IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO. 27335 & 29121 OF 2012

In the matter of:

G Sundarrajan                                                                             …Petitioner

Versus

Union of India & Ors                                                         …Respondents

COMMON REJOINDER AFFIDAVIT ON BEHALF OF THE PETITIONER

TO THE AFFIDAVITS FILED BY AERB, NPCIL AND MOEF

I, G Sundarrajan, S/o Shri K.Gomathinayagam, 106/2 1^st Floor, Kanaga Durga Complex, Gangai Amman Kovil Street, Vadapalani, Chennai – 600026, presently at Delhi, do hereby solemnly state and affirm as under:

1.       That I am the petitioner in the above mentioned and being conversant with the facts and circumstances of the above case am competent to swear this Affidavit.  That I have gone through the affidavits filed by AERB, NPCIL and MoEF and submit my reply as under.

2.       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, 3) Environment Clearance, 4) Liability and 5) Disaster Management.

Implementation of safety measures

3.       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. A standard much higher than mere ‘abundant caution’ is required with the use of nuclear energy, especially in a densely populated country like India. In this light, it is pertinent to note the following:

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 nuclear waste). Units 1 & 2 are 1000MW each (therefore with installed capacity of 2000MW, which is about 40 percent of the capacity of all existing plants) are being installed which cries for a much stricter level of scrutiny.

c)       This is the first 100% imported reactor. It is also the country’s first pressurized water reactor reactor. Our scientists and engineers mostly have expertise and experience in operating BWR & PHWR which have completely different design, safety and fuel features and response to the effect of accidents.

4.       On March 11, 2011 at 14:46 hrs the Fukushima NP was struck by an offshore earthquake of a magnitude of 9.0 followed by many after-shocks and tsunami waves at 15:27 and 15:35 hrs, or 41 and 49 minutes later. These tsunami’s essentially incapacitated most of the facilities at this site, specially the emergency diesel generators, that later turned to out to be fatal as the operators struggled to (unsuccessfully) retain control of the reactors. Of the six units operational at that time, three (Units 4,5 & 6) were already shutdown and the balance three reactors (Units 1, 2 & 3) eventually all “self destructed.” Despite shutdown, Unit 4’s Spent Fuel pool developed problems as operators were not able to manage the decay heat removal successfully without any electricity to operate the numerous safety pumps that could have prevented this. In addition, the population of upto 20km from FNP site was evacuated over two days with others, upto 30km away, advised to stay indoors. As far as US citizens living near Fukushima were concerned, US NRC conducted studies on radiation risk and advised them to move away beyond 80km as per its own norms of safety. The economic and social hardships, and health impacts they will continue to suffer will unravel for many years in the future.

5.       All this happened as the “Design Basis” utilized in the design and operation of these facilities were found to be woefully inadequate, in spite of all good intentions, numerous studies and efforts by experts in many fields in the past. For example the “Design Basis” for Tsunamis was initially 3.1m, then revised in 2002 as 5.7m whereas the tsunami on March 2011 was over 14m. FNP was exposed to multiple Design Basis Events like earthquake, tsunami, fire, explosion, Station Black Out (loss of all AC Power that can power pumps, etc. and subsequently DC power for monitoring purposes too). FNP was clearly not designed to deal with multiple Design Basis Events occurring simultaneously.

6.      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, all nuclear nations have undertaken comprehensive safety reviews post-Fukushima. 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 5^th June 2012) that it would implement these 17 safety measures by October-November 2012. (pages 229-231, 311 of the AERB affidavit). And indeed, had NPCIL been serious about ensuring a safe power plant, it had sufficient time to implement the safety measures.

7.       Petitioner herein 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 long HC judgment).

8.       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 license 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”. It is submitted that a distinction has to be made between reactors that are already operating and reactors that are yet to be commissioned. There are serious problems involved in shutting down an existing nuclear plant and cutting off electricity supply of places dependent on them, and hence on them the new safety measures/features can be implemented in a phased manner over several months or a few years, though there must not be any compromise on public safety, as demonstrated in Japan, South Korea, Germany and other countries where the governments took a firm decision to close down the existing plants in operation, placing public safety over and above public inconvenience. When there were complaints of defective parts being used in two nuclear power plants in the country, South Korea recently ordered closure of the two units abruptly and ordered a comprehensive review of all its nuclear power plants in view of ensuring the safety of the public. When it comes to new reactors, it is possible to incorporate the adequate level of safety at the very outset and this must be implemented in Koodankulam. In case of a new station, and specially a new kind of unproven reactor design, as at KKNPP, this is even more significant as the risks and “unknowns” are the greatest due to limited operating experience and exposure to the reactor condition. This is clearly borne out by Chernobyl reactor accident, in Russia, that exploded during a test / experiment. In case of the Three Mile Unit-2 Accident, this unit went into commercial operation in Dec 1978 and the accident occurred, only three months later, in March 1979. Even China has halted licensing of new nuclear reactors pending changes to safety standards after Fukushima. A report published in the reputed international journal Bulletin of Atomic Scientists is annexed as Annexure A.

9.         NPCIL and AERB have not even envisaged a level 7 accident (Accidents like Chernobyl and Fukushima) as defined by IAEA at Koodankulam, leave alone being prepared for such an eventuality. This has been acknowledged in a RTI response given by NPCIL on January 9, 2012 (Annexure B). This clearly shows that even after getting the recommendations given by the post-Fukushima task force and understanding the magnitude it would cost to Humans & Environment in case of a level 7 accident, NPCIL is not prepared to implement 17 recommendations before starting the operations. More surprisingly, AERB, which is tasked with protecting the public and the environment, has taken a relaxed view, and willing to withdraw its own earlier insistence that the recommendations have to be implemented prior to commissioning. This also clearly shows the lack of independence of AERB.

10.       Only 6 of the aforesaid 17 recommendations have been implemented. Of the 11 recommendations yet to be implemented, recommendation No.1 relates to “Backup provisions from alternate sources”. Recommendation No.3 relates to “Mobile self-powered pumping equipment for emergency use”.  Recommendation No.4 relates to “Facility for monitoring safety parameters using portable power packs”. Recommendation No.12 relates to “Adequacy of instrumentation for monitoring plant status during BDBA”. Recommendation No.17 relates to “Provision of additional backup power supply sources for performing essential safety function, like air cooled DGs located at a high elevation”. Since all these recommendations are only in respect of critical safety measures and arise from post-Fukushima assessment of the safety measures at KKNPP, the contention of NPCIL that all safety measures are in place has no substance. A detailed point by definition and need for each recommendation which have not been implemented is given below:

a. The 1st recommendation for an alternate back-up provision is required firstly for charging the water to the secondary side of the steam generators, secondly to provide for make up of borated water to the spent fuel pools and thirdly to inject borated water in the reactor coolant system for strengthening the safety systems. Indeed, the lack of sufficient fresh water reserve in Fukushima was a major contributor in escalating the impact and scale of the disaster. In fact, NPCIL proposed on 27-3-2012 to construct a water storage tank of 8000 cu.m capacity to tackle this problem and it should have been forced to complete this work within 6 months i.e. by 27-9-2012 or at least by now.

b. The 2nd recommendation pertains to increasing the emergency water storage facility for the purpose of core decay heat removal during a period of at least one week.  This is also very crucial safety measure as a second line of defense.  It is surprising that AERB justifies the existing water storage both for reactor cooling and also spent fuel and such storage is available only for a limited duration and AERB further certifies that the existing water availability for the limited duration is sufficient enough to make alternate arrangement to bring another source of water from outside the nuclear plant site.  No indication has been given as to what the alternative source of water is or how it will be brought. The experience at Fukushima reactor proved that the inadequacy of cooling water had caused the disaster. Hence additional water storage amounting to one week’s requirement is a bare minimum to augment safety measures.

c. The 3^rd recommendation deals with mobile self-powered pumping equipment for emergency use.  The Japanese crisis was worsened due to the absence of self-powered pumping equipment, because of total failure of electrical power. Hence this additional measure must be immediately installed before grant of license to operate the plant.

d.  The 4^th recommendation pertains to the facilities for monitoring the safety parameters using portable power packs. Undoubtedly, timely monitoring of safety parameters is crucial to detecting problems before they build up to disastrous proportions. This recommendation has been made keeping in mind the need to ensure continued monitoring irrespective of the availability of electrical power. The importance of this recommendation, and the reasonable ease with which it can be implemented, cannot be over-stated, and AERB should have insisted on implementation of this recommendation prior to grant of permission even for fuel loading.

i)             Regarding the finalization of emergency operating procedures for conditions arising beyond the design basis accidents, AERB should not have merely stated that KKNPP is provided with beyond design based accidents management and that emergency operating procedures have been prepared. AERB has also stated that these procedures are for handling situations within the plant and are not related to any off-site emergency for which separately approved emergency plans are already in place.  It must be remembered that the Fukushima accident has shown to the world that they failed in finalization of emergency operating procedures for beyond design based accident conditions because they initially fixed a distance of only 20km. for the emergency planning zone for evacuating the victims and it was subsequently increased to 30km. and later on upto 40km for sheltering the victims of the nuclear accident.  Further, NPCIL has admitted in responses to RTI queries, that it has no coping plans in the event of a Level 7 nuclear event because such an event is not envisaged. It is common knowledge that disasters do not make concessions based on what a nuclear plant is designed for. This recommendation is a crucial precondition to commissioning the reactor.

ii)            The view of AERB that the approved off-site emergency plans will provide public safety is completely wrong because AERB provided for an emergency planning zone extending upto 16km from the reactor location while the standards prescribed by IAEA states that the EPZ of 25km (Annexure C). The NDMA of India insists that nuclear plants in India shall adopt these international standards to ensure safety.

iii)          Hence AERB and NPCIL should not play with the lives of the people by promoting plants that not only gradually ruin public health, fisheries wealth, agriculture and the national economy.  In fact Japan is planning to pay compensation amounting to about Rs.4 lakh crores to the victims Fukushima Nuclear Plant disaster for the present. If Kudankulam nuclear reactor is subjected to a similar accident due to external threats like terrorist, bombing of the reactor by missiles, the destruction of nuclear reactors at Kudankulam is likely.  Even the cyclones can disrupt the power systems with the result that the recent hurricane that hit East coast of United States during November 2012 resulted in temporary closing of several nuclear plants in that area.

e.       The 5^th recommendation deals with finalization of Emergency Operating Procedures (EOP) for beyond design basis accidents.  NPCIL replied that EOP for some post irradiation examinations (PIE) have been made and the remaining are in progress as a short-term measure. Emergency preparedness plans require prediction of radioactive plumes due to accidental releases by modeling, and the estimation of number people in those pathways needing evacuation, resettlement or shelter and/or administration of iodine tablets.

f.        The 6^th recommendation pertaining to assessment of the primary containment for ultimate load bearing capacity must be confirmed because the task force committee consisting of several nuclear safety experts made this strong recommendation only after realizing that there is an existing deficiency in the matter.

g.       The 8^th recommendation for ensuring that the highly radioactive water used for cooling the core catcher vessel under beyond the design basis accident shall be contained inside the primary containment cannot be brushed aside by the NPCIL and the AERB. Taking a relaxed view on this recommendation would pave the way for disastrous release of highly radioactive emissions outside the containment structures.

h.       With regard to the 12^th recommendation that calls for adequacy of instrumentation for monitoring plant status during a beyond the design basis accident, the NPCIL casually states that all important parameters of the plant during the major accident will be monitored and that provisions to extend power supply to these instruments will be implemented in stages as a long term measure. This casual attitude indicates a misplaced hope on the part of NPCIL and AERB that natural disasters and nuclear mishaps will wait until the slow-paced implementation of recommendations is completed. This delayed action fails to provide immediate measures needed to monitor the fluctuations in performance of various instruments and equipment that need to be controlled in time by integrating the crucial feedback from various components of the instruments and parts of the equipment that are used for preventing, controlling and management of failures that trigger nuclear accidents. Hence immediate action must be taken to review the adequacy of instruments for monitoring the plant status during the design basis accident.

i.        With regard to the 15^th recommendation that the back-up sources for water injunction to steam generators secondary side should be seismically qualified, the NPCIL submitted that a seismically qualified water storage tank of 8000cu.m capacity will cater to this requirement as a short-term measure. This measure could have been implemented within 6 months and before October-November, 2012 and also before grant of clearance by AERB for operation of the reactors. That it has not been implemented exposes the callous disregard to safety by NPCIL and the collusive relationship of the regulator AERB and DAE.

j.        The 17^th recommendation demands that a provision of additional back-up power supply sources for performing essential safety functions like air cooled diesel generators located at a high elevation should be made.  But this crucial recommendation is not seriously taken by the NPCIL for ensuring safety of the nuclear plant and the public by stating casually that the provision of a mobile diesel generator will be made for performing essential functions as a long-term measure.  This recommendation is based upon the serial failure of several diesel generators except the one air cooled reactor over a small mould located at an elevation near Fukushima 6^th reactor at Fukushima which provided the back up system that proved successful even during the period of the Fukushima disaster.

11.     Hence AERB and NPCIL should not be allowed to take these recommendations of the expert committee casually but should get them implemented fully before granting permission for starting the operations at the nuclear reactors of Kudankulam. The recommendations of the task force committee provide a crucial line of defense to ensure more reliable safety when the first line of safety fails which could happen due to several reasons like electrical or mechanical failures or human errors in operations, vulnerabilities due to aging of the instruments and equipment, internal sabotage and lack of close coordination among the officers and workers involved in operation and maintenance. Hence they should be considered as essential prerequisites for ensuring higher reliability of nuclear safety.

12.     This is despite the fact that AERB’s own high level committee itself, in para 4.19, stated that nothing should be left to chance and NPCIL should assume that a “severe” accident will take place and there should be total preparedness for it. (Page 83 of AERB’s affidavit)

Para 4.19

In spite of all the safety features provided, the extremely remote possibility of an accident leading to partial or total melting of fuel in the reactor core due to unforeseen reasons should still be deterministically taken into consideration. Provisions for management of such an accident, termed as severe accident, need to be made such that the operators are able to control its progression and mitigate its consequences in terms of preventing, or at least minimizing, any significant adverse impact in the public domain.

High level commmittee of AERB clearly mandated that severe accidents must be “deterministically taken into consideration”. NPCIL and the AERB now state that severe accident is improbable so remedial measures can be implemented, if at all, at a slow pace after the start of operations at Kudankulam.

13.     The AERB is promoting the issuance of all permits and licenses for commercial operation of the Kudankulum Nuclear Power Plant (KKNPPP) ignoring completely the serious nature of the woeful inadequacy of the best of safety features provided at the Fukushima Nuclear Station (FNS) during the devastating multiple Design Basis Events (DBE’s), namely earthquake, tsunami/flood, fire, explosion, Loss of Power etc. that occurred at that site in March 2011. The AERB, instead of attempting to ensure that KKNPP is able to withstand such multiple DBEs and BDBEs in the future and assure the safety of the public, which is its prime function, repeatedly reiterates that the above cannot possibly happen at KKNPP and therefore no further action is necessary. AERB’s actions further ignores the recommendations of ACPSR (Item 4.2.2 and 4.2.3, at page 67, and 3.2.24, at page 336/7 of affidavit) that various facilities must be put in place before commercial operation.

14.     On 10.08.2012, AERB gave initial fuel-loading clearance even before 11 of these safety recommendations had been implemented (Annexure P3 of SLP, pages 36-39). Hence petitioner filed the writ petition in HC (no. 22253/2012 out of which the SLP 27335/2012 has arisen) seeking implementation of these measures before commissioning of the KKNPP (Annexure P4 of SLP, pages 40-46). AERB therein filed an affidavit that NPCIL has given them a fresh schedule stating that implementation of the remaining 11 critical safety measures would take 6 months to 2 years (Annexure P6 of SLP, pages 54-61). Therefore, though it was decided that these recommendations would be implemented before the commissioning as is clear from the earlier schedule of implementation finalised by NPCIL and AERB, NPCIL had not made any progress on the same, but still wants to commission the nuclear plant immediately. It is indeed unfortunate that AERB is prepared to issue licenses to support commercial operation, by stating that requirements arising post Fukushima are not necessary. This approach nullifies the need of the safety audit announced by the Prime Minister of India to showcase Government’s seriousness about nuclear safety. This is not surprising because the regulator is subordinate and reports to whom it is supposed to regulate.

15.     NPCIL states 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. 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.”

16.       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”. 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 highly-defective Bill to this effect was introduced in Parliament on 07.09.2011 and the same is pending for the last 14 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.

17.     It is also incorrect on the part of the establishment to argue that a tsunami cannot occur near the plant site. It is recognised worldwide that the science of seismology and tsunamis, in its present state, does not permit the scientists to predict with any reasonable degree of certainity, the probability and magnitude of occurrence of either an earth quake or a tsunami. It is a well established norm of disaster management that emergency preparedness should be ensured for the worst case scenario like Fukushima in the case of nuclear accidents. After the people’s movement pointed out the presence of two major slumps that could generate tsunami (near field tsunami) present near to plant, the Government’s own so-called “expert group” agreed to the presence of two major slumps but said it could not cause “serious tsunami” (Page 56,57 of “expert group” report annexed to NPCIL’s affidavit). It is pertinent to note that a giant tsunami wave was caused by the collapse of submarine slumps in Papua New Guinea (near Australia) in 1998 caused massive loss of life and property. The argument that KKNPP is situated about 1,500Kms away from Tsunamigenic line does nothing to address the tsunami risks posed by the two slumps within 70 km of the plant site. It is not just an earthquake or a tsunami that can trigger a serious accident. Even mechanical failures, equipment failures and human lapses can cause them.

18.     Thus, it is clear that NPCIL and AERB are taking chances with safety putting to grave risk the health and life of millions of people, in their hurry to commission the nuclear plant under international political pressure. The fact that both the Task Force and the AERB had categorically stated that these 17 measures have to be implemented means that these measures are necessary. Otherwise why would they suggest measures that cost quite a lot of money, energy and time to implement, unless they would have felt that they are necessary. As is shown above, these 17 measures are critical to the safety of the reactors. The accident and natural events which these measures seek to mitigate can occur at any time (either in the first 2 years or thereafter).

19.     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. 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.

Radioactive waste

20.        Huge amounts of radioactive wastes are generated with the use of nuclear energy, which unless handled, treated, conditioned, transported, stored and disposed off safely without any leaks, can cause serious contamination of land, water, food, air and the ecosystem. Such contamination can have enormous consequences for human health as it leads to cancers, genetic deformation, congenital diseases, disabilities, loss of senses, neurological diseases and even deaths. Similar is the impact on animal, plant and marine life.

21.       Since nothing is burnt or oxidised (unlike thermal power plants) during the nuclear fission process, nuclear plants convert almost all of their fuel into radioactive waste with little reduction in mass. In countries that used open-fuel cycle like US, Sweden and Finland, fuel is not reused, meaning almost all of it becomes waste. In countries that use closed-fuel cycle like France, Germany, Belgium, Spain, U.K. and India, plutonium is extracted from spent fuel, recycled and reprocessed, but still a huge quantity of the fuel is still wasted. Moreovereven reprocessing creates its own high-level waste, and hence to claim that since there is reprocessing, there is no waste, is baseless. There is sufficient international experience to show that reprocessing actually increases the total volume of waste. NPCIL in its affidavit on spent fuel admits that reprocessing itself is a major source of waste (Pg 36, BARC publication).

22.     For example, France which reprocesses spent fuel to separate fissile material (pure waste) from usable plutonium, produces 1710 cubic metres of ‘high-level waste’, a number that is expected to jump to 3600 cubic metres by 2020. (Journal of Nuclear Materials 362 (2007), p. 385). Each 1000 MW reactor (like Kudankulam unit-1 alone), has about 15 billion curies of radioactivity. (Nuclear Monitor 643, 17.03.2006). It will take at least 10,000 years before high-level nuclear waste reaches the levels of radiation that are considered safe to manage. (Sovacool, Cambridge University, 2011, pg 142). France too is running out of storage space and existing sites are likely to be full by 2015. A 1991 law requiring the creation of a geological storage facility in France was never implemented due to public opposition. (Paris: Global Chance, October 2008). A South Korean underground repository for permanent disposal will not be ready until 2041, but interim storage pools will likely reach maximum capacity by 2024. (Progress in Nuclear Energy 49 (2007), pg 323).

23.               Storage of nuclear waste faces a number of daunting challenges is is clear from international experience. Firstly, many of the repositories designed to be temporary are turning into permanent ones. Interim storage is by its very nature storage for a small period under direct supervision and control. It can never be a substitute for permanent geologic repository, which must last for hundreds of thousands of years. Temporary sites are not typically designed to handle contingencies such as earthquakes, tornadoes or plane crashes, and can operate safely only for a short period of time. Secondly, most communities do not want to host a facility, even a temporary one as they are concerned about their community becoming a de facto site for waste for hundreds of years, with consequential health and environmental affects and ecological deterioration of the region.  Thirdly, existing waste sites are prone to accidents, fires and safety risks, which can cause radiological leaks, which apart from health damage, would require cleaning-up whose cost would run into tens of thousands of crores. Fourthly, storing waste is an extremely expensive proposition as is clear from world wide experience.

24.       Till today, no sustainable solution has been found or implemented world-wide with regard to the serious problem of nuclear waste. Not even a single country has yet completed the construction of long-term geological repository for nuclear waste. In US, Yucca mountain site was identified, but after decades of work, it was abandoned. That is why the judgment of the US Court of Appeals dated 08.06.2012 states:

“After four to six years of use in a reactor, nuclear fuel rods can no longer efficiently produce energy and are considered “spent nuclear fuel” (“SNF”). Blue Ribbon Commission on America’s Nuclear Future, Report to the Secretary of Energy 10–11(2012). Fuel rods are thermally hot when removed from reactors and emit great amounts of radiation—enough to be fatal in minutes to someone in the immediate vicinity. Therefore, the rods are transferred to racks within deep, water-filled pools for cooling and to protect workers from radiation. After the fuel has cooled, it may be transferred to dry storage, which consists of large concrete and steel “casks.” Most SNF, however, will remain in spent-fuel pools until a permanent disposal solution is available. Even though it is no longer useful for nuclear power, SNF poses a dangerous, long-term health and environmental risk. It will remain dangerous “for time spans seemingly beyond human comprehension.” Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency, 373 F.3d 1251, 1258 (D.C. Cir. 2004).”

“Determining how to dispose of the growing volume of SNF, which may reach 150,000 metric tons by the year 2050, is a serious problem. See Blue Ribbon Commission. Yet despite years of “blue ribbon” commissions, congressional hearings, agency reports, and site investigations, the United States has not yet developed a permanent solution. That failure, declared the most recent “blue ribbon” panel, is the “central flaw of the U.S. nuclear waste management program to date.” Experts agree that the ultimate solution will be a “geologic repository,” in which SNF is stored deep within the earth, protected by a combination of natural and engineered barriers. Twenty years of work on establishing such a repository at Yucca Mountain was recently abandoned when the Department of Energy decided to withdraw its license application for the facility. At this time, there is not even a prospective site for a repository, let alone progress toward the actual construction of one.”…

“The Commission admits in the WCD Update that there have been “several incidents of groundwater contamination originating from leaking reactor spent fuel pools and associated structures.” 75 Fed. Reg. at 81,070. The Commission brushes away that concern by stating that the past leaks had only a negligible near-term health impact. Even setting aside the fact that near-term health effects are not the only type of environmental impacts, the harm from past leaks—without more—tells us very little about the potential for future leaks or the harm such leaks might portend. The WCD Update seeks to extend the period of time for which pools are considered safe for storage; therefore, a proper analysis of the risks would necessarily look forward to examine the effects of the additional time in storage, as well as examining past leaks in a manner that would allow the Commission to rule out the possibility that those leaks were only harmless because of site-specific factors or even sheer luck. The WCD Update has no analysis of those possibilities other than to say that past leaks had “negligible” near-term health effects. A study of the impact of thirty additional years of SNF storage must actually concern itself with the extra years of storage.”

“The Commission also notes that a taskforce has made recommendations for improvements to spent-fuel pools, which the NRC “has addressed, or is in the process of addressing.” But those improvements are thus far untested, and we have no way of deferring to the Commission’s conclusion that they will ensure the absence of environmental harm. Finally, the Commission refers to its monitoring and regulatory compliance program as a buffer against pool degradation. Id. That argument is even less availing because it amounts to a conclusion that leaks will not occur because the NRC is “on duty.” With full credit to the Commission’s considerable enforcement and inspection efforts, merely pointing to the compliance program is in no way sufficient to support a scientific finding that spent-fuel pools will not cause a significant environment impact during the extended storage period. This is particularly true when the period of time covered by the Commission’s predictions may extend to nearly a century for some facilities. Despite giving our “most deferential” treatment to the Commission’s application of its technical and scientific expertise, we cannot reconcile a finding that past leaks have been harmless with a conclusion that future leaks at all sites will be harmless as well. The Commission’s task here was to determine whether the pools could be considered safe for an additional thirty years in the future. That past leaks have not been harmful with respect to groundwater does not speak to whether and how future leaks might occur, and what the effects of those leaks might be. The Commission’s analysis of leaks, therefore, was insufficient.”…

“We further hold that the Commission’s evaluation of the risks of spent nuclear fuel is deficient in two ways: First, in concluding that permanent storage will be available “when necessary,” the Commission did not calculate the environmental effects of failing to secure permanent storage—a possibility that cannot be ignored. Second, in determining that spent fuel can safely be stored on site at nuclear plants for sixty years after the expiration of a plant’s license, the Commission failed to properly examine future dangers and key consequences. For these reasons, we grant the petitions for review, vacate the Commission’s orders, and remand for further proceedings.”

Hence the US Court of Appeals struck down the decision of US Nuclear Regulatory Commission (an independent statutory expert body, much more credible than India’s AERB) to increase the time for waste storage at nuclear plant site from 30 years to 60 years since a thorough safety and environmental impact study had not been conducted for taking the decision.

25.         The problem of nuclear waste is particularly acute in a densely populated country like India. In India, where a small area of 30 km radius contains millions of people, not to mention, diverse forms of plant, animal and marine life, it is absolutely essential that highest standards of safety and environment protection are followed, much more than US or any other country. Life in India cannot be considered cheaper than life in any country in the world, and when health of millions of people are at stake, then a casual attitude as shown by AERB, NPCIL and MOEF cannot pass muster or should be allowed to withstand judicial scrutiny.

26.       NPCIL in its affidavit on spent fuel (at page 34, BARC publication) admits that ‘non-radioactive waste’ generated in nuclear energy is “very small in volume”, meaning most of the waste is radioactive, with a significant part of the same being highly radioactive. NPCIL admits that the waste remains radioactive for millions of years (page 34). At page 36, they also admit that spent fuel reprocessing itself creates radio-active waste. So the argument in affidavit that because there is spent fuel reprocessing so there is no waste problem, is as untrue as stating that because we recycle some domestic waste, we do not need garbage disposal. NPCIL also admits that an interim storage has to be a minimum of 25-30 years during which the decay heat would reduce to half, after which can be considered for permanent storage (when that facility becomes available).

27.     Under the earlier agreement of 1988 with Russia, nuclear waste had to be shipped back to Russia. The site clearance and the environmental clearance are explicitly based on this fact. However, a new agreement was signed in the year 1998 under which nuclear waste had to be retained and stored in India itself. This change was agreed to by the Indian government without any study or evaluation of the risks and environmental impacts involved. This can be contrasted with the US Environment Protection Agency (EPA) guidelines that clearly mandate that Final Environmental Impact Study (FEIS) must incorporate thorough consideration of on-site storage (as is being envisaged at Kudankulam). EPA states: “Since appropriate on-site storage of spent fuel assemblies and other radioactive wastes is necessary to prevent environmental impacts, EPA believes the FEIS should provide a thorough consideration of impacts resulting from such storage.” It also states: “Given the uncertainty regarding ultimate disposal, on-site storage may continue for a longer term than currently expected.” [EPA2007b].

(http://www.epa.gov/compliance/resources/policies/nepa/309-reviewers-guidance-for-new-nuclear-power-plant-EISs-pg.pdf)

Under these circumstances, it is absolutely unclear as to how the Government will manage the problem of spent fuel especially when they plan to add 4 more mega-reactors at the same site, which would result in astronomical amounts of radioactive waste at Kudankulam.

28.     The Minutes of Meeting of the AERB committee contained in pages 153 to 157 of the AERB affidavit state that the storage capacity limitations for spent fuel at the KKNPP will hamper repair and leak prevention activities beyond 5 years of storage because of the scarcity of space. Therefore, the AERB committee recommended that considering the above scenario, it is prudent that an Away from Reactor (AFR) facility for waste storage is finalised well before 5 years of operation (page 155). However, as on date, there is no plan for an AFR facility. Conceiving the plan, conducting a site evaluation, conducting a thorough EIA, getting regulatory and statutory approvals, constructing and commissioning an Away from Reactor Facility can safely be assumed to take more than 5 years from the time of conception considering the pace at which NPCIL has executed even mandatory conditions such as the Post-Fukushima Task Force recommendations on safety.

29.     In the affidavit dated 16.10.2012, NPCIL states that Kudankulam site can store waste for upto 7 years and further states: “After this time, this spent fuel can be transported to a national facility for reprocessing. The location of such a facility is under consideration at present.” Hence it is an admitted position that neither there is no facility for either medium or long-term storage, nor there is a facility for reprocessing of nuclear waste from Kudankulam reactors. The few existing reprocessing plants that currently deal with very limited quantity of spent fuel, are of absolutely no relevance for the huge waste that would be generated from Kudankulam reactors. Moreover, the existing reprocessing facilities in India are designed for spent fuel from Pressurised Heavy Water Reactors, rather than light water reactors of the kind installed in KKNPP. The composition of fission products in PHWR varies considerably from the fission products in the spent fuel of a LWR. For exampple, each tonne of PHWR spent fuel contains only 168 grams of Plutonium 239, as against 438 grams of Plutonium 239 per tonne of spent fuel from a Russian VVER facility. The concentration of plutonium in the spent fuel significantly influences the design of the reprocessing plant. The chances of a reprocessing facility or a storage facility getting ready within 7 years are almost negligible. It took 15 years to set-up the first small reprocessing facility at Tarapur. The last full reprocessing plant that was constructed was the Kalpakkam Atomic Reprocessing Plant (KARP). It was granted financial sanction by the government in the year 1983 and the plant started functioning only in the year 1998.

30.     Moreover, the issue of transportation of the nuclear waste from Kudankulam site to another site has not even been examined by the AERB or MOEF. Transportation carries with it huge attendent risks from leakge, sabotage, fire, accident, mechanical failure etc., and this must be explicitly factored in a medium-to-long term plan before a plant is granted clearance, leave alone commissioned. Therefore, petitioner submits that this Hon’ble Court should direct the Government of India to finalise a sustainable solution and implement it in a time-bound manner regarding nuclear waste from Kudankulam, which should be based on a thorough environment impact and safety risk assessment by a high-level body with the involvement of independent experts.  

Environmental Clearance

31.       A nuclear plant, especially a mega-nuclear plant of thousands of mega-watts of installed capacity, has enormous environmental implications relating to land, water, human & animal life. Land use impact is due to construction, uranium mining and storage of waste. Construction of a nuclear plant takes several years, costs thousands of crores and causes enormous land, air and water pollution. On uranium mining, there are a large number of studies which show enormous health impacts of mining workers and people in the vicinity of uranium mining regions in India. As far as storage of waste is concerned, that is undoubtedly a serious environmental and health issue as is shown above. A nuclear plant’s astronomical requirement of water, which is unparalleled in any industry or plant, has serious consequences for the environment and life on the planet. At all the three stages of nuclear fuel cycle (i.e. plant construction, plant operation and waste storage), water is consumed and contaminated. At the stage of operation and waste storage, more than 70,00,000 cubic metres of water or 7 billion litres of water/day is consumed, contaminated with heat and radiation and discharged into the ecosensitive Gulf of Mannar Biosphere Reserve from each KKNPP unit, affecting marine and human life, and livelihoods. Also, even normally functioning nuclear reactors are still correlated with higher risks of cancer, birth deformities, genetic mutations, and unexplained deaths for people in the vicinity. So a proliferation of nuclear reactors in an area inevitably means exposure to more and more low-level ionizing radiation that causes serious health risks over a period of time.

32.       Therefore, it is internationally considered essential that a thorough environmental impact assessment is carried out to study all possible ecological, radiological, health & medical impacts, coupled with the impacts on bio-diversity, animal, plant and marine/aquatic life. Only after such a comprehensive study is available, an environmental clearance for a nuclear plant can be given or denied based on the said study and other factors, after due application of mind. The norms and procedures have to be followed from beginning to end, and collusive behaviour between the project proponent and environmental regulators can never be accepted, especially when a project of this scale and impact is involved. Breaches of law can never be presented as fait accompli violations to be condoned. This Hon’ble Court in Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281 in the context of environmental degradation held that having a law and tolerating its violation is worse than having no law at all.

33.     Kudankulam plant had received an environmental clearance from the Ministry of Environment & Forest, Government of India in 1989 with vague and imprecise conditions (except the ambient temperature of water condition). The said clearance was not based on any environmental impact study or any public hearing. It was not even preceeded by any site study or a detailed project report. The plant remained in a limbo and construction only began in 2002 as per NPCIL’s Task Force report, AERB’s affidavit and PMO’s statement in Parliament. In the meanwhile, CRZ notification of 1991 and EIA notification of 1994 came, which were squarely applicable (as is shown later), and therefore a fresh environmental clearance was required under the law after conducting an EIA and a public hearing. As per law, if construction does not start for 5 years, then the clearance automatically lapses. Apart from the above, enormous changes in the plant that increase its pollution load took place, and yet no fresh clearance was taken, even though EIA and CRZ notification clearly mandate the same. There were other serious violations of law for which TNPCB sent show-cause notices to NPCIL reminding them they are committing a penal offence.

34.     Throughout the 24 year-long history of the Koodankulam power project, the regulatory authorities have consistently legalised the fait accompli violations presented by the project proponent. Standards have been relaxed, statutory violations such as construction without permission, and unauthorised setting up and commissioning of discharge outlets, have not merely been condoned, but justified by the MoEF in the language used by the proponent NPCIL suggesting a high level of collusion between the regulator and the proponent. The so-called “expert committee” on which NPCIL is relying upon was made of handpicked people in order to “allay the fears of the people”.

35.     It is an undisputable fact that construction only started in 2002 (Page 164, 172 of SLP 29121). Task Force report of the NPCIL itself notes that first pouring of concrete happened on 31^st March 2002 (Pg 39 of AERB’s affidavit). NPCIL has only counted a handful of ancillary activities to show that work was in progress. EIA notification of 1994 clearly states that an environmental clearance is valid for 5 years for the start of operation or construction of the plant. The stand taken by NPCIL and MOEF before the High Court and this Court is that the EIA notification of 1994 is prospective, and therefore any clearance given before 1994 should be treated to valid forever without any limit. This stand is clearly not acceptable since it is a settled position that the law of the land as it stands today has to be followed. New standards and norms are constantly being evolved in law, and no person can argue that he would be governed by obsolete norms. MoEF issued a circular on 27.03.1998 stating: “It has been noted that certain project which were environmentally appraised even as early as April 1980 have not commenced construction activities. There may have been significant changes during these years which would have implications on the environment and ecology of the area. After care consideration, the Ministry has decided that the environmental clearances issued prior to 1994 will not be valid in the case of projects where work did not commence before 1.8.1998.” (Annexure R/12 of MoEF’s affidavit dated 18.10.2012). Thus there is absolutely no scope of doubt that the 1989 clearance for Kudankulam reactors had lapsed. It is to be noted that even “consent to establish” under the Air Act and Water Act was received by NPCIL only in 2004 and all construction prior to that was in violation of law which is also a criminal offence. Similarily, the CRZ notification of 1991 was applicable since KKNPP was not a project in operation when the said notification came into force. Under CRZ notification, mandatory clearance is required for a nuclear plant near the coast, especially when the said plant is using sea-water facilities.

36.        Under the EIA notification of 1994, those projects where “all clearances” including “NOC from State PCBs” had not been obtained, required a fresh environmental clearance from MoEF in accordance with the said notification (explanation 8 of the EIA notification 1994, page 83 of SLP 29121). It is admitted position that NPCIL applied for consent from TNPCB on 2001 and was given consent only in 2004 (Page 85 of SLP 29121, para 65). NPCIL states that NOC from State PCB is equivalent to a clearance received from State Government. This is completely contrary to law as State PCBs are statutory bodies set up under the Water Act of 1974. All projects having environmental implications require “previous consent” to establish and to operate under the Water Act of 1974 and Air Act of 1981 from the State Pollution Control Board. Unless these consents are existing, a plant cannot be said to have “all clearances” from the State PCBs as required by the Explanation 8 of the EIA notification of 1994. In fact TN PCB wrote to NPCIL on 21.06.2001 to apply and obtain a fresh environmental clearance from the Ministry of Environment and Forest, Government of India as per EIA notification of 1994 as amended “after obtaining ‘No Objection Certificate’ from the Tamil Nadu Pollution Control Board”. (Annexure P6 of the SLP 32013, Vol-II). TNPCB itself directed that NPCIL to obtain a fresh environmental clearance from the MoEF under the 1994 EIA notification after conducting public hearing. Thereafter TNPCB issued a show-cause notice to NPCIL for not obtaining NOC from the Board in violation of laws stating that NPCIL has prima facie committed a penal offence. (Annexure P8 of the SLP 32013, Vol-II). The MoEF’s argument that a statement of the Chairperson of the TNPCB recorded in a meeting of a Committee for monitoring safety and rehabilitation on some aspect of the nuclear plant can be taken to indicate that “Tamil Nadu Pollution Control Board had also cleared the project” exposes a wishful and collusive interpretation of the law by the authorities. The laws extant at the time of the statement invoking a role for the Tamil Nadu Pollution Control Board included the Environmental Protection Act, 1986, the Water (Prevention and Control of Pollution) Act and the Air (Prevention and Control of Pollution) Act. Under the latter two Acts, the project proponent is required to secure a Consent to Establish before commencement of any works related to a project. Nowhere in law is a minuted statement of a Chairperson construed as a clearance by the Pollution Control Board.

37.     As per the 1994 notification, when there is expansion or modernisation (or what is likely to increase pollution load) of any existing project or industry, a fresh environmental clearance from the MoEF is a must after the conduct of an EIA and public hearing (page 81 of SLP 29121). In the case of Kudankulam, enormous changes had been made in the plant from what was originally envisaged in 1988 and therefore a fresh clearance had to be obtained as EIA notification of 1994. Here, spent fuel is being stored at the site which was not there in the original plan on which 1989 clearance was based, since it was then to be sent back to Russia. Also, as per the earlier plan the fresh water requirement was being met through an existing river dam. The plan now is to meet the entire freshwater needs by setting up a seawater desalination plant. For this purpose a desalination plant with 4 streams has been constructed. This desalination plant will generate a considerable quantity of highly toxic brine rejects, and therefore necessarily cause an increase in the pollution load of the facility. As admitted, NPCIL has constructed a desalination plant that would discharge 8000 cu.m/day of brine rejects (concentrated salt) into the sea. The impact of this was not considered in 1989 as such a plant was not envisaged. The increased salinity, in addition to the large volume of high-temperature rejects already permitted for discharge would have enormous impact on marine environment and life. Thirdly the reactor design was changed as new reactor types which were only developed in 2006 are being installed. This ought to have been sent to MoEF for a fresh examination after a thorough EIA.

38.     In the case of KKNPP, after the issuance of the said notification, there was not only expansion but also modernisation of the project. On 10.05.2012, the Minister of State for Personnel, Public Grievances and Pensions and Prime Minister’s Office, made a statement in the Rajya Sabha “The reactors at Kudankulam have safety features at par with the latest VVER model, VVER 1200 (AES 2006) evolved in the year 2006 after the start of construction of Kudankulam project in 2002”. (Page 172 of SLP 29121). Thus, the reactor V-412 was never thought of by anyone in the year 1988 or at the time of grant of environmental clearance in the year 1989. The very conception of the latest VVER model is nothing but modernisation of KKNPP.

39.     As is shown above in this affidavit, the storage, transporation, reprocessing and disposal of nuclear waste has enormous environmental consequences. In such a situation, undoubtedly a critical change in the project that envisages enormous expansion (in order to store nuclear waste or spent fuel, since earlier plan it was being shipped back), would be covered within the meaning of “expansion” of an existing project that increases the pollution load, requiring EIA and fresh environment clearance as per the 1994 notification. To claim that EIA notification of 1994 was not applicable amounts to stating that the storage of nuclear waste does not have any environmental impact, which is obviously incorrect as is shown earlier. It is to be noted that all facilities relating to nuclear fuel and nuclear waste require an environment clearance after EIA under the EIA notifications of 1994 and 2006. When the storage of spent fuel is for an indefinite period and when such a contingency was never anticipated at the time of grant of the original clearance, a fresh environmental clearance is a must both as per the EIA notification 1994 and the notification 2006. When the supplemental agreement with Russia was entered into in 1998 that envisaged this critical change, NPCIL ought to have applied for a fresh clearance from the MoEF clearly explaining the change and the need for a fresh clearance. But such is the casualness with which the nuclear establishment treats the regulatory processes and environmental impacts, that MoEF was not even informed. On its part MoEF has consistently condoned such violations of law.

40.      As is shown above, desaliniation plant has enormous environmental implications, and significantly impacts marine life. MoEF admits that it is covered by the CRZ notification and also admits that CRZ clearance for the desalination plant has not been taken, but states that NPCIL can now make an application and MoEF will grant the clearance. Firstly, under the CRZ notification of 2011, an environmental impact assessment coupled with public hearing is required. Thereafter, only after due application of mind, CRZ clearance can be granted or denied by the MoEF. It cannot be considered as a formality or with such casualness as MoEF treats it to be. KKNPP cannot run without the desalination plant which has been constructed illegally in violation of the CRZ notification.

41.     The said plant has also been constructed without the mandatory “pervious consent to establish” from the TNPCB under the Water Act. The TNPCB consent to establish was given in 2004, while the desalination plant was envisaged in 2006. The entire construction was absolutely illegal, being in violation of the Water Act, since any activity that discharges anything in water requires PCB clearance. It is an admitted position that TNPCB clearance was required. However, the stand of the respondents is that while giving “consent to operate” in 2012, TNPCB gave consent to operate to the desalination plant as well. But that does not absolve violation of the law and the fact that construction was illegal. It also does not convey that the decision of the TNPCB was a considered one, taking into account the environmental impacts of the said operation. The Consent of the TNPCB only further exposes the collusive nature of the relationship between the regulator and the project proponent, where all norms can be waived.

42.     The stand of the MoEF is that while desalination plant is covered under the CRZ notification, but it is not listed as a restricted activity under the EIA notification. The assumption that the desalination plant does not require a fresh environmental clearance as it does not come within any one of the 29 activities of the EIA Notification is not based on proper understanding of the said notification. Water source and the assessment of environmental impacts arising from source of water and the sink for wastewater are important factors that need to be considered in an impact assessment. Assuming the stand of the MoEF is correct, then that would only mean that desalination plant as a stand-alone project would not require a environmental clearance under EIA notification. But that does not mean that an industry or plant which require EIA clearance, would not require a clearance for all facets of the said industry. Here, the desalination plant is not a standalone proposal but a part of the Kudankulam nuclear plant for which environmental clearance is required. Also construction of a desalination plant would amount to “expansion” of a project which would be covered by the EIA notification and the entire project would require a fresh clearance. Fresh environmental clearance, therefore, is not just required for the desalination plant, but for the nuclear plant as a whole because the desalination plant introduces a significantly different dimension to pollution, especially given the fact that highly concentrated salty water is being released into the eco-sensitive Gulf of Mannar Biosphere Reserve, where already high-temperature water is being discharged, thus further affecting marine life.

43.     According to the MoEF, the environmental clearance granted on 09.05.1989 was revalidated by a letter dated 06.09.2001 when EIA Notification 1994 was in force. It is submitted that revalidation of an environmental clearance is impermissible in law.  An environmental clearance can be revalidated only when there is a specific legal provision enabling the competent authority to do so.  In the absence of any provision either in the Act or in the Rules no revalidation of environmental clearance of 1989 could have been effected.  Assuming without conceding that such power of revalidation of environmental clearance is available, it is incumbent upon the NPCIL and MoEF to satisfy the Hon’ble Court that the MoEF granted revalidation only on consideration of fresh environment impact assessment regarding KKNPP made by a competent impact assessment agency as per law. The same has not been done. Further, it is clear from the letter of the Tamil Nadu Pollution Control Board dated 21.6.2001 that even the Board was of the opinion that a fresh EIA and public hearing under the EIA Notification, 1994, was warranted. The said letter addressed to Additional Secretary, Department of Atomic Energy rejects the Department’s claims that a fresh Environmental Clearance from the Ministry of Environment & Forests was not required on grounds that construction activities relating to the power project had already begun. The letter observes that “the unit’s claim that the construction activities have been started in the year 1989 itself does not arise.” It goes on to advise the Department “to apply and obtain a fresh environmental clearance. . . after obtaining “No Objection Certificate” from the Tamil Nadu Pollution Control Board and to carry out a Public Hearing in the Tirunelveli district as per Schedule IV of the said Notification.” Instead of pursuing the directions of the TNPCB, the project proponents seem to have approached a pliant MoEF, which revalidated the 1989 EC by its letter dated 6.9.2001.

44.     The EIA reports that MoEF and NPCIL are referring to as part of their application for the environmental clearance, were not only in accordance with international or national guidelines regarding preparation of an EIA report, but it contains no assessment of impacts of the project on the environment. Similar is the case with the EIA reports and environment clearances obtained regarding units 3 to 6. There is no serious evaluation of the environmental impacts of construction of this huge plant, the air and water pollution it would cause, no evaluation of spent fuel storage, its transportation, reprocessing of radioactivity, of the impact of the desalination plant on marine life, of the impacts of hot water discharge on marine life and also impact on the livelihoods of the poor people living in the vicinity. An EIA report just in name would not satisfy the rigours of law and would lead to a negation of the people’s rights under Article 21 of the Constitution which includes right to health, safety and clean environment. Right to clean environment includes an environment free from pollution and harmful radiation. The points raised in the public hearing of units 3 to 6 were not even considered.

45.     Even though the case of NPCIL rests on the validity of the 1989 clearance, yet NPCIL has wilfully defaulted on one of its key conditions. Since a nuclear reactor, especially 2 mega-reactors of 1000MW each would discharge enormous amounts of hot water into the sea, and keeping in view the eco-sensitive nature of the region, the MoEF had laid down a categorical condition that the change in ambient water temperature at the point of discharge ought not to exceed 5 degrees Celsius. NPCIL has now openly admitted that it would violate this condition and temperature change would be 40% higher at 7 degrees Celsius. Violation of an essential condition would make the clearance ipso facto void. NPCIL had never applied for a change in the condition and the matter was not referred to the MoEF. However, the MoEF, which has not acted in a manner befitting an environmental regulator in charge of a serious issue, has justified the said violation by relying on the clause in the environment clearance that conditions can be varied in the interest of environment protection. Firstly, the condition was never varied by the MoEF. NPCIL’s reliance on 1998 rules regarding discharge from thermal plants is misplaced since those rules only provide for the maximum temperature change of 7 degrees. MoEF can always provide for a stricter requirement keeping in view the ecology of the area but cannot allow change of more than 7 degrees. Secondly, the conditions in the 1989 clerance could only be varied in the interest of environment protection and not to further damage the environment. Since now KKNPP 3 to 6 have been cleared, astronomical amount of hot water would be discharged into the sea. In such a situation, the change in the ambient water temperature should be made less than 5 degrees and not more. The fact that it has been made 7 degrees by MoEF to suit NPCIL’s requirements shows the collusive nature of the regulatory process and the casualness with which the environmental clearances have been given.  In Jaitapur nuclear plant in Maharashtra, MoEF has recently stipulated 5 degrees as the permissible temperature increase.

46.     The change in temperature has done with callous disregard to the numerous and wondrous lifeforms in the biodiverse Gulf of Mannar Biosphere Reserve. It is the Central Government Expert Panel’s own admission in their November 2011 report that each KKNPP unit will discharge 70,00,000 cu.m of hot seawater per unit per day.  If all six units were to be up and running, that would mean a discharge of about 42 million cu. M/day of hot water into the sensitive waters of the Gulf. The impacts to marine life of thermal discharges are indirect, yet still very substantial: small increases of the temperature of marine water changes water chemistry, including reductions in dissolved oxygen levels, and changes to the structure and balance of marine life (for example, changes to the composition of marine phytoplankton and zooplankton) that can deleteriously impact fisheries. Also, fish may be able to migrate to avoid localized temperature shifts, but their food sources (sponges, algae, and small invertebrates) are fixed and cannot. Two recent scientific publications document these impacts of thermal discharges:

a) 1. Teixeira et al. (2009) “Effects of a nuclear power plant thermal discharge on habitat complexity and fish community structure in Ilha Grande Bay, Brazil.” (Annexure D)  Marine Environmental Research, 68:188–195. This study showed that species richness (the number of different species in a given area) declined significantly in the area exposed to thermal discharge from a nuclear power plant, compared to areas with natural thermal conditions. Opportunistic species that are tolerant of thermal stress tend to out-compete more sensitive species. The same study also showed thermal discharge reduced the habitat complexity of the substrate. The rocks in areas with natural thermal conditions were encrusted with algae, but rocks in the area exposed to thermal discharge were bare. Reduced structural diversity of the physical marine ecosystem in turn reduces biological diversity. The abstract for this study states: “Fish communities and habitat structures were evaluated by underwater visual censuses a rocky location impacted by thermal discharge (I) and at two control locations, one in a Sargassum bed (C1) and the other in a rocky shore with higher structural complexity (C2). Habitat indicators and fish communities exhibited significant differences between the impacted and control locations, with the impacted one showing a significant decrease in fish species richness and diversity, as well as a decrease in benthic cover. At the I location, only 13 fish species were described, and the average water temperature was 32 ± 0.4  C, compared with 44 species at C1 (25.9 ± 0.3  C) and 33 species at C2 (24.6 ± 0.2  C). Significant differences in fish communities among locations were found by ANOSIM with Eucinostomus argenteus, Mugil sp and Haemulon steindachneri typical of location I, while Abudefduf saxatilis, Stegastes fuscus and Malacoctenus delalandi were typical of the control locations. Our study shows that thermal pollution alters benthic cover and influences fish assemblages by altering composition and decreasing richness.”

b)       Wang, Y.S (September 2011) “Effects of the Operating Nuclear Power Plant on Marine Ecology and Environment – A Case Study of Daya Bay in China” In: Nuclear Power – Deployment, Operation and Sustainability.” (Annexure E) This study examined the environmental impacts of the Daya Bay Nuclear Power Plant in the Guangdong Province in southeast China, and its results echo those of Teixeira et al. Wang’s study found that the temperature of western Daya Bay near the Nuclear Power Plants was about 1 degree Celsius higher than the surrounding area of the Bay. The warm wastewater discharged by the nuclear plant had a direct impact on the ecological environment of the Bay. Among the impacts is the increase in phytoplankton at the expense of zooplankton populations, and a sizable decrease in the amount of the edible natural fish resource. Wang also cites the substantial impact that that thermal discharges have had on the benthic (bottom-dwelling) community. The nuclear facilities causing these substantial impacts to the marine environment are comparable to the proposed Koondankulam nuclear facility.

47.     The Brazilian Nuclear Power Plant (the focus of the first study by Teixeira, et al.), discharges only 10,368,000 cubic meters per day (4 times less than the proposed Koondankulam nuclear facility) of cooling water that is 8 C warmer at the discharge point than the temperature of ambient marine water, which ranged in this study from 23 C in winter to 28 C in summer (almost identical to the temperature of ambient marine water in the vicinity of the proposed Koondankulam nuclear facility). On the other hand, the Daya Bay Nuclear Power Plant (the focus of the second study by Wang) discharges only 8,208,000 cubic meters per day (more than 5 times less than the proposed Koondankulam nuclear facility) of cooling water that is 63 C when discharged into ambient marine water, which ranged in this study from 15 C in winter to 30 C in summer. Because the proposed Koondankulam nuclear facility is much larger than the facilities that were the focus of the two studies above, there is a firm basis to conclude that operation of the Koondankulam nuclear facility would have similar (or greater) adverse impacts to marine life, including fisheries. There are studies to show that hot water discharge into the Gulf of Mannar (where KKNPP is situated) is having serious adverse impact on marine life. (Annexure F) Yet, the NPCIL has not only unilaterally increased the permissible temperature of discharge from 5 degree celsius to 7 degree celsius, but has also ignored the addition of 8000 cubic metres/day of saline rejects to the discharge.

48.    In assessing the impact on sensitive ecosystems, it is important to keep in mind the fact that the denizens of Gulf of Mannar Biosphere Reserve – the wondrous marine flora and fauna – are incapable of speaking for themselves. In a recent judgment dated 13.02.2012 T.N. Godavarman v. Union of India (I. A. Nos. 1433 and 1477 of 2005 in WPC 202/1995) this Hon’ble Court has ruled against the anthropocentric interpretations to environmental laws that impact other life forms and species. The same principle would include marine life which has intrinsic value. This Court held: “Human-wildlife conflict is fast becoming a critical threat to the survival of many endangered species, like wild buffalo, elephants, tiger, lion etc. such conflicts affect not only its population but also has broadened environmental impacts on ecosystem equilibrium and biodiversity conservation. Laws are man-made, hence there is likelihood of anthropocentric bias towards man, and rights of wild animals often tend to be of secondary importance but in the universe man and animal are equally placed, but human rights approach to environmental protection in case of conflict, is often based on anthropocentricity.”

49.     As far as the argument of laches made by NPCIL is concerned, petitioner submits that he is covered by the recent judgment of this Hon’ble Court dated 02.11.2012, in CA 7780/2012, wherein this Hon’ble Court, while allowing compensation in a 30 year old land acquisition case, held that laches or delay would not stop the Constitutional Courts from doing justice under Articles 226 (r/w 136) and 32 of the Constitution. This Court held: “In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay.”

Civil Liability for Nuclear Accident

50.       Russian company that has manufactured and sold the nuclear reactors for the Kudankulam plant has consistently refused to share even miniscule liability in case of any accident at the plant due to defect in the reactor. This fact alone shatters the claims that Kudankulam reactors are “100% safe”. Government of India to appease foreign companies like the Russian company has agreed that the public exchequer in India would take over all liability of the company in case of any accident. This is not only in violation of ‘polluter pays’ and ‘absolute liability principle’ recognised as facets of Fundamental Right to Life, but encourages cost cutting and taking chances with safety on part of the manufacturer as installation of safety components on a nuclear reactor can run into hundreds (or even thousands) of crores of rupees. The same is not being dealt with here in detail since the same is subject matter of WPC 464/2011 and WPC 407/2012 which are pending consideration of this Hon’ble Court.

Disaster Management

51.       While safety and quality assurance in the selection of material, design and layout of plant, site selection etc are important in identifying a site and design that minimises the chances, risk and impact of any potential accident or event, it is the robustness of the emergency plan and the preparedness of the disaster management system and local population that is the key to determining the impact of any nuclear accident. Moreover, in addition to a well-developed emergency plan, it is imperative that various individuals, including nuclear plant personnel, district administration officials, NGO and civil society actors, and local residents are well informed and trained in responding to warnings and instructions in the event of nuclear accident. NPCIL and the Tirunelveli district administration are woefully ill-prepared, both in terms of training and infrastructure, to handle an offsite emergency. The people living in the vicinity of the nuclear power plant have not even been appraised about how to react during an emergency.

52.     The Offsite Emergency Plan prepared by NPCIL along with the District Administration is designed for an Emergency Planning Zone of 16 km around the plant site. (Annexure G) According to the population data provided in the Offsite Emergency Plan prepared by the 3rd Respondent, the population in the plan area of 16 km around the site is 2,59,237 people as per 2001 census data. This Emergency Plan itself is outdated, considering that it obtained its final endorsement – that of the District Collector of Tirunelveli – on 3.3.2011, exactly a week before the Fukushima disaster, and therefore was not informed by the lessons of that disaster. In the wake of the March 2011, Fukushima disaster, the Japanese authorities ordered mandatory evacuation within a 12 mile (19.3 km) radius of the plant. It recommended evacuation within 18 miles (29 km) of the plant, and actually evacuated people from places up to 25 miles (40 km) Northwest of the Fukushima Daiichi plant. All of the land within 12 miles (20 km) of the destroyed nuclear power plant, encompassing an area of about 230 square miles (600 sq km), and and additional 80 sq miles (200 sq km) located Northwest of the plant were declared too radioactive for human habitation. More than 159,000 people have been permanently evacuated, and the regions were declared permanent “exclusion zone”. (http://www.psr.org/environment-and-health/environmental-health-policy-institute/responses/costs-and-consequences-of-fukushima.html#_edn3) It is a known fact that emergencies happen when one least expects it, and hence preparedness from the very start of a nuclear reactor is essential. Emergency preparedness is not merely the preparation of a paper plan. It must involve regular training of personnel and public who may be required to act in the event of a disaster, the availability of infrastructure, supplies, medicines and medical facilities capable of handling the fallout of such disasters.

53.     The Government, in its hurry to commission the plant and in disregard for safety requirements, has not even complied with the statutory guidelines framed by the National Disaster Management Authority (chaired by PM himself) regarding nuclear safety. Under the said guidelines made under the Disaster Management Act, 2005, TN government had to set up State level and district level Disaster Management Authorities to deal with nuclear accidents, train officials, set up infrastructure and earmark hospitals to deal with a nuclear accident, but the same has not been done.

52.     NPCIL in its affidavit has impliedly admitted that the detailed mandatory guidelines having statutory force issued by NDMA have not been complied with, but states that those guidelines are not applicable to Kudankulam because of one sentence appearing in the guidelines that certain types of contingencies are normally within the coping capacity of the plant operator. This is the level to which the nuclear establishment can go to in order to defend serious violations of law.

53.     More than 40,000 persons live in the near vicinity of the plant. NPCIL has admitted to a population of more than 27000 in 3 villages alone that are within 5 km. There are several other population centres nearby apart from these 3 villages. According to BARC, GoI there should not be more than 10,000 people within 10 km region. (Annexure H). Therefore, in such a situation KKNPP suffers from violation of safety standards and violation of AERB and NDMA guidelines.

54.       NPCIL and State of Tamil Nadu have not even complied with the judgment of the High Court. 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 has 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).

55.      A bulk of the responsibility of offsite disaster management lies with the District Administration and the State Government. Given the hostile position taken by the District authorities and the State Government towards the people living in the vicinity of the plant, there have been no opportunities for awareness raising and preparing people to react appropriately in the event of a disaster. Indeed, over the last year, more than 300 cases have been filed against more than 150,000 people in connection with the protests against the nuclear plant. Such a vitiated atmosphere is not conducive for a serious engagement on the issue of emergency preparedness, and exposes the fact that no off-site exercises of any serious nature have been conducted as required by the AERB as a precondition to commencement of operations. The fact that AERB is prepared to grant permission to commission the plant without satisfying its own requirements of having in place a robust offsite emergency plan and informed public highlights the casual disregard for the well-being of people living in the vicinity of the plant.

Conclusion

56.     It is clear therefore that Kudankulam nuclear plant has not complied with the 17 safety conditions which were found necessary by AERB and NPCIL post-Fukushima, and NPCIL & AERB want to operationalize the plant without these safety measures. It is also clear that there is no clear plan in place for dealing with the spent fuel either by way of on-site storage, reprocessing facility (whose location is yet not decided), transportation to the facility and its final disposal. In fact, no such facility for final disposal for disposal exists yet in the country. It is also clear that no environmental impact assessment of units 1 and 2 was done at all, and there was no compliance with the EIA notification of 1994. The EIA assessment of units 3 to 6 is only for namesake since in that EIA the major environmental issues of this plant including impact of spent fuel have not been examined. The environment impact of the enormous volume of hot water to be discharged in the sea has also not been studied barring a mechanical statement that it should not increase by 5/7 degrees. The impact of the massive desalination plant has not been examined. Moreover, the impact of massive construction of the plant itself in the coastal zone has not been being examined. There is total non-compliance of the Disaster Management Act and the statutory guidelines framed under it to deal with nuclear accidents. In these circumstances, the plant as such cannot and must not be allowed to come into operation. All the above deficiencies need to be rectified, the issues properly examined by the relevant authorities before the plant can be allowed to operate.

The Hon’ble Court must not approach the issue on the basis that the construction of this plant has been completed and considerable money has been spent. A large number of massive nuclear power plants are on the anvil in the country which involve expenditure of lakhs of crores and which can have massive consequences for safety and environment. The Hon’ble Court’s decision in this case would have a far reaching impact on the manner in which the nuclear establishment and the regulatory bodies approach such projects in future.

DEPONENT

VERIFICATION

I, the deponent above-named, do hereby verify that the contents of the above affidavit are true to my knowledge, no part of it is false and nothing material has been concealed therefrom.

Verified at New Delhi on the 20^th day of November 2012.

DEPONENT