SYNOPSIS

Nuclear energy is a form of energy that comes with the risk of catastrophic accidents. In the words of Justice V R Krishna Iyer, “Nuclear energy involves the potential for dangerous radiation, high cost generation and the use of delicate technology that could be disastrous… The diabolic, dreadful immortality of nuclear waste that can cause lethal radiation after two or three decades of the use of each nuclear plant represents the gravest crime against humanity.” Therefore the petitioner submits that a foolproof standard of safety is required while dealing with nuclear energy. As has been pointed out by the CAG and several experts including from within the establishment, India’s nuclear safety regulator AERB is body under the control of the very department it is supposed to regulate and merely acts as a rubber-stamping authority, thereby putting to grave risk the rights of the citizens under Article 21 of the Constitution.

The instant SLP is being filed challenging the decision of the Madras High Court dated 31.08.2012 in WP No. 22253 of 2012 giving a go ahead to the Kudankulam nuclear power plant without first ensuring that critical safety features (that the Government’s own expert task-force recommended) are put in place and in violation of AERB’s own undertaking on affidavit before the High Court in petitioner’s earlier writ petition. The said recommendations are extremely critical to the safety of the said plant and the plant could not be allowed to run for a day without adequate safety & backup features in place. Though the High Court in the impugned order stated: “It is the duty of the AERB to ensure that these requirements are complied with by the NPCIL (the operator of the plant),” but at the same time allowed the plant to go ahead even though many of the recommendations by AERB’s own admission would take 2 years to implement.

The Government has also absolved the Russian company that is supplying the nuclear reactor from any liability in case of an accident in complete violation of the absolute liability principle evolved by this Hon’ble Court. The Government has also brutally cracked down on the local community peacefully protesting against the plant and has slapped sedition cases against thousands of protestors. Thus it is absolutely clear that the Government intends to push the project through without any consideration of safety, costs, environmental impact and other concerns regarding the project.

Immediately after the shocking nuclear tragedy in Fukushima in Japan, the Government of India constituted a Task Force to review, among other things, the capability of Kudankulam Nuclear Power Project (KKNPP) to withstand and mitigate earthquakes, tsunamis and other natural phenomenon. The Task force made a detailed review of the safety measures of KKNPP in the light of inadequacies of Fukushmia plant which suffered due to lack of alternative fresh water storage and want of back-up power system, and gave 17 recommendations for implementation before commissioning of Units 1 and 2 of KKNPP. There are three important recommendations amongst several others, concerning with alternative fresh water storage system and emergency pumping equipment, which are yet to be implemented even today: “1. Back up provisions from alternate sources should be made for (a) Charging water to secondary side of Stream Generators. (b) Make-up of borated water to spent fuels pools (c) Injection of borated water in the reactor coolant system. 2. Seismic qualification of emergency water storage facility and augmentation of its storage capacity for core decay heat removal for a period of at least one week. 3. Mobile self powered pumping equipment for emergence use.”  

Since the Government of India was in a hurry to commission Units 1 and 2 of KKNPP without first implementing the recommendations of Task Force constituted post-Fukushima nuclear, the petitioner had earlier filed a writ petition (no. 8262/2012) in the Madras High Court for a direction to implement all the recommendations contained in Annexure 8 to the Final Report of the Task Force before Initial Fuel Loading (IFL) in KKNPP.

The Atomic Energy Regulatory Board (AERB) filed its counter affidavit in the said writ petition stating that further clearances in respect of KKNPP would be granted only after implementation of the recommendations of the Task Force constituted post-Fukushima nuclear disaster.  The Task Force gave seventeen recommendations and all these recommendations related to the safety of KKNPP. AERB stated:

The next major sub-stage of commissioning involves Initial Fuel Loading (IFL) for KK Unit No. 1 for which NPCIL has submitted an Application on April 18, 2012 along with relevant documents requesting consent for the same. AERB is conducting safety review of the IFL Application as part of its multi-tier review process before grant of consent. One of the pre-requisites as identified by AERB while giving Clearance for Hot-Run for KK unit No. 1 was that all the relevant recommendations of various AERB Safety Committees (including the AERB Committee to Review Safety of Indian NPPs against External Events of Natural Origin –in short “Expert Committee”) should be assessed and these need to be implemented on a time bound schedule for which NPCIL was asked to give their required submissions. NPCIL is working on the detailed scheme of safety enhancements in the light of various safety committee recommendations  and have submitted their proposal/scheme for KK NPP which is under review by relevant AERB specialist groups and safety committees as appropriate.  Hence in view of the above, the Respondent No. 3 submits that the contention raised by the petitioner for implementation of the Report of the Expert Committee (Annexure-8) before IFL for Unit No. 1 of KK would be taken care as appropriate during the various reviews before the next stage of Clearance i.e. IFL.

Subsequently, AERB has been reviewing various commissioning reports based on hot-run test results for KK Union No. 1 and issue of further clearances would be only after the completion of review and resolution of related issues, including the implementation of safety measures in post-Fukushima accident.

It is this undertaking that the AERB has violated by its order dated 10.08.2012 allowing initial fuel loading (IFL) at KKNPP which is just a stage prior to the commissioning of the project which is slated to start in a few weeks, thus putting to grave risks the right to life guaranteed under Article 21 of a large section of the population. AERB now states that implementation of these measures would take 6 months to 2 years. If, by chance, any natural disaster happens before the said measures are implemented, then there is every chance of a meltdown and huge leakage of radiation that would make a large area uninhabitable for decades and would need evacuation of millions of people.

The petitioner therefore challenged the said IFL clearance before the Madras High Court by way of the writ petition (out of which this SLP is arising) on the ground that IFL clearance to Unit 1 of KKNPP could not have been granted by AERB before the implementation of all the recommendations made by the Task Force.  AERB in its counter affidavit has now stated that implementation of some of the recommendations would take 6 months and the rest would take 2 years. AERB ignored that several of these recommendations if not implemented puts to grave risks the safety of millions of people. AERB now in their latest affidavit states: “Based on the review and resolution of NPCIL submissions, AERB agreed for short term (less than 6 months) and long term (less than 2 years), implementation of post Fukushima recommendations from the date of IFL clearance.

The Madras High Court, after having held that compliance of all the 17 recommendations relating to KKNPP was rightly found by the AERB to be necessary, in the impugned order has dismissed the Writ Petition on the ground that the AERB is competent to decide whether those recommendations should be implemented before or after IFL in KKNPP, ignoring that final commissioning of the nuclear plant is just weeks away and AERB is neither independent nor credible to be entrusted with the final decision making authority.

This Hon’ble Court in A. P. Pollution Control Board vs. M V Nayudu, (1999) 2 SCC 718, held that precautionary principle is part of the law of the land. The principle mandates that when a new technology or process can cause serious and irreversible harm to human health and the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context, the proponent of the uncertain activity rather than the public has to bear the burden of proof. Therefore, it is absolutely essential in the interest of life, health and safety of a large sections of the population that the precautionary principle is invoked and the Government be directed not to go ahead with the project till all the recommendations of its own task force on safety are implemented.

AERB: The administration of the Atomic Energy Act, 1962, is entrusted to the DAE. The Secretary, DAE, in turn constituted the Atomic Energy Regulatory Board (AERB) by an executive order in 1983, because of which the AERB is a subordinate entity of the DAE. The AERB is answerable to the Atomic Energy Commission (AEC), whose Chairman is also the Secretary, DAE. Indeed, one cannot conceive of a more subservient existence – the regulatory agency has to report to those whom it is required to regulate and control in the public interest. Hence AERB is riddled with conflicts of interests, as it is answerable to a department whose stated aim is to build more and more nuclear plants.

Former AERB Chairperson Dr. A Gopalakrishnan has stated “The independent safety assurance and regulation has thus been made the responsibility of the same people who manage these installations, defeating the very principle of unbiased external scrutiny.” He has also written that “A captive AERB with its Chairman reporting to Secretary, DAE makes the overall nuclear safety management in India a farce and worthless.”

The International Convention on Nuclear Safety, which India has ratified, mandates that “Each contracting Party shall take appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy.” In India, however, the nuclear regulator has been subordinate to and under control of those whose stated purpose is the promotion of the use of nuclear energy. In fact, lack of independent regulator in Japan was one of the major reasons for the Fukushima disaster as brought out by Fukushima Nuclear Accident Independent Investigation Commission which stated: “the TEPCO Fukushima Nuclear Power Plant Accident was the result of collusion between the Government, the regulators and TEPCO and the lack of governance by the said parties. They effectively betrayed the nation’s right to be safe from nuclear accidents. Therefore, we conclude that the accident was clearly ‘manmade’. We believe that the root causes were the organizational and regulatory systems that supported faulty rationales for decisions and actions.” Now, the CAG has given a detailed report confirming the fact that AERB is neither independent nor credible enough to regulate the safety of our nuclear plants. CAG has stated that AERB continues to be a subordinate authority and this “failure to have an autonomous and empowered regulator is clearly fraught with grave risks”.

Other petition: The petitioner had also earlier filed a PIL in High Court in 2011 (WP 24770 of 2011) challenging the go-ahead to the Kudankulam nuclear plant despite the fact that the environment clearance was given on the basis of 1988 agreement that India signed with erstwhile USSR and since then material changes had been made in the said plant, including 1) earlier project envisaged that water for cooling would be used from a lake, but later it was changed to use of sea water with the use of mega-desalination plants; 2) earlier clearance was for increase in water temperature upto 5 degree Celsius (which hugely affects marine life), and later project took it to 7 degrees; 3) original agreement was that Russia would take back the spent fuel, but later agreement had the provision that spent fuel would be retained at the plant; 4) enormous design changes had been to the plant. Without considering these aspects, the earlier environmental clearance was revived. The said clearance is not based on the Costal Zone Regulation, EIA Notification issued by the Government in the year 1991 and 1994 respectively. The HC has however held that MoEF was competent to simply revive the earlier clearance. The Petitioner is moving a separate SLP on this issue for the consideration of this Hon’ble Court.

LIST OF DATES

26.01.1950         Constitution of India comes into force. Article 14, 19, 21 guarantee right to equality, freedom and life respectively. This Hon’ble Court interprets the said fundamental rights to include right to information, freedom from arbitrariness, right to health, clean environment, public safety, and life. Clean environment includes environment free from harmful radiation. This Hon’ble Court holds that ‘precautionary principle’, ‘polluter pays principle’, ‘absolute liability principle’ to be part of the law of land as a facet of right to life guaranteed by the Constitution.

03.08.1954         Department of Atomic Energy (DAE) is set-up under the direct charge of Prime Minister of India. The stated objective of DAE is to promote the use of nuclear energy.

01.03.1958         Atomic Energy Commission (AEC) is set-up under the DAE. Secretary DAE is the ex-officio Chairperson of the AEC.

1962                    Atomic Energy Act comes into force

28.03.1979         United States: Accident at Three Mile Island nuclear reactor due to equipment failure and operator error that result in loss of coolant and partial core meltdown officially costing US $2400 million.

1979                    First safety audit conducted by Government after the three mile island incident.

15.11.1983         Atomic Energy Regulatory Board (AERB) is set-up. AERB is made answerable to the Atomic Energy Commission.

26.04.1986         Ukraine: Chernobyl disaster occurs wherein mishandled safety test causes steam explosion and meltdown, necessitating the evacuation of 300,000 people from the region and dispersed radioactive material across Europe. It costs tens of thousands of lives and about US $ 10 billion.

April 1986           Second safety audit conducted by AERB following the Chernobyl disaster

November 1988 An inter-governmental agreement was signed between Union of India and the erstwhile USSR regarding KKNPP. As per the agreement “Spent fuel” will be send back to USSR.

May 1989            Environmental Clearance was granted to the said project. Some of conditions invoked in the said clearance includes : (i) Pechiparrai river water was identified as source for fresh water  required for the reactor coolant. (ii) Sea water temperature should not exceed 5 degree C over the ambient temperature of the sea.

27.01.1994        Environment Impact Assessment Notification came into force. Para 2 of the notification reads: “2. Requirements and procedure for seeking environmental clearance of projects ;

1. (A) Any person who desires to undertake any new project or the expansion or modernisation of any existing industry or project listed in Schedule 1 shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi.

The application shall be made in the proforma specified in Schedule II of this notification and shall be accompanied by a project report which shall, inter-alia, include an Environmental impact Assessment Report/Environment Management Plan and details of public hearing as specified in schedule IV prepared in accordance with the guidelines issued by the Central Government in the Ministry of environment and Forests from time to time.”

July 1995            Third safety audit is conducted by AERB. It identifies 130 serious problems with nuclear installations in India out of which 95 are marked urgent.

24.10.1996         International Convention on Nuclear Safety that India has signed and ratified came into force. It mandates that “Each contracting Party shall take appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy.” In India, however, the nuclear regulator has been subordinate to and under control of those whose stated purpose is the promotion of the use of nuclear energy.

May 1998            A fresh agreement was signed between Union of India Russia regarding KKNPP. The term with regard to “Spent fuel” has been changed, and would be retained at the plant.

06.09.2001         Ministry of Environment and Forests revalidated 1989 Environmental Clearance. The letter reads as: “It was observed during the visit that land acquisition has been completed and construction work on various components such as township, Environmental and Health Research Centre, RO Plant etc. is in progress. …Keeping in view the steps already taken to implement the project, the environmental clearance issued in May, 1989 stands valid and there is no need to conduct public hearing and seek fresh environmental clearance.”

23.09.2008         MoEF gave environmental clearance for units 3 & 4 at KKNPP.

21.09.2010         Civil Liability for Nuclear Damage Act 2010 comes into force that limits the liability of the nuclear operator and supplier to only Rs 1500 crores, in complete violation of absolute liability principle propounded by this Hon’ble Court.

Russia claims that it is even exempt from this minimal liability since their contract with the Indian government states that they would not be liable.

March 2011   There was an unprecedented nuclear disaster in Fukushima, Japan. Immediately after this nuclear disaster, the Government of India constituted a Task Force to review the safety of all nuclear plants in the country including Kudankulam Nuclear Power Project (KKNPP).

26.04.2011         After severe criticism and protests, Government announced that the report of the Task Force would be put in public domain and the Government would constitute an independent nuclear safety authority that would subsume the AERB.

11.05.2011         The Task Force constituted by the Government of India to evaluate the safety systems of Kudankulam Nuclear Power Project  filed its interim report herein it has been mentioned that engineering details of additional measures would be given in August 2011.

August 2011       AERB committee submitted its report.   Annexure 8 to the Report details the recommendations that are required to be implemented before the 2nd stage of Commissioning i.e. Fuel Loading of the reactor core in KKNPP.  Relevant parts of the AERB report are annexed as ANNEXURE P1. (Page ____________)

2012                    Government arrests thousands of peaceful protestors, slaps thousands of sedition cases, in order to brutally crush the agitation of the local population over fears for the safety of the nuclear plant.

16.03.2012         This Hon’ble Courts admits a PIL (WPC 464/2011) filed by Common Cause, CPIL and several eminent citizens, challenging the constitutional validity of the nuclear liability act since it violates the polluter pays and absolute liability principles.

26.03.2012       The petitioner filed WP No.8262 of 2012 in the Madras High Court for a direction to the Atomic Energy Regulatory Board to implement all the recommendations of the Task Force constituted post-Fukushima disaster before fuel loading in KKNPP.

5 June 2012      AERB filed its counter affidavit in Writ Petition No. 8262 of 2012 inter alia stating that all further clearances in respect of KKNPP would be granted only after implementation of all 17 recommendations made by the Task Force with regard to KKNPP. A copy of the counter affidavit of AERB in Writ Petition No. 8262 of 2012     is annexed as ANNEXURE P2. (Page ____________)

July 2012            Fukushima Nuclear Accident Independent Investigation Commission submits its report and blames lack of independent regulator for the Fukushima tragedy. The report states: “the TEPCO Fukushima Nuclear Power Plant Accident was the result of collusion between the Government, the regulators and TEPCO and the lack of governance by the said parties. They effectively betrayed the nation’s right to be safe from nuclear accidents. Therefore, we conclude that the accident was clearly ‘manmade’. We believe that the root causes were the organizational and regulatory systems that supported faulty rationales for decisions and actions.

23.07.2012         Tamil Nadu Pollution control Board gave Consent Order under Water Act prescribing the tolerance level of trade effluent of KKNPP to be 45 degree celsius   contrary to the stipulations of the aforesaid two EIAs.

01.08.2012         Union of India filed an Additional Counter Affidavit in WP.No: 24770 of 2011 in Madras HC, wherein it was stated that terms of storing “Spent fuel” has been changed by 1998 Supplemental Agreement. Also, para 8 of Counter Affidavit reads: “ The capacity of each of these pools is sufficient to hold the discharged spent fuel from each reactor, which would be produced during seven years of full power operation of the reactor.” Admittedly till date the KKNPP doesn’t have implemented safety requirements recommended by the AERB committee.

02.08.2012         The Hon’ble High Court reserved its orders in WP No. 8262 of 2012 and until 2 August 2012 no further affidavit regarding implementation of the said recommendations was filed by Atomic Energy Regulatory Board.

09.08.2012         107th Board meeting of AERB was held to consider the application of NPCIL, respondent 3, for initial fuel loading in KKNPP.

10.08.2012         By totally ignoring the said undertaking dated 5 June 2012 given to the Madras High Court, the AERB granted IFL clearance with regard to KKNPP (Unit 1). A copy of the same is annexed as ANNEXURE P3. (Page ____________)

10.08.2012         Petitioner filed writ petition in WP No: 22200 of 2012 challenging the Consent order to operate given by Tamil Nadu Pollution control board.

13.08.2012         The petitioner therefore filed Writ Petition No. 22253 of 2002 challenging the IFL clearance dated 10 August 2012 inter alia on the ground that initial fuel loading in unit 1 of KKNPP without implementation of all the recommendations of Task Force would be violative of Article 21 of the Constitution and that the failure of AERB to adhere to the undertaking dated 5 June 2012 given before the Madras High Court would amount to contempt of court. A copy of WP 22253 of 2012 is annexed as ANNEXURE P4. (Page ____________)

18.08.2012         AERB filed a counter affidavit in response to the said petition. A copy of the same is annexed as Annexure P5. (Page __________)

22.08.2012         AERB also filed an additional counter affidavit in the above writ petition detailing the recommendations made by the Task Force, implemented and unimplemented.  The AERB said in the said additional counter affidavit that 6 recommendations had already been implemented, and the remaining 11 recommendations would be implemented within a period of six months to two years.  A copy of the said additional counter affidavit is annexed as ANNEXURE P6.  (Page ____________)

Withdrawing its earlier Consent order dated 23.07.2012, Tamil Nadu Pollution Control Board passed a fresh Consent order No: 22654 wherein earlier tolerance limit  temperature level 45 degree C trade effluent  was modified into : “Not to exceed 7 degree C over and above the ambient temperature of sea.”

CAG’s detailed report on the AERB’s “effectiveness of its role as the nuclear regulator of India” is tabled in Parliament. It confirms the fact that AERB is neither independent nor credible enough to regulate the safety of our nuclear plants. CAG has stated that AERB continues to be a subordinate authority and this “failure to have an autonomous and empowered regulator is clearly fraught with grave risks”.

31 Aug 2012       The Madras High Court, without appreciating the fact that KKNPP would be unsafe in the absence of implementation of all the recommendations of the Task Force constituted post-Fukushima disaster and that such inaction on the part of AERB would be dangerous to the lives thousands of people living near KKNPP, dismissed the Writ Petition by holding that the High Court would not be in a position to say that the aforesaid 17 recommendations should be implemented before or after IFL in KKNPP.  The High Court has failed to appreciate that eleven (out of seventeen) unimplemented recommendations go to the root of safety of KKNPP and that any negligence on the part of AERB in this regard would result in untold misery and irretrievable damage to the people for generations together.

11.09.2012      Hence the instant Special Leave Petition.
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

{Order XVI Rules 4(1) (a)}

 (Under Article 136 of the Constitution of India)

SPECIAL LEAVE PETITION (CIVIL) NO.              OF 2012

[Arising out of the Impugned Final Judgment and Order dated 31.08.2012 passed by the High Court of Judicature at Madras in WP No. 22253/2012]

IN THE MATTER OF:          

POSITION OF PARTIES

 

 

  High Court Supreme Court

 

1.

 

 

 

 

 

 

1.

 

 

 

 

 

 

2.

 

 

 

3.

 

 

 

 

 

4.

 

 

 

 

5.

 

 

G. Sundarrajan

106/2 First floor, Kanaga Durga complex,

Gangai Amman Koil street,

Vadapalani,

Chennai  600 026

                               

 

 

The Union of India

rep. by the Secretary to Government of India

Department of Atomic Energy, Anushakti Bhavan

Chatrapathi Shivaji Maharaj Marg, Mumbai – 400 001.

 

 

The Chairman Atomic Energy Regulatory Board

Niyamak Bhavan, Anushaktinagar

Mumbai – 400 094.

 

 

The Chairman and Managing Director,

Nuclear Power Corporation of India Ltd.,

Nambhkiya Urja Bhavan, Anushaktinagar,

Mumbai – 400 094.

 

 

The Member Secretary,

Tamil Nadu Pollution Control Board,

Chennai – 600 032

 

 

The Site Director,

Koodankulam Nuclear Power Project,

Koodankulam,

Radhapuram Taluk,

Tirunelveli Dist.

 

 

Petitioner

 

VERSUS

 

 

 

Respondent No. 1

 

 

 

Respondent No. 2

 

 

 

 

Respondent No. 3

 

 

 

 

Respondent No. 4

 

 

 

Respondent No. 5

 

 

 

 

 

Petitioner

 

 

 

 

 

Respondent No. 1

 

 

 

Respondent No. 2

 

 

 

 

Respondent No. 3

 

 

 

 

Respondent No. 4

 

 

 

Respondent No. 5

 

To

The Hon’ble Chief Justice of India And His Hon’ble Companion Justices of The Hon’ble Supreme Court Of India

The humble Special Leave Petition of the Petitioner above named:

MOST RESPECTFULLY SHOWETH:

  1. The Petitioner is filing the present Special Leave Petition against the impugned Final Order dated 31.08.2012 passed by the High Court of Judicature at Madras in Writ Petition  No. 22253 of 2012 whereby the High Court had dismissed the Writ Petition.
  2. QUESTIONS OF LAW

The following questions of law arise for consideration by this Hon’ble Court:

  1. Did the High Court err in holding that the courts would rely on the opinion of an expert body even if its does not follow the considered advice of other experts and its own undertakings?
  2. Did the High Court err in upholding the clearance dated 10 August 2012 granted by respondent 2-Atomic Energy Regulatory Board (AERB) for ‘Initial Fuel Loading’ (IFL) and ‘First Approach to Criticality’ (FAC) of Unit 1 of Kudankulam Nuclear Power Project (KKNPP), without applying the precautionary principle?
  3. Did the High Court err in holding that an expert body can deviate from its own undertakings before the Court and the Courts would desist from interfering in the same?
  4. Did the High Court not err by stating that since AERB is an expert body so courts will not question its decisions?
  5. Did the High Court err in holding that courts will rely on the opinion of the regulator even if that regulator is subordinate to those whom it is supposed to regulate?
  6. Can the Courts ignore the potential risk to the lives of millions merely on the basis of undertaking given by Government and its instrumentalities?
  7. DECLARATION IN TERMS OF RULE 4 (2)

The Petitioner state that no other Petition seeking leave to appeal has been filed by them against the final judgment and order of the Hon’ble Division Bench of the High Court of Judicature at Madras, dated 31.08.2012 passed in WP No. 22253/2012 titled G.Sundarrajan v. Union of India & Ors.

  1. DECLARATION IN TERMS OF RULE 6

The annexures produced along with the SLP are true copies of the pleadings/documents, which formed part of the record of the case in the High Court below against whose order leave to appeal is sought for in this Petition.

  1. GROUNDS
    1.          That the High Court erred in not appreciating that the respondent-AERB had given an undertaking to the Court as early as on 5 June 2012 in Writ Petition No. 8262 of 2012 filed by the present petitioner to the effect that any further clearance in respect of KKNPP would be granted only after implementation of all the recommendations contained in Annexure 8 to the Report of Atomic Energy Regulatory Board Committee to Review the Safety of Indian Nuclear Power Plants including KKNPP and that ignoring such an undertaking and granting clearance for IFL in KKNPP would amount to contempt of court.
    2.       That the High Court has erred in not appreciating that it was incumbent upon AERB to implement all the recommendations made by the Task Force constituted by the Government of India post-Fukushima nuclear accident.  The first recommendation of the Task Force is:  “Back up provisions from alternate sources should be made for charging water to secondary side of SGs, make-up of borated waster to spent fuel pools, and injection of borated water in the reactor coolant system.”  To implement this recommendation, NPCIL should construct a seismically qualified 8000 cubic metre tank as an alternate backup water source.  Having noted that this tank has not yet been constructed and that it would take about six months for its construction, the High Court ought to have quashed the clearance for IFL granted by AERB.
    3.        That the High Court has erred in not appreciating the second recommendation of the Task Force in proper perspective.  The second recommendation says: “Seismic qualification of emergency water storage facility and augmentation of its storage capacity for core decay heat removal for a period of at least one week.”  The schedule for completion by NPCIL says: “Seismic qualification of emergency water storage facility and augmentation as required will be done progressively. (short term)”.  The High Court ought to have quashed the clearance dated 10 August 2012 granted by AERB solely on the ground that the AERB had failed to implement the above recommendation before  “initial fuel loading” in KKNPP.
    4.         That the High Court ought to have appreciated that the Task Force was constituted by the Government of India post-Fukushima nuclear accident for safety enhancements in nuclear plants including KKNPP,  that the recommendations of the Task Force were supposed to be implemented in letter and spirit before IFL,  and that the AERB undertook before the High Court that those recommendations would be implemented before IFL in KKNPP.  The High Court ought to have held that any further clearance for KKNPP including the clearance dated 10 August 2012 for IFL without first implementing the remaining 11 recommendations detailed in the additional counter affidavit of AERB dated 22 August 2012 would be violative of Article 21 of the Constitution.
    5.   That the High Court erred in relying on AERB and stating that since it is an expert body, its decisions could not be questioned in judicial review.
    6. That the non-implementation of the said recommendations of the task force before the start of the project puts to grave risk the safety of millions of citizens and is in violation of the precautionary principle

6.  GROUNDS FOR INTERIM RELIEF

A. That the loading of fuel in the reactor core being the essential part in commissioning a nuclear plant, the loading of fuel in Unit 1 of KKNPP will make the plant to attain criticality. Criticality in plant means that the all safety measures needed to prevent any accident must be completed. As on this date KKNPP has not yet implemented about 11 out 17 recommendations made by post Fukushima Task force committee, allowing the loading of fuel in Unit 1 & 2 of KKNPP will adversely put millions of people life in danger. Hence any further action in compliance with fuel loading in Unit 1 & 2 and further commissioning of KKNPP must be stayed.

  1. PRAYER:

In view of the facts and circumstances of the case, it is most respectfully For the reasons aforesaid and those that may be urged at the time of hearing it is most respectfully prayed that the Hon’ble Court be pleased

A) To grant Special Leave to Appeal to the petitioner under Article 136 of the Constitution against the order dated 31.08.2012 in W.P. No. 22253 of 2012 passed by the High Court of Judicature at Madras and

B) Pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts of the case.

8.  INTERIM PRAYER:

In view of the facts and circumstances of the case, it is most respectfully prayed that the Hon’ble Court be pleased to:

A)      To grant ex-parte ad-interim injunction against the respondents from further proceeding with Initial Fuel Loading and/Or Commissioning the Unit 1 & 2 of the Kudankulam Nuclear Power Project till the recommendations of the task force regarding the said project are fully implemented.

B)      Pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

PETITIONER

 

 

 

 

 

THROUGH: PRASHANT BHUSHAN

COUNSEL FOR THE PETITIONER

 

DRAWN BY: Pranav Sachdeva, adv.

DRAWN ON:        September 2012

 

FILED ON:           September  2012

NEW DELHI