LAW MANTRA THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321 6417)

Symbiosis between nuclear law and environment law
Introduction
Three years have passed since the Fukushima-Daiichi Nuclear Disaster. In past few years
Environment Law and Nuclear Law developed a significant relationship to ensure nuclear
safety. Nuclear safety, is understood as The creation and application of excellent
management, design and operation to protect people and the environment from accidents, plant
malfunction and human error.
1

Disposal of radioactive waste has always been a serious issue as it involves great risk due to
long half-life of radioactive substances. Exposure to radioactive substance is an important
concern; it can occur in variety of ways, through leaks from nuclear power plants, mining of
radioactive materials like uranium, disposal and transportation of these radioactive materials.
2

International Convention played an important role in the evolution of law governing nuclear
and environmental safety. The major problem with India was that it didnt sign most of these
conventions. But with the passage of time most of the important provisions mentioned in these
conventions were adopted in one way or another by our legal system.
We have adopted laws like Environmental Impact Assessment, but we need to answer whether
we have been able to implement its basic principle and ensured proper public participation.
Indias nuclear liability law has also been criticised for being counter to the International
Convention on Supplementary Compensation for Nuclear Damage (CSC).





1
Word institute for Nuclear security, An Integrated approach to Nuclear Safety, A WINs International best
practice guide, 2010, p. 3
2
Shyam Divan,Armin Rosencranz, Environmental Law And Policy in India, 2
nd
edn. Oxford University Press,
2013,p.542





2. International Convention on Nuclear Law governing environmental law
On 26 June 1954, in the town of Obninsk, near Moscow in the former USSR, the first nuclear
power plant was connected to an electricity grid to provide power to residences and businesses.
Nuclear energy had crossed the divide from military uses to civilian applications.
3
Most of the
law, convention and treaties on nuclear law didnt talk about Nuclear Power Plants impact on
environment. A catastrophic accident on 26 April 1986 at Chernobyl changed the situation.
Environmental law made its indirect appearance in the nuclear field through the Convention on
Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986).
4
The States
Parties shall cooperate between themselves and with the International Atomic Energy Agency
in accordance with the provisions of this Convention to facilitate prompt assistance in the event
of a nuclear accident or radiological emergency to minimize its consequences and to protect
life, property and the environment from the effects of radioactive releases.
5

Vienna Convention on Civil Liability for Nuclear Damage 1963 also failed to recognize
environmental damage from nuclear power plant. After accident at Chernobyl need to change
the 1963 convention was felt and it has been amended by a 1997 protocol. Article I paragraph
1(k) of Vienna Convention defines nuclear damage and it addresses the concept of damage to
the environment. The Convention on Supplementary Compensation for Nuclear Damage
(1997) and the Protocol to Amend the Paris Convention on Nuclear Third Party Liability
(2004) (the revised and new nuclear liability conventions) all hold nuclear operators liable
for the cost of measures of reinstating a significantly impaired environment or for economic
loss arising from an economic interest in the use or enjoyment of the environment that has been
significantly impaired due to a nuclear incident
Radioactive waste can be harmful for us and environment thus safe disposal of nuclear waste is
essential for our safety is essential. A 1995 publication within the International Atomic Energy
Agency's (IAEA's) Radioactive Waste Safety Standards (RADWASS) programme defines the

3
FromObninsk Beyond: Nuclear Power Conference Looks to Future (June 24,2004)
http://www.iaea.org/newscenter/news/2004/obninsk.html
4
SamEmmerechts, Environmental Law and Nuclear Law: A Growing Symbiosis (2008).
5
Article 1 of the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986).


objective of radioactive waste management and the associated set of internationally agreed
principles. Protection of the environment and human health are the important principal set in
this document. The J oint Convention on the Safety of Spent Fuel Management and on the
Safety of Radioactive Waste Management is the first legal instrument to directly address these
issues on a global scale. The articles of the J oint Convention place an obligation on
Contracting Parties to assess the safety of waste management facilities prior to their
construction and operation and to review the safety of existing facilities.
However, many nuclear countries, including Canada, the United States, J apan, India and China
are not party to any of the liability Conventions. Other major nuclear States such as the United
Kingdom and France are party only to the Paris Convention, whereas others, such as Russia
which recently ratified, are party only to the Vienna Convention. As noted earlier, many of
these are not party to the J oint Protocol, which links the Conventions for States party to the
J oint Protocol.
6

3. Environmental Impact Assessment: Nuclear Power Plants, Nuclear Fuel Reprocessing
Plants and Nuclear Waste Management Plants
Public participation is an essential ingredient that is recognised for establishment of an
industry. This concept was not recognised in early days. Thus government didnt inform
people about the potential threat an industry might cause to them. The concept of public
participation was introduced by Principle 10 of United Nation Conference on Environment and
development held at Rio De J aneiro in 1992. It stated that Environmental issues are best
handled with participation of all concerned citizens, at the relevant level. At the national level,
each individual shall have appropriate access to information concerning the environment that is
held by public authorities, including information on hazardous materials and activities.
7
The
objective of Aarhus Convention states that, In order to contribute to the protection of the right
of every person of present and future generations to live in an environment adequate to his or
her health and well-being, each Party shall guarantee the rights of access to information, public
participation in decision-making, and access to justice in environmental matters in accordance
with the provisions of this Convention.
8

Environment Impact Notification 2006 deals with permission required to setup an industry.
Nuclear power plants are under Category A. The environmental clearance process for all

6
Duncan E.J.Currie, The problemand gaps in the Nuclear Liability Convention (2008).
7
Principle 10, The United Nations Conference on Environment and Development, 1992
8
Article 1, CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-
MAKING AND ACCESS TO J USTICE IN ENVIRONMENTAL MATTERS,1998


projects in Category A will comprise of a maximum of three stages, as there is no screening for
this category of projects. These three stages in sequential order are: Scoping, Public
consultation and Appraisal
Public consultation comprise of two components public hearing and written statement. Public
consultation has been held for all the Nuclear Power Plants but locals unanimously opposed the
government decision to setup nuclear facilities fearing radiation and other damages that such
installation might cause. Opposition from the locals havent made any impact on the authorities
which raises serious concern over the safety of these installations and threat that they might
cause. Government has failed to take into account publics view in Mithivirdi Nuclear Power
Plant in Gujarat. NGO protesting against the Mithivirdi nuclear power plant has written to the
Ministry of Environment and Forests (MoEF) pointing out anomalies in the Environmental
Impact Assessment (EIA) report prepared for the plant. While the NGO had highlighted flaws
in the report on several occasions, this time it has pointed as to how the EIA ignored a 2005
report of the department of atomic energy raising concerns about the presence of Kalpasar dam
and the ship-breaking yard close to the nuclear plant site.
9
Environmental experts and activists,
who have alleged that Engineers India Limited (EIL) is not qualified and accredited as yet to
conduct an environmental impact assessment (EIA) of the Mithivirdi nuclear power plant in
Gujarats Saurashtra region. They have identified 24 contentious issues in their report titled,
Critique of the Environmental Impact Assessment of the Gujarat Nuclear Power Park at
Mithivirdi by the Engineers India Ltd. In their analysis of the scientific aspects of the
proposed nuclear plant, they have claimed that the EIA report is thoroughly incomplete,
studies have not been conducted properly, and withholds crucial information related to the
safety of the reactors.
Clearance given to J aitapur Nuclear Power Plant by EIA has also been criticised. In a letter
written to the Prime Minister, the Committee has claimed that the project has not been
subjected to an independent rigorous scientific techno-economic scrutiny and safety audit in
the public domain. It is being pushed against the will of the local people. The conditional
environmental clearance granted by the Ministry of Environment and Forests in November
2010 is also based on an unscientific and deeply flawed Environmental Impact Assessment

9
NGO finds errors in Environmental Impact Assessment (EIA) report of Mithi Virdi, (May 5, 2013),
http://www.dnaindia.com/ahmedabad/1830875/report-ngo-finds-errors-in-environmental-impact-
assessment-eia-report-of-mithi-virdi


Report.
10
Clearance was given to both J aitapur and Mithivardi Nuclear Power Plants even
though it was opposed by locals.
4. Radioactive Waste Management
The Nuclear waste produced as a by-product from a nuclear power plant is used to describe
radioactive waste, discarded radioactive materials, in some circumstances used nuclear fuel and
radioactively contaminated material and decommissioning waste. All of these categories may
be termed radioactive waste and that is used interchangeably with nuclear waste.
11
An article
published by Forbes titled Where on Earth Do We Put Spent Nuclear Fuel expressed serious
concern over disposal of nuclear spent fuel and how it can be reprocessed. Two different
management strategies are used for spent nuclear fuel. In one the fuel is reprocessed to extract
usable material (uranium and plutonium) for new fuel. In the other, spent fuel is simply
considered a waste and is stored pending disposal.
Management of radioactive waste in Indian context includes all types of radioactive wastes
generated from the entire nuclear fuel cycle and also from installations using radio nuclides in
medicine, industry and research. In the choice of processes and technologies adopted utmost
emphasis is given to waste minimisation and volume reduction. The comprehensive radioactive
waste management operations are carried out fulfilling all prescribed regulatory requirements.
Safe management of nuclear waste has been accorded a high priority right from the inception
of our nuclear energy programme.
12
India is planning to build an underground repository about
1km below land surface for storing nuclear waste and is setting up a laboratory to develop the
required technology. At present, India has the capacity to store nuclear waste for 30 years by
which time it will lose some radioactivity, but underground disposal is needed in view of plans
to add 5,330mw in the 12Plan and for atomic power to contribute 25% of power production by
2050.
On March 2010 radioactive waste was detected at the scrap market in Mayapuri in Delhi.The
source a gamma unit containing cobalt-60, was improperly disposed in violation national
regulations for radiation protection and safety of radioactive sources.
13
The Mayapuri incident
clearly exposes the laxity of the Atomic Energy Regulatory Board (AERB), which is

10
Dhar Aarti,Call to scrap J aitapur project, (August 26, 2012 ),
http://www.thehindu.com/news/national/call-to-scrap-jaitapur-project/article3824821.ece
11
Riley Peter,Nuclear Waste: Law, Policy, and Pragmatism, at p.1, Ashgate Publishing Ltd.
12
Disposal of Nuclear Waste, Department of Atomic Energy, 20-March,
2013,http://pib.nic.in/newsite/erelease.aspx?relid=94087
13
Acton Ashto, Issues in applied Physics, (2013 edn.), p.681


considered the watchdog for radiological safety in our country and tracks every source of
radiation periodically. The occurrence of such an event, despite the rigorous accounting and
inventory system being followed by AERB, gives room for anxieties on the efficacy of
arrangements for tracking minor radioactive substances.
14

It is important to whether we have obtained the solution for the disposal of nuclear waste. The
elements of nuclear waste frequently have half-life that can range from several hundred years
to tens of thousands of years.
15
Science as it stands now can do nothing to reduce radioactivity
of the waste once it has been created on short-term considerations. It is said that in the nuclear
countries as much as three lakh tonnes of radioactive nuclear wastes remain accumulated.
16
The
very fact that people are thinking about disposing nuclear waste beyond our biosphere by
launch vehicle, highlights the danger that nuclear waste disposal poses to us and our
environment.
5. Nuclear Liability Law
The rule of strict liability was given in Rylands v Fletcher
17
it hold a person strictly liable but
strict liability is subject to various limitations. Shortly after Bhopal gas leak tragedy of 1984
the traditional doctrine was replaced by the rule of absolute liability a standard stricter than
strict liability.
18
It was first given by Supreme Court in Shriram Gas Leak Case.
19

The Civil Liability for Nuclear Damage Act, 2010 was passed by both houses of Indian
parliament. The Act aims to provide a civil liability through a no fault liability to the operator.
It is based on the principle of No-fault based which exempts people from proving any fault of
the operator. Liability of operator under this act ranges from Rs.100 Crore for research reactors
having thermal power below ten MW, fuel cycle facilities other than spent fuel reprocessing
plants and transportation of nuclear materials, Rs.300 Crore in respect of spent fuel
reprocessing plants and Rs.1500 Crore in respect of nuclear reactors having thermal power
equal to or above ten MW.
20


14
Babu P Remesh, C P Vinod, Radiation Incident in Mayapuri: Disquieting Signals to Labour,
http://www.indiaenvironmentportal.org.in/files/Radiation%20Incident%20in%20Mayapuri.pdf
15
Duane Bratt,The Politics of CANDU Exports, University of Toronto Press, 2006
16
A. R. M. Ramesh, Nuclear waste is forever, (March 11, 2012),
http://www.thehindu.com/opinion/open-page/nuclear-waste-is-forever/article2982263.ece
17
(1868) LR 3 HL 330
18
Supra Note 1, p. 106
19
M.C.Mehta v. Union of India AIR 1987 SC 1086
20
Section 6(2), The Civil Liability For Nuclear Damage Act, 2010


Nuclear operators right of recourse from the manufacturer for the damages it paid under
Section 6 of The Civil Liability for Nuclear Damage Act, 2010 is controversial. The right of
recourse is granted if the nuclear incident has resulted as a consequence of an act of supplier or
his employee, which includes supply of equipment or material with patent or latent defects or
sub-standard services;
21
It is contended that laws like this might prevent any foreign company
from investing in Indias nuclear power plants as, The two internationally-acceptable
situations in which a right of recourse may be claimed against a supplier are: (a) where the
nuclear incident arises out of an act of omission or commission by the supplier with intent to
cause damage, and (b) a contractual right of recourse.
22
Besides 17(b), the other provision in
the Act that the suppliers are wary of is Section 46, which allows for tort cases based on other
domestic laws to be moved against the operator in addition to the damages that the operator has
to bear under the Liability Act. In principle, the proceedings of such a case can bring the
supplier of equipment too under its ambit if the operator contends that defective equipment was
the cause of the nuclear incident.
23

Even though we were successful in enacting a strong liability but will we succeed in obtaining
or implementing it or we will have to bow down to the international pressure from United
States or Russia. As we have failed to come to a conclusion whether to apply this act for the
upcoming Kudankulam reactor, Russians refer to the inter-government agreement of 2008,
which makes the operator alone liable for possible damages at Units 3-6 to be built at
Kudankulam.
24
Similarly Indo-US nuclear deal has remained stalled after historic 123
Agreement between India and US. United states of America has tried to create pressure on
India because of a strict liability bill and, Mr. Pyatt identified the nuclear liability law as a
major challenge in implementing the historic India-U.S. civilian nuclear deal.
25



21
Section 17, The Civil Liability For Nuclear Damage Act, 2010
22
Mohit Abraham,Defective law on nuclear liability; India walks alone on nuclear jurisprudence, (Dec 20,
2012), http://articles.economictimes.indiatimes.com/2012-12-20/news/35933839_1_nuclear-liability-
kudankulam-nuclear-damages-act
23
R.Ramchandran, Limiting liability, Volume 28 - Issue 25 :: Dec. 03-16, 2011, Frontline
24
Vladmir Raduhin, India and Russia fail to resolve nuclear liability, (J une 29, 2013),
http://www.thehindu.com/news/international/world/india-and-russia-fail-to-resolve-nuclear-
liability/article4863790.ece
25
Indias liability law not in line with international norms: US, (December 1,
2012),http://www.thehindu.com/news/international/indias-liability-law-not-in-line-with-international-
norms-us/article4153366.ece




6. Conclusion
The focus of nuclear law has traditionally been on the protection of people and property. Public
awareness of the harmful effects of certain industrial activities and the Chernobyl accident has
led to a growing tendency for environmental regulation to cover the nuclear field as well. India
has 20 functional nuclear power plants. We need to ensure safety of people living around these
nuclear power plants. Environment Law plays an important role in protecting people and
environment from any damage.
Environmental Impact Assessment made public participation essential before establishing any
nuclear power plants, nuclear research reactors or any other nuclear industry. But the
government has mostly ignored public participation under EIA and went ahead with most of
the nuclear power plants without considering peoples view regarding threat from these plants.
In order to strengthen the relationship between nuclear law and environmental law government
should ensure that public participation under EIA should be encouraged.
Proper disposal of harmful radioactive waste produced by nuclear power plant is also
essential. The wastes generated by nuclear plants have long half-life which makes it very
harmful. To ensure safety of our environment it is essential to dispose the waste products with
utmost care. Recently The Civil Liability for Nuclear Damage Act, 2010 introduced liability in
case of any nuclear disaster. Many of the provisions under this act are stringent but foreign
government have opposed it and asked our government to review these provisions. But in order
to protect our environment in we need a strict law to compensate people and protect our
environment.
By:- Utkarsh Sahu, School of Law Christ University