrangement between the supplier and the operator. The legal right of the owner to normal recourse for defective supplies under law of torts no longer exists. Worse, it has been done surreptitiously in the guise of strengthening the provision of the right to recourse.
Why has this been done when it was admitted that the provisions of clause needed to be strengthened? It is simply because the government has committed to the US that its liability law will conform to CSC. And CSC demands that suppliers liability should not be there in the liability law and can at best be in the contract. The American suppliers' had complained earlier that clause 17 as it stands allows for some legal right to the operator to seek recourse beyond the contract. This is why this right has now been extinguished and made into a contractual arrangement. And even there, the cap of Rs 1,500 crore will hold good.
The suppliers’ liability is the crucial issue for the US. They have made no bones about it and the attempt to force India to join the convention on supplementary convention (CSC) is also guided by the protection it offers to nuclear equipment suppliers. Contrary to what the Atomic Energy establishment has claimed in front of the standing committee, the fact remains the driver for India joining CSC is the US.
CSC was created as an instrument specifically post-Bhopal to protect US companies from being sued for large sums as damages. Omer Brown, the spokesperson of the nuclear suppliers’ lobby in the US, stated in a conference as far back as 1999, “Because of the large judgements and legal defence costs that unfortunately are a part of the American tort system, contractors and suppliers feel particularly vulnerable (especially to Bhopal-type lawsuits in US courts)”. It is no accident that the work by the US government to move for a stand-alone convention which would protect the suppliers started post-Bhopal, and the US is the country that initiated the CSC in IAEA. The CSC provisions are what India promised to the US during the India US nuclear deal and that is why the need for India to craft a liability law that will adhere to the provisions of the CSC.
The issue is not simply that the aims and objectives of the bill talk about joining the CSC; the issue is also the provisions of the bill, which have been crafted to ensure suppliers’ protection from damages that a nuclear accident might cause. This commitment to adhere to CSC provisions was made in writing by the then foreign secretary, Shiv Sankar Menon in a letter to the US under secretary, William Burns, (September 10, 2008), “India also recognises the importance of establishing an adequate nuclear liability regime and it is the intention of the Indian government to take all steps to adhere to the convention on supplementary compensation (CSC) for nuclear damage...”
The US has made no bones about the need to protect US suppliers and a liability to this effect. US assistant secretary of state for South and Central Asian Affairs, Robert in an interview (March 10, 2010), said, “We also are very much hoping that the Indian government will proceed with very important legislation on nuclear liability, that will be very important protection for American companies who are seeking to do more business in the civil nuclear area, in India.”
With this, the BJP has now joined the Congress in creating a bill that protects US suppliers from any defective supplies. The amount of Rs 1,500 as a damage cap on operator is way below the Bhopal disaster and what the government of India had asked from Union Carbide. It is even well below the Bhopal settlement figure of $ 470 million.
The only way to prevent this bill from being passed is for the people to demand of the legislature not to accept this shameful legislation. If this bill passes the parliament in its present form, it will add another sorry chapter in the long history of the India-US nuclear deal.
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April 25, 2010
Prabir Purakayastha
THERE are three important events that have taken place recently on the nuclear issue. One of this is the restarting of the stalled START process of cutting down of nuclear weapons by the US and Russia. The second is the Nuclear Posture Review just concluded by the Obama Administration. The last is the Nuclear Materials “Summit” that the US held with 46 countries. None of them provide any basis for thinking that the US has changed its positions in any fundamental sense – it goals still remain nuclear dominance of the world and isolating Iran (and North Korea). By themselves, they do not constitute a radical departure from past policies. However, given the bleak global nuclear disarmament landscape today, Obama's few gestures may indeed spark some hope for brining nuclear disarmament on the table once again.
Iran was not called to the Nuclear Material Summit called in Washington. It has responded by holding a global conference and calling for universal nuclear disarmament. Ayatollah Khomeini has followed this with a characterisation of nuclear weapons as haram and therefore not a legitimate weapon even in a war.
All this would provide a backdrop to the Nuclear Non-Proliferation Treaty Review Conference (NPT Revcon), which is to take place in May this year in New York. In 2005 NPT Revcon, the US was not willing to put any disarmament measure on the table while asking that the non-nuclear weapon states should give up their right under Article IV of NPT for the fuel cycle. This time also, the US agenda on the fuel cycle with its obvious target of Iran is unlikely to change. Whether the new START measures, which still retain thousands of warheads in US and Russian hands qualify as good-faith negotiations towards nuclear disarmament as mandated under Article VI of NPT remains to be seen. It will be presented as such even though it leaves sufficient nuclear weapons in US and Russian hands to blow up the whole world many times over.
What are the limits proposed in the new START (the old one expired in 2009) signed this month in Prague and what are the reductions? There are essentially three central limits under the current START program. They are:
Total number of launch vehicles is limited to 800 -- a reduction of about 10 per cent of US (Russians have less functional launchers in any case) launchers. The launch vehicles are ICBM’s, submarine launchers and nuclear weapon capable heavy bombers, with all such bombers being treated as one for the purpose of this count.
Total number of deployed launchers to 700
Total number of deployed warheads to 1,550 -- a reduction of about 30 per cent from 2,200 each
By any reckoning this is a very modest reduction, given that the next biggest nuclear weapons state, China has an arsenal of about 400 nuclear weapons. Even worse, START talks only of deployed warheads and weapon launch vehicles and not about the huge stockpile of actual warheads – in storage or un-deployed -- of about 10,000 warheads each. Unless the US and Russia are willing to reduce this stockpile, the so-called reduction contributes to atmospherics but little else.
The US insisted that the missile shields would not be a part of the START process. That means that the US can now go ahead with their missile shield and ring Russia using it. This shield has been the bone of contention between the US and Russia, as all arms control discussions accepts the link between offensive and defensive capabilities. One of the first arms control treaty was about Anti-ballistic missile – the ABM Treaty. This is what the US has formally jettisoned. The current START version accepts this link between offensive and defensive capabilities, but in a non-binding and quite vague preamble. So the US can go ahead install a missile shield in Eastern Europe, ostensibly targeted against Iran.
NPR 2010: NO PATH BREAKING REVIEW
The Nuclear Posture Review 2010 (NPR 2010) has been hailed by the US media as path breaking. A closer perusal makes clear that it is nothing of the kind. It accepts – for the first time after the break-up of the Soviet Union – that Russia is unlikely to attack the US! So the NPR 2010 acknowledges that the threat is no longer from other nuclear states but non-state actors. Even then, it does not give a no-first use pledge against either nuclear or non-nuclear states. The second key point in the review is that it states it will not use nuclear weapons against non-nuclear weapon states who are in compliance with NPT. However, who is in compliance with NPT or not, is a decision that the US will take on its own: the US can use nuclear weapons against any country by simply declaring it in non-compliance with NPT. It has already said that North Korea and Iran are in non-compliance so “eligible” for use of nuclear weapons. Even Syria has been held to be in non-compliance – for reasons that the US Administration is not willing to divulge.
Even this limited restriction of the use of nuclear weapons might be considered to be a step forward. But this is not the only loophole for the US to use nuclear weapons. On biological weapons, it has also hedged its bets. The clause reads, “Given the catastrophic potential of biological weapons and the rapid pace of bio-technology development, the United States reserves the right to make any adjustment in the assurance that may be warranted by the evolution and proliferation of the biological weapons threat.” Shorn of verbiage, it means that the US can use nuclear weapons against a biological weapon attack.
On non-state actors, the NPR 2010 allows the use of nuclear weapons against non-state actors who are seeking WMD's. This indeed nullifies all talk about not attacking countries with nuclear weapons. Non-state actors, by definition, reside in states which they do not control. What the US is saying is that it can attack any state which it feels harbours non-state actors who, in the US opinion, may acquire WMD's. Cutting to the chase – the US has provided itself a loophole in its strategic doctrine to use nuclear weapons anywhere in the world.
The other key question is that the US always held that it does not need to wait for an attack: it can pre emptively strike any country which has weapons of mass destruction – nuclear, biological or chemical. Apart from the chemical part, it is difficult to read into the Obama doctrine a fundamental shift away from this position. A change yes, a major change no.
The Obama administration would like to project itself as a mover on nuclear disarmament. Therefore the atmospherics without changing any fundamentals premise of the US nuclear policy.
This policy was most evident on the so-called Summit called by the US and attended by 46 countries. The list of countries drawn up seemed to have been with an eye on which countries the US needed to lobby with for its proposals on further and much harsher sanctions on Iran. This was the diplomacy that the US carried out on the sidelines, while ostensibly focussing on the safety of the fissile material and stopping future production of fissile material. One of the biggest threat to the world comes from the huge stockpile of 10,000 weapons each that Russia and the US have. Why talk about protecting it, when we need to dismantle this, which has – even by the gargantuan appetite of the US and Russian armed forces – no earthly strategic value?
FUNDAMENTAL REVISION OF NPT ARTICLE IV
All this is careful build-up to the NPT Revcon. What the US is trying is a fundamental revision of the NPT Article IV, which allows any country which abjures nuclear weapons to still have the fuel cycle. This allows countries to generate “break-out capability”, the way that North Korea did. This change on nuclear fuel is not credible if the other part of the Treaty – calling for nuclear disarmament – is not seen to make progress. The US thrust is to make enough noise about disarmament, while pursuing the goal of controlling the fuel cycle. The problem for the US, as also other nuclear weapon states, is that it is becoming easier and easier to develop nuclear weapons capability. Unless the world abolishes nuclear weapons, global nuclear security is not achievable. And it is the nuclear weapons states that need to take the first steps. Unfortunately, Obama's steps do not qualify as a serious disarmament initiative. Its only importance will be, if it brings nuclear disarmament back on the world's agenda.
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March 21, 2010
Prabir Purkayastha
Subsidising Foreign Suppliers with Indian Money
THE Congress led UPA seems to have now got second thoughts on the Civil Liability for Nuclear Damage Bill, which they were scheduled to table in Lok Sabha on March 15. Whether this is only a tactical move --- waiting for the Budget to be passed before taking up such legislation or is it a desire to dialogue with other parties on the bill remains --- to be seen. However, the high voltage campaign unleashed in the media with now the National Security Advisor Shiv Shankar Menon briefing the Congress MPs seems to indicate that this is only a temporary retreat. For the Congress, it is only an issue of how to create a positive spin on a bill which is nothing but subsidising foreign suppliers using Indian taxpayers’ money along with Indian people carrying all the risks.
There are three sets of issues in the above bill. One is the political one: why is such a bill necessary now, considering that India has had operational nuclear reactors since the 1960s. The second sets of issues are the provisions on compensation --- the cap on total liability, the operator liability and also the suppliers liability. The third set of issues are the legal ones – the attack on common law on liability and even violations of constitutional provisions of citizens right to move courts. Has the government in its eagerness to please the US suppliers and possibly future Indian private operators, gone beyond the certain fundamental principles of jurisprudence.
The government's argument for the bill is that all suppliers --- the Russians, French and now the Americans --- have asked limiting their liability; therefore, this is not an exclusive measure for the US suppliers. What the government is hiding is that only US suppliers have made passing of a liability Act as a precondition for nuclear supplies. The Russians have supplied two reactors in Koodankulam without any such legislation. Similarly, France has linked the supply of Areva reactors dependent on India passing such an act.
The US ambassador Roemer made clear not only the US interest in the Nuclear Liability Bill but explicitly linked it to the Indo-US nuclear deal completion. Speaking to journalists on March 15, Roemer said, “Now we are hopeful and optimistic that this (passing of Nuclear Liability Bill) will happen sooner than later and that India will step up to its responsibility and obligation to complete this deal." He continued, “This (Indo-US nuclear agreement) is an important deal that the United States and India need to be able to finish and complete and part of this completion is for the parliament to pass this bill” (emphasis added). The link between the two --- passing of the Nuclear Liability Act and completion of the India-US nuclear deal --- is not being made by only the Left as the UPA government would have the people believe but also by the US officials.
This is not the only statement that US officials have made on India needing to pass a nuclear liability bill for the US companies do business in India.
Why is the US government so keen on India passing a Nuclear Liability Bill? The reasons are quite simple: without legal protection from claims of liability, no US supplier is willing to supply equipment to any country. The Price Anderson Act in the US passed in 1957 was explicitly designed to give private operators and suppliers this comfort and this is what they seek in all countries. In the US, as in Canada where a similar law exists, the critics have pointed out that this is a huge hidden subsidy to the nuclear industry. The US suppliers have no economic liability in the US under the Price Anderson Act --- all economic liabilities are channelled exclusively to the operator. What the US suppliers want are that US conditions must apply to them irrespective of the country they operate in.
The insistence by the US on protecting suppliers from liability is not with India alone. This has been a matter of dispute with Russia as well. The US suppliers have insisted that the US government ask Russia to pass a comprehensive nuclear liability law and also ratify the Convention on Supplementary Compensation for Nuclear Damage (CSC). Omer Brown, the lead lawyer for the Contractors International Group on Nuclear Liability (CIGNL) consisting of major nuclear suppliers --- Babcock & Wilcox Company, Bechtel Power Corporation, BWX Technologies Inc, General Electric Company, USEC Inc, Washington Group International Inc, and Westinghouse Electric Company LLC, wrote to the US State Department on December 18, 2003 stating that unless Russia met the above conditions, US suppliers will not be able to work in Russia. This is almost verbatim what Omer Brown has said of India as well. Give us protection from liability, only then we will supply you equipment.
Are these normal for all countries? They are not. Most countries do not exempt nuclear suppliers from product liability regime. Product liability means if a manufacturer supplies equipment which is defective, it bears the liability and must pay for all the damage resulting from the defective equipment. This allows the nuclear operator to recover the damages he must pay to those affected in a nuclear accident from the manufacturer.
The Indian bill is very clear on this. Instead of normal product liability, the manufacturer is now only liable if there is wilful act or gross negligence (clause 17 b). Otherwise, instead of the normal legal responsibility for defective products, the operator can take recourse only if the operator and the supplier have agreed to this in the contract between them. A legal right of the operator now becomes a matter of mutually agreement reached in a private contract.
India has been building nuclear plants since the 1960s. From the 1970s these plants have been built with largely indigenous supplies. Nor has any public sector or private company in India insisted that they need protection against liability claims before supplying equipment to Indian nuclear plants. While the government is now saying that the Russians in Koodankulam also wanted protection from liability, the fact is that they have supplied the reactors without any such protection.
The UPA spokespersons have tried to confuse the public by claiming that 17(b) holds the manufacturer responsible for defects. It does not. Proving wilful act or gross negligence resulted in the defect is quite different from establishing that a defect exists in the equipment. A leading TV anchor who claimed to have read the Bill, asserted that bill provides for the manufacturer to be held liable for manufacturing defects. What probably he had read is the briefing note by the government. But then this is the age of 24x7 television where the media has time for only bytes and little else.
The UPA spokespersons have argued that most countries have caps and these caps are of similar order. There is a deliberate attempt to confuse issues here. For example, Japan has a cap of 1.2 billion dollars on the operator but not the Japanese government. The Japanese state has unlimited liability. Germany and Finland have no cap on operator’s liability. Russia does not have legislation on nuclear liability and therefore the normal laws on liability apply.
In any case, the fundamental issue for us is what our concerns on nuclear plants are and not what other countries are doing. After Bhopal, it should be clear that a liability limit of 470 million dollars was a gross underestimate of the actual requirements. It is surprising that the government should come up with similar figures now when the possible damages from a nuclear accident is much greater.
The government spokespersons have now started saying that India needs to join the Convention on Supplementary Compensation for Nuclear Damage as this will provide India with higher compensation over and above the 300 million SDRs. The reality is that this US drafted Convention is unlikely to take off. It has been ratified by only four countries including the US. The other three are Morocco, Argentina and Rumania, who between them own four reactors. No other major nuclear reactor owning country such as Russia, France and Japan has ratified this even after 13 years of its existence. For the convention to become operational, at least five countries must join the convention and the countries put together must have 400,000 MW thermal. India joining will not make the convention operational – it does not have enough installed capacity to cross this number of 400,000 MW thermal.
In any case, the convention is an insurance mechanism --- India will have to pay for accidents in other countries as well and also pay into a joint insurance fund. Why is India rushing to join this US sponsored convention, when no major nuclear power country is joining, is a question that the government has to answer. There are at least three more conventions on nuclear damages. The convention on supplementary compensation is the worst. It is the only one that allows the suppliers of nuclear equipment total immunity from liability. One can understand why the US is interested in this convention. That appears to be the driving force for the government of India.
There is a further legal issue in the bill. Clause 32 of the bill makes the claims commission’s verdict final. The claims commissioners’ proceedings or its verdict cannot be challenged in any court in the country. The fundamental right of a citizen to file for an injunction or a writ petition in courts have been abrogated in clause 35 of the bill. So also the right of a citizen to move the courts for judicial review of the commission’s decisions. No other commission set up by the government has ever had such bars.
This bill has little to do with the needs of the Indian people. It has been drawn up primarily to help the US manufacturers. The US government’s position is quite clear; it is working to help US suppliers. The question is in whose interest is this government working, for the Indian people or the US suppliers?
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Last Updated on Saturday, 27 March 2010 06:14 |
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March 07, 2010 Prabir Purkayastha
THE Congress-led UPA government has placed the Nuclear Liability Bill as one of 36 legislations it wants the parliament to pass this session. This is one more chapter in the sorry saga of the India US Nuclear Deal. The key part of the the proposed Bill is to absolve all US equipment suppliers of any liability. Without this, the US equipment suppliers will not supply any equipment and the US government has held up all action on the India US Nuclear Deal. Though the French and Russian equipment suppliers have not asked for any such liability legislation, the Manmohan Singh government has buckled under US pressure and is now willing to provide the US suppliers with this comfort.
The prime minister in his various speeches to the parliament had stated that the India US Nuclear Deal ensures lifting of ban on all dual use technology and has an up-front consent for reprocessing of spent fuel. The truth, as is apparent now, is quite different. In an interview to Newsweek, on November 16, 2009, prime minister Manmohan Singh now says, “My sincere hope is that we can persuade the US administration to be more liberal when it comes to transfer of dual-use technologies to us. Now that we are strategic partners these restrictions make no sense...So, that is my number one concern.”
Fuel reprocessing is another critical issue, as otherwise, India could land in the old Tarapur mess of running from pillar to post for fuel for its reactors, while storing the spent fuel in costly holding ponds for decades. Dr Singh told parliament in 2007 that an "important yardstick has been met by the permanent consent for India to reprocess." The Left had held that the 123 Agreement does not constitute any approval to fuel reprocessing and the US will need to give formal approval for any such measure. The US side has now made clear that they have no intention of giving any permanent right to reprocess. During the PM's visit last year, it was announced that the consent to reprocess is a matter of a few weeks. It has yet to materialise!
INDIAN SUBSIDY FOR US REACTORS
It now appears that all this is linked to India passing a Nuclear Liability Act. For the US side, Condi Rice, Bush's Secretary of State, had made their interests in the Nuclear Deal clear – the US wants to kick-start its moribund nuclear industry by selling nuclear reactors to India. India is on record wanting to buy 10,000 MW of nuclear reactors from the US suppliers. The US nuclear industry wants the billions of dollars in profits from Indian sales, but does not want any risks: good old risk-free capitalism, US style. This is the genesis of the nuclear liability bill – a hefty subsidy from Indian tax payers for the US to be able to market its reactors.
The full details of the Nuclear Liability Regime is not yet available in the public domain. The key elements is limiting all liability to about $450 million dollars, the operators liability to be restricted to only Rs 500 crore and no legal liability for the supplier. It can be a contractual arrangement between the operator and the supplier, but not in liability law. The difference between the $450 million limit and the Rs 500 crore limits is the Indian State's liability; through this legislation, India is also proposing to limit its liability as well.
All this is in direct contradiction to the current law of the land. The Supreme Court in its judgement on the Oleum leak case from Sri Ram Food and Fertilisers in 1987 had made clear that the industry operating hazardous plants had absolute liability including that for environmental damage. The current Bill seeks to reverse this. An upper limit of $450 million makes no sense when we know a nuclear accident can cause billions of dollars in damages. Even the Bhopal case showed that $470 million for the gas victims was totally inadequate. By keeping all liability – including that of the Indian State -- capped at $450 million, India will subsidise the nuclear industry at the cost of the Indian people.
ASPECTS OF LIABILITY
The Rs 500 crore limit for operators is well within their insurance cover. By keeping the operators liability so low, Indian government is playing with the safety of the nuclear plants.
The Indian government is also claiming that the $450 million cap comes from the Vienna Convention on Civil Liability for Nuclear Damage. The Vienna Convention defines the minimum amount of limit of the operator’s liability-- it provides a floor and not a ceiling. It also allows countries to operate their own liability regimes. For example, Germany, Japan and Finland all have unlimited liability, the same as current Indian law. The US has a liability cap of $ 10.2 billion through its Price Anderson Act.
The Convention on Supplementary Compensation defines additional amounts to be provided through contributions by States Parties on the basis of installed nuclear capacity and UN rate of assessment.
There are two important aspects of liability that are in the Vienna conventions. One is “strict liability”. This means that the nuclear plant operator is liable for any nuclear event originating from his plant. There is no need to prove negligence, wilful act, etc. The other is that channelled liability – all liability is channelled to the operator and all other parties including suppliers, contractors, etc., bear no liability.
The Price Anderson Act in the US was the first to introduce these conditions. The major reason for introducing the Price Anderson Act was the refusal of the insurance companies to insure the private operators in the United States. A study had shown that a nuclear accident could lead to damages up to 10 billion dollars. The insurance companies needed a cap on their liability in order to provide insurance. The suppliers – GE, Westinghouse, Bechtel, others – had also demanded that they should not be held liable for any such accident. Other Acts that have similar provisions are in Canada and UK.
However, dozens of countries that operate nuclear power plants have not ratified these conventions nor have passed similar legislation. The Russians and the US have been locked in a dispute precisely because of nuclear suppliers' liability. The US is insisting that the Russians should sign the Convention on Supplementary Compensation, which protects the nuclear suppliers even from wilful damage. The Russians have till now refused to do so. Most countries also have not passed a Bill similar to what India is proposing to do. Those that have, the limits are much higher than the comparable Indian limits.
WHY THIS PROTECTION
Omer F Brown, the key spokesperson for the US nuclear industry, articulated the US position on the need for nuclear liability in India. “Currently, India does not have a nuclear liability law covering its facilities. Therefore, concerns over nuclear liability would be a major impediment to any nuclear trade with India ..Most US nuclear suppliers would not be willing to work in India without nuclear liability protection.”
At an international symposium hosted by the Uranium Institute in 1999 the same lawyer Omer Brown had made clear why the private nuclear industry, as distinct from the State-run nuclear industry, needs protection from liability laws. “It is important to reiterate the fundamental factor that underlies the concerns of privately owned contractors and suppliers: Private - as distinguished from State-owned - companies have a fundamental obligation to protect the assets of their shareholders ..Private companies are exposed to tort and other liabilities to the full extent of their assets. The greater the assets of a private company, the greater its liability concerns are.”
The record is quite clear. It is the need for protecting the US private nuclear players that is the driver for the proposed Nuclear Liability Bill. This is the subsidy that the Indian State is proposing to pay to the US nuclear industry: all risks, ours, all profits, yours.
Even with this subsidy, the cost of imported reactors from the US is way above that of indigenous reactors – the prices are 3-4 times that of Indian reactors. But that is a different story. The issue today is that even at this high prices, it is the Indian people who will be at risk. What is on offer is a huge implicit subsidy to the US nuclear industry. This is the crux of the Nuclear Liability Bill on the anvil.
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5th November 2009 D.Raghunandan
The first new US rocket or launch vehicle since the Space Shuttle, and indeed in terms of launch technology the first new rocket from any country in the past thirty years, was launched in a test flight from Cape Canaveral last week on October 31. The Ares I-X prototype is part of the next generation human space launch architecture designed to replace the ageing Space Shuttles that are due to retire next year. The new architecture, named Constellation and designed for travel beyond near-earth space, is slated to comprise two new rockets, the Ares-I to launch astronauts and a heavy-lift Ares-V to carry cargo and different payloads. The idea is that Ares-I would place the Orion crew capsule (successor to the aircraft-like Shuttle) in low-earth orbit, while the larger Ares-V would ferry the Altair landing craft to dock with Orion and fire rocket engines to take the crew capsule and lander on to the moon or even beyond, for instance to Mars.
The Ares I-X prototype lifted off from the Kennedy Space Centre in Florida on 28th October and spent just 2 minutes in powered flight and 6 minutes in all from lift-off till it had jettisoned the mock but accurate replica crew capsule and upper portions in space and the reusable booster engine had splashed down in the ocean about 200 kilometres away. The test launch had been postponed for a few days due to bad weather --- a continuing irony that shows the limitations even of ever-advancing space technologies --- but, despite a partial parachute failure resulting in the booster having a hard landing in the sea and getting quite badly dented, was eventually declared a success.
Considering that the entire design exercise of the new rocket, the first new development in rocketry for several decades, was initiated just 3 years ago in 2006, one cannot fault that description. Yet, several questions loom over not just the new Ares I rocket itself or the supposedly next generation Constellation architecture, but over the entire programme of human space exploration by the USA and NASA. Even as the test launch was proceeding, a high-powered White House Committee was submitting its report on the future of US manned space flight and the technologies required for it. The Report raised many important issues including about whether or not the Ares I design should at all be pursued, prompting many to wonder whether this maiden test flight might not be its last. Since the US runs by far the world’s largest space programme, useful lessons would undoubtedly be learnt by other space-faring nations, including newcomers such as India which has announced and is now planning manned missions to the Moon, from this Report as well as how NASA views the development of the new technology.
The Ares Rockets Ares is the Greek god of war, a pseudonym for Mars, which NASA considered an appropriate name for the new rocket, symbolic of NASA’s future plans since the rocket was designed specifically for longer-duration space travel, for instance to the red planet. The numerical designations of “I” and “V” are tributes to past rockets that helped NASA blaze a trail in human space exploration, the Saturn I and Saturn V rockets that respectively took US astronauts first to low-earth orbits and then to the Moon.
The Ares-I’s booster engine with solid fuel is directly derived from the Shuttle’s booster rocket. However, given the configuration of the Ares I, it was decided not to use the Space Shuttle Main Engine for the subsequent expendable liquid-fuel stages but a J2-X engine modified from the J2 engines that had powered the Apollo series Saturn rockets. The decision to build upon the basic Shuttle and Apollo technologies was deliberate and sought to economize on both production and launch facilities costs, while also reducing development time especially with regard to safety which is of paramount concern in designing human flight machines. The Ares’ solid booster engine has more payload-carrying power and acceleration than the Shuttle’s engine. Ares I can place more than 25 tonnes in low-earth orbit compared with the Shuttle’s ????, and is the most powerful rocket engine in use today. The main new feature of the liquid oxygen-hydrogen fuelled J2X engines is that, unlike the Shuttle’s engines which required to be started on the ground at launch itself, they are designed to be started in mid-air or near-vacuum, conditions that the crew capsule would encounter in low-earth orbits from where it needs to be powered onwards, say to the moon as in the Apollo series.
The Ares I is thus a pencil-like vehicle with the liquid-fuel engines and upper stages sitting on top of the solid booster, while the Orion crew capsule, emergency escape mechanism and the launch abort system sitting atop in that order. It stands 327 feet tall, almost twice the height of the Shuttle but short of the Saturn V’s 363 feet. The description “skinny” is almost invariably used in write-ups about the Ares I. The launch abort system, sitting atop the crew capsule, is another important innovation. This system is specifically designed to try and save the crew in the eventuality of having to abort the launch at any one of three stages viz. on the pad or upto 25,000 feet, at mid-altitudes up to around 150,000 feet and during final ascent up to around 300,000 feet. The system is a fully and independently equipped pod with its own ejector and directional motors designed to instantaneously separate the crew capsule from the rocket below, take the capsule away from the rocket which is presumed to be burning or otherwise malfunctioning and then deploy parachutes to enable a soft landing. The most dangerous time for space crews is during launch when immense power and intense heat is being generated below them and, if anything goes wrong at that stage including even a shut-down of all systems causing the rocket to come crashing back to the land, the probability of the crew losing their lives has been put by NASA at 100 per cent. The abort system has been tasked to reduce these odds to reasonable but not great odds of 1 in 10! Incidentally, the legendary German rocket scientist Wehrner von Braun, designer of the V-1 and V-2 rockets that wreaked destruction on England during World War II and who led NASA’s design team that built the Saturn rockets, believed that solid booster rocket engines were simply too powerful and unsafe for human flight!
No future for Ares I? But even as Ares I was on the launch pad just days before lift-off, an authoritative and influential Report was released, raising questions about its future. The Augustine Committee, named after its Chairman Norman Augustine, retired aerospace engineer and chief executive at renowned military and aerospace major Lockheed Martin, had been set up under the previous Bush administration to go into the proposed return of the US to the Moon by 2020 and the Constellation programme tasked with this goal.
For NASA of course, which had not built a new spacecraft in over thirty years and which some critics said had lost the necessary capabilities, the Ares I project has been of enormous significance. NASA saw the Ares I-X as a “pathfinder” vehicle, a chance for NASA to re-acquire design-development expertise and, in the words of a mission leader, “remind ourselves of what it takes to build a vehicle.”
The Augustine panel, however, saw things differently. "With time and sufficient funds, NASA could develop, build and fly the Ares I successfully… the question is, should it?" The panel noted that NASA’s budget had been drastically and continually cut, even after the announcement of the “return to the moon” programme, and found a serious mismatch between goals and available funding. The Committee therefore found itself having to question the goals themselves, and also having to recommend several technology options that could operate within the funds available. Only one of the seven options underscored by the panel included Ares I.
The Augustine panel felt that, while the craft itself was good, the cost, development time and its role within the Constellation programme were open to question. In essence, the Committee leaned to the view that, rather than using a leap-frog approach using Ares I till near-earth orbit and then going on to the Moon or Mars with the heavy lift Ares V, it would make more sense to use a single craft such as Ares V with a “lite” or cargo version being used for missions that ended at the Space Station or with placing payloads in earth orbits. The panel also favoured looking more closely at other vehicle designs including Shuttle variants. An expert opined that the favourable consideration of so many options itself spelt doom for Ares I. Some members of the panel and other experts closely involved with its work however felt this was not the end of the day for Ares I. One senior panelist, who had worked with von Braun on almost every rocket made in the Huntsville facility, felt that examining various alternatives was part of any mission and that Ares I may still be retained as the best choice. But the more important thing, he felt, was that “a mission has to be better defined, and then a rocket has to be built for that. You can't design a rocket for an open-ended mission of 'go to [the space] station' or 'return to the moon.'." Goals and means of space exploration And therein lies the rub. What should be the goals of space exploration? And what means should best be adopted to achieve them? The Augustine Committee has raised many relevant issues, for the US of course but also for other nations to ponder over. The Report clearly felt that destination-specifics such as the Moon, Mars etc were putting the cart before the horse. “Planning for a human spaceflight program should begin with a choice about its goals, rather than a choice of possible destinations. Destinations should derive from goals, and alternative architectures may be weighed against those goals. There is now a strong consensus [in the United States] that the next step in human spaceflight is to travel beyond low-Earth orbit. This should carry important benefits to society, including driving technological innovation, developing commercial industries and important national capabilities, and contributing to our expertise in further exploration. Human exploration can contribute appropriately to the expansion of scientific knowledge… and it is in the interest of both science and human spaceflight that a credible and well-rationalized strategy of coordination between them be developed.” The Panel felt that the present US space programme was not geared towards these goals, was unsustainable in its present form and, with misplaced goals, did not have the budgets with which to achieve them. Most importantly perhaps, the Augustine Committee Report, noting that other nations too have space programmes cumulatively comparable to that of the US, states that while human spaceflight objectives should broadly align with key [US] national objectives, “significant accomplishments could follow [from] actively engaging international partners in a manner adapted to today’s multi-polar world [to] strengthen geopolitical relationships, leverage global financial and technical resources, and enhance the exploration enterprise.” After all, the Report emphasizes, the broader goal of space programmes and especially human spaceflight is the goal “to inspire the next generation of scientists and engineers, to shape human perceptions of our place in the universe…, [and ultimately] to chart a path for human expansion into the solar system.” A far cry indeed from chauvinistic goals and show-piece missions that characterized the US’ own space missions in the 60s and 70s, and is yet to be truly seen pervading the spirit of space programmes of most countries.
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