In the High Court of Judicature at Madras
(Special Original Jurisdiction)
W.P. No.  24770 of 2011

G. Sundarrajan
AM 77, 14th Main  Road
Shanthi Colony
Anna Nagar, Chennai  600 040                                         .. Petitioner

 

vs

 

1.  Union of India
represented by the Secretary to Govt. of India
Department of Atomic Energy
Anushakti Bhavan
Chatrapathi Shivaji Maharaj Marg
Mumbai 400 001

 

2.  Union of India
represented by the Secretary to Govt. of India
Ministry of Environment and Forests
Paryavaran Bhawan
CGO Complex, Lodi Road
New Delhi 110 003
3. The Chairman
Atomic Energy Regulatory Board
Niyamak Bhavan
Anushaktinagar
Mumbai  400 094                                                                           … Respondents

 

AFFIDAVIT
I, G. Sundarrajan, son of Thiru.Gomathinayagam, aged about 38 years, residing at AM 77, 14th Main Road,  Shanthi Colony, Anna Nagar, Chennai 40 do hereby on solemn affirmation state as under:

1.      I am the petitioner herein.  I am conversant with the facts of the case.  I am competent to file this affidavit.

2.      I state that I am a graduate in engineering (electronics and instrumentation) from Annamalai University. I am one of the trustees of “Poovulagin Nanbargal”, a registered public Trust, which publishes a journal on environment and related issues.  I am an environment activist working for the people of Kudankulam and Kalpakkam in Tamil Nadu.  I have participated in several discussions and debates touching environment protection in the media. I am shocked to see the interview of respondent 1 in the newspapers today that Kudankulam Nuclear Power Project will be commissioned by November, and not any later.  I initiate this public interest litigation in discharge of my fundamental duties under Article 51A (g) and (j) of the Constitution of India for issuance of a writ of mandamus directing the respondents to undertake a fresh review of Kudankulam Nuclear Power Project by affording an opportunity to the public to express their views on the feasibility of commissioning Kudankulam Nuclear Power Project and forbearing the respondents from commissioning the said project until such review is completed in all respects.

3.           I state that an Inter-Governmental Agreement between the Union of India and the Russian Federation was signed in November 1988 and its supplement was signed in May 1998.  As per the terms of the said agreement, a project report was prepared for the establishment of a Nuclear Power Plant at Kudankulam, Tirunelveli District by Russian organizations.  Though the supplement agreement was signed only in May 1998, the respondent-Union of India never thought it fit to seek environmental clearance from the concerned department after May 1998,  but was satisfied about the fact that seeking of environmental clearance in 1989 i.e. before the supplement agreement was signed in May 1998, was sufficient. By a letter dated 6 September 2001, the Ministry of Environment and Forests of the Government of India made it clear that the request for environmental clearance made in 1989 was valid even in 2001.  The details of the earlier Inter-Governmental Agreement and those of the supplement agreement were never made transparent by the Government and the public were kept in the dark.  No discussion or debate had ever taken place regarding the necessity of signing a supplement Inter-Governmental Agreement after a lapse of 10 years from the date of signing of the first Inter-Governmental Agreement between the Union of India and the Russian Federation. No public hearing was ever afforded to the public to say that when the terms of Inter-Governmental Agreement change, there should always be a fresh requisition for environmental clearance in accordance with law.  Thus, the process of environmental clearance proceeded as if what was done in 1989 was sufficient for clearing a project which would be established as per the terms of the supplement agreement reached between the Union of India and the Russia in May 1998.

4.           I state that the environmental clearance given for the Kudankulam Nuclear Power Project on 9 May 1989 i.e. even before the signing of supplement Inter-Governmental agreement by India and Russia in 1998, emphasizes that since this area has been declared as a bio-sphere reserve the project authorities should take special precautions to avoid any damage to the coral reefs or changes in the water quality near the shore and that all the vacant lands within the project zone should be afforested with a tree density of 1000 per acre and that the type of tree species should be so selected that they will be able to give maximum density of canopy.  After about 12 years of the said environmental clearance, the National Environmental Engineering Research Institute submitted the Comprehensive Environmental Impact Assessment of nuclear Power Plant (Units 1 and 2), Kudankulam under the sponsorship of Nuclear Power Corporation of India Ltd, Mumbai.  This was submitted in January 2003. It is stated in paragraph 4.3 of this report: “The other impact area of concern would be thermal pollution due to discharge of heated waters from once through cooling water system.  Due attention is required to be given to this aspect so that the resultant rise in the temperature of marine water does not go beyond 7 degree Celsius or so which is also one of the requirements of State PCB and MoEF.  In view of the adverse impacts due to thermal discharges on aquatic flora & fauna, this needs to be viewed critically while implementing control measures.”  In paragraph 4.5 of this report, it is further stated:  “The discharge of the radioactive liquid wastes from the proposed 2 units of the nuclear power plant in the marine water, if not adequately treated, may deteriorate the quality of marine water and affect the biodiversity of flora and fauna in the Gulf of Mannar.  The Gulf of Mannar is rich in marine biodiversity and the discharges from the proposed 2 units of the NPP should not adversely affect the biodiversity, commercial fishery and clean sand beaches.”  In paragraph 1.1 of this report, the importance of compliance with all the conditions of environmental clearance with regard to the said project has been highlighted:  “However, the NPCIL has been directed by the MoEF to have strict compliance of the terms and conditions of their environmental clearance granted on 9.5.1989 till the completion of installation of power plant.”  Today, respondent 1 says that by November this year, the Kudankulam Nuclear Power Plant will be commissioned.  Unfortunately, the conditions imposed by the Ministry of Environment and Forests with regard to water environment and biological environment are yet to be complied with.

5.            I state that one of the most important conditions of environmental clearance given by the State of Tamil Nadu for the installation of Nuclear Power Plant at Kudankulam on 13.2.1989 is: “13. The unit shall not discharge the treated effluent into the sea till it devises a proper outfall after carrying out hydrographic studies by a competing agency like Ocean Engineering Department, IIT, Madras, Bhabha Atomic Research Centre, Bombay, National Physical Oceanographic Laboratory, Cochin and creating conditions to satisfy the standards prescribed by the Tamil Nadu Pollution Control Board.”  No hydrographic studies appear to have been undertaken by respondents 1 and 3 as could be seen from the Comprehensive Environmental Assessment of Nuclear Power Plant (Units 1 and 2), Kudankulam.

6.           I state that the world was shocked to view the unprecedented nuclear disaster occurred on March 11, 2011 at Fukushima Dai-ichi Plant, Japan. An estimated 11,000 people were evacuated in a 20-km radius around the nuclear plant immediately after the accident.  United Kingdom, France and some other countries told their nationals to consider leaving Tokyo with a view to escaping from radioactive contamination.  Large amounts of radioactive isotopes were also released into the Pacific Ocean.  As of July 2011, the Japanese government found it impossible  to control the spread of radioactive material into the nation’s food and  radioactive material was being  detected in a range of produce, including spinach, tea leaves, milk, fish and beef, up to 200 miles from the nuclear plant. Inside the 12-mile evacuation zone around the plant, all farming was abandoned. As of August 2011, the crippled Fukushima nuclear plant was found still leaking low levels of radiation and areas surrounding it were found   uninhabitable for decades due to high radiation. According to experts, it would be at least 20 years before the residents could safely return to this area where high level radiation still prevails. This nuclear disaster made the respondent-Union of India constitute a Task Force comprising a Convener, four members, and one invitee.  This Task Force has been constituted “to review the capability of Kudankulam Nuclear Power Project to withstand and mitigate extreme natural phenomenon which have very low probability of occurrence but potential for loss of significant operational and safety systems.”  This Task Force has submitted an Interim Report on Safety Evaluation of the Systems of Kudankulam Nuclear Power Project post Fukushima Event on May 11, 2011.  The report concludes:  “However, as a means to further enhance the level of safety and to build more defense in depth the committee recommends the implementation of the measures outlined to cope up with unanticipated and rare severe and multiple natural events having very low probability like the one that took place at Fukushima Nuclear Plants in Sendai prefecture of Japan.  The engineering details of these additional measures are being worked out.  The schedule (short term and long term) of implementation will be submitted along with engineering details by end August 2011”.  It appears that no final report has so far been submitted by the Task Force to the respondent-Union of India.

7.               I state that the Task Force constituted by the Government of India was not even ready to look at the Special Report presented by nuclear safety experts from Russian state agencies to President Dmitry Medvedev this June on the country’s nuclear reactors especially when Kudankulam reactors are Russian made reactors.  According to the report which is prepared by the Ministry of Natural Resources, Federal Service for Environmental, Technological and Nuclear Oversight, as well as Rosatom, the nuclear reactor operator, Russian reactors are marked by 31 “serious flaws” like absence of regulations for personnel to know how to deal with large-scale natural disasters or other major contingencies, inadequate protective shelters for workers in the event of an accident etc. The Task Force has not addressed itself to the inadequacy of science to find a way of storing nuclear waste which remains hazardous for thousands of years.  Since the respondent-Union of India has not so far complied with all the conditions of environmental clearance dated 9 May 1989 and since the Task Force has not yet submitted its final report about the adequacy of safety measures in the light of Fukushima Nuclear Disaster and since the respondent-Union of India has today made a statement in the press that the Kudankulam Nuclear Power Project would be commissioned this November,  this writ petition is preferred in public interest on the following amongst other grounds:

GROUNDS

(a)     It is submitted that respondent 3-Atomic Energy Regulatory Board constituted under Section 27 of the Atomic Energy Act, 1962 has powers to review from the safety angle requests for authorizing/commissioning/operation of Department of Atomic Energy projects/plants.  Respondent 3-Board has to arrive at a decision to commission any Nuclear Power Project only after appropriate review of commissioning reports and results thereof, and of operational experience in the light of the radiological and other safety criteria recommended by the International Commission on Radiological Protection, International Atomic Energy Agency and such other international bodies and adapted to suit Indian conditions.  So far as Kudankulam Nuclear Power Project is concerned, respondent-Union of India after having considered Fukushima Nuclear Disaster constituted a Task Force which has submitted only its interim report.  The final report of the Task Force is yet to come.  On 22.9.2011, a letter was addressed by the Secretary General, Japan Occupational Safety and Health Resource Centre and other social activists to the Prime Minister of India.  The letter speaks for itself: “India has suffered a Bhopal disaster.  Japan suffered the nuclear bombing of Hiroshima and Nagasaki.  Japan did not learn its lessons and pursued “peaceful” uses of nuclear energy.  The result was the disaster in Fukushima.  One mistake of this kind is enough for the world.  It may seem like a waste of money to cancel a nuclear power plant that has been constructed.  But as Japanese, we know that the magnitude of human lives and environment wasted in the event of a nuclear disaster dwarfs the dollar investments made in construction of an inanimate concrete and steel structure.” A transparent and complete review of Kudankulam Nuclear Power Project is a statutory compulsion in view of the fact that Units 1 and 2 of the said project were not put through the due Environment Impact Assessment process, that the comprehensive Environment Impact Assessment report was never made available to the public in advance, and that no public hearing was held enabling the people to record their objections.  As regards Units 3 and 4 of the said project, respondent 2 made it clear to Nuclear Power Corporation of India Limited vide its letter dated 23 September 2008: “Necessary prior clearance under the provisions of CRZ Notification, 1991 for the activities to be located in CRZ shall be obtained from the competent authority.”  Had the Comprehensive Environment Impact Assessment Report on Units 1 and 2, which are shortly to be commissioned, made available to the public, the public would have insisted upon the Government of India to have prior clearance under the provisions of CRZ Notification, 1991 for the project, as has now been emphasized by respondent 2.  Now that respondent 1-Union of India thought it fit to constitute a Task Force post-Fukushima, respondent 1-Union of India deserves to be directed by the Hon’ble Court to undertake a fresh, transparent, and complete review of Kudankulam Nuclear Power Project with special reference to the generic safety problems of nuclear power, including harmful radiation exposure at each stage of the “nuclear fuel cycle”, accidental radioactivity releases, and generation of unstoppable and unstorable nuclear waste.

(b)             It is submitted that in view of the fact that the review of Kudankulam Nuclear Power Project undertaken by the respondent-Union of India through the Task Force constituted post-Fukushima is not yet over and that the task assigned and to be assigned to the Task Force would involve invitation of suggestions from all corners of the world and holding of effective public hearings, hurried commissioning of the project would be violative of Articles 14 and 21 of the Constitution.  Right to life under Article 21 of the Constitution would prevail over everything.  The respondent-Union of India therefore deserves to be directed by the Hon’ble Court not to commission the said project until the review of the project is completed in all respects in accordance with law.

7..     I state that I have not filed any other petition in this Hon’ble Court or any other Court regarding the subject matter of this writ petition.

8..     I state that I have no personal interest in the case.  I have never filed any public interest petition in any Court.   I undertake to pay the costs, if any, if this PIL is found to be intended for personal gain or oblique motive.  I have filed this petition from my own funds.  To my knowledge, one PIL viz. WP No.22771/2011 for an injunction against commissioning of Kudankulam Nuclear Power Project is pending before the Hon’ble Court.   This public interest litigation is maintainable in law. The contents of this paragraph are in compliance with the Rules to regulate the Public Interest Litigations filed under Article 226 of the Constitution of India.

 

Solemnly affirmed at Chennai                                                                                    Before me

this the 19th day of October 2011

and signed his name in my presence
In the High Court of Judicature at Madras
(Special Original Jurisdiction)
W.P. No.                       of 2011

G. Sundarrajan
AM 77, 14th Main  Road
Shanthi Colony
Anna Nagar, Chennai  600 040                                         .. Petitioner
vs
1.  Union of India
represented by the Secretary to Govt. of India
Department of Atomic Energy
Anushakti Bhavan
Chatrapathi Shivaji Maharaj Marg
Mumbai 400 001 & 2 Others

… Respondents

 

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION

 1..     The address for service of the petitioner is that of his counsel  M.Radhakrishnan, Advocate,  134, Thambu Chetty Street, Chennai. 600 001.

2..     The address for service on the respondent is as stated above.

For the reasons stated in the accompanying affidavit, it is prayed that the Hon’ble Court be pleased to issue a WRIT OF  MANDAMUS directing respondents 1 and 3 to undertake a fresh and transparent review of Kudankulam Nuclear Power Project at Kudankulam, Tirunelveli District, Tamil Nadu by an independent body of experts including those of the Department of Atomic Energy of the respondent-Union of India by holding public hearings in accordance with law,  and forbearing respondents 1 and 3 from commissioning the said project without such review  and without fresh Environment Impact Assessment and Coastal Regulation Zone clearance, and thus render justice.

Dated at Chennai, this the 19th day of October 2011

 

Counsel for  the petitioner