IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO. ___________ OF 2013
IN
SPECIAL LEAVE PETITION (C) NO. 27335 OF 2012
In the matter of:
G Sundarrajan …Petitioner
Versus
Union of India & Ors …Respondents

APPLICATION FOR INTERIM DIRECTIONS
ON BEHALF OF THE PETITIONER

To,

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE HON’BLE SUPREME COURT OF INDIA
The Humble Application of the

Petitioner above-named

MOST RESPECTFULLY SHOWETH: –

1. The petitioner has brought before this Hon’ble Court serious issues that the plant at Kudankulam suffers from which ought to be resolved before its commissioning in the interest of safety, environment protection and rule of law. The said issues have been broadly categorised as: 1) Safety, 2) Radioactive waste management, 3) Environmental Clearance, 4) Civil Liability for Nuclear Damage and 5) Disaster Management. This Hon’ble Court after detailed hearings over several weeks was pleased to reserve its judgment by order-dated 06.12.2012. A copy of the said order is annexed as Annexure A (Page _______________). The detailed arguments on the above issues form part of petitioner’s special leave petitions, short note and the common rejoinder affidavit filed before this Hon’ble Court and are not being repeated herein for the sake of brevity. The instant application is being filed to bring on record recent disturbing developments and disclosures that have huge bearing on the safety of the plant, as also to point out the delay in implementation of safety measures that the respondents had themselves undertaken to complete.

Koodankulam scandal posterUse of sub-standard equipment and components
2. After the completion of the hearings in December 2012, there have been revelations that have come out in the public domain that have unfortunately put serious question mark on the safety of the Kudankulam nuclear plant. The issue concerns the use of sub-standard equipment imported by NPCIL from corrupt Russian nuclear suppliers in the said plant. Petitioner submits that this is also apparently the reason for delay in commissioning of the nuclear plant. Government has since March 2012 been making repeated public announcements that the Kudankulam plant would be commissioned in a fortnight or month. However, the said imminent commissioning has been delayed by more than a year because of a total lack of readiness of the plant to be commissioned and the lack of progress on the safety measures inside the plant. Despite this, the Central Government has been making public statements and putting enormous political pressure on the nuclear administration to commission the plant, in total disregard to the safety of the plant and the public. Now the latest information is that the Government plans to commission the plant by the end of this month as promised by our Prime Minister to the Russian Government. These statements were made and are being made despite the fact that the entire issue of safety of plant, issue of spent fuel, its environment clearance, its civil liability and disaster management is pending consideration of this Hon’ble Court. News reports on the above issue dated 07.04.2012, 13.06.2012, 24.07.2012, 19.11.2012 and 03.04.2013 are annexed as Annexure B (Colly) (Page ______________).

3. The Government and NPCIL as well as the AERB have refused to share any information with the public on the above aspects even though this issue vitally concerns the public, especially the safety of millions of people living in that region where plant is located. But now it has come to light through international media reports that one of the major reasons for non-commissioning of the plant is because of the failure of sub-standard equipment and components which have been used in the plant. From NPCIL’s continuing inability to start-up KKNP-1 till now, it is very obvious that the Indo-Russian commissioning team at Koodankulam is facing some serious problems that they never anticipated.

4. The first of the two 1000 MWe VVER nuclear reactors at Koodankulam plant, under commissioning and testing, is supplied by the Russian atomic energy corporation, Rosatom, through its subsidiary, Atomstroyexport. Crucial materials and reactor parts have been exported to Kudankulam by a Russian government-owned company called Machine-Building Plant ZiO-Podolsk, which is another Rosatom subsidiary. ZiO-Podolsk supplies including important safety subsystems, equipment, components and materials have been exported to India over the years for the Kudankulam plant. A page from the said company’s website is annexed as Annexure C (Page _______________).

5. In February 2012, KGB’s successor organization, the Federal Security Service (FSB) of Russia arrested Mr. Sergei Shutov, the procurement director of Rosatom subsidiary Zio-Podolsk, on charges of corruption and fraud. Zio-Podolsk, a machine works company, is the sole supplier of steam generators and certain other key components for Russian nuclear reactors worldwide. The FSB has charged Mr. Shutov with sourcing sub-standard steel blanks from Ukraine instead of the prescribed quality of steel. News reports on the above dated 22.02.2012, 28.02.2012, 08.11.2012 are annexed as Annexure D (Colly) (Page ____________). Equipment manufactured with cheap Ukrainian steel have been used in nuclear reactors built by the Russians in Russia, Bulgaria, Iran, China and India. The dangers of such substandard equipment and construction became evident on July 17, 2011, when the containment building of the Leningrad NPP-2 reactor that was under construction collapsed exposing the crumbling of steel structures.

6. Since the Russian security agencies themselves are convinced that the Zio-Podolsk Company had all along purchased poor grade, low-priced steels and other materials and passed them off in their documents as high-grade, high-priced materials as per requirements of the specified design standards to build their equipment and components, and pocketed the difference in procurement and billing prices as corrupt earnings, all such supplies from Zio-Podolsk to Kudankulam plants have to be viewed with great suspicion and as being of dangerously low quality, until proven otherwise through an independent verification by experts not belonging to DAE/NPCIL or Russian entities. Besides, it must be realized that there could be a large number of equipment, components & materials (besides the ones which showed failure during commissioning tests), whose deficiencies & defects are dormant today, but these very same short-comings could cause such parts to catastrophically fail when the reactor is operated for some time under high temperature, pressure, high neutron irradiation and thermal & stress cycling. Many such parts / materials may have been already installed within the reactor pressure vessel itself, which is now closed and sealed in preparation for the reactor start-up. Once the reactor is made critical (i.e. nuclear reactions are initiated) and taken up gradually into power operation, much of these components and materials will become highly radioactive and/or will be in environments where they cannot be tested for quality or performance or even become inaccessible for close visual examination.

7. From 15-18 July, 2012 an official Indian Delegation, led by the then Special Secretary, DAE is said to have visited the ZiO-Podolsk machineworks offices and other nuclear facilities in Russia. During this trip, the delegation is reported to have accomplished a first-hand appraisal of ZiO’s facilities and capabilities. After the visit, the DAE Special Secretary is reported to have stated that the team was quite impressed with what they saw during the visit (as reported in the Russian Embassy, India website). A report on the same dated 19.07.2012 is annexed as Annexure E (Page ____________). It is to be noted that this was just five months after the arrest of Mr. Segei Shutov, Zio-Podolsk’s Procurement Director, by the Russian Federal Security Service (FSB), for buying low quality raw materials on the cheap and finally pricing it at much higher cost of high-quality materials, thus pocketing the difference as personal profit. The Indian Embassy in Moscow and the NPCIL/DAE personnel who were perhaps stationed there to monitor Russian supplies for Kudankulam must have certainly known about this, and would have certainly briefed the DAE Special Secretary, prior to his visit to ZiO-Podolsk. This Hon’ble Court may kindly ask the DAE, NPCIL, for the details of the planning, purpose, and discussions of the visit by the DAE high-level team to ZiO-Podolsk, and whether the matter of Mr. Shutov’s arrest and allied issues which could seriously affect public safety in Kudankulam were discussed or not.

8. The total lack of transparency, from which the nuclear establishment is suffering, prevents the public from knowing the real story. The DAE Secretary’s reasons for the delay in KKNP-1 start-up is that “the engineers have opened up a few of the valves and such components for maintenance and it’s taking some time.” M.R Srinivasan, Member (AEC), is reported to have said, “We sought an additional safety mechanism, which consists of valves. The original reactor design had to be altered and I believe this is the basic cause for delay. The valves were designed partially in India and Russia and compatibility with the reactor led to some hiccups.” The fact that a high-cost, high-risk nuclear reactor is facing defects and deficiencies in its components and equipment even before it is started up is highly unusual, and this indicates serious failure by the Indian nuclear establishment.

9. The people’s movement had under RTI posed the following question to AERB on January 28, 2013: “Zio-Podolsk, owned by the Russian company Rosatom, is under investigation in Russia for shoddy equipment it produced for several nuclear plants in that country and abroad since 2007. It is suspected that Zio-Podolsk used wrong type of steel (cheaper than the one originally required) to produce equipment for nuclear plants, such as steam generators. This company is said to have supplied several equipment and parts to the KKNPP. Please give a list of those equipment and parts that have been supplied by Zio-Podolsk to the KKNPP units.” The AERB replied on February 12, 2013 (No. AERB/RSD/RTI/Appl. No. 329/2013/2421) extremely evasively: “Selection of a company for supplying any equipment to NPCIL, is not under the purview of AERB. However, with respect to Quality Assurance (QA) during design, construction, commissioning and operation, a set of well established AERB documents on QA Codes and Guides are published and they were followed during the safety review of KKNPP.” Copy of the AERB reply dated 12.02.2013 is annexed as Annexure F (Page ____________). For the same query, NPCIL replied, “No information regarding any investigation against ZiO-Podolsk is available to NPCIL”. Copy of the NPCIL reply dated 19.02.2013 is annexed as Annexure G (Page ____________). From the facts that have now come out, it is clear that both these organizations simply lied in their RTI replies.

10. Dr. A Gopalkrishnan, former Chairperson of AERB and one of India’s foremost nuclear scientists, has written a scathing article pointing out the total failure of the DAE, NPCIL and AERB in the management of the problems of Kudankulam and has stated: “KKNP Unit-1 commissioning and KKNP-2 construction work must be stopped forthwith, and there can be no question of resuming these works towards start-up of both these reactors until a thorough and impartial investigation is carried out into the impact of this corruption scandal and sub-standard supplies on the safety of these reactors.” A copy of the said article published in The New Indian Express dated 19.04.2013 is annexed as Annexure H (Page ____________).

11. On the same day the above article was published, AERB issued an official press release stating that its quality checks and testing are sufficient to deal with problems pointed out by the above article. AERB did not deny that components and material from the said supplier have been used in the plant. For the first time, AERB admitted that “performance of four valves of a particular type were found deficient” and stated that this was the cause for delay. A copy of the said press release of AERB dated 19.04.2013 is annexed as Annexure I (Page ____________). This also begs the question as to how the AERB gave initial fuel-loading clearance to NPCIL when these four valves were sub-standard and mal-functioning. NPCIL also, on the same day, issued its own press release merely stating that it puts safety first without really dealing with the serious safety issues involved in which it ought to have taken the public into confidence. A copy of the said release of NPCIL dated 19.04.2013 is annexed as Annexure J (Page ____________).

12. Dr. E A S Sarma, a distinguished former Power Secretary to the Government of India, former Secretary in the Ministry of Finance, and former Energy Advisor to the Planning Commission having a master’s degree in nuclear physics and a doctorate in energy policy analysis from IIT Delhi, has written repeatedly to the Prime Minister on the safety issues facing Kudankulam. Through his letter dated 24.06.2012 he highlighted the issue of use of welds in the core-region of the reactor pressure vessel design and pointed out the serious safety risks involved. A copy of the said letter is annexed as Annexure K (Page ____________). He has written three letters to the Prime Minister on the above issue of sub-standard equipment that has the potential of causing dangerous leaks and accidents. His letters dated 18.02.2013, 05.03.2013 and 20.04.2013 are annexed as Annexure L (Colly) (Page ________________). The said letters call for immediate safety review and stoppage of commissioning of the plant. The authorities have not responded to the above letters. The people’s movement working in the Kudankulam area issued a strong public statement raising serious questions on the functioning of AERB. A copy of the said public statement dated 19.04.2013 is annexed as Annexure M (Page ________________).

13. Therefore the petitioner requests this Hon’ble Court to direct the Government not to commission the plant till the Government examines the above issue thoroughly with the involvement of independent experts from outside the establishment and submits a report to this Hon’ble Court.

Implementation of 17 safety measures
14. Petitioner, during the hearings last year, had submitted that nuclear technology is undoubtedly the most dangerous means of producing energy with a serious potential for catastrophic accidents causing severe damage to life and property, with cost of reparation running into lakhs of crores of rupees. Therefore, it is considered absolutely essential to ensure fool-proof level of safety before a plant can be commissioned. In this light, petitioner had pointed out that:
a) VVER V412 reactors are a new kind of reactors untested anywhere in the world (including in Russia) and there is a need to be absolutely sure about their safety. The reactor manufacturing company in Russia has consistently opposed even minimal liability in case of an accident due to a defect in the reactor (which it claims is “100% safe”).
b) This is India’s first 1000 MW nuclear reactor and we don’t have experience in terms of handling such mega-nuclear reactors (including handling their huge amounts of nuclear waste). Units 1 & 2 are 1000MW each (with installed capacity of 2000MW, which is about 40 percent of the capacity of all presently existing nuclear plants) are being installed, which cries out for a much stricter level of scrutiny.
c) This is the first 100% imported reactor. It is also the country’s first pressurized water power reactor. Our scientists and engineers mostly have expertise and experience in operating several PHWRs & two very old BWRs, which have completely different design, safety and fuel features and response to the effect of accidents.

15. Petitioner had also during the hearing pointed out that after the Fukushima disaster, there was a world-wide realisation that the safety systems in the existing nuclear plants are not adequate to deal with nuclear accidents caused by single or multiple events like Fukushima, and which may be design basis, or beyond design basis like Fukushima. Therefore, post-Fukushima, all nuclear nations have undertaken comprehensive safety reviews. The Government of India too appointed a Task Force to review the safety of Indian NPPs and suggest measures to ensure their safety. The said Task Force studied the KKNPP and recommended certain safety measures as per their interim report dated 11.05.2011 (Annexure R/1 of AERB affidavit, pages 37-61). The said report was placed before the High Level Committee of the AERB, which gave a final report on 31.08.2011 wherein all the recommendations of the Task Force regarding the KKNPP were incorporated and approved for final implementation. Annexure-VIII of the said AERB report relates to those very 17 safety measures. (Annexure P2 of SLP, pages 22-24). Thereafter various communications were exchanged between NPCIL (the plant operator) and AERB wherein there was no dispute that the measures need to be implemented to ensure safety. NPCIL repeatedly told AERB for several months (even till 5th June 2012) that it would implement these 17 safety measures by October-November 2012. (pages 229-231, 311 of the AERB affidavit).

16. Petitioner herein had filed a writ petition in the HC (no.8262) with a prayer that all the 17 measures must be implemented before fuel loading or commissioning of the plant. AERB on 05.06.2012 filed an affidavit stating that it would grant further clearances only after ensuring implementation of the safety measures (para 13(c) of Annexure P2 of SLP, pages 25-35). The statement of the counsel for AERB to this effect was recorded in the longer judgment of the High Court dated 31.08.2012. AERB counsel clearly told the HC that these 17 measures would have to be implemented before AERB gives any further clearance (Para 26.2 of the HC judgment, SLP 29121/2012). Rather than insisting, as it had earlier done and committed to the Hon’ble Madras High Court, on implementation of recommendations as a precondition to grant of clearance for commissioning, the AERB gave initial fuel loading clearance and has been supporting NPCIL claims that “time bound implementation for the identified safety enhancements after Fukushima accident is being carried out in a phased manner”.

17. Pursuant to the above, this Hon’ble Court asked the NPCIL to file an affidavit on the status of implementation of the 17 safety measures identified by the task force. The said affidavit was filed giving new timelines. After the judgment was reserved, AERB filed its written submissions in the month of December 2012 stating that some of the measures have been implemented, and gave an undertaking that most of the others would be implemented by April 2013. A copy of the relevant pages of the written submissions filed by the AERB is annexed as Annexure N (Page ____________). It also stated that some measures would only be completed by August 2014. Though the AERB had stated that most of the measures would be implemented by April 2013, there is no information available in public domain about the status of the said implementation. Therefore, the petitioners request this Hon’ble Court to direct both the NPCIL and AERB to file fresh status report on the status of implementation of these measures and direct that commissioning would be done only after the implementation of those safety measures.

Lack of independence of AERB
18. Petitioner had pointed out that this lack of implementation of safety measures is because the nuclear safety regulator, i.e. AERB, is not an independent entity and merely acts as a rubber-stamping body. NPCIL and AERB claim that AERB is independent because it does not report to Department of Atomic Energy (DAE) but to the Atomic Energy Commission (AEC), completely overlooking the fact that AEC is nothing but a body chaired by the Secretary of DAE. Since the AEC meets only once in few weeks at best, for all day-to-day matters, the Chairman, AERB in effect reports to the Secretary, DAE and is under his administrative control. 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 promote nuclear energy in the country and build more and more nuclear power 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.”

19. 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 ‘man-made’. 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”. This problem was acknowledged by the Prime Minister and the Government when they announced on 26.04.2011 that an independent statutory regulator would be set-up. A defective Bill to this effect was introduced in Parliament on 07.09.2011 and the same is pending almost for the last 20 months. The creation of independent statutory nuclear safety regulator with adequate powers (a need admitted by Government itself) does not seem likely in near future. Therefore, the petitioner requests this Hon’ble Court to direct the Government to set-up an independent regulator as mandated by the International Convention on Nuclear Safety to which India is a party.

Disaster management
20. NPCIL and the State of Tamil Nadu have not even complied with the judgment of the Madras High Court (which they have not challenged). The High Court in para 89 and 108 has directed the respondents to conduct an offshore emergency drill in all villages within a 30 km radius. As per AERB’s own code, an emergency preparedness zone of 16km has to be set-up where disaster management drill has to be carried out in all villages. The High Court had held: “We are informed that nearly 30 to 40 villages are within 30 km radius of KKNPP, such event (emergency drill) must take place in all villages and more importantly, apart from the officials, as stated above, the people in the area must be made to participate.” (Page 110 of SLP 29121). The administration has not carried out any further drills.

21. Thus, no emergency or mock drill has been conducted in any villages in and around KKNPP in the near past though in Para 89 of their order in August, 2012, Hon’ble Madras High Court had directed that a comprehensive mock drill should be conducted in all the villages within 30 km from the project site. Only awareness programs are being organized, in which a power point presentation is shown that talks about the safety features. Public transport buses to Idinthakarai and Kuthenkuzhy have been suspended since September 2012 exposing the vindictive nature of the District Administration. Such an attitude is not conducive to preparing the administration and the people to react appropriately in the event of an emergency.

PRAYERS
In these facts & circumstances, the Applicant prays that the Hon’ble Court, during the pendency of the present petition, may be pleased to:
(i) Direct the Government not to take any steps towards commissioning the Kudankulam nuclear plant or bringing the reactors to initial criticality till it comprehensively examines the issue of sub-standard equipment in Kudankulam plant & its impact on reactor & public safety, with the involvement of independent experts, and submits a report to this Hon’ble Court.

(ii) Direct the NPCIL and the AERB to file fresh status report on the status of implementation of the post-Fukushima safety measures and direct that commissioning and initial criticality of these reactors shall be done only after the implementation of all the safety measures.

(iii) Direct the State of Tamil Nadu/District Administration and NPCIL to conduct mock-drills in the vicinity of the plant and comply with all the guidelines of the NDMA and submit a comprehensive status report to this Hon’ble Court.

(iv) Pass other or further orders as may be deemed fit and proper.
AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.

PETITIONER
Through:

PRASHANT BHUSHAN
Counsel for the Petitioner
Drawn by: Pranav Sachdeva
Drawn & Filed on: 23rd April 2013
New Delhi