SHORT NOTE ON BEHALF OF THE PETITIONER

Implementation of Safety Measures

1. The Government of India appointed a Task Force after the Fukushima disaster 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 Atomic Energy Regulatory Board (AERB), and AERB 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 May 2012) that it would implement these 17 safety measures by October-November 2012. (pages 229-231, 311 of the AERB affidavit).
2. 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 cousel for AERB to this effect was recorded in the longer judgment of the High Court dated 31.08.2012 (para 26.2 of the long judgment). AERB counsel clearly told the HC that these 17 measures (recorded at Annexure-VIII of the AERB report) would have to be implemented before AERB gives any further clearance.
3. However, 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 (out of which the instant SLP 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 has not made any progress on the same, but still wants to commission the nuclear plant immediately.
4. Unfortunately, the AERB that works under the Department of Atomic Energy (as AERB Chairperson reports to the DAE Secretary) has accepted the same. This is not surprising because the regulator is subordinate and reports to whom it is supposed to regulate. The lack of independence of AERB has been severly criticised by several experts including from within the establishment, as well as the CAG (Pages 82-91 of the SLP). This is also in violation of the Convention on Nuclear Safety (to which India is a party) which mandates independence of the nuclear safety regualtor.
5. 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 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. The accident or natural event which these measures seek to mitigate can occur at any time (either in the first 2 years or thereafter). Therefore, precautionary principle needs to be invoked to direct the NPCIL to implement these measures before commissioning the nuclear plant. Even the implementation of these 17 measures would not be sufficient to ensure safety of the plant, and a thorough safety review involving independent experts would be required.

Storage of Spent Fuel

1. Under the 1988 agreement between India and erstwhile USSR, radioactive waste (spent fuel) was to be transported back to USSR. This was completely reversed when India and Russia signed an agreement in 1998 under which radioactive waste would be retained in India (paras 60-61 of the long HC judgment). NPCIL has clearly stated that it would be storing the nuclear waste at the KKNPP site for at least 7 years. However, it appears from the documents no proper arrangements have been made and no solution to its storage has been found. NPCIL and AERB have not decided on any site where it would be permanently stored or buried.
2. The problem of nuclear waste is a severe problem across the world to which no sustainable solution has been found, as is clear from the judgment of the US Court of Appeals dated 8^th June 2012 wherein Rules made by US Nuclear Regulatory Commission regarding storage of spent fuel were struck down since they were not preceded by an environment impact study. The problem of nuclear waste particularly acute in a densely populated country like India. Also since burying the radioactive waste in the ground can poison the soil and groundwater, therefore this is an extremely serious issue that has escaped the Indian nuclear establishment that has found no solution so far. Therefore a thorough review of safety of the reactor and spent fuel storage involving independent experts is required.

Environmental Clearance

1. The plant had received a vague environmental clearance way back in 1989 from MoEF with meaningless conditions (except that the change in sea temperature must not exceed 5 degree celsius) (Pages 139-142 of SLP No. 29121). Thereafter EIA notification under the Environment Protection Act came into force in 1994 that mandates a thorough EIA in a prescribed manner along with a public hearing, based on which environment clearance has to be given. Under the EIA notification, 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). Therefore, KKNPP was covered by the said EIA notification of 1994 and required a fresh clearance.
2. Apart from the above, enormous changes had been made in the plant from what was originally envisaged and therefore a fresh clearance had to be obtained as EIA notification of 1994 clearly states that an expansion or modernisation (or what is likely to increase pollution load) would require fresh environmental clearance from MoEF (page 81 of SLP 29121). Here, spent fuel storage has been planned which was not there in the original plan on which 1989 clearance was based. Also, as per earlier plan the fresh water requirement was being met through a river dam but now NPCIL would be meeting this requirement through sea-water. For this purpose 4 big desalination plants have been constructed. 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. Apart from this, the law as it stands today states that an environment clearance is valid for 5 years for the start of operation or construction (page 81 of the SLP 29121). Here it is an admitted fact that construction only started in 2002 (Page 164, 172 of SLP 29121). Hence the 1989 clearance must be treated as lapsed.
3. Apart from the above, NPCIL had decided to alter the sea-water temperature increase condition without referring it to MoEF. The only categorical condition in 1989 clearance was temperature change must not increase by 5 degrees celsius since it affects marine life hugely. NPCIL unilaterally changed it to a 40% higher figure i.e. 7 degrees celsius (page 89 of SLP 29121). Violation of an essential condition would ipso facto make the 1989 clearance void. Despite all of the above, the current environment minister in interviews to several channels and papers has stated that KKNPP is fully environmentally safe and the clearance was for 7 degrees increase. Therefore, a fresh environmental clearance would be required after a thorough environmental impact assessment after conducting a proper public hearing as per law. This must be done with the involvement of independent experts.

Accident Liability

1. This is the subject matter of the writ petition no. 407/12 filed by CPIL, Common Cause and others seeking a direction that KKNPP would be governed by law of the land with respect to the civil liability in case of an accident, irrespective of any agreement or underataking of the Government. Though the Government claims that KKNPP is 100% safe, yet the Russian reactor manufacturer company does not trust its own reactor and has refused to share any part of civil liability in case of an accident due to defect in the reactor. Government of India (to appease that Russian company and Russian Government) has signed an agreement with Russia stating that in case of an accident the public exchequer or the tax payers would foot the bill (that might run into lakhs of crores of rupees) while the Russians would be indemnified.
2. The same is contrary to the “polluter pays principle” (that states that public exchequer cannot pay for the faults of industry that causes any accident) and the “absolute liability principle” (that states that liability of an hazardous industry is absolute without any exceptions, fault or limits). Both these principles have been recognised as part of the law of the land under Article 21 of the Constitution. Government of India got Nuclear Liability Act passed that channels the liability to the nuclear operator (NPCIL) and limits it to Rs. 1500 crores. It also states that the operator would have right to recourse against the reactor supplier in case of an fault in the equipment (page 52 of WP). Even this extremely minimal liability of supplier has been undone by the Government by having an agreement with Russia that shifts the burden onto Indian national exchequer. Not only the same is contrary to law (any contract opposed to law or public policy is void), but also severly compromises the safety of the plant. Nuclear equipments are expensive and even minor safety additions can easily exceed the maximum liability amount of Rs 1500 crores as per the Act. If even this minimal liability is made exempt then the supplier would have no incentive to install and work upon safety features of the reactor. That is why as per earlier agreement Russia had to supply a seamless plant, but now they have supplied a plant with joints and welds, that costs less and may affect safety of the reactor and result in radiation leaks.

Disaster Management

1. 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, 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.
2. Apart from that, as per safety standards, every nuclear plant has to have an ‘exclusion zone’ of 1.6 km radius where no person can reside. At least 4,000 people live in the “Exclusion Zone” today. A 450-tenement tsunami rehabilitation colony stands less than 1 km from the plant. Parts of it are 800 metres away from the reactor domes, and even closer to the station’s boundary wall. Besides the exclusion zone, there must be a ‘sterlised zone’ of at least 10 kms (some standards put it to 16 kms) where at the most 5000 people (some standards put it at 3000) can reside. More than 40,000 people live within a 5-km radius of the plant, including the 20,000-plus population each of Koodankulam and Idinthakarai. Unfortunately, all this has been ignored by the Government and AERB.
3. AERB has also ignored its own rule that prohibits fuel-loading until an off-site emergency preparedness drill is completed in all villages within a 16-km radius jointly by NPCIL, the district administration, state government and the National Disaster Management Authority. This involves full evacuation procedures, with prior warning, identification of routes, commandeering of vehicles, and clear instructions to the public. The same has not been done at all.
4. It is therefore clear that KKNPP suffers from several serious issues that need to be resolved before the plant can be commissioned. Lakhs of people living the vicinity of the plant are bound to be apprehensive in such a situation. Instead of dealing with these issues and addressing the concerns in a meaningful way, the Government has launched a wave of repression and has slapped 8000 sedition cases against the peaceful protestors.

Date: October 04, 2012                                                                    Prashant Bhushan

(Counsel for the Petitioner)