Home » » Supreme Court Order, May 6, 2013 on Kudankulam nuclear plant

Supreme Court Order, May 6, 2013 on Kudankulam nuclear plant

Written By Krishna on Tuesday, May 21, 2013 | 2:25 AM

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 4440 OF 2013
(Arising out of S.L.P. (C) No.27335 of 2012)
G. Sundarrajan …. Appellant
Versus
Union of India and others … Respondents
WITH
CIVIL APPEAL NO. 4441 OF 2013
(Arising out of S.L.P. (C) No.27813 of 2012)
WITH
CIVIL APPEAL NO. 4442 OF 2013
(Arising out of S.L.P. (C) No.29121 of 2012)
WITH
CIVIL APPEAL NO. 4443 OF 2003
(Arising out of S.L.P. (C) No.32013 of 2012)
J U D G M E N T
K.S. Radhakrishnan, J.
1. Leave granted.
2. We are in these appeals concerned with an issue of
considerable national and international importance, pertaining
to the setting up of a nuclear power plant in the South-Eastern
tip of India, at Kudankulam in the State of Tamil Nadu. The
incidents occurred in Three Miles Island Power Plant USA,
Page 2
2
Chernobyl, Ukraine, USSR, Fukoshima, Japan, Union Carbide,
Bhopal might be haunting the memory of the people living in
and around Kudankulam, leading to large-scale agitation and
emotional reaction to the setting up of the Nuclear Power Plant
(NPP) and its commissioning. The nature of potential
adverse effect of ionizing radiation, adds to fears and unrest
which might not have even thought of by Enrico Fermi a noble
laureate in physics in 1938, who was responsible for the setting
up of the first Nuclear reactor in a Doubles quash Court at
Slagg Field, at the Chicago University, USA. Since then, it is
history, India has now 20 Nuclear Reactors, in place, and the
world over about 439, but people still react emotionally, for
more reasons than one, when a new one is being established.
3. People’s concern was mooted, even in the Constituent
Assembly when it deliberated the issue before constituting
India into a Sovereign Democratic Republic and adopting and
enacting the Constitution of India.
GENERAL
Page 3
3
4. The Constituent Assembly discussed the formal legal
framework to regulate atomic energy in the year 1948 and the
legislation by the name Atomic Energy Act, 1948 (29 of 1948)
was enacted. That Act envisaged the constitution of an Atomic
Energy Commission (AEC) and a Department of Atomic Energy
(DAE) and both were established in the year 1954. The AEC is
the apex body of the Central Government for atomic energy
that provides direction on policies related to atomic energy. It
consists of eminent scientists and technocrats, secretaries to
different ministries, senior officials from the office of the Prime
Minister. The AEC has to report to the Prime Minister of India
on various policies related to atomic energy. DAE deals with
the development and implementation of nuclear power and
related nuclear fuel cycle activities and research and
development activities carried out in various units under it.
Baba Atomic Research Centre (BARC), formerly AEE, was also
established in the year 1954 and research reactors namely
Apsara, Cirus and Dhruva were set up in the year 1956, 1960
and 1985 respectively. The control and development of atomic
energy in the country and matters connected therewith were
then regulated by Act 29 of 1948.
Page 4
4
5. Parliament having taken note of the developments in the
field of atomic energy and with a view to implement the future
programme of expansion in the field, thought it necessary to
have a comprehensive legislation dealing with Atomic Energy,
consequently, Act 29 of 1948 was repealed and the Atomic
Energy Act, 1962 (33 of 1962) (in short the Act) was enacted
which came into force on 29.01.1962. The Act has been
enacted to provide for the development, control and use of
atomic energy for the welfare of the people of India and for
other peaceful purposes. The Central Government, in exercise
of the powers conferred under Section 27 of the Act,
constituted the Atomic Energy Regulatory Board (AERB) vide
notification dated 15.11.1983 to carry out certain regulatory
and safety functions envisaged under Sections 16, 17 and 23 of
the Act. The AERB have powers to lay down safety standards
and frame rules and regulations in regard to the regulatory and
safety requirements envisaged under the Act and have to
report to AEC. The Act underwent amendment vide amending
Acts 59 and 29 in the years 1986 and 1987 respectively.
However, the major amendment was of the year 1987, vide
Amending Act 29 of 1987, by which the Central Government
Page 5
5
was empowered to produce and supply electricity from atomic
energy. For achieving the envisaged target of nuclear power
generation, a nuclear power corporation or a Government
company was also decided to be set up which would design,
construct and operate nuclear power stations in India.
Following that, a separate public sector company, namely, the
Nuclear Power Corporation of India (NPCIL) with a view to
design, build and operate nuclear reactors in the country was
created in September 1987. NPCIL is a wholly owned by the
Government of India undertaking which functions under the
administrative control of DAE.
NATIONAL POLICY:
6. The Parliament in unequivocal terms has pronounced its
national policy through the Act, that is to develop, control and
use of atomic energy for the welfare of the people of India. The
Central Government has also been entrusted with the power to
provide for the control over radioactive substances or radiation
generating plant and to provide for the production and supply
of electricity from atomic energy etc. Central Government
have also got the power to require any substance which
Page 6
6
contains uranium, plutonium or any of their isotopes and
extract from that any substance which is essential to the
atomic energy programme. The Act, though, provides the basic
regulatory framework for the regulation of nuclear related
activity, we have other related laws which have to be applied
and read in tandem like the Factories Act, 1948, the Indian
Electricity Act, 2003, the Environment (Protection) Act, 1986,
the Water (Prevention and Control of Pollution) Act, 1974, the
Air (Prevention and Control Regulation) Act, 1981, the Water
(Prevention and Control of Pollution) Cess Act, 1977, the Indian
Explosives Act, 1884, the Disaster Management Act, 2005, the
Atomic Energy (Radiation Protection) Rules, 2004, the Industrial
Radiography (Radiation Surveillance) Procedure, 1980, the
Atomic Energy (Factories) Rules, 1996, the Atomic Energy
(Working of Mines, Minerals and Handling of Prescribed
Substances) Rules 1984, the Atomic Energy (Safe Disposal of
Radioactive Waste) Rules, 1987, the Radiation Surveillance
Procedure for Medical Application of Radiation, 1989 and the
Atomic Energy (Control and Irradiation of Food) Rules, 1996 and
so on.
Page 7
7
7. The Central Government, as per the Act, is legally obliged
to develop a sound and adequate national policy in regard to
atomic power and to coordinate such policy with the Central
Electricity Authority (CEA) and the State Electricity Boards
(SEBs) constituted under the Act for the generation of
electricity in pursuance of such policy and to operate atomic
power stations in the manner determined by it in consultation
with the Boards or Corporations concerned. Section 22, which
deals with the provisions for the generation of electricity, reads
as follows:
“22. Special provision as to electricity.-
(1) Notwithstanding anything contained in the
Electricity (Supply) Act, 1948 (54 of 1948 ), the
Central Government shall have authority—
(a) to develop a sound and adequate national
policy in regard to atomic power, to coordinate
such policy with the Central
Electricity Authority and the State
Electricity Boards constituted under
sections 3 and 5 respectively of that Act
and other similar statutory corporations
concerned with the control and utilisation
of other power resources, to implement
schemes for the generation of 1[ either by
itself or through any authority or
corporation established by it or a
Government company,] electricity in
pursuance of such policy and to operate
atomic power stations in the manner
determined by it in consultation with the
Page 8
8
Boards or Corporations concerned, with
whom it shall enter into agreement
regarding the supply of electricity so
produced;
(b) to fix rates for and regulate the supply of
electricity from atomic power stations 2[ ,
either by itself or through any authority or
corporation established by it or a
Government company, in consultation
with] the Central Electricity Authority;
(c) to enter into arrangements with the
Electricity Board of the State in which an
atomic power station is situated, 1[ either
by itself or through any authority or
corporation established by it or a
Government company] for the transmission
of electricity to any other State: Provided
that in case there is difference of opinion
between the Central Government 1[ or
such authority or corporation or
Government company, as the case may
be] and any State Electricity Board in
regard to the construction of necessary
transmission lines, the matter shall be
referred to the Central Electricity Authority
whose decision shall be binding on the
parties concerned.
(2) No provision of the Indian Electricity Act, 1910 (9
of 1910 ), or any rule made thereunder or of any
instrument having effect by virtue of such law or
rule shall have any effect so far as it is
inconsistent with any of the provisions of this Act.
(3) Save as otherwise provided in this Act, the
provisions of this Act shall be in addition to, and
not in derogation of the Indian Electricity Act,
1910 (9 of 1910 ), and the Electricity (Supply)
Act, 1948 (45 of 1948 ).”
Page 9
9
8. As a sequel to that national policy, the Central
Government, with the active cooperation of AEC, BARC, NPCIL,
AERB etc., have already set up about twenty operating power
reactors in the country with installed nuclear capacity of 4780
MWe, which have been commissioned over the last four
decades from the year 1969 to 2011. Seven more units with a
capacity of 5300 MWe are under construction (commissioning).
The latest one to be commissioned is at Kudankulam in the
State of Tamil Nadu. The first nuclear power plant (NPP) in the
country Tarapur Atomic Power Station (TAPS) units 1 and 2,
based on boiling water reactors (BWR), was supplied by
General Electric USA and became operational in the year 1969.
The Rajasthan Atomic Power Stations (RAPS) 1 and 2 with two
200 MWe were established in 1970s at Rawatbhata in
Rajasthan with the technical cooperation of AECL (Canada).
Later, in 1980s two 220 MWe Pressurized Heavy Water
Reactors (PHWRs) Madras Atomic Power Station – 1 and 2 were
constructed at Kalpakkam in Tamil Nadu. Later, India
developed a standardized design of 220 MWe PHWRs. Four
reactors of that standardized design were built, two each at
Narora in Uttar Pradesh (Narora Atomic Power Station – 1 and
Page 10
10
2) and Kakrapar in Gujarat (Kakrapar Atomic Power Project – 1
and 2). Those plants became operational in 1990s. Later eight
more units of standardized 220 MWe PHWRs were built, four
each at Kaiga in Karnataka (Kaiga Generating Stations units 1-
4) and Rawatbhata in Rajasthan (RAPS Units 3-6). India in
1990s undertook the design and development of 540 MWe
PHWR. Two reactors based on that design became operational
in 2005-06 at Tarapur. India has also developed 700 MWe
design with limited boiling in the coolant channels. The
construction of four such units was almost completed at
Kakrapar and Rawatbhata sites. Currently, 500 MWe Prototype
Fast Breeder Reactor (PFBR) is under construction at
Kalpakkam. PFBR is built with the design and technology
developed at Indira Gandhi Centre for Atomic Research
(IGCAR). Over and above, India has now set up two PHWRs of
VVER based NPPs (2 X 1000 MWe) at Kudankulam in Tamil
Nadu with the co-operation of Russian Federation which is the
subject matter of this litigation.
9. India draws bulk of its electricity, above 64%, from
thermal sources, especially coal. Hydro power comes second of
Page 11
11
18% and then renewable sources provide small share at about
15%. We are informed that, at present, the share of nuclear
energy is hardly three per cent of India’s total electricity
production, while France accounts for 74.6% as on 2008. NPPs
provide about 6% of the world’s energy and 13-14% of the
world’s electricity with U.S., France and Japan together
accounting for about 50% of nuclear generated electricity.
U.S.A. has 104 nuclear reactors and more than 100,000 MWe of
electricity is produced by nuclear generation. International
Atomic Energy Agency (IAEA) has reported that in the year
2007, there were 439 Nuclear Power Reactors in operation in
the world operating in thirty one countries. The DAE, it is
reported, plans to increase its nuclear energy production to
20000 MWe by 2020 and 63,000 by 2030. The Policy makers
consider that the nuclear energy remains as an important
element in India’s energy mix for sustaining economic growth
of natural and domestic use. One of the reasons for preferring
nuclear energy as an alternative source of energy is that it is a
clean, safe, reliable and competitive energy source which can
replace a significant part of the fossil fuels like coal, oil, gas etc.
Oil and natural gas resources might exhaust themselves. Coal
Page 12
12
is also not an effective substitution since forests are also no
longer able to satisfy the energy requirements. Major source of
electricity generation, about 66%, is still contributed by fossil
thermal powers, like coal. To put into practice the national
policy, India has already entered into various collaborations
with most of the developed countries which have proved
expertise and experience in the field of establishment and
production of nuclear energy.
10. Economic growth and energy support have to go hand in
hand, for the country’s development for which India has
entered into various collaboration agreements with U.S.A.,
Canada, Russia etc. and several NPPs have already been set up
in the country. Government of India, in implementation of its
national policy, had made a joint statement with U.S.A., called
Indo-U.S. Joint Statement 2005, for a renewed global civil
nuclear energy co-operation. A co-operation agreement called
2007 Co-operation Agreement was also entered into between
India and U.S.A. for the peaceful uses of nuclear energy. This
was later followed by the Indo-France Joint Statement in
September, 2008. A Joint Statement was made in February
Page 13
13
2010 with United Kingdom. Above facts would indicate that in
order to give effect to the National Policy for development,
control and use of atomic energy, India has entered into
various bilateral treaties and arrangements with countries
which have considerable expertise and experience. For
establishing the NPP at Kudankulam, India had entered into an
inter-governmental agreement with the erstwhile USSR in
November 1988 followed by a supplementary agreement on
21.06.1998 signed by India and Russia which is in tune with
India’s National Policy.
11. India’s National Policy has been clearly and unequivocally
expressed by the legislature in the Atomic Energy Act. National
and International policy of the country is to develop control and
use of atomic energy for the welfare of the people and for other
peaceful purposes. NPP has been set up at Kudankulam as part
of the national policy which is discernible from the Preamble of
the Act and the provisions contained therein. It is not for
Courts to determine whether a particular policy or a particular
decision taken in fulfillment of a policy, is fair. Reason is
obvious, it is not the province of a court to scan the wisdom or
Page 14
14
reasonableness of the policy behind the Statute. Lord
Macnaughten in Vacher & Sons v. London Society of
Compositors, (1913)AC107(118)HL has stated:
“Some people think the policy of the Act unwise and
even dangerous to the community……But a Judicial
tribunal has nothing to do with the policy of any Act
which it may be called upon to interpret. That may
be a matter for private judgment. The duty of the
Court, and its only duty is to expand the language of
the Act in accordance with the settled rules of
construction.”
12. In CCSU v. Min. (1984) 3 All ER 935 (954) HL, it was held
that it is not for the Courts to determine whether a particular
policy or particular decision taken in fulfillment of that policy
are fair. They are concerned only with the manner in which
those decisions have been taken, if that manner is unfair, the
decision will be tainted with that Lord Diplock labels as
‘procedural impropriety’.
13. This Court in M.P. Oil Extraction and Anr. v. State of
M.P. and Ors., (1997 )7SCC 592 held that unless the policy
Page 15
15
framed is absolutely capricious, unreasonable and arbitrary and
based on mere ipse dixit of the executive authority or is invalid
in constitutional or statutory mandate, court’s interference is
not called for. Reference may also be made in the judgment of
this Court in M/s. Ugar Sugar Works Ltd. v. Delhi
Administration & Ors., (2001) 3 SCC 635; Dhampur Sugar
(Kashipur) Ltd. v. State of Uttranchal and Ors. (2007) 8
SCC 418 and Delhi Bar Association v. Union of India and
Ors., (2008) 13 SCC 628. We are therefore firmly of the
opinion that we cannot sit in judgment over the decision taken
by the Government of India, NPCIL etc. for setting up of KKNPP
at Kudankulam in view of the Indo-Russia agreement. Courts
also cannot stand in the way of the Union of India honouring its
Inter-Governmental Agreement entered into between India and
Russia.
14. We may, however, focus our attention on various other
issues raised in these appeals in the light of the provisions of
the Atomic Energy Act, Rules and Regulations framed
thereunder, International conventions, covenants entered into
by India with other countries, AERB Code of Practices and
Page 16
16
Safety Guides, Expert’s opinion, Environmental and other
related laws. Part I of this judgment, we propose to deal with
the safety and security of NPP, International Conventions and
Treaties, KKNPP Project, NSF and its management and
transportation, DGR, Civil Liabilities, DMA, CSR and other
related issues and in Part II, we mainly focus on the
environmental issues, CRZ, Desalination Plant, Impact of
Radiation on Eco-system, Experts opinions etc.
PART I
15. KKNPP has been set up by NPCIL based on the Indo-Russia
Joint Agreement under the guidance and supervision of AEC,
BARC, AERB, MoEF, TNPCB, Central and State Governments etc.
ARGUMENTS – FOR AND AGAINST
16. Shri Prashant Bhushan, learned counsel appearing for the
appellant in SLP Nos. 27335 of 2012, submitted that having
seen the experience at Three Mile Island (USA), Chernobyl in
Russia and Fukushina in Japan etc., safety of the people and
Page 17
17
the environment are of paramount importance and if the units
are allowed to be commissioned before making sufficient
safeguards on the basis of the recommendations made by the
Task Force of NPCIL, it may lead to serious consequences which
could not be remedied. Learned counsel submitted unless the
seventeen recommendations made by the Task Force
appointed by NPCIL are implemented before commissioning the
plant, serious consequences may follow. Learned counsel
submitted that AERB and NPCIL are legally obliged to
implement the recommendations and this Court sitting in this
jurisdiction is bound to safeguard the life and property of the
people residing in and near Kudakulam which is a fundamental
right guaranteed to them under Article 21 of the Constitution of
India.
17. Mrs. Nagasaila, learned counsel appearing for the 8th
respondent in SLP (C) No. 27813 of 2012, also pointed out that
sufficient safeguards have not been taken for the safe disposal
of the radioactive waste and no site has so far been identified
for the safe handling of radioactive waste, failing which it may
cause serious health hazard. Learned counsel also pointed out
that even, at the plant site, there is no proper facility for
Page 18
18
storage of spent fuel and high level radioactive waste.
Learned counsel also pointed out that no adequate measures
have been taken to safeguard the life and property of the
people in case of any potential disaster, in accordance with the
Disaster Management Plan.
18. Learned Attorney General appearing for AERB submitted
that the plant has been set up after following all the safety
standards laid down by AERB. The design of KKNPP
incorporates advance safety features complying with current
standards of redundancy, reliability, independence and
prevention of common cause failures in its safety system.
Further, it was also pointed out that the design takes care of
Anticipated Operational Occurrences (AOO), Design Basis
Accidents (DBA) and Beyond Design Basis Accidents (BDBA)
like Station Black Out (SBO), Anticipated Transients Without
Scram (ATWS), Metal Water reaction etc. Further, it was
pointed out that the Board of AERB met on 23.3.2011 and took
stock of safety and NPPs in the light of Fukushima accident.
AERB also constituted a High Level Committee of Specialists to
review and recommend safety upgrades as required to handle
extreme external events of natural origin. Learned Attorney
Page 19
19
General also pointed out that KKNPP design also has several
Advanced Safety Features, including those for ensuring safety
against external events of natural origin and for management
of design basis as well as beyond design basis accidents.
Further, it was pointed out that, over and above, steps are
being taken to implement the 17 recommendations made by
the Task Force of NPCIL and that, amongst them, few
recommendations have already been implemented.
19. Shri Rohington Nariman, learned Solicitor General of India
appearing for NPCIL, submitted that KKNPP is a 3+Generation
NPP and its design incorporates advanced safety features
complying with current standards of redundancy, reliability,
independence and prevention of common cause failures in its
safety systems. The design includes provisions for
withstanding external events like earthquake, tsunami/storm,
tidal waves, cyclones, shock waves, aircraft impact on main
buildings and fire. KKNPP also incorporates various additional
safety features like Quick Boron Injection System, Passive Heat
Removal System, Second Stage Hydro Accumulators, Passive
Hydrogen Re-combiners, Annulus Passive Filtering System
(Passive System), Core Catcher etc. Details of further safety
Page 20
20
measure adopted have already been elaborately stated in the
counter-affidavit filed by NPCIL on 26.9.2012. Learned Solicitor
General submitted that KKNPP is absolutely safe even without
the 17 recommendations made out of abundant caution by
AERB. Learned Solicitor General submitted that the 17
recommendations of AERB would also be complied with in a
phased manner, out of which 7 have already been
implemented.
20. Shri Mohan Parasaran, learned Additional Solicitor General
of India, appearing on behalf of respondent no. 1, while
referring to the affidavit filed by the Union of India, submitted
with regard to the process – “Re-processing and Disposal of
Spent Fuel” - that most of the spent fuel i.e. 97% is capable of
being reused, the remaining 3% of the spent fuel consists of
various Fission Products (FPs) and Minor Actinides (MAs). All
MAs have varying half-lives/decay periods, the dominant
amongst them have half-lives of the order of 1 lakh 70
thousand years. Each NPP has a water storage pool for
storage of spent fuel, namely “Spent Fuel Storage Bay” (SFSB).
Those pools are temporary storage facilities for recyclable fuel
and are essentially water filled concrete vaults with SS lining,
Page 21
21
having the arrangement for storing spent fuel in racks. They
are designed, constructed and operated as per the AERB
Guidelines and requirements. It was also stated that AERB
Safety Guide ‘Design of fuel handling and storage systems for
pressurized heavy water reactors – AERB/SG/D-24” deals with
the safety in design of storage of spent fuel. Further, it was
also pointed out that the transportation of spent fuel is
governed by the Regulations specified by AERB in “Safety Code
for the transport of radioactive materials – AERB/SC/TR-1’ and
international requirements given in IAEA Regulation for safe
transport of radioactive material, 2005. Learned Additional
Solicitor General also submitted that the Department of Atomic
Energy is also aware of the importance of safety and security
and takes utmost care to ensure that the management and
transport is carried out safely, following the internationally
recognized norms and regulations and that the same is done
under the supervision of AERB and Government of India.
21. Government of India’s decision to establish the NPP at
Kudankulam, as already stated, cannot be questioned before
this Court being part of a National Policy. Lot of scientific
literatures, experts opinions etc. have been produced before us
Page 22
22
to show its dangers, harm it may cause to human health,
environment, marine life and so on not only on the present
generation but on future generation as well. Further, it was
also pointed out that due to growing nuclear accidents and the
resultant ecological and other dangers, many countries have
started retreating from their forward nuclear programmes.
22. We have already indicated that these issues are to be
addressed to policy makers, not to courts because the destiny
of a nation is shaped by the people’s representatives and not
by a handful of judges, unless there is an attempt to tamper
with the fundamental Constitutional principles or basic
structure of the Constitution.
23. We are however deeply concerned with the safety and
security of the people of this country, its environment, its flora
and fauna, its marine life, ecology, bio-diversity and so on
which the policy makers cannot be on the guise of national
policy, mutilate or rob of, in such an event the courts can unveil
the mask and find out the truth for the safety, security and
welfare of the people and the mother earth.
Page 23
23
Safeguards and Security
24. Safety and security of the people and the nation are of
paramount importance when a nuclear plant is being set up
and it is vital to have in place all safety standards in which
public can have full confidence to safeguard them against risks
which they fear and to avoid serious long term or irreversible
environmental consequences. It is, therefore, necessary to
examine at some length the safety standards already in place
to allay the fears expressed at some quarters.
25. Let us first examine whether the project proponent has
taken adequate safety requirements in site and off site of the
KKNPP and followed the Code of Practices laid down by AERB
and nationally and internationally recognized safety methods.
Before examining those issues, we have to first examine the
role of the AERB in the matter of setting up of nuclear plant and
what are the codes and safety guides laid down by the AERB for
maintaining high safety standards for setting up and for the
functioning of nuclear plants in the country.
Page 24
24
AERB Safety Codes
26. AERB, as already indicated, was constituted by the Central
Government in exercise of powers conferred under Section 27
of the Act to carry out certain regulatory and safety functions
envisaged under Sections 16, 17 and 23 of the Act vide
notification dated 15.11.1983. The functions to be discharged
by the Board have also been enumerated in the said
notification which reads as follows:
(i) Develop Safety Codes, Guides and Standards for
siting, design, construction, commissioning,
operation, and decommissioning of the different
types of plants, keeping in view the international
recommendations and local requirements and
develop safety policies in both radiation and
industrial safety areas.
(ii) Ensure compliance by DAE and non-DAE installations
of safety codes and standards during construction
commissioning stages
(iii) Advise AEC/DAE on technical matters that may
specifically be referred to it in connection with the
siting, design, construction, commissioning,
operation, and decommissioning of the plants under
DAE.
(iv) Review from the safety angle requests for
authorizing/commissioning/operation of DAE
Projects/plants. Before authorization of
Page 25
25
commissioning / operation of the plant / project is
granted, the AERB will be satisfied by appropriate
review of:
(a) Final design Analysis Report prepared by the
project plant;
(b) Commissioning reports and results thereof; and
(c) Proposed operating procedures and operational
limits and conditions; that the plant/project can be
operated without undue risk to the operating
personnel and the population. For this purpose,
AERB may ask for relevant additional supporting
information.
(v) Review health and safety aspects of modifications in
design/operation involving changes in the technical
specification adopted in any of the DAE units.
(vi) Review operational experience in the light of the
radiological and other safety criteria recommended
by the International Commission on Radiological
Protection, International Atomic Energy Agency and
such other international bodies and adapted to suit
Indian conditions, and I thereby evolve major safety
policies.
(vii) Prescribe acceptable limits of radiation exposure to
occupational workers and members of the public and
approve acceptable limits of environmental release
of radioactive substances. (In the DAE units, the
AERB shall also prescribe limits for environmental
release of conventional pollutants).
Page 26
26
(viii) Review the emergency preparedness plans prepared
by the different DAE units, similar plans for non-DAE
installations and during transport of large radioactive
sources (eg. Irradiated fuel kilo/mega curie sources,
fissile materials).
(ix) Promote research and development efforts for
fulfilling the above functions and responsibilities.
(x) Review the training programme, qualifications and
licensing policies for personnel by the project/plants.
(xi) Prescribe the syllabi for training of personnel in
safety aspects at all levels.
(xii) Enforce rules and regulations promulgated under the
Atomic Energy Act, 1962 for radiation safety in the
country and under the Factories Act, 1948 for
industrial safety in the units under the control of DAE.
(xiii) Maintain liaison with statutory bodies in the country
as well as abroad regarding safety matters.
(xiv) Take such steps as necessary to keep the public
informed on major issues of radiological safety
significance.
(xv) Perform such other functions as may be assigned to
it by the Atomic Energy Commission.
Page 27
27
(xvi) Send reports periodically to Chairman, AEC on safety
status including observance of safety regulations and
standards and implementation of the
recommendations in all DAE and non DAE units. It
will also submit an Annual Report of its activities to
Chairman, AEC.
27. The notification clearly states that the Board shall be
assisted by the DAE SRC and DRP BARC in the performance of
its functions at (ii), (iv), (v) and (xii) mentioned above. The
AERB has also been entrusted with the powers of the
competent authority to enforce rules and regulations framed
under the Act for radiation safety in the country. The powers
have also been entrusted with the AERB to administer the
provisions of the Factories Act 1948, the industrial safety for
the units of DAE as per Section 23 of the Act. The AERB under
its programme of developing Codes and Safety Guides issued
four Codes of practice covering the following topics namely (i)
Safety in Nuclear Power Plant Siting; (ii) Safety in Nuclear
Power Plant Design; (iii) Safety in Nuclear Power Plant
Operation; (iv) Quality Assurance for Safety in Nuclear Power
Plants. Those Codes are intended to establish the objectives
and to set the minimum requirements that have been fulfilled
to provide assurance that nuclear power plants will be sited,
Page 28
28
designed, constructed and operated without undue risk to
personnel, public and environment. The Code of Practice for
Nuclear Power Plant Siting provides appropriate criteria and
outlines the procedures to be applied to assess the suitability of
a site for the location of nuclear power plant taking into
account, the operational requirements and accidental
conditions. The same has to be prepared following the criteria
laid down by DAE for selection of site and the relevant IAEA
documents under the Nuclear Safety Standards (NUSS)
programme specially the Code of Practice for Nuclear Power
Plant Siting and similar documents from various leading
countries. The Code of Practice on Safety in Nuclear Power
Plant Siting was issued by the AERB on March 9, 1990. The
Code encompasses site-related characteristics, natural events
and man-induced events specific to the site which will have a
bearing on the safety of the plant and the radiological impact
on the environment and population due to the location of NPP
at the site. The Code also lays down appropriate criteria and
outlines the procedures for assessing the suitability of a site
taking into account the operational requirements and accident
conditions. The Code also indicates the extent of site-related
Page 29
29
information required to be obtained and also defines siterelated
design bases. Certain man-induced events like war,
acts of sabotage which can cause large scale damage to the
plant safety systems, however, are beyond the scope of 1990
Code, in other words, the Code prescribes minimum
requirements in siting considerations for limiting the
radiological impact. The main aim is protection of man and his
environment. The Code outlined the requirements for limiting
doses to man.
28. The AERB in October 1999 issued guidance for the
Preparation of Off-Site Emergency Preparedness Plans for
Nuclear Installations. This document has been issued as a lead
document to facilitate preparation of specific site manuals by
the responsible organization for emergency response plans at
each site to ensure their preparedness to meet any eventuality
due to site emergency in order to mitigate its consequences on
the health and safety of site personnel. The document also
takes cognizance of an earlier AERB publication on the subject:
“Safety Manual on Off-Site Emergency Plan for Nuclear
Installations” issued in the year 1988. While drafting this
Page 30
30
document, reference has been also made to the documents of
the IAEA and also the statutory requirements laid down in the
Manufacture, Storage and Transport of Hazardous Chemicals
Rules, 1989 as well as the amendments incorporated therein
subsequently.
29. The purpose of these Safety Guidelines is to lay down the
requirements of the Regulatory Body for the operating
organization and state public authorities in preparing an
emergency response plan for off-site emergency for the nuclear
installation. Radiological emergencies at the nuclear
installations are mainly categorized as Plant emergency alert;
Plant emergency; Site emergency and Off-site emergency. The
operating organization is responsible for handling the first three
categories of emergencies, while the off-site emergencies
involving radiation fallout in the public domain is handled by
the state public authorities with the technical input and
guidance from the operating organization and the Regulatory
Body. The main objectives of this Safety Guidelines are stated
hereunder:
Page 31
31
(i) To provide detailed guidelines for nuclear
installations in the country on the essential
components of off-site emergency preparedness and
response plans at each installation taking into
consideration any ongoing construction activities at
the off-site.
(ii) To elaborate various aspects of the response plan
such as: Emergency Organisation, Emergency
Equipment and Facilities needed outside the nuclear
installation in order to protect the site personnel from
risks of undue radiation exposure.
(iii) To advise on other aspects such as: enforcement of
off-site emergency plans, conduct of periodic off-site
emergency drills to ensure readiness of the nuclear
installation for handling off-site emergencies.
(iv) To indicate guidelines on off-site related factors,
which may influence management of off-site
emergencies.
(v) To highlight the need for the operating
organization/plant management to establish and
maintain communication lines between the site, the
headquarters of the operating organization,
Regulatory Body and the state public authorities for
prompt and effective use in times of off-site
emergency.
30. The AERB has also issued the document “Preparedness of
the Operating Organization for handling Emergencies” at
Page 32
32
Nuclear Power Plants in March 2000. This document
supplemented the Code of Practice on Safety in NPP Operation
(AERB/SC/O). The purpose of this document is to prescribe
guidelines for the development of a state of preparedness for
response to emergencies at nuclear power plants. The main
objectives of this safety guide are given as follows:
(a) To highlight to plant management the various
categories of emergencies that could rise at NPP;
(b) To focus on the contents of the emergency manuals
in respect of resources and procedures to help respond
adequately to emergency situations;
(c) To emphasize the responsibilities of plant
management regarding personnel, plant and site
emergency and responsibilities of the State
Government in respect of off-site emergency and need
for close liaison between Plant Management and Public
Authorities;
(d) To bring out the importance of maintaining efficient
and effective communication links among Plant
Management, Operating Organisation, Responsible
Organisation, Regulatory Body, State Authorities and
the Department of Atomic Energy Crisis Management
Group (DAE-CMG); and
(e) To develop the infrastructure including manpower
and their training.
Page 33
33
31. The AERB issued another safety code in August 2000 on
“Regulation of Nuclear and Radiation Facilities”. This document
has been issued to spell out the minimum safety related
requirements/obligations to meet by a nuclear or radiation
facility to qualify for the issue of regulatory consent at every
stage leading to eventual operation. The Code also elaborates
on the regulatory inspection and enforcement to be carried out
by the Regulatory Body on such facilities. This document has
also been prepared by the AERB from the information
contained in the relevant documents issued by IAEA under the
NUSS programme especially the Code on “Governmental
Organization for Regulation of Nuclear Power Plants” (50-C-G).
The main objectives of the Code are to ensure that:-
(a) Only such practices are permitted which are justified
in terms of their societal and/or individual benefits,
(b) Radiation protection is duly optimized in all
nuclear/radiation facilities,
(c) Radiation doses to the personnel in these facilities,
and to the members of the public in their vicinity, do
not exceed the prescribed limits and
Page 34
34
(d) The potential for accidental exposures from the
facilities remains acceptably low.
32. The scope of the Code also covers the various facilities
and activities like mining and processing of radioactive ores
and minerals; uranium/thorium processing and fuel fabrication
plants , heavy water plants, research reactors, experimental
reactors and critical assemblies, nuclear power plants, fuel
reprocessing plants, radioactive waste management facilities,
industrial facilities related to nuclear fuel cycle activities,
transport of radioactive materials, medical applications of
radiation, industrial and agricultural applications of radiation,
research applications of radiation, and all other practices
involving the handling of radioactive sources.
33. The AERB also issued another safety guide on October
2002 on “Design of Fuel Handling and Storage Systems for
Pressurized Heavy Water Reactors”. The Code of Practice on
Design for Safety in Pressurized Heavy Water Based Nuclear
Power Plants (AERB/SC/D,1989) lays down the minimum
requirements for ensuring adequate safety in plant design. The
safety code issued in October 2002 is one of a series of guides.
Page 35
35
The objective of this safety guide is to specify the minimum
requirements to be met in the design of fuel handling and
storage system in PHWR. It is intended to be used by the
designer to ensure safety of plant and personnel by providing
adequate measures for prevention of accidents and mitigation
of adverse consequences, should an accident occur, in other
words, the scope of this guide includes the safety in design of
equipment for handling and storage of new fuel, spent fuel and
other irradiated core components, which are related to handling
of fuel including handling and storage of failed or damaged fuel
bundles. The guide also addresses the safety aspects in fuel
handling control and instrumentation and auxiliary equipment
related to the fuel handling system. Design provisions to
facilitate inspection and testing of fuel handling and storage
systems are also covered in that guide. The same has been
prepared following the safety standards laid down by IAEA. The
Code has been prepared by specialists in the field drawn from
the AERB, BARC, IGCAR and NPCIL.
34. Various codes and safety standards issued by the AERB,
referred to above, mainly deal with siting, design, construction,
Page 36
36
operation, quality assurance, decommissioning etc. Safety
codes and safety standards are formulated on the basis of
nationally and internationally accepted safety criteria for
design, construction and operation of specific equipment,
systems, structures and components of nuclear and radiation
facilities. Further, India has also entered into various bilateral
treaties and is also a party to various international conventions
on nuclear safety, physical protection of nuclear material,
nuclear accident, radiological emergency and so on. India, as
already stated, is also governed by the safety and security
standards laid down by IAEA. A brief reference to those
conventions, treaties and IAEA may be apposite.
INTERNATIONAL CONVENTIONS, BILETERAL TREATIES
ETC.:
35. India is not a signatory to the Nuclear Non-Proliferation
Treaty (NPT). India is, however, party to various international
conventions, such as:
The Convention on the Physical Protection of Nuclear Material,
which was adopted on 26.10.1979 and was signed at Vienna
Page 37
37
and at New York on 3.3.1980. The Convention makes it legally
binding for States parties to protect nuclear facilities and
material for peaceful domestic use, storage as well transport. It
also provides expanded cooperation between and among
States regarding rapid measures to locate and recover stolen or
smuggled nuclear material, mitigate any radiological
consequences of sabotage and prevent and combat related
offences.
36. The Convention on Assistance in the Case of a Nuclear
Accident or Radiological Emergency was adopted by the
General Conference at its special session 24-26.9.1986 and was
opened for signature at Vienna on 26.9.1986 and at New York
on 6.10.1986.
37. The Convention on Nuclear Safety was adopted on
17.6.1994 by a Diplomatic Conference convened by IAEA at its
Headquarters from 14-17.6.1994. The Convention was opened
for signature on 20.9.1994.
38. The Joint Convention on the Safety of Spent Fuel
Management and on the Safety of Radioactive Waste
Management, the first legal instrument to directly address
Page 38
38
these issues on a global scale, was opened for signature on
29.9.1997 and entered into force on 18.6.2001.
39. The Convention on Early Notification of a Nuclear Accident
establishes a notification system for nuclear accidents which
have the potential for international trans-boundary release that
could be of radiological safety significance for another State.
Date of adoption is 26.9.1986.
40. India has also entered into various Bilateral Civil Nuclear
Co-operations. India has entered into a cooperation agreement
with France for the construction of ERR Power Plants (10,000
MWe) at Jethapur site in Maharashtra, which also comprises of
cooperation in the areas of research, safety and security, waste
management, education etc., followed by various other
commercial contracts as well. India and Canada have finalized
the terms for their nuclear deal paving the way for Canadian
firms to export Uranium to India in the year 2010. Discussions
are on for safe nuclear cooperation as well with Canada.
41. India has also signed civil nuclear deal with Mongolia for
supply of uranium to India. MOUs on the Development of Cooperation
on Peaceful Uses of Radioactive Minerals and Nuclear
Page 39
39
Energy by senior officials of the Department of Atomic Energy
of both the countries. India has also entered into
agreements with Namibia including one on civil nuclear energy
which allows for supply of uranium from Namibia. India-
Namibian Agreement for Peaceful Uses of Nuclear Energy
allows for supply of uranium for setting up of nuclear reactors.
India-Kazakhstan have also signed a pact on nuclear cooperation
in April 2011 and agreed to have collaboration in
nuclear energy for peaceful purposes. Discussions are on to
execute a civil nuclear agreement with Argentina.
42. India-U.S. issued an Inter U.S. Joint Statement at
Washington on 18.7.2005 which has located the final broad
policy so as to actually facilitate and also outline the broad
contours of a legally binding agreement. Some of the policy
frameworks relate to preventing WMD Proliferation, goals of
prompting nuclear power and achieving nuclear energy,
expeditious consideration of fuel steps for safeguarded nuclear
reactors etc. Nuclear 2007 – an agreement for co-operation
between India and U.S. concerning peaceful uses of nuclear
energy (2007 Co-operation Agreement) laid down certain
binding obligations between the two countries. Though, India is
Page 40
40
not a party to any of the Liability Conventions, specifically, IAEA
Vienna Convention on Civil Liability for Nuclear Damage, India
has enacted the Civil Liability for Nuclear Damage Act, 2010
(Nuclear Liability Act) which aims to provide a civil liability for
nuclear damage and prompt compensation to the victims of a
nuclear accident through No-Fault Liability to the operators.
International Atomic Energy Agency (IAEA)
43. IAEA is an independent international organization situated
in Vienna, Austria is related to the United Nations system, its
relationship with the United Nations is regulated by special
agreement. The IAEA reports annually to the United Nations
General Assembly and when appropriate, to the Security
Council regarding non-compliance by States with their
safeguards obligations as well as on matters relating to
international peace and security. The IAEA works with its
member States and multiple partners worldwide to promote
safe, secure and peaceful nuclear technologies. The IAEA has
the responsibility to help member States to put in place the
necessary infrastructure needed to develop nuclear energy
safely, securely and peacefully and it works with member
Page 41
41
States to coordinate research to design reactors that are
economical, safe and proliferation-resistant.
44. The IAEA’s object is to maximize the contributions from
nuclear technologies to human well being while minimizing
their risks. Few facts and trends highlighted in the report
prepared by an independent commission at the request of the
IAEA in May 2008 highlights the ten key facts and trends which
frame the nuclear opportunities and challenges the world now
faces. The report highlights that to sustain rapid global
economic growth, it is necessary to double the supply of energy
and tripling supply of electricity by 2050. Further, it is stated
billions of poor people need energy and other life saving and
job creating technologies. The report also noticed that energy
prices are increasing, a broader reliance on nuclear energy
whose prices are much less dependent on its fuel costs
conceivably could help to ameliorate those tensions and risks.
The report highlights that the world still dependent on burning
coal, oil and natural gas for 80% of its energy supply surging
energy use causes surging emissions of greenhouse gases
disrupting the climate with potentially catastrophic results.
Page 42
42
Nuclear energy, it is stated, is a readily expandable source of
low-carbon baseload electricity and in the future might also
help to meet other energy needs such as hydrogen production
and water desalination.
45. The IAEA’s International Project on Innovative Nuclear
Reactor and Fuel Cycles (INPRO) brings many States together
to consider approaches to safer, cheaper, more secure and
more proliferation-resistant nuclear systems with effective
management of nuclear waste. India is in partnership with the
IAEA and has incorporated many of its directives in the code of
practice framed by the AERB, hence there could be no
compromise on safety and security of the NPPs in the country.
We have elaborately discussed the Safety and Security Code of
Practices laid down by AERB, IAEA and its supports so as to
allay the apprehension or fears expressed from various
quarters on the safety and security of KKNPP and its effect on
human life, property and environment and we notice that
adequate and effective protection measures are in place.
Page 43
43
46. Parliament, as we have already indicated, is very much
concerned with the safety and security of its people and its
environment. The Preamble of the Act pronounces in an
eloquent terms that it has been enacted for the development,
control and use of atomic energy for the “welfare of the people
of India”. People’s comfort, happiness, prosperity and the
economic growth of the nation is always the concern of their
representatives in the Parliament. Safety and security of
people in that process have to be in the uppermost mind of the
legislature. Keeping in mind that concern, special provisions
have been incorporated for the safety and security. Reference
has already been made to Section 17 of the Act which casts an
obligation on the Central Government to ensure proper rules
with regard to the safety, which we have already examined at
length. We have also examined both nationally as well as
internationally accepted guidelines for safety and security of
the people of the Nation and notice that those are being
followed. In People’s Union for Civil Liberties and
Another v. Union of India and Others, (2004) 2 SCC 476,
the Court held that the Atomic Energy Act deals with a sensitive
subject. Statutory scheme contained in the provisions of the
Page 44
44
Act, the Rules framed thereunder, composition of the AEC and
AERB leave no manner of doubt that the effective functions of
the nuclear power plants are sensitive in nature. Various Codes
of Practice, safety guidelines, extensively discussed above and
the decision taken in various international conventions and the
guidelines laid down by various international agencies followed
by India are meant to protect the life and property of people
including the environment, guaranteed under Article 21 of the
Constitution of India.
KKNPP Project
47. The Government of India, following its national nuclear
policy, decided to set up a NPP in the southern part of the
country. DAE, for that purpose constituted a Site Selection
Committee (SSC) for selecting a suitable site in the coramandel
coast of Tamil Nadu. The Committee, after surveying various
sites, selected Kudankulam in the Tirunelveli District of Tamil
Nadu as the most suitable place for locating NPP. NPCIL also
made a detailed study of the selected site in the light of the
Code of Practice framed by AERB regarding safety in NPP Siting.
Kudankulam, the site located, is situated on the Shore of Gulf of
Page 45
45
Mannar near the South-Eastern tip of India in the coastal track
at an elevation of +3 to +45m above MSL forming the southern
fringe of soil covered plains. Most of the rivers in the area are
seasonal and there are no major lakes, dams or ponds existing
within 20 km radius around project site. The climate in the
area is arid and is similar to other coastal regions. As per IMD
Station at Kanyakumari, the wind speed is in the range of 6 to
30 km/hr. The ambient temperature varies in the range of
21°C - 34°C, while the relative humidity ranges from 68% to
80%. Geologically, the site is made up of the Archean super
group of crystalline rocks, sedimentary rocks of Precambrian
origin and recent quaternary deposits. The geological profiles
studied up to 80m depth indicates that the site comprises of
highly metamorphosed rocks with granulated and amphibolites
faces of charnokites belonging to the archean super group.
NPP site is situated in the South of Pandian movable belt, the
metamorphic rocks of which are the foundations of ancient
platform.
48. The NPP site is situated in an area with expected
earthquake intensity of up to V on the modified intensity scale.
Page 46
46
The site area falls within the seismic zone II which is a
moderately stable area as per Seismic Zoning Map (SZP) of
India. The strongest earthquake near this area and within the
Indian peninsula was Coimbatore earthquake of February 1900.
The epicentre of this earthquake was situated at a radial
distance of 300 km from the proposed NPP site. The site of the
plant lies in zone II of the SZP of India, where shocks of
intensity VI or magnitude 5 can occur. In the region, no shock
of magnitude 5 is known to have occurred at less than 100 km
distance from the plant site. Within the distance of 300 kms.,
some 27 earthquakes of intensity IV to VIII or a magnitude
ranging between 4 to 5.7 are known to have occurred from
1341 to 1972. A detailed study was also conducted as to
whether a site-plant interaction would reduce any radiological
risk or others of an unacceptable magnitude. Radiological risk
to nuclear plant due to external events should not exceed the
range of radiological risk associated with accidents of internal
origin and the possible radiological impact of a NPP on the
environment should be acceptably low for normal operation
and accident conditions and within the stipulated criteria for
radiological safety. In evaluating the suitability of a site for
Page 47
47
locating a NPP, the effect of external events (natural and maninduced)
on the plant; effect of plant on environment and
population; and implementation of emergency procedures
particularly protective counter-measures in the public domain,
had to be addressed. SSC study also included the assessment
of seismicity, location of faults, geology, foundation conditions,
meteorology, potential of flooding (from tsunami, storm surge
etc. at coastal sites and from rain, upstream dam break, etc. at
inland sites), proximity to airports, military installations,
facilities storing explosive and toxic substances etc. The
environmental setting comprising of bio-diversity including flora
and fauna, marine ecology etc. in the region was also
evaluated. SSC had taken care of all those aspects before
making its recommendations to the Government. NPCIL,
Union of India and other statutory authorities had taken care to
follow the practice laid down by AERB on safety in NPP site.
49. KKNPP consists of two VVER-1000 types of units having
1000 MWe rating each. VVER reactors being established at
KKNPP belong to the family of Advance Pressurized Water
Reactors (PWRs) and presently 439 nuclear reactors are under
operation in the world and about 209 of them belong to PWR
Page 48
48
family, including 55 VVERs. The construction activities had
started at the site on 31.3.2002 and two units are being
implemented with the technical assistance of Russian
Federation as per the Inter Government Agreement (IGA)
between India and Russia. As per the agreement, design and
supply of major equipments are done by Russian Federation,
while construction, erection, commission and operation are
being carried out by NPCIL. KKNPP is of a most modern design.
PWR cooled and moderated by light, water and its core
containing the nuclear fuel is located inside a pressure vessel.
There are no pressurizing tubes, no graphite moderator and no
boiling of water in the core. The reactor is located inside an air
tight primary containment building which is surrounded by
secondary containment. There are other design features in NPP
which assure adequate core cooling under deconceivable offnormal
conditions including total loss of electric power. Even
for the hypothetical case of a core melt down, a core catcher is
provided where the molten core is retained and cooled and the
double containment ensures that there will be no significant
radiological impact in the public domain. NPP, has been
divided into three stages, first stage comprises of building
Page 49
49
PHWR’s and using natural uranium. The second stage includes
setting up ‘Fast Breeder Reactor’s backed by reprocessing
plants and plutonium based fuel fabrication plants. The third
stage is based on the thorium-uranium-233 cycle.
Nuclear Spent Fuel (NSF)
50. Radioactive wastes is generated during operation,
maintenance and decommissioning of nuclear and radiation
facilities. The waste generated needs to be managed in a safe
manner to ensure protection of human health and the
environment from the undue effects of ionizing radiation now
and in future without imposing undue burden on future
generations. Radioactive waste is to be managed in a manner
that ensures compliance with the fundamental principles of
radiation protection and environmental safety. Monitoring and
surveillance programme helps to ensure radiation protection of
the occupational workers, public and the environment. The
Central Government in exercise of powers conferred by subsection
(1) read with clause (i) of sub-section (2) of Section 30
and clause (b) of sub-section (1) of Section 17 of the Act
framed the Atomic Energy (Safe Disposal of Radioactive
Page 50
50
Wastes) Rules 1987, which provide requirements for the safe
disposal of radioactive wastes in the country. The disposal has
to be done in accordance with terms and conditions specified in
the authorization which include the process materials and
equipments generating radioactive wastes in the installations,
environment around the installation, safety devices and other
equipments in the installation for conditioning, treatment and
disposal of radioactive wastes, estimates of annual releases,
discharges and leakages in normal conditions and its
anticipated environment impact, potential accidents, design
features and monitoring equipment to control the release of
radio activity and procedure to be followed in the safe
collection of radioactive wastes. The Hazardous Waste
Management and Handling Rules 1989 provide that these rules
will not apply to radioactive wastes (Rule 2e). The radioactive
wastes are covered under the provisions of Atomic Energy Act,
1962 and rules framed thereunder. Further, Rules 2(b) and 3 of
Manufacture, Storage and Import of Hazardous Chemical Rules
1989 under the Environmental (Protection) Act, 1986 has
notified AERB as the authority to enforce directions and
Page 51
51
procedures as per the Atomic Energy Act, 1962 with respect to
radioactive materials.
51. The AERB issued a code “Management of Radioactive
Waste” on June 22, 2007, the objective of that is to establish
the requirements, which shall be fulfilled for the safe
management of solid, liquid and gaseous radioactive waste
from generation through disposal. The code specifies basic
requirements for the safe management of radioactive waste
from nuclear and radiation facilities such as mining and milling
and processing of uranium and thorium ores; fuel fabrication;
nuclear power plants; research/experimental reactors; fuel
reprocessing; medical, industrial, agriculture and research
facilities using radionuclides; and other facilities handling
radioactive materials. The safety code also deals with the
requirements for radiation protection aspects in design,
construction and operation of waste management facilities and
the responsibilities of different agencies involved. The code is
also applicable to the management of radioactive waste
containing chemically and biologically hazardous substances
even though other specific requirements may additionally be
Page 52
52
applicable as per relevant standards. The specific
requirements pertaining to management of radioactive waste
from application of sealed/unsealed sources, mining and milling
of uranium/thorium ores and site remediation are covered in
Appendices A, B and C respectively of that code. Appendix D
provides requirements of transportation/transfer for radioactive
solid and liquid waste. Annexures I and II of the Code deals
with the principles, philosophy and basic steps of management
of radioactive waste. The code specifically states that deep
geological disposal methodology of high level radioactive solid
waste requiring long time isolation of thousands of years from
biosphere is presently under development. Para 2.2 of the
code specifically refers to Protection of Human Health and the
Environment. The said para is of considerable importance,
hence given below in detail:
“2.2 Protection of Human Health and the
Environment
2.2.1 Radioactive waste shall be managed within the
dose constraints and other safety requirements
prescribed by the regulatory body.
2.2.2 Radiation exposure to workers and the public
from radioactive waste shall be kept as low as
reasonably achievable, social and economic factors
being taken into account. A well-defined radiation
protection programme shall be established for
Page 53
53
radioactive waste management. Approved
procedures and control measures shall be used for
radiation protection.
2.2.3 Radiation exposures to workers and the
members of public shall not exceed the limits
prescribed by the regulatory body.
2.3 Effluent Release Criteria, Control and Monitoring
2.3.1 Radioactive waste shall be characterized,
monitored segregated, treated and conditioned, as
necessary, prior to disposal.
2.3.2 Radioactive discharges to the environment
(aquatic, atmospheric and terrestrial route) shall not
exceed the limits prescribed by the regulatory body.
2.3.3 At a given site, facility specific disposal
schemes for radioactive solid, liquid and gaseous
wastes to the environment shall be established and
got approved by the regulatory body prior to the
commencement of operation.
2.3.4 The facility shall assess the adequacy of
controls on release of activity into the environment
and demonstrate compliance with the regulatory
requirements. The facility shall obtain approval from
the regulatory body, if the discharges exceed the
authorized limits.
2.3.5 For all non-radiological releases/discharges,
the relevant clearances shall be obtained from
respective statutory agencies and stipulations therein
shall be complied with.
2.4 Environment Monitoring and Surveillance
2.4.1 The facility shall implement approved
environmental monitoring and surveillance
programme for the identified exposure pathways to
meet the requirements set by the regulatory body.
The programme shall include pre-operational,
operational, closure, and post-closure monitoring and
surveillance.
Page 54
54
2.4.2 The facility shall implement approved quality
assurance programme on sampling, monitoring and
analysis to ensure a reliable data.
2.5 Safety Assessment
2.5.1A Safety assessment report shall be prepared
for waste management facilities including waste
disposal facilities/repositories to demonstrate
compliance with the regulatory requirements.
2.5.2 Assessments shall be made to identify various
possible sequences of internal or external events that
may lead to incidents or accidents and to evaluate
their impact on workers, the public and the
environment.
2.5.3 Assessments shall be made to identify,
describe and analyse the potential non-radiological
impact of releases from radioactive waste
management facilities on human beings, the
environment (soil, water, air, and non-human biota)
and natural resources.
2.5.4 The safety assessments of the long-term
performance of a waste disposal facility/repository
shall take account of the radionuclide content,
physic-chemical characteristics of the waste/waste
form and the effectiveness of engineered / natural
barriers.”
52. Responsibilities associated with the Radioactive Waste
Management are also dealt with in the Code. Safe
management of radioactive waste requires clear allocation of
responsibilities of the agencies involved which may involve
transfer of the responsibility of the management of radioactive
waste from one facility to another or to a different agency other
Page 55
55
than the one responsible for the operation of the facility. The
continuity of responsibility required to be ensured through
regulatory control by a licence or a sequence of licences
according to the procedures laid down by the regulatory body.
The code provides that the waste generator / manager or both
shall be responsible for identifying on an appropriate timescale,
a destination for the waste in accordance with the
regulatory requirements and for seeking any necessary
authorization. The waste generator/manager shall dispose of
the radioactive waste in an approved manner or transfer it in
an authorized manner to another waste manager for
processing, storage or disposal. Para 3.2.6 of the code
specifically refers to the publication of the waste
generator/manager.
53. Para 4 of the code specifically deals with predisposal
measures to be taken by Predisposal Management of
Radioactive Waste. Para 5 of the code deals with near surface
disposal of solid waste which says that solid waste disposal
deals with emplacement of waste in approved facilities.
Further, it also stated that disposal may be in a Near Surface
Page 56
56
Disposal facility (NSDF) or a Deep Geological Repository (DGR).
The design, construction, operation and post-operation of the
NSDF has to meet necessary safety requirements. Appendix II
of the code deals with the principles and philosophy of
radioactive waste management.
NSF AND MANAGEMENT OF WASTE:
54. Serious apprehension has been voiced by the appellants
that huge amounts of radioactive waste are generated with the
use of nuclear energy which, unless handled, treated,
transported, stored and disposed off safely without any leaks,
can cause serious contamination of land, water, food, air and
the ecosystems. Further, it was also the case of the appellants
that during the nuclear fission process, nuclear plants convert
almost all of their fuel into radioactive waste with little
reduction in mass and even re-processing creates its own highlevel
waste. Further, it was also pointed out that many of the
repositories designed to be temporary ones are turning into
permanent ones and the interim storage is by its very nature
storage for a small period, which can never be a substitute for
permanent geologic repository. Appellants further pointed out
Page 57
57
that, as on today, no sustainable solution has been found or
implemented worldwide so as to do away with nuclear waste.
Appellants also submitted that, under the earlier Agreement of
1988 with Russia, nuclear waste had to be shifted back to
Russia and the site clearance and environment clearance are
based on this factor. However, a new agreement was signed in
the year 1998 under which nuclear waste had to be retained
and stored in India.
55. Management of radioactive waste includes all types of
radioactive waste generated from the entire fuel cycle right
from mining uranium fuel fabrication through reactor
operations, and whole re-processing spent fuel. A coherent,
comprehensive and consistent set of principles by way of IAEA
document titled “Storage and Disposal of Spent Fuel and High
Level Radioactive Waste”, AERB Safety Guide to AERB
Management of Radioactive Waste Code 2007 are already in
place. Further, the 15 member team in its report, in December
2011, has to say this on spent fuel management.
“6.3 Spent Fuel Management:
First and foremost it should be remembered that
Spent Fuel is not a waste in the Indian Nuclear
Programme. A closed fuel cycle is followed, where
Page 58
58
the valuable fissile materials like Uranium and
Plutonium which are present in the Spent Fuel are
recovered to reuse.
1) Spent fuel is therefore an asset that needs to be
preserved. At Kudankulam, Spent Fuel from the
Reactors will be carefully stored in Storage Pools,
which are always filled with pure, demineralised
borated water which is constantly recirculated.
These pools are high integrity concrete pools which
are additionally lined with stainless steel sheets, to
ensure effective containment for extended periods
of time. The Department of Atomic Energy has long
experience and expertise of a high order in the safe
management of Spent Fuel.
2) There is no plan to do the reprocessing of the Spent
Fuel at Kudankulam site. As such the storage of
Spent Fuel at Kudankulam is to be considered only
as an interim measure till they are transported to a
Reprocessing Facility.
3) Adequate Technology and years of experience are
available with Department of Atomic Energy for
transporting Spent Fuel from one site to another
through both Railways and by roadways, in a safe
manner without any public hazard. This is done as
per stipulations of AERB, regarding Transport
Regulations that govern safety.”
56. NPCIL, MoEF and the Department of Atomic Energy (DAE)
have filed a detailed counter affidavit on the various issues
posed by the appellants. NPCIL, DAE submitted that even
though, as per the earlier agreement of 1988 between India and
USSR, spent fuel had to be transported to Russia, in a
subsequent agreement in 1998 signed between two countries,
Page 59
59
Government of India had insisted that it should be allowed to
retain the spend fuel in India, so that it could be recycled and
used. Spent fuel, it is stated, discharged from the reactor
contains materials suitable for recycling and hence could be
reused to produce electricity. The spent fuel contains minerals,
both uranium and plutonium, which constitutes about 96% and
1% of the spent fuel respectively. The remaining 3% contains
other components that are normally not recyclable. Further, it
has also been pointed out that KKNPP had adequate provisions
for safe storage of spent fuel. In KKNPP, Spent Fuel Pool (SFP) is
located inside the primary containment, adjacent to reactor
cavity which has the capacity to store fuel equivalent to 7 years
of full power operation of the plant plus one full core load.
AERB Safety Guide “Design of fuel handling and storage
systems for pressurized heavy water reactors – AERB/SG/D-24”
deals with the safety in design of storage of spent fuel. NPCIL
submitted that they are scrupulously following the safety
guidelines issued by AERB. However, the Nuclear Recycle
Group of the BARC has got an overall view of radioactive waste
management in India and has developed certain guidelines for
management of nuclear fuel.
Page 60
60
NSF WASTE - TRANSPORTATION:
57. The SNF from NPPs, after an adequate storage period, is
transported to reprocessing facilities located within the country,
following the International and AERB guidelines and standards.
NPCIL, DAE and MoEF have maintained the stand that they are
aware of the importance of safety and security and have taken
care to ensure that the management and transportation of
spent fuel is carried out safely following the international
recognized norms and regulations and the same is being done
under the observation of AERB and the Government of India.
58. SNF poses a dangerous, long-term health and
environmental risk and it is often said that it remains dangerous
“for time spans seemingly beyond human comprehension.”
Issue, needless to say, is of great concern. It may be noted,
twenty years of work on establishing a ‘geologic repository’ at
Yucca Mountain, USA, had to be abandoned when the
Department of Energy decided to withdraw its licence
application for the facility. NPCIL has maintained SNF is being
kept at the site for re-processing or transported to a permanent
Page 61
61
repository and how save it is, if not properly kept, as we have
already indicated, can cause serious health hazard not only to
the present generation but to the future generation as well, to
whom we owe a responsibility.
59. India has got the capability for re-processing SNF, experts
say. Currently, India has three operating processing plants
based on solvent extraction process – one each at Trombay,
Tarapur and Kalpakkam. Trombay plant reprocesses the spent
fuel from research reactors with the capacity of 60 tons per
year. The plants at Tarapur and Kalpakkan process off-site
fuels from PHWRs with operating capacity of 100 tons per year
each. Additional re-processing facilities are being set up with
the active participation of the Indian industry to accelerate the
programme.
60. We notice that with the limited resources of uranium
available in India, the indigenous achievable NP is estimated to
be 10,000 MWe by PHWR, without re-processing. With the help
of re-processing, the achievable capacity could go up to 63000
MWe imported LWR and recycling LWR fuel to 275,000 MWe, by
2052. NPCIL has, therefore, taken up the stand that rePage
62
62
processing of spent fuel is the key to the country’s three stage
nuclear power programme. 97% of the SNF is capable of
being re-used, but what has to be done with regard to the
remaining 3% SNF, is a moot question, since it is not re-useable,
which consists of various fission products and minor actinides.
This 3% waste comprises of minor actinides which have a long
half-life of lakhs of years. Experts, however, say that if the
minor actinides are “partitioned” or removed, the rest of the
waste is dominated by FP’s having a half-life of about 30 years
and so in 10 half-lives (300 years) will have negligible activity
and the partitioned minor actinides can then be “transmuted”
or burnt by inducing fission in Fast Breeder Reactors or in
Accelerator Driven Systems (ADS).
Facts mentioned above would indicate that certain
percentage of SNF will have long life of lakhs of years and will
have some impact on the environment, but how to contain that?
The Supreme Court of Pakistan in Human Rights
(Environmental Pollution in Baluchistan) PLD 1994 SC 102,
took suo moto notice of a paper report of dumping nuclear
waste along the Coast of the province of Baluchistan. The Court
directed that provisional Government to investigate the claim
Page 63
63
and ruled that such dumping of Nuclear Waste is in violation of
the fundamental rights to life enshrined in Article 9 of the
Constitution.
61. We may, in this connection, refer to the judgment of the
US Court of Appeals in State of New York, ETAL v. NRC and
USA dated 8.6.2012. In that case, the Court was dealing with
the issue regarding temporary storage and permanent disposal
of nuclear waste. The Court held that the Nuclear Regulatory
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 property examine
future dangers and key consequences.
62. We notice that the above decision would not directly apply
to the facts of the present case. United States is following
“open fuel cycle” process where spent fuel is not reprocessed,
Page 64
64
but disposed of treating the same as waste but, in India, we
follow “close fuel cycle” process, where reprocessing of SNF to
obtain uranium and plutonium is an essential step.
63. AERB, way back in 1989, had recommended to have an
Away from Rector Storage (AFR) facility at KKNPP for prolonged
storage of SNF while granting siting clearance. Design-Safety
aspects of AFR, it is stated, would be reviewed by AERB, one
such facility is already available at Tarapur, where it is reported
that there has been no adverse impact on the environment
issue of such storage. AERB, in subsequent reviews, made
recommendations with respect to AFR facilities. In ACPSR 126th
Meeting held on 15/16.9.2011, the issue related to AFR was
reviewed and it was recommended that AFR should be finalized
well before 5 years of operation.
DEEP GEOLOGICAL REPOSITORY (DGR):
64. Permanent DGR, India may require, after a few decades,
states NPCIL. Research and development work, we are
informed, are in progress over three decades in the field of insitu
experiments, natural barrier characterisation, numerical
Page 65
65
modelling, conceptual design and natural analogue of waste
forms and repository processes. Keeping in line with the
international developments, initial focus of work in 80’s centred
mainly on setting up of generic Underground Research
Laboratory (URL), in one of the abandoned mines in India and
resulted in the development of an underground chamber in
Kolar goldmine located in South India. Current efforts within
the Indian geological repository programme are directed
towards granite based URL. The experts feel that setting up of
a DGR is not much of a technological challenge, but as is the
case internationally everywhere, the issue is more of a sociopolitical
issue.
65. We are of the view that these issues have to be dealt with
by the Experts in the field, evidently, without much delay. The
AERB Safety Code on “Management of Redioactive Waste” of
2007 does not deal with the requirements for DGR. The
problem of this nature is being faced by all the nuclear plant
operating countries, including India. Research is on to handle
SNF in DGR which, in the near future, let us hope, would be a
reality, but that shall not deter us in holding up of such a
Page 66
66
project which has been established at KKNPP in implementation
of the India’s Nuclear Policy.
66. We may, however, caution that it is of utmost importance
that the Union of India, NPCIL etc. should find out a place for a
permanent DGR. Storing of SNF at NPP site will, in the long run,
poses a dangerous, long term health and environmental risk.
NPCIL and the Union of India is bound to look at the
probabilities of potentially harmful events and the
consequences in future. Noticeably, NPCIL does not seem to
have a long term plan, other than, stating and hoping that in
the near future, it would establishes a DGR. The Atomic Energy
Act, especially Section 17, envisages present and future safety
of our NPPs and the lives and environment around. NPCIL and
the Union of India must have a hard look at the environmental
consequences of its action of setting up of NPPs, hence a
permanent DGR is of utmost importance, which they should
plan now.
Radioactive material
Page 67
67
67. We are all exposed to the naturally occurring radiation in
our daily lives. Cosmic radiation from outside the solar system
is also common phenomenon. Earth’s crust is radioactive, so
also above the earth’s surface where we fly by aeroplane, we
also get doses of radiation. Medical diagnostic treatment such
as X-Ray, CT-Scan, angiography, angioplasty also radiates
radioactive dose. However, the development of nuclear
reactors which, for the first time, made possible the production
of radioisotopes of many different elements, expanded the field
of radioactive materials. Production and use of it, therefore, is
bound to create a little bit of marginal radiation which seldom
can be prevented. The Atomic Energy (Radiation Protection)
Rules, (Radio Protection Rules now) were initially framed and
revised in 2004. According to the Rules no person could handle
radioactive material or operate any radiation generating
equipment except in accordance with the terms and conditions
of a licence. The Atomic Energy (Control of Irradiation of Food)
Rules, 1990 (revised in 1996) seeks to regulate the irradiation
of foods in the country. Provisions of the Act, statutory rules
and regulations, various codes, safety standards etc. issued by
the AERB buttressed by the technical assistance provided by
Page 68
68
IAEA, NEA, The World Association of Nuclear Operations
(WANO) etc. are being followed in India in respect of 20
operating power reactors which are existing in this country.
Safeguarding the nuclear plants, radioactive materials and
ensuring its physical security have therefore become a central
part of nuclear law. Risks arising from NPP, do affect not
merely the country which choose to use that technology but
can have catastrophic consequences to the neighboring
countries as well. Non-proliferation, disarmament and peaceful
use are stated to be the three pillars of all the international
conventions. Nuclear technologies and techniques, it is well
accepted, can offer vital benefits for improving human-well
being, like health care, radio-therapy, food security, agricultural
advantages to the present and generation.
68. The Prime Minister of India, as already indicated, ordered
a fresh review of all safety of NPPs, on 11.3.2011, immediately
after the accident at Fukushima NPP, Japan with respect to
external events. The Prime Minister of India had emphasized
that the safety of nuclear power plants was a matter of highest
priority for the Government and called for safety audits of all
Page 69
69
the NPPs. NPCIL, the operating agency, constituted separate
task forces to review safety of NPPs depending on types of
reactor designs and their vintages in India. NPCIL constituted
broad categories of Indian NPPs to make an assessment of :
- Boiling Water Reactors (BWR) (TAPS 1&2).
- Pressurized Heavy Water Reactors (PHWRs) at RAPS
1&2
- PHWRs at MAPS 1&2
- Standard PHWRs from NAPS onwards
69. The Task Forces reviewed safety of the NPPs with a
postulated scenario of non-availability of off-site and on-site
electric power and water supply sources. The reports of the
task forces are summarized in a document titled “Safety
Evaluation of Indian NPPs Post Fukushima Incident” to provide
an integrated assessment of strength of Indian NPPs to
withstand extreme external events. Report was submitted by
the end of March 2011. Over and above, two more task forces
were constituted for VVERs one of which was for the VVER,
Presssurised Water Reactors (PWR), under construction at
Page 70
70
KKNPP, and another for 700 MWe PHWRs. NPCIL also
constituted task forces on safety evaluation of the systems of
KKNPP Post Fukushima which gave its interim report on
11.05.2011. The task force found that KKNPP had already
incorporated all safety standards, including passive systems to
ensure reactor shutdown.
70. The AERB, in pursuance of the direction of Prime Minister,
constituted a high level committee (AERBSC-EE) to review
safety of NPPs against external events of natural origin (post
Fukushima accident) with national level experts in the areas of
(i) design, safety analysis and NPP operation and (ii) external
events in the field of seismology, hydrology and earthquake
engineering to carry out a comprehensive review of capability
of NPPs to deal with external events within and beyond design
basis. The committee constituted specialist working groups
and they reviewed the following major areas:
- External events in relation to the safety of NPPs
- Safety of electrical, control and instrumentation
systems against external events
Page 71
71
- Safety of NPPs under prolonged Station Black Out (SBO)
and loss of Ultimate Heat Sink
- Safety of spent fuel storage facilities at NPPs against
external events
- Severe Accident Management provisions and guidelines
(SAMG)
AERBSC-EE submitted its report on 31.08.2011. The AERB has
also taken cognizance of self-assessment carried out by the
NPCIL and the site specific focused regulatory inspections. The
NPCIL and AERB report indicate that the overall assessment of
safety of Indian NPPs following Fukushima Nuclear accident and
the actions taken/planned based on the lessons learnt are
enumerated in the report. The following aspects were
addressed :
(i) External Events
(ii) Design
(iii) Severe Accident Management and Recovery (Onsite)
(iv) National Organisations
(v) Emergency Preparedness and Response and Post-
Accident Management (Offiste)
(vi) International Cooperation
Page 72
72
71. The Government of India also submitted a National report
in May 2012 on the actions taken for Indian NPPs, subsequent
to Fukushima Nuclear Accident to the Convention on Nuclear
Safety in the Second Extraordinary Meeting of contracting
parties, held in August 2012 at Vienna.
72. The expert committee of AERB, LWR in its final report
dated 31.8.2011 gave 17 safety measures by way of abundant
caution. We have directed NPCIL to file a status report with
respect to the completion date of implementation of all the 17
recommendations made by AERB in Annexure-A of the Post
Fukushima AERB Recommendations. A comparative chart
giving the status and implementation of Post Fukushima AERB
Recommendations has been filed as Annexure-A by NPCIL in its
affidavit dated 3.12.2012, which will indicate that twelve
recommendations have already been complied with, except the
following:
Sr.
No
.
Recommendations Status Completion
Schedule
3. Mobile self-powered
pumping equipment
for emergency use.
Two fire tenders with
diesel operated pump is
available at site.
April 2013
Page 73
73
To augment the capacity,
two additional fire
tenders are being
procured and made
available. Chassis has
been procured and
fabrication of the fire
tender is in progress.
4. Facility for monitoring
safety parameters
using portable power
packs.
Present design of KKNPP
envisages 24 hour
battery bank for
monitoring parameters
and 2 hour battery bank
for valve operation
during an event of
station blackout.
In order to extent the
duration of the
monitoring for not less
than 7 days, portable DG
sets will be connected to
the instruments for
monitoring safety
parameters. One
portable DG set is readily
available for use at site.
Portable measuring
devices are also available
at site for local
monitoring.
April 2013
6. Primary Containment
to be assessed for
Ultimate Load Bearing
Capacity (ULBC).
Based on design margins
available, it has been
assessed that for primary
containment, Ultimate
Load Baring Capacity
(ULBC) is at least 1.5
times Design Basis
Accident (DBA) value.
Detailed analysis for
Ultimate Load Bearing
Capacity (ULBC) will be
carried out progressively.
Long Term.
Under progress.
8. Ensuring that highly
active water used for
cooling the core
catcher vessel under
Beyond Design basis
Accident (BDBA) is
contained inside the
The required analysis
covering dose
estimation, equipment
qualification assessment
of containing pressure is
being carried out.
Long term.
Under progress.
Page 74
74
primary containment.
12. Adequacy of
instrumentation for
monitoring plant status
during Design basis
Accident (BDBA)
All the important
parameters of the
reactor such as neutron
flux, pressure above the
core, containment
pressure, Hydrogen
concentration, reactor
coolant level, radiation
levels in containment,
coolant temperatures in
hot and cold legs, level of
fuel pool, and
accumulators etc. will be
monitored during Design
basis Accident (BDBA).
Please refer item – 4
also.
April 2013
(Adequacy of
instrumentation
ensured.
Provision to
extend power
supply to these
instruments will
be
implemented
under item 4
above.)
17. Provision of additional
backup power supply
sources for performing
essential safety
functions, like air
cooled Diesel
Generator (DG) located
at a high elevation,
should be considered.
One portable DG set is
readily available for use
at site.
Another mobile Diesel
Generator (DG) set is
being made available for
redundancy.
April 2013.
73. We are convinced that KKNPP design incorporates
advanced safety features complying with the current standards
of redundancy, reliability, independence and prevention of
common cause failures in its safety systems. Design also
takes care of Anticipated Operational Occurrences (AOO),
Design Basis Accidents (DBA) and Beyond Design Basis
Accidents (BDBA) like Station Black Out (SBO), Anticipated
Transients Without Scram (ATWS), Metal Water reaction in the
Page 75
75
water core and provision of core catcher to take care of core
degradation. The design also includes the provisions for
withstanding external events like earthquake, tsunami/storm,
tidal waves, cyclones, shock waves, aircraft impact on main
buildings and fire. The 17 recommendations were made after
Fukushima accident the cause of which is natural phenomenon.
The facts would indicate that Tsunami-genic zone along East
Coast of India is more than 1300 km away from the nearest NPP
site (Madras/Kalpakkam) and about 1000 km. away from
Kudakulam. The possibility of hitting tsunami at Kudakulam, as
the one that hit Fukushima, seems to be very remote.
Response to People’s Resistance:
74. The Government of India, in order to allay various
apprehensions raised by the people’s movement against the
production of nuclear energy as well as against commissioning
of KKNPP, constituted a 15 Member Expert Group to provide
clarifications on the issue raised by the agitators by interacting
with the forum provided by State Government comprising of 2
State Government nominees and 4 representatives of the
people. Public hearing was held and views and suggestions
Page 76
76
made for and against the project were heard. The Committee
specifically examined the safety features of KKNPP in the wake
of the accidents occurred at TMI, Chernobyl, Fukushima etc.
75. The radiation around the NPP and impact on the public
health were also effectively addressed. The reactor design and
safety of the plant was also examined. Principles and Practices
taken for radioactive waste and spent fuel management were
also examined. Ecological effects of the project in question on
marine ecology and fish protection, impact on land, agriculture,
livestock, and food, impact on flora and fauna were also
examined. The effect of a possible, though remote, impact of
earthquake and Tsunami was also examined. The committee
concluded as follows:
“Conclusions:
EG observes that KKNPP is designed and
engineered to the state of art of nuclear reactors in line
with the current international safety requirements and
principles. KK site related aspects such as seismic,
tsunami, tropical storms are taken into consideration at
design stage. More than 20 VVER-1000 are operating in
Russian Federation and in other countries. While
finalizing the contract for KKNPP, additional safety
features were specified which have been incorporated
and their functionality is being established during
commissioning. The radiological releases during the
plant operation are expected to be well below
Page 77
77
prescribed limits. This fact is borne out by the
experience from operating NPPs in India and abroad.
Based on the national and international studies and
experience, such radiological releases have no adverse
effects on public health, environment and plant
personnel. Safety of KKNPP was examined in relation to
the TMI, Chernobyl and Fukushima accidents. It is seen
that based on the advanced design safety features, safe
grade level and high elevation of safety related
equipment and the fact that all key operating personnel
are graduate engineers who also receive intensive
training, it is not conceivable that any accident of these
types can take place at KKNPP.
EG also notes that clearances for various stages of
the project are given by the Atomic Energy Regulatory
Board after an elaborate and exhaustive safety review
at each stage. Similarly, other statutory bodies have
also conducted detailed and in depth reviews before
according clearances pertaining to areas relevant to
their purview. This clearly indicates that all applicable
safety aspects of the project have been subjected to
careful scrutiny by the concerned statutory bodies in
the country.
In particular, safety of KKNPP has been thoroughly
evaluated against external events of natural origin viz.,
earthquakes and possible flooding of the site from
cyclonic storms and tsunamis. It is seen that the
seismic design of its SSCs and location of safety related
components provide high level of safety against such
events. Possibility of volcanic eruptions in the vicinity
of the site has also been examined and no active
volcanism has been identified. The magnitude of any
possible tsunami that can be generated from submarine
landslides in the Gulf of Mannar has been found to be
much smaller than tsunamis that may get generated
from the submarine active seismic faults, which has
already been taken into consideration.
Page 78
78
In view of the above, the EG would like to conclude
that the fears of the local population are unfounded and
design of KKNPP meets the current safety standards.”
76. The Committee prepared a detailed report in December
2011. The report was later presented to Tamil Nadu
Government nominees and people representatives. The Expert
Group submitted another supplementary report dated
31.02.2012.
77. The Government of Tamil Nadu also appointed an Expert
Committee headed by Former President of the AEC along with
three other experts. The Committee submitted its report after
assessing that the project has a unique passive safety feature
which provides cooling to the nuclear fuel without the need for
operator action or power supply, namely a Passive Heat
Removal System, which is a novel safety feature. In addition to
the various reports mentioned herein before, the Russian
Nuclear Safety Authority also known as GosAtomNadzor (GAN)
reviewed and cleared the Safety Analysis Report of KKNPP Units
1 and 2, which forms the basis of the licensing safety review.
Page 79
79
CIVIL LIABILITY FOR NUCLEAR DAMAGE:
78. Developing modern sources for energy through NPPs carry
the problem of potential damage, which might flow from a
nuclear catastrophe. Several Nuclear Energy Generating
countries have adopted their own Legislation on the issue of
Civil and Criminal Liability. The U.S. Price-Anderson Act, 1957,
the German Atomic Energy Act (1959), the Swiss Federal Law
on the Exploitation of Nuclear Energy for Peaceful Purposes and
Protection from Radiation (1959) and the Japanese Law on the
Compensation of Nuclear Damage (1961) are some of them.
Few of such legislations followed the basic principle of imposing
legal liability on a strict liability basis on the operator of a
nuclear installation coupled with the limitation on liability.
79. Currently, there are two main conventions on third-party
liability in the field of nuclear energy. The first is the Paris
Convention of 1960, which was supplemented by the Brussels
Supplementary Convention Act, 1963. IAEA’s Vienna
Convention on Civil Liability for Nuclear Damage, 1963 is yet
another convention. India’s Civil Liability for Nuclear Damage
Act, 2010 or the Nuclear Liability Act mainly rests on the above
Page 80
80
Conventions, though India is not a signatory to those
conventions. India’s Nuclear Liability Act aims to provide a
civil liability for nuclear damage and prompt compensation to
victims of a nuclear incident through a No Fault Liability to the
operator, appointment of Claims Commissioner, establishment
of Nuclear Damage Claims Commission, Nuclear Liability Fund
and other matters connected therewith. The constitutional
validity of the said Act is under challenge before this Court in
Writ Petition (Civil) No. 464 of 2011. Various prayers have been
made in the above mentioned writ petition, but this Court
issued the notice only with regard to the prayer clause no. (e),
i.e. to declare the act as unconstitutional and void ab initio.
80. NPCIL had undertaken the task of constructing the two
IGW reactors of VVER-1000 Model in collaboration with
Atomstroyexport, a wholly owned Russian Government
Company. Safety features of the NPP as well the quality
requirements for the plant equipment are part of the detailed
specifications agreed between the vendor and the purchaser,
and as per the Quality Assurance Plan. NPCIL, AERB also
Page 81
81
should ensure that there can be no compromise on the quality
of plant equipment, components and other systems.
81. The India’s Nuclear Liability Act states that the liability of
the operator to the tune of Rs.1500 crores and the maximum
liability to rupee equivalent of 300 millions SDR’s, though the
Act, speaks of no fault liability. It is unnecessary to examine
the scope of various provisions contained in the Act, for our
purpose, especially when the constitutional validity of the Act is
under challenge.
82. We may, in this connection, point out that the
constitutional validity of the Price-Anderson Act, 1957 of U.S.
which was challenged in the year 1978 before the U.S.
Supreme Court in Duke Power Company v. Carolina
Environmental Study Group 438 US 59(1978). It was urged
before the U.S. Supreme Court that the Act did not ensure
adequate compensation for victims of accidents and it violated
Equal Protection Clause of the 14th Amendment by treating the
nuclear accidents differently from other accidents etc. The
U.S. Supreme Court upheld the validity of the Act holding that it
Page 82
82
was lawful, in that there was adequate justification for treating
nuclear accidents different to other claims; that Act provides a
reasonably just substitute for the common law or state tort law
remedies it replaces and that it cannot be said that the Act
encouraged irresponsibility in the matter of safety and
environmental protection.
83. Strict Liability Principle has been examined by this Court in
the environmental point of view in several judgments. In M. C.
Mehta v. Union of India AIR 1987 SC 1086 (Oleum Gas
Leakage case), this Court held that the industries which are
engaged in hazardous or inherently dangerous activity, possess
serious threat to health and safety of persons and have an
absolute and non-delegable duty to ensure that no harm is
caused to the life and safety of the people. In Indian Council
for Enviro-Legal Action v. Union of India (1996) 3 SCC 212,
this Court held that once the activity carried on in hazardous or
inherently dangerous, the person carrying on such activity is
liable to make good losses caused to any other person by his
activity, irrespective of the fact that he took reasonable care
while carrying on his activity. In Vellore Citizens Welfare
Page 83
83
Forum v. Union of India (1996) 5 SCC 647, this Court held
that once the activity carried on is hazardous or potential
hazardous, the person carrying on such activity is liable to
make good the loss caused to any other person by his activity,
irrespective of the fact that he took reasonable care. The
absolute liability extends not only to compensate the victims of
pollution, but also the cost of restoring environmental
degradation. In Vellore Citizens Welfare Forum (supra), this
Court reiterated the “polluter pays principles”. It is
unnecessary to multiply the authorities on the principle of strict
liability, precautionary principle, polluter pays etc., which find
their expression in Articles 21, 47, 48-A, 51-A(g) of the
Constitution of India.
84. We have examined the above principles only to highlight
the importance of the Act and the steps taken for its effective
implementation. People in this country have not forgotten the
incidents which had happened in the Union Carbide Pesticides
Plant in Bhopal in the night of 24.12.1984. This Court in Union
Carbide Corporation v. Union of India (1989) 2 SCC 40,
based on an earlier settlement, directed the Union Carbide to
Page 84
84
pay US $ 470 million to the Union of India in full and final
settlement of all claims, rights and liabilities related to and
arising out of Bhopal Gas Tragedy. Following that, it was
ordered that all civil proceedings arising out of Bhopal Gas
Disaster, shall stand concluded in terms of the settlement and
all criminal proceedings related to and arising out of the
disaster shall stand quashed, wherever they were pending.
Later, this Court modified that order upholding the settlement
except the condition of quashing criminal charges in Union
Carbide Corporation v. Union of India AIR 1992 SC 248.
85. Considering India’s population density and our National
Policy for setting up various NPPs in the country, safety and
security of the plants are of extreme importance, lest a nuclear
accident can cause immense damage both in terms of human
life as well as environmental destruction. Provisions have also
to be made for remedying or compensating environmental
damage caused by the accidents, without merely limiting it to
personal injury and damage to property.
Page 85
85
DISASTER MANAGEMENT PLAN:
86. Disaster Management Plan (DMP) is of paramount
importance, since we are dealing with a substance which has
huge potential of causing immense damage to human beings
and to the environment, which may cross over generations
after generations.
87. After the accidents in Three Mile Island, Chernobyl and
Fukoshima, there has been an uproar all over the world
including India for adopting sufficient safety measures for
handling nuclear/radiological emergencies which may likely to
occur in various NPPs situated in the country. Any radiation
incident resulting in or having a potential to result in exposure
and/or contamination in excess of the respective permissible
limits can lead to a nuclear/radiological emergency. Situations
are, of course, not bound to occur quite often, but one must be
prepared to face nuclear/radiological emergencies because of
high population density in a country like India.
Nuclear/radiological emergencies can occur due to factors
beyond the control of the operating agencies, for example,
Page 86
86
human error, system failure, sabotage, earthquake, cyclone,
flood etc. Noticing the above factors, the Central Government
decided to enact a law on Disaster Management to provide for
requisite institutional mechanisms for drawing up and
monitoring the implementation of the disaster management
plans, ensuring measure by various wings of Government for
prevention and mitigating affects of disasters and for
undertaking a holistic, coordinated and prompt response to any
disaster situation.
88. The Parliament enacted the Disaster Management Act,
2005 (DM Act), following that, the National Disaster
Management Authority (NDMA) was constituted with the Prime
Minister as the Chairperson. Similar authorities have been
created in various States with their Chief Ministers as the
Chairpersons. NDMA has assumed the responsibility of
strengthening the existing nuclear/radiological emergency
management framework by involving all stake holders in a
holistic approach through a series of mutually interactive,
reciprocal and supplementary actions to be taken on the basis
of a common thread – the National Guidelines. Following that,
NDMA, after conducting a detailed discussion with all the stake
Page 87
87
holders, issued the National Disaster Management Guidelines,
2009, which has the concurrence of the DAE, AREB. The
guidelines recommended a series of actions on the part of
various stake holders at different levels of administration that
would (i) mitigate the accident at source; (ii) prevent
deterministic health effects in individuals and limit the
probability of stochastic effects in the population; (iii) provide
first aid and treatment of injuries; (iv) reduce the psychological
impact on the population; and (v) protect the environment and
property. The guidelines have been prepared to provide
direction to the central Ministries/departments, State
Governments and local authorities for preparing detailed action
plans to ensure inbuilt capabilities to handle nuclear and
radiological emergencies as part of an all-hazard Disaster
Management plan in the public domain.
89. The National Guidelines consist of 10 chapters. Chapter 1
deals with the introduction which provides a brief of all possible
scenarios of nuclear and radiological emergencies. These
emergencies have been broadly classified into the following
five categories:
Page 88
88
i) An accident taking place in any nuclear facility of the
nuclear fuel cycle including the nuclear reactor, or in a
facility using radioactive sources, leading to a largescale
release of radioactivity in the environment.
ii) A ‘criticality’ accident in a nuclear fuel cycle facility
where an uncontrolled nuclear chain reaction takes
place inadvertently, leading to bursts of neutrons and
gamma radiations.
iii) An accident during the transportation of radioactive
material.
iv) The malevolent use of radioactive material as a
Radiological Dispersal Device by terrorists for dispersing
radioactive material in the environment.
v) A large-scale nuclear disaster, resulting from a nuclear
weapon attack (as had happened at Hiroshima and
Nagasaki) which would lead to mass casualties and
destruction of large areas and property.
90. Chapter 2 deals with the Approach to Nuclear and
Radiological Emergency Management, which spells out a fourpronged
strategy to be adopted for a holistic management of
nuclear/radiological emergencies. Chapter 3 deals with the
Present Status and Situation Analysis, which highlights some of
the technical and administrative issues yet to be addressed in a
Page 89
89
holistic approach, besides analysing the present status.
Chapter 4 deals with the Prevention of Nuclear/Radiological
Emergencies, which enumerates how nuclear and radiological
emergencies are prevented in nuclear facilities by adopting the
defence-in-depth approach, where the safety systems are
inbuilt with adequate redundancy and diverse working
principles. Chapter 5 of the Guidelines deals with the
Mitigation of Nuclear/Radiological Emergencies, which explains
the various engineered safety features and accident
management procedures that are in place in a nuclear plant as
accident mitigation measures for minimising the impact of a
nuclear emergency by keeping the radioactivity release in the
environment to levels as low as possible. Chapter 6 deals with
the Preparedness for Nuclear/Radiological Emergencies and
covers various aspects of preparedness. Chapter 7 deals with
the Capacity Development for Nuclear/Radiological
Emergencies and deals with the capacity development for
coping with nuclear/radiological emergency situations. Chapter
8 deals with the Response to Nuclear/Radiological Emergencies
and describes the action to be taken in nuclear/radiological
emergencies. Chapter 9 deals with the Implementation of the
Page 90
90
Guidelines which spells out the preparation of action plans by
various levels of stakeholders. Such plans should indicate the
detailed work plan and milestones with recommended timeframe
and suitable indicators to enable monitoring and review
of the actual progress made. Chapter 10 deals with the
Summary of Action Points and sums up the major
recommendations that have been made in the text of the
National Guidelines.
91. NDMA, established under Section 3 of the DM Act, is
responsible for each of the three phases of disaster
management continuum with six major responsibilities, namely,
pre-disaster (prevention, mitigation and preparedness), during
disaster (rescue and relief) and post-disaster (rehabilitation and
reconstruction) scenarios. NDMA will be assisted by the
National Executive Committee, which is the executive arm of
NDMA. The National Crisis Management Committee/National
Executive Committee has to take on relief operations on a war
footing. The District Management Authorities of the
States/Union Territories will be responsible for implementing
the nuclear/radiological disaster risk management programmes
in their respective areas and each State has to develop a
Page 91
91
detailed micro-level action plan in a mutually interactive and
supplementary mode with its district level plans.
92. DAE, as a nodal agency, has to provide the necessary
technical inputs to the national or local authorities for
responding to any nuclear or radiological emergency in the
public domain. In the event of a nuclear/radiological
emergency in the public domain, the basic regulatory
framework for safety of all activities related to the atomic
energy programme and the use of ionising radiation in India is
derived from the Atomic Energy Act, 1962 (AE Act). Para 3.6
of the Guidelines dealing with Public Awareness is of some
importance and the same is extracted hereunder for our easy
reference:
“3.6 Public Awareness:
Public awareness plays a key role in the emergency
preparedness and response plans for any type of
emergency/disaster where the participation/role of the
public is of prime importance. The fact that one cannot
see, feel or smell the presence of radiation, coupled
with a general lack of credible and authentic
information to the public at large about radiation and
radiation emergencies and the wide publicity given to
any nuclear/radiation-related incident, has resulted in
Page 92
92
several erroneous perceptions about nuclear
technology. Not surprisingly, most people perceive that
any small nuclear/radiation-related incident will lead to
a situation like Hiroshima or Nagasaki, or the Chernobyl
accident.
To educate the people about the beneficial
aspects of nuclear radiation and to remove their
misgivings about it, the authorities of nuclear fuel
cycle facilities in general, and that of nuclear power
stations in particular, are actively involved in carrying
out regular public awareness programmes for people
living in the vicinity of these facilities. People are
invited and taken on guided tours of the nuclear power
stations, made conversant with the basics of radiation
protection, safety limits, safety practices, and the dos
and don’ts during a nuclear emergency. The station
authorities also make visits to the surrounding villages
and population centres to create awareness of the
same. Good coordination is also maintained with the
district officials. Prior to any off-site emergency
exercise, awareness programmes are specially
conducted for the public officials, making them
conversant with their responsibilities during any offsite
emergency.”
93. NPCIL and the State of Tamil Nadu should take adequate
steps to educate the public of the need for generation of power
through NPP, since it is part of India’s National Policy and also
Page 93
93
how to deal with nuclear/radiological emergencies. Para 3.9.1
of the Guidelines specifically refers to Education and Knowledge
Management, which reads as follows:
“3.9 Institutions for Education, Knowledge
Management, Public Awareness and Training:
3.9.1 Education and Knowledge Management:
At present, practically no education is imparted at
any level on nuclear/radiological emergencies in the
national educational system. It goes against one of the
basic concepts of good emergency response, which
envisages that the culture of preparedness has to be
imbibed right from childhood in all sections of the
society. The basics of radiation, radioactivity and the
use of nuclear radiation in day-to-day life (with its
beneficial aspects) should be taught in schools and
colleges. Once people are sensitised about this
subject, it will help in removing
prejudices/misconceptions of the general public about
nuclear radiation/programmes and they will treat a
nuclear/radiological emergency like any other type of
natural or man-made emergency.”
94. The necessity for Enhancing Public Awareness about
Nuclear/Radiation Hazards has also been dealt with in para
3.9.2, which reads as follows:
Page 94
94
“3.9.2 Enhancing Public Awareness about
Nuclear/Radiation Hazards:
In general, there is very limited public awareness
about radiation emergencies. Even the intelligentsia
have misconceptions about nuclear energy in general.
Ever since the reactor accidents at Three Mile Island
and Chernobyl, any news of a clear/radiological
emergency has always been of great interest that
generates misconceptions in the minds of the public.
The sensationalisation of such news by the media has
also erroneously caused a perception that any
radiation or nuclear emergency will result in cancer or
death.
Such lack of public awareness is a major
constraint in handling and objectively responding to
these emergencies. To overcome this, sincere and
concerted efforts are needed to create awareness
amongst the general public with the target audience of
school and college students, teachers, technocrats and
government officials.
The fear in the minds of the public that even a
small accident in nuclear facilities will lead to a
situation like Hiroshima/Nagasaki, can be removed
only through proper awareness generation and
training programmes (Appendix 1).”
95. The necessity to accord proper training to the personnel
involved in the management of radiation emergencies, which
Page 95
95
includes education of senior public functionaries like the district
or state-level officials who would manage a radiation
emergency as well as the first responders, needs special
emphasis. This would also include RSOs, civil defence
personnel and home guards, police and fire and emergency
services personnel and medical professionals. The guidelines
also highlight the necessity of a proper network of roads and
transport system. An off-site emergency situation, the
emergency response plans envisage evacuation of the public
from the affected zone which requires well-defined routes and
evacuation strategies. The availability of both adequate
transport and good roads, which would provide the evacuation
routes, is of paramount importance. Further, certain radiation
emergency scenarios envisage a sheltering requirement for a
large number of people. Normally, community centres, schools,
colleges, religious places, marriage halls, etc. are chosen for
this purpose. SDMAs/DDMAs should identify those places
during a non-emergency period, with assistance from
DAE/DRDO.
96. It is also highly necessary to identify alternate sources of
food, water and hygiene facilities. Because of the assembly of a
Page 96
96
large number of persons at the emergency shelters, poor
hygiene facilities may lead to the spread of diseases, including
epidemics. In addition to providing good hygiene facilities,
good medical care with adequate stock of medicines, should be
made available in all areas of possible nuclear
emergencies/disasters.
97. Major highlights indicated in para 3.20 of the Guidelines
are of prime importance. Para 3.20 is extracted hereunder for
easy reference:
“3.20 Highlights:
Some of the highlights of this chapter are given
below:
i) In the event of any nuclear/radiological
emergency in the public domain, CMG is
immediately activated and it coordinates with the
local authority in the affected area and all the
concerned authorities at the centre
(NCMC/NEC/NDMA) to ensure that the necessary
technical/administrative inputs are available to
respond to the nuclear/radiological emergency.
ii) The AERB, which oversees nuclear and
radiological safety in the country, has been
playing a very crucial role in the prevention of
nuclear/radiological accidents by ensuring that
Page 97
97
proper safety design features and operating
procedures in all nuclear and radiation facilities
are in place. The AERB has the power to not only
licence the operation of a facility but also to order
the partial or full shutdown of any facility that
violates its guidelines.
iii) As per statutory requirements, the local
district administration is responsible for drawing
up and rehearsing the off-site emergency plan in
coordination with the facility operator.
iv) It is also mandatory for the power plant
operators to periodically rehearse various
emergency preparedness plans by way of
exercises, and based on the feedback and
experience, take corrective measures. As the first
stage of the trigger mechanism, CMG, DAE and
the resource agencies are alerted even when a
plant or site emergency exercise is conducted.
v) The basic training for NDRF teams, ‘first
responders’ and TOT is being imparted by BARC
in addition to training of QRTs of the paramilitary
forces and defence CBRN officers.
vi) Emergency preparedness exists at all nuclear
and radiation facilities to respond to any on-site
or off-site emergency in their areas. A network of
Page 98
98
18 units of ERCs has been established by BARC to
handle radiological emergencies arising from a
transport accident or the movement/handling of
‘orphan sources’ or any malevolent act like the
explosion of an RDD, RED or IND at any time or
anywhere in the country.
vii) The fact that one cannot see, feel or smell the
presence of radiation, coupled with a general lack
of credible and authentic information to the public
at large about radiation and radiation
emergencies and the wide publicity given to any
nuclear/radiation related incident, has resulted in
several erroneous perceptions about nuclear
radiation/technology. Not surprisingly, most
people perceive that any small nuclear/radiation
related incident will lead to a situation like
Hiroshima/Nagasaki or the Chernobyl accident.
To remove such misgivings, the authorities
of nuclear fuel cycle facilities in general, and that
of nuclear power stations in particular, are
actively involved in carrying out regular public
awareness programmes for people living in the
vicinity of these facilities.
viii) The AERB, the national regulatory authority,
has been regulating the nuclear and radiation
Page 99
99
facilities in the country very effectively and has,
over the years, issued a large number of codes,
standards and guides.
ix) In the event of the private sector getting
involved in the nuclear power programme, it
might be required for the regulatory authority to
ensure that the necessary knowledge base does
exist in the concerned private industry for
building and operating the nuclear facility as per
the stipulated safety standards of the AERB.
x) In case of a nuclear/radiological emergency,
the rescue and relief measures will be highly
demanding in terms of availability of adequate
trained manpower as well as advanced
instruments/equipment. In this case, the nature of
relief measures would be different in many ways
from those carried out in natural disasters like
fire, floods, earthquakes, etc. (where there is very
little detrimental effect to the health of the
personnel involved in the relief work). In a nuclear
emergency/disaster, however, the persons
carrying out the relief work are also likely to be
exposed to both high doses of radiation and/or
high levels of contamination which, if not
controlled, may affect their health including their
potential to carry out the relief work effectively.
Page 100
100
xi) Several major metros and other vulnerable
locations will need to have ERCs established in
their areas. Local civil defence, police, fire
brigade, hospitals and other agencies also need
to develop liaison with these ERCs.
xii) Facilities using radioactive sources need to
strengthen their physical protection systems
along with proper inventory and control
procedures of the radiation sources.
xiii) In the current security threat scenario, there
is a need for enhancing the security of the
sources at radiation facilities and during their
transportation, to ensure that they do not go ‘out
of control’ by any deliberate acts of theft and/or
sabotage and become a potential radiation
hazard to the public.
xiv) In the context of large-scale radiation
disasters, the involvement of civil defence
personnel and home guards is usually considered
highly desirable.
xv) Because of their preoccupation in defending
the country from the enemy, the armed forces
are normally not always available to respond to a
nuclear disaster scenario. However, for any major
nuclear accident where the situation is beyond
the coping capability of the civil administration,
Page 101
101
the services of the armed forces may be called for
to take over several critical operations related to
response (i.e., rescue and relief), rehabilitation
(i.e., evacuation and sheltering) and
reconstruction activities, including the immediate
restoration of essential infrastructures like
communication, electrical power, transportation,
etc. Civil-military coordination will be developed
for such purposes so that specially trained and
rehearsed teams of the Army can be inducted to
assist the civil administration, as and when called
for and are available.
xvi) To start with, the SDMAs, SECs and DDMAs
concerned will aim to cover all cities with a
population of 20 lakh or more, that may be
affected by a major nuclear/radiological
emergency in respect of the preparedness for
response to a nuclear/radiological emergency.
This cover will be progressively extended to other
cities.
xvii) Presently, there is no network of hospitals in
the country which can handle radiation induced
injuries on a large scale. The establishment of
such a network is essential for handling nuclear
emergencies/disasters. This will also include the
establishment of a nationwide capability for
utilisation of the services of a large number of
Page 102
102
RSOs for managing both RDD-related scenarios
and largescale nuclear disasters on priority. There
will also be a dedicated and reliable
communication facility among hospitals so that,
whenever required, they can pool their resources.
xviii) There can always be a possibility of some
radioactive sources going ‘out of control’ in some
country and from there, entering into our country
inadvertently or deliberately. Such unnoticed
entry has the potential of the end products of
steel mills being contaminated or, in the worst
scenario, the source being used in an RDD. Hence
the strengthening of border controls will need to
be addressed on priority by MHA.
xix) In an off-site emergency situation in a nuclear
facility, emergency response plans envisage the
evacuation of the public from the affected zone.
This requires well-defined routes and evacuation
strategies, taking into account the topology of the
site. Problems related to the availability of welldefined
routes, transport facilities, food, drinking
water, shelters, etc. also need to be addressed by
the concerned DDMAs/SDMAs as part of the
preparedness/response programme in an allhazards
approach.
Page 103
103
xx) In the emerging security threat scenario,
there is a possibility of ‘orphan’ sources (stolen or
misplaced sources that may go out of regulatory
control of the AERB) falling into the wrong hands
and being used for malevolent purposes through
an RDD (also called a ‘dirty bomb’).
At present, there is no mobile monitoring
system available with law and order authorities
which can warn them of any significant/abnormal
rise in background radiation levels in the public
domain. The establishment/strengthening of
monitoring and detection systems of such sources
on priority is considered highly desirable, to
detect any unauthorised presence or movement
of radioactive material in the public domain.
xxi) With the increasing incidences of terrorists
activities and impending threat of RDD, it is
imperative that the police, which in all probability
will be the first to reach the site of an explosion,
should have some simple portable monitoring
instruments (at each police station within the
areas with radiological threat perception) which
will warn them as they approach the radiation
source (from, say, a blast of RDD).
xxii) The values of the radiation dose levels at
which intervention is required for various actions
(like sheltering, iodine prophylaxis, evacuation,
Page 104
104
etc.) and the action levels that will be needed to
control the consumption of contaminated food
items in the affected areas are presently not
available either for any RDD or nuclear
emergency/disaster and are needed to be
generated because these are essential in respect
of both (i) the members of the relief and rescue
teams and (ii) the public.
xxiii) The lack of public awareness is a major
constraint in handling and objectively responding
to nuclear and radiological emergencies. Further,
presently there is no mechanism for maintaining
a knowledge base or case studies in the public
domain on the events of previous emergencies
and their consequences. As a result, the lessons
that should have been learnt from the handling of
those emergencies have been lost sight of. To
overcome this, sincere and concerted efforts are
needed to create awareness amongst the general
public with the target audience of school and
college students, teachers, technocrats and
government officials.”
98. 2009 Guidelines issued by AERB are very exhaustive which
have to be implemented and attended to forthwith. AERB, in
the Code of Practice on Safety in NPP Siting, also has dealt with
Page 105
105
the term “Exclusion Zone”. Para 5.5.3 and 5.5.4 are relevant
and extracted below:
“5.5.3 An exclusion area of appropriate size (at least 1.5
km radius from the reactor centre) shall be established
around the reactor and entry to this is to be restricted to
authorised personnel only.
5.5.4 A sterilised area up to 5 km around the plant shall be
established by administrative measures where the growth
of population will be restricted for effective implementation
of emergency measures. National growth, however, is
allowed in this zone.”
99. Facts presented indicate that there is no population in the
“Exclusion Zone” of KKNPP. “Exclusion Zone” is under the
exclusive control of the plant operator NPCIL, guarded by CISF,
where no public habitation is permitted. The property wall at a
distance of 2 km from the reactor buildings existing at KKNPP,
which encloses the exclusion zone, and no people reside
permanently inside the property wall. A sterilised area around
the exclusion area covering an area of up to 5 km radius from
the plant has also been established. As per AERB Citing Code,
the desirable population within the sterilised zone is about
20000. As per the documents available, 3 villages are within SZ
Page 106
106
of KKNPP, namely, Kudankulam, Vijayapathi (Idinthikarai) and
Irrukkandurai. As per 2001 census, the population residing with
SZ consisting of these three villages is approximately 23960,
which has been taken care of while preparation of the
Emergency Preparedness Plan (EPP) of KKNPP.
100. NPCIL, after due concurrence with AERB, as already
indicated, has prepared the Emergency Preparedness Plan Vol.
V for off-site emergency at KKNPP. The EPP has listed the
composition of Off-Site Emergency Response Co-ordination
Committee (OERCC) comprising of 14 disrict administration
officials for implementing counter measures in public domain in
case of an emergency. The District Collector, Tirunelveli is the
Off-Site Emergency Director and the members are District
Revenue Office, Site Director, KKNPP, Superintendent of Police,
District Forest Officer, Joint Director (Fisheries), Deputy
Controller (Civil Defence), Divisional Fire Officer, Executive
Engineer (Irrigation), Joint Director (Agriculture), Deputy
Director (Animal Husbandry), District Supply Officer, Regional
Transport Officer, Deputy Director (Health Services). The
overall responsibility of OERCC and individual responsibilities of
the members o the Committee have been chartered in the
Page 107
107
Emergency Preparedness Plan for effective implementation of
counter measures. Eleven Emergency response teams such as
warning and advise Team, Emergency Response Teams, Traffic
Control Team, Prophylactics Distribution Team, Evacuation
Advice Team, Convoy Team, Decontamination Team, Rallying
Post Team, Patrolling Team, Information Team and Services
Support Team have also been formed and are in place as well.
EMERGENCY EXERCISE – ON AND OFF-SITE
101. KKNPP site comprises of two units along with their
auxiliary facilities. In the Plant or the Site, an unplanned event
at a particular unit may result in an emergency situation which
may affect either the offending unit alone (Plant Emergency) or
the other facilities as well within the site Exclusion Zone of the
KKNPP (Site Emergency). Site emergency may result in off-site
emergency which may affect the public personnel living beyond
1.6 km radius of the plant boundary. NPCIL, therefore,
prepared an Emergency Preparedness Plan for KKNPP. Vol. 1
contains the on-site emergency plan and Vol. 2 contains the offsite
emergency plan. The off-site emergency preparedness
procedures was issued in July 2010 after incorporating the
Page 108
108
comments and instructions made by NPSD and AERB. Final
revised plain was incorporated on recommendations made by
OPSD and SARCOP. We have gone through the Emergency
Preparedness Plan Vol. II (off-site Emergency Plan) which is very
comprehensive and deals with almost all eventualities.
102. The Off-Site Emergency Exercise was carried out as per
the requirements of AERB Safety Guide on Consenting Process
for NPPs. Off-Site Emergency Exercise is required to be carried
out once in two years and that NPCIL and State Authorities
would conduct such exercises in other nearby villages
frequently. Such mock-drills are conducted to educate the
public not to scare them away, but make them understand that
the Project is part of the National Policy, participatory in nature,
and hence we cannot remain as a nuclear isolated Nation. We
have to find out a substitute for other sources of energy. Such
exercise was carried out annually to assess whether plant
management and the local authorities, including the
communication and infrastructure facilities, are geared up for
tackling with a real emergency situation, in case it arises.
Page 109
109
103. We heard Shri Rakesh Diwedi, learned senior counsel
appearing for the State of Tamil Nadu, who gave an overall view
of the steps taken by the State Government and the District
Collector, Tiruvelveli for implementing the Neighbourhood
Development Scheme relating to housing, steps taken for offsite
emergencies, awareness programme, other infrastructural
facilities. We have also gone through the detailed affidavit filed
by the District Collector, Tirunelveli District on December 2012
and noticed the steps taken by the District Administration and
the State to meet the Off-Site emergencies, awreness
programmes and the other steps taken to provide
infrastructural facilities like up-gradation of Primary Health
Centres, opening of New Primary Health Centres, setting up of
Desalinate place at Uvari, solar energy lighting system etc.
CORPORATE SOCIAL RESPONSIBILITY (CSR):
104. Sustainable Development and CSR are inseparable
twins, integrated into the principles of Inter and Intra-
Generational Equity, not merely human-centric, but eco-centric.
CSR is much more when the Project proponent sets up NPPs,
thermal power plants, since every step taken for generation of
Page 110
110
energy from such hazardous substances, is bound to have some
impact on human beings and environment, even though it is
marginal. The Department of Public Enterprises (DPE), recently,
issued a Comprehensive Guidelines on CSR for Central Public
Sector Enterprises, which includes NPCIL, to create, through the
Board Resolution, a CSR budget as a specific percentage of net
profit of the previous year. CSR is envisaged as a commitment
to meet its social obligations by playing an active role to
improve the quality of life to the communities and stake-holders
on a sustainable basis, preferably, in the project area where it is
operating. CSR strategy has to be put in practice in line with
the millennium development goals as lodged by United Nations
and adopted by the Government of India in the 11th Five Year
Plan i.e. 2007-2012, which could cover the areas of education,
health, drinking water/sanitation, environment, solar lighting
system, infrastructure for backward areas, community
development and social empowerment, promotion of sports and
traditional forms of arts and culture, generation of employment
opportunities and livelihood to be a part of the National/Local
initiatives to provide reliefs/rehabilitation in terms of natural
disaster, calamities etc.
Page 111
111
105. NPCIL has allocated funds for providing health,
education, infrastructural development under CSR at
Kudankulam. The allocation and utilization of funds by NPCIL
during the last three years and the current year are
enumerated below:
Financial Year Funds Allocated
(rupees in
lakhs)
Funds Utilized
(rupees in
lakhs)
2009-10 14.50 14.47
2010-11 120.00 45.20
2011-12 160.00 18.67
2012-13 800.00 13.91 (up to
July 2012)
We notice that, apart from the above, Rs.500 crores has been
allocated for Neighbourhood Development Programme (NDP)
around the nuclear plant at Kudankulam, which would be
utilized for taking up various development works like setting up
of cold storage and fishing marketing area, Public board motor
works, housing facilities, levelling of roads, upgradation of
health services, grownes and drinking water etc. The Chief
Secretary of Tamil Nadu convened a meeting on 15.5.2012
following CSR, in which it was decided to set up a fund of
Rs.300 crores for the housing scheme for a projected period
Page 112
112
from 2012 to 2015. The proposal is to construct 10000 houses
in the housing project with a unit cost of Rs.3,00,000/- per
house with a plinth area of 300 sq. Feet under NDS. Various
other development activities are also being undertaken as part
of CSR, like upgradation of public health centres, establishment
of new public health centres etc.
106. This Court in Banwasi Seva Ashram v. State of
U.P. AIR 1987 SC 374 allowed the construction of NPP in a
displaced forest area, but ordered inter alia that every family of
forest dwellers be provided with a housing plot of specified
dimensions elsewhere, that health, education, sanitation
services and the like, be provided there, as part of CSR.
107. NPCIL in association with the District Collector,
Tirunelveli should take effective steps to discharge their CSR in
accordance with the DPE Guidelines. Needless to say, there
must be an effective and proper monitoring and supervision of
the various projects undertaken under CSR, to the fullest
benefit of the people who are residing in and around the NPP.
PART II
Page 113
113
108. Environmental impact on setting up of a nuclear plant
anywhere in the world is bound to generate some
apprehension, at least in the minds of the ordinary people, of
its possible impact on environment, life and property, flora
and fauna, marine life, radiation, nuclear waste and its disposal
and other related issues.
“Royal Commission on Environmental Pollution, Sixth
Report, ‘Nuclear Power and the Environment.’
There are few subjects in the field of environmental
pollution to which people react so emotionally as they do to
radioactivity.”
(Cmnd 6618 1976 para 5)
109. Public opinion, national policy, economic growth,
sustainable development, energy security are all intrinsically
interlinked. One cannot be divorced from other, all the same, a
balance has to be struck. National policy of this country, as
already stated, is that atomic energy has a unique position in
the emerging economics in India. Nuclear energy is, therefore,
considered to be a viable source of energy and it is necessary
to increase country’s economic growth. Nuclear energy is now
Page 114
114
considered in India as a sustainable source of energy and India
cannot afford to be a nuclear isolated nation, when most of the
developed countries consider it as a major source of energy for
their economic growth. Renewed momentum against the
setting up of NPPs picked up fast after accidents at the Three
Miles Island Power Plant in USA, Chernobyl in Ukraine and
Fukoshima in Japan. Primary reason for such opposition seems
to be on the issues of the impact of nuclear installations on life
and property, environment, flora and fauna, marine life, nuclear
waste disposal, health, displacement of people etc. which has a
direct link with Article 21 of the Constitution of India and the
environmental laws of the country.
110. Learned counsel appearing for the appellants mainly
contended so far as this project is concerned, the Regulatory
Authorities have consistently legalized the fait accompali
violations presented by the project proponent. Further, it was
alleged that the plant standards had been relaxed, statutory
violations such as construction without permission,
unauthorized setting up and commissioning of discharge
outlets had not only merely been condoned but justified by the
Page 115
115
TNPCB, MoEF etc. Learned counsel also submitted that the
environment clearance granted by the MoEF on 9.5.1989 was
not only vague but with imprecise conditions and that no
environmental impact study or public hearing was conducted.
Further it was stated that no construction was started after
getting the above clearance, but only in the year 2002, by the
time 1994 EIA Notification came into force, consequently, fresh
environmental clearance had to be obtained. Reference was
made to a circular dated 27.3.1998 issued by the MoEF, which
stated that the environmental clearance issued prior to 1994
would not be valid in the case of projects which did not
commence work before 1.8.1998. Referring to explanation 8 to
the EIA Notification of 1994, it was submitted that the project
did not obtain all clearances including NOC from the State
Pollution Control Board, which was required under the Water
Act of 1974 and Air Act of 1981. Project, therefore, did not
have NOC, from the Pollution Control Board, when 1994
Notification came into effect. No fresh environmental
clearance was obtained from MoEF as per the 1994 Notification
and even if obtained, the same would be valid only for five
years of the construction or operation of the project. Further, it
Page 116
116
is also pointed out that the environmental clearance granted on
9.5.1989 was revalidated by a letter dated 6.9.2001, when EIA
Notification of 1994 was in force.
111. Appellants pointed out that the refusal of Russia in
accepting the spent-Fuel also brought about complete change
in the project, since it expanded the activities of transportation
of spent fuel for reprocessing, reprocessing of spent fuel,
generation, storage and disposal of nuclear waste. These
changes, according to the appellants would amount to
expansion and modernization of the project, which required
fresh environmental clearance and revalidation of 1989
clearance, according to the appellants, was impermissible in
law. Learned counsel, therefore, pointed out that all those
factors would indicate that KKNPP Units 1 and 2 required fresh
environmental clearance which the project proponent did not
obtain. KKNPP, it was submitted, is located within 500 metres
of HTL and therefore was a prohibited activity under CRZ
notification 1991. It was pointed out that the project of NPCIL is
not a project of DAE and that only those construction activities
are allowed for which foreshore facilities are essential.
Page 117
117
Construction of KKNPP is therefore not allowed under CRZ
notification. Further, it was pointed out that no environmental
clearance was obtained from MoEF before setting up the
desalination plant and the same is also situated in the CRZ
zone. NPCIL, it was submitted, had not followed the CRZ
Notifications dated 21.5.2002, 19.10.2002 etc. which have got
serious impact on marine life and also on the coastal area. The
discharge of water from the plant into the sea also causes
serious environment impact, especially on the marine life.
Appellants submitted that all those factors were not taken into
consideration when the environmental clearance was granted
by the TNPCB as well as the MoEF. The appellants submitted
that the discharge of radioactive liquid from the two units if not
adequately treated and will affect the quality of marine life and
bio-diversity of flora and fauna and marine resources found in
the Marine National Park and the wedge bank of Gulf of
Mannar. Further, it was contended that as per the stipulation of
MoEF of the year 1980 temperature of the coolant water should
not exceed 5°C. However, NEERI has unilaterally increased it
to 7°C which will have serious effect on marine life apart from
changes in salinity levels.
Page 118
118
112. NPCIL, AERB, MoEF as well as TNPCB have filed detailed
counter affidavits and explained the steps they have taken for
getting environmental clearance for the project at various
levels. Counter affidavits state that comprehensive studies
have been conducted on all issues by environmental experts
and scientists and permissions have been granted taking into
consideration of all safety measures under the Environmental
Protection Act, Notifications issued thereunder and also
following/taking into consideration guidelines laid down by wellknown
International organizations.
113. NPCIL submits that it had submitted its application
for grant of environmental clearance for the project on
12.12.1988. Clearance for installation of NPP was granted by
the Department of Environment and Forests, Government of
Department of Tamil Nadu on 26.12.1988. The Department of
Environment and Forest, Government of Tamil Nadu also
accorded amended clearance to the project vide letter dated
13.2.1989 with certain stipulations. The MoEF also accorded its
approval to Unit 1 and 2 subject to certain conditions stated
Page 119
119
therein on 9.5.1989. After the receipt of Government
clearance, process of land acquisition was initiated and land
acquisition was completed during the period 1991 to 1993.
Pre-project activities like construction of boundary wall, roads
and some buildings were also initiated and completed during
the said period. AERB on 10.11.1989 granted clearance for
locating the plant at Kudankulam after the evaluation of the
site by the Site Selection Committee. Environment Impact
Assessment (EIA) Notification came into force on 27.1.1994
which provided an exception for the project which had
commenced the pre-project stage activities vide exception
clause 8. Notification of 1994, therefore, it was pointed, would
not apply to Units 1 and 2 for which environmental clearance
was already granted on 9.5.1989. Further, it was pointed out
that the environmental clearance dated 9.5.1989 stipulated
that temperature of the Coolant Water should not exceed 5°C,
however, in the light of paragraph 5 of the clearance dated
9.5.1989 and the amendment of Rule 84 of the Environmental
(Protection) Rules, 1986 and Notification dated 22.12.1988
stipulation of 5°C contained in the clearance can be varied.
Further, it was stated that since the discharge from Units 3 to 6
Page 120
120
is essentially in the same area, the temperature of discharge
from Units 1 and 2 can also be limited to 7°C, which according
to NPCIL, will have no impact on marine life.
114. NPCIL, further pointed out that the report of the studies
conducted by the Institute of Ocean Management (IOM), Anna
University, would indicate that there would be no impact on
marine ecosystem due to such discharge and opined that the
temperature differential of the discharged water with respect to
the receiving water should not exceed 7°C. The environmental
clearance was accorded to Units 3 to 6 on the same design as
Units 1 and 2 which stipulated the Condenser Cooling Water
Discharge limit as 7°C. Further it was also pointed out that
during the appraisal of CRZ clearance for Units 3 to 6 before
the grant of CRZ clearance on 25.7.2012 the Expert Appraisal
Committee (EAC) considered the marine impact assessment
and opined that there would be no impact on water qualities
due to the proposed discharge. Further, the TNPCB has also
accorded consent to operate on 28.8.2012 for Units 1 and 2
stipulating the condenser cooling water discharge limit as 7°C.
NPCIL, also submitted that the EIA of units 3 to 6 includes the
Page 121
121
impact of units 1 and 2 as a baseline for computing the
additional impact of units 3 to 6. The concern of the public, it
was submitted, regarding safety, livelihood, radiation etc. have
been adequately addressed during the public hearings on units
3-4 and 5-6 which was granted on 23.09.2008 and 31.12.2009
respectively. Procedure required to be followed under the EIA
notification, 2006 had also been strictly followed. Further, it
was also pointed out that no environmental clearance is
required for establishing the desalination plant since the same
has not been included in the schedule to either 1994
notification or 2006 notification and there is no prohibition in
establishing the plant in the CRZ area.
115. MoEF has filed detailed counter affidavits and also
submitted their written submissions on various aspects. MoEF
submitted that at the relevant point of time, when KKNPP Units
1 & 2 were sought to be established, there was no regulatory
requirement of Coastal Zone Regulations (except 500 meter
norm). Everything was based on the letter written by the then
Prime Minister in November, 1981 to the Chief Ministers of
coastal States regarding necessity to keep clear of all activities
Page 122
122
at least up to 500 metres from the water at the Maximum High
Tide (MHT). Further, it was also urged that pollution from
industrial and town wastes should also be avoided totally.
Following the letter of the then Prime Minister, a working group
was constituted which formulated some environmental
guidelines for the development of beaches in the year 1983.
The permission for location of NPP at Kudankulam was granted
on 25.02.1988 by the Committee on Conservation of Seashore,
State of Tamil Nadu. Later, the Tamil Nadu State
Environmental Committee (TNSEC) also met on 15.12.1988 and
cleared the KKNPP project subject to further monitoring by a
Special Committee. The decision was communicated vide
letter dated 26.12.1988 which was later modified by the
Committee on 13.02.1989 subject to certain conditions
mentioned therein. MoEF had also stated that the DAE,
Government of India had sought for relaxation in respect of the
project from 500 metres. On 19.04.1989, the Prime Minister
approved an exemption of 500 metres norm especially for the
Kudankulam project subject to the MoEF prescribing and
ensuring sufficient safeguards for preserving the ecology, for
Page 123
123
which MoEF accorded approval to KKNPP Units 1 & 2 subject to
the conditions stipulated therein.
116. MoEF issued the CRZ Notification on 19.02.1991 imposing
restrictions on the setting up and expansion of industries,
operation or processes etc. in the coastal zone. This
notification, it was pointed out, did not prohibit the project
already in operation, granted clearance prior to the date of the
issue of Notification. Later, by an amendment dated
12.04.2001, S.O.329(C) amended paragraph 2 on “prohibited
activities” of the Notification dated 19.02.1991 by substituting
a new clause which exempted the projects of DAE. EIA came
into force on 27.10.1994 but MoEF issued a Circular dated
23.07.1998 conveying its decision that the environmental
clearances granted prior to 1994 would be valid in the case of
projects where work had commenced before 01.08.1998. On
31.08.2001, the Director of MoEF visited the Kudankulam plant
site and found that the land acquisition was completed and
construction of Township, Environment and Health Research
Centre and RO plant was in progress.
Page 124
124
117. MoEF took up the stand that 1994 notification would not
apply qua Units 1 & 2 in view of the fact that the environmental
clearance was already granted in the year 1989. Further, it
was also submitted that subsequently while granting the
environmental clearance for Units 3 to 6, public hearing was
conducted as per EIA Notification, 2006. Consequently, it was
submitted that the EIA for the expansion of KKNPP i.e. for
setting up of Units 3 to 6 included the environmental impact on
account of Units 1 & 2. Environmental clearance, it was
pointed out, for the Units 3-4 and 5-6 was granted on
23.09.2008 and 31.12.2012 respectively after following due
procedures required under EIA Notification, 2006.
118. MoEF also maintained the stand that prior environmental
clearance is required only for those activities which are listed in
Schedule to the EIA Notification dated 27.01.1994 or the
subsequent Notification dated 14.09.2006, which superseded
the notification dated 27.01.1994. Desalination plant, it was
submitted, did not find a place in the above mentioned
notifications, hence prior environmental clearance for
establishment of a desalination plant was not required.
Page 125
125
Further, it was pointed out that the same would not preclude
MoEF from considering the issue of desalination plant from the
CRZ point of view. Referring to CRZ amended notification
dated 19.02.1991, it was submitted that the desalination plant
could be established within CRZ area except CRZ-I(i)-i.e. ecosensitive
areas viz. mangroves, sand dunes reserve forests etc.
Reference was also made to CRZ notification dated 06.01.2011,
which superseded the CRZ Notification dated 19.02.1991.
MoEF therefore, maintained the stand that in view of the legal
position desalination plant could be established within the CRZ
area. However, it was pointed out that even though the
desalination plant is a permissible activity within the CRZ area,
MoEF would again take into account the establishment of the
desalination plant from the CRZ point of view and ensure that it
would continue to function to the full satisfaction of MoEF.
119. MoEF has also in the affidavit dealt with the issue of
change in the temperature limit of condenser cooling water
discharge and its impact on marine environment. It was
pointed out that at the time of grant of environmental
clearance on 09.05.1989, the standard temperature difference
Page 126
126
between the inlet and outlet of condensed cooling water for
discharge for temperature was fixed at 5oC. However, vide
notification dated 22.12.1998, Environment (Protection) Rules,
1986 were amended. Rule 84 dealing with the thermal power
plant, the limit prescribed therein would equally apply to NPPs
as the technology for condenser cooling in both thermal as well
as NPPs are the same. The environmental impact on the
marine ecosystem due to +7oC Condenser Cooling Water (CCW)
has been considered by MoEF through the EAC before giving
the environmental clearances for the units 3-4 and 5-6 by
stipulating that the temperature differential of the discharged
water with respect to the receiving water would not exceed
7oC. MoEF therefore concluded that during the appraisal of the
CRZ clearance for units 3-6 of KKNPP before grant of CRZ
clearance on 25.07.2012, the EAC considered the marine
impact assessment, thermal dispersion modeling studies
conducted for condenser cooling water discharge considering
the CCW discharge from all the 6 units i.e. KKNPP 1-6. Further,
it was also pointed out that TNPCB has also accorded consent
to operate on 28.08.2012 for KKNPP units 1 & 2 by stipulating
the CCW discharge limit as 7oC as per the amended
Page 127
127
Environmental Protection Rules. MoEF also maintained the
stand that it will continue to monitor the environmental
standards of KKNPP and periodically inspect as to examine
whether KKNPP units conform to the safety of environment set
by MoEF.
120. Shri Guru Krishna Kumar, learned senior counsel
appearing for TNPCB submitted that it had vide its letter dated
21.06.2001 requested the DAE to apply and obtain a fresh
environmental clearance from the MoEF. MoEF, at that time,
maintained the stand that NPCIL had already taken steps to
implement the project and hence there was no necessity of a
fresh environmental clearance. TNPCB’s officials then
inspected the site of KKNPP on 19.09.2001 and found that it
had started construction of the NPP without valid consent for
establishment as required under the Water (Prevention and
Control of Pollution) Act, 1974 and the Air (Prevention and
Control of Pollution) Act, 1981, consequently, show cause
notices vide proceedings No. DEE/TNPCB/TNV/F.NPPRDF/
W/2001 dated 11.10.2001 and DEE/TNPCB/TNV/F.NPPRDF/
A/2001 dated 11.10.2001 were issued calling for
Page 128
128
explanation. NPCIL later filed applications dated 20.12.2001 for
consent of the TNPCB for the NPP of capacity 2X1000 MW. The
TNPCB issued consent for Establishment vide proceeding dated
25.02.2004. NPCIL had a proposal to use sea water for cooling,
Pechiparai reservoir for fresh water and ground water for
construction. Later, they applied for revised consent which
included additional facilities for desalination plant using sea
water as an input, in place of water supply from Pechiparai
dam. The TNPCB later issued Consent to Operate vide
proceedings dated 23.07.2012 with tolerance limits prescribed
for trade effluent discharge, as per Board Proceeding dated
21.02.1984, which included the tolerance limit for temperature
as 45oC at the point of discharge. Later, TNPCB vide
proceedings dated 22.08.2012 altered the condition to be read
as “not to exceed 7oC over and above the ambient temperature
of sea for trade effluents”.
121. Appellants filed detailed common rejoinder affidavit
traversing the various statements made by AERB, NPCIL, MoEF.
Page 129
129
122. Appellants urged that all facilities related to nuclear fuel
and nuclear waste required an environment clearance under
the EIA notifications of 1994 and 2006. Further, it is pointed
out that when the supplemental agreement with Russia was
entered into in the year 1998 that envisaged this critical
change and hence NPCIL ought to have applied for a fresh
clearance from the MoEF. But MoEF had consistently condoned
such violations of law. Desalination plant, it was pointed, is
bound to cause serious environmental implications and
significant impact on marine life. It was pointed out that plant
has been constructed without mandatory previous “Consent to
Establish” from the TNPCB under the Water Act. The TNPCB
consent to establish was given in the year 2004 while the
desalination plant was envisaged only in the year 2006 and the
construction of the plant has also violated in provisions of the
Water Act since any activity that discharges anything in water
required PCB clearance. Fresh environmental clearance was
therefore not just required for the desalination plant, but for the
nuclear plant as a whole because the desalination plant
introduced a significantly different dimension to pollution,
especially given the fact that highly concentrated salty water is
Page 130
130
being released into the eco-sensitive Gulf of Mannar Biosphere
Reserve. Further, without any legal sanction, NPCIL has
unilaterally increased the temperature from 5oC to 7oC. The
appellant, therefore maintained the stand that unless and until
the plant conforms to the environmental protection laws, the
same shall not be allowed to be commissioned which gives
threat to the life and property of the people who are staying in
and around the plant and it will have adverse effect on the
environment as well as marine life.
Judicial evaluation
123. We will first examine the question whether NPCIL, the
project proponent while establishing the KKNPP, had obtained
all necessary environmental clearance and other requisite
permission from the authorities. No plant specifically the one
dealing with radioactive materials can be allowed to function or
commission even if it has been cleared by AEC, AERB, NPCIL
etc. unless it strictly conforms to the standards set by the
statutory authorities like MoEF, TNPCB etc. and follow the
environmental laws. Most of the issues referred to
hereinbefore, as already indicated, are inter-related and interPage
131
131
connected, therefore, there are bound to be some overlapping
while examining the same. Before examining various legal
issues raised before us, let us first examine the factual
foundation on which they rest.
124. The Government of India after due deliberation with AEC,
AERB, NPCIL and other organizations decided, in principle, to
set up a NPP, for which Site Selection Committee of DAE was
constituted and the Committee examined various sites in the
Coramandel Coast of Tamil Nadu and selected the site at
Kudankulam as the most ideal for selling up of NPP on
scientific, technical, safety, security and environmental point of
view. No regulatory requirement of CZR (except 500 metres
norm) at the sea coast was in force at that time. The Prime
Minister of India had written a letter in November 1981 to all
the Chief Ministers of Coastal States in which it was stated as
under:
“The degradation and misutilization of beaches
in the coastal states is worrying as the beaches
have aesthetic and environmental value as well
as other values. They have to be kept clear of
all activities at least up to 500 metres from the
water at the maximum high tide. If the area is
vulnerable to erosion, suitable trees and plants
Page 132
132
have to be planted on the beaches without
marring their beauty. Beaches must be kept
free from all kinds of artificial development.
Pollution from industrial and town wastes must
also be avoided totally.”
125. Following the letter of the Prime Minister, a nine Member
Working Group comprising experts in the fields of marine
biology, nature conservation, tourism, pollution control and
human settlements was constituted to formulate guidelines for
the development of beaches. The Committee formulated the
environment guidelines for development of beaches in July
1983. Before selecting the site at Kudankulam, a detailed
study was conducted as to the suitability of the site, safety,
radiological impact and its assessment, external natural events,
foundation conditions, water availability and various other
factors. Following that, an application was submitted in the
year 1988 by the NPCIL before the State of Tamil Nadu for
location of NPP at Kudankulam. The application was considered
by the Committee on conservation of seashore of Government
of Tamil Nadu since the plant had to be set up at the sea shore.
The committee after considering the proposal accorded
clearance for the location of the plant at Kudankulam which is
Page 133
133
reflected in the letter dated 25.02.1988 sent by the Secretary
to the Government, State of Tamil Nadu.
126. NPCIL later submitted its application to the Government of
Tamil Nadu for grant of environmental clearance vide its
application dated 12.12.1988. As per the then existing
practice, applications for environmental clearance of a project
like NPP had to be placed before TNSEC which consisted of high
ranking officials including the Chairman and Secretary of
TNPCB etc. Application was placed before the Committee
which met on 15.12.1988 and discussed various issues. The
Executive Director of the project NPCIL explained the project in
detail to the Committee with particular reference to safety
measures. It was also pointed out that a disaster management
plan had already been prepared and submitted by them to the
Government of India and that no rehabilitation of the people
around the site would be necessary. Some of the Members
expressed the apprehension that cyclone condition might affect
nuclear plant, which was allayed by the Executive Director,
NPCIL stating that the proximity of Srilanka would deactivate
the cyclone. The Additional Director (Public Health and
Page 134
134
Preventive Medicines) expressed the apprehension that the
project might pollute the sea water thereby affecting the fish
and the consumers. The Executive Director, NPCIL had assured
that an Environmental Survey Laboratory (ESL) would be set up
30 km away from Kudankulam and samples of water and fish
would be analysed to find out the amount of radioactivity on
the flora and fauna. Safety issues were also discussed in that
meeting. After detailed discussions on various aspects, the
Committee decided to clear the project subject to the
monitoring by a Special Committee, which Committee, it was
stated, would go into the details of safety and rehabilitation
measures proposed in the areas communicated in the project
report.
127. The decision of the TNSEC dated 15.12.1988 was
communicated to NPCIL vide letter dated 26.12.1988 followed
by another letter dated 30.12.1988. On 13.02.1989, TNSEC
modified the environmental clearance contained in its letter
dated 26.12.1988 and decided that environmental clearance
accorded for the installation of KKNPP would be subject to the
Page 135
135
thirty one conditions specified in the annexure to the letter
dated 13.02.1989.
128. The DAE, Government of India sought relaxation in respect
of proposed KKNPP of the guidelines that the coastal beaches
should be kept clear from all building activities upto 500 metres
from the HTL. At that point of time only the Environment
Protection Act, 1986 was in force and the letter of the Prime
Minister of 1981 and 1983 Environmental Guidelines for
Development of Beaches. On 19.04.1989, the then Prime
Minister approved an exemption of 500 metre norm specifically
for KKNPP project subject to the MoEF prescribing and ensuring
sufficient safeguards for preserving the ecology of the beach.
The MoEF vide its Office Memorandum dated 09.05.1989
accorded approval to KKNPP –Units 1 & 2 (2x1000 MW) subject
to following conditions which are given below:
“2. Approval of this Ministry from environmental angle is
accorded subject to the following conditions:-
(i) Special exemption from the present ban on
undertaking any construction within 500 metres from
high tide line (HTL) is accorded to this project subject
to the condition that:
Page 136
136
(a) In such area only the plant and essential
associated structures may be put up and nothing
else should come up in this area;
(b) Attempts should be made to keep such
construction within 500 metres of high tide line as
far way from high tide line as possible;
(c) Adequate measures and environmental
safeguards will be taken for ensuring preservation
of the ecology of the beach;
(d) Since this area has been declared as a biosphere
reserve, the project authorities should take
special precautions to avoid any damage to the
coral reefs or changes in the water quality near the
shore; and
(e) At Environmental Management Plant (EMP) for
the area upto 500 metres from HTL should be
submitted to the Ministry for review.
(ii) The temperature of the condenser water should not
exceed 5oC over and above the ambient temperature
of the water at the point of discharge in the sea.
(iii) The liquid effluents emanating from the different
plants of the power station should be treated to
conform to the standards stipulated by Central/State
Pollution Control Board and International Commission
for Radiological Protection (ICRP)/AERB. Steps should
be taken to prevent ground water pollution.
Adequate number of coastal water quality monitoring
stations should be setup.
(iv) Radio-active wastes (solids and semi-solids)
generated during various operations, both low level
and high level, should be properly treated and
disposed of after proper containment to fix the radioPage
137
137
activity as per the standards/guidelines prescribed by
ICRP/AERB.
(v) No radio-active emissions, fugitive or otherwise, will
be permitted beyond the safety standards prescribed
by AERB.
(vi) The location/alignment of the off-shore berth/jetty
should be selected in such a way that no damage is
caused to the coral reefs. Such construction should
be kept at the minimum.
(vii) The route of the pipeline from Pechiprai reservoir to
the power station should preferably be so selected
that it does not affect forest areas.
(viii) Efforts should be made to avoid forest areas to be
affected due to the proposed transmission corridors
and power evacuation system.
(ix) Adequate precautionary measures should be taken in
transportation of radioactive fuel/ spent
fuel/radioactive wastes, in/out of the country.
(x) Periodical environmental surveillance and monitoring
for radioactive emissions should be undertaken for
measuring radioactivity and record maintained.
(xi) Necessary steps may be taken for educating local
people about the project to allay their apprehension
due to the proposed power station.
Page 138
138
(xii) All the vacant lands within the project zone should be
afforested with a tree density of 1000 per acre. The
type of tree species should be so selected that they
will be able to give maximum density of canopy.
(xiii) From the initial stages of the project the
environmental surveillance and monitoring of this
particular area including the health status of the
population around the power station location should
be carried out and records maintained. This activity
should continue in future also.
(xiv) On-site and Off-site Disaster Management Plan (DMP)
should be prepared as per the guidelines stipulated
by ICRP/AERB and approved by the National
Emergency Response Committee (NERC) of
Department of Atomic Energy, Government of India.
(xv) Necessary approval under the Forest (Conservation)
Act, 1980 and the Wildlife (Protection) Act, 1972 will
be obtained, when applicable.
(xvi) A committee will be set up by the Department of
Atomic Energy consisting of Additional Secretary,
Department of Atomic Energy, Additional Secretary,
Ministry of Environment and Forests, Project Director,
Kudankulam Atomic Power Project, representative of
AERB, Director NEERI, representative of Government
of Tamil Nadu and two prominent public persons for
review of the rehabilitation programmes,
environmental protection measures and public
awareness concerning the project.
(xvii)A detailed rehabilitation plan should be prepared
covering the affected persons within a radius of 2
Page 139
139
kms exclusion zone. It will also be necessary to
provide for some package of benefits for the people
residing in the sterilized zone as there will be some
restriction on the activities of this area. These should
be submitted to this Ministry for review after
examination by the Committee.
3. There should be an environmental cell with suitable
personnel and a laboratory in the project.
4. Adequate financial provisions should be made for
implementation of the above conditions.
5. Conditions may be varied or new conditions imposed in
the interest of environmental protection.
6. The stipulations will be implemented among others, under
the Water (Prevention and Control of Pollution) Act, 1974, the
Air (Prevention and Control of Pollution) Act, 1981 and the
Environment (Protection) Act, 1986.”
129. MoEF has a duty to see that the above-mentioned
conditions are fully complied; which has also dealt with the
exemption from the ban which was at that point of time only a
norm prohibiting any construction within 500 metres of the
HTL. Permission granted also dealt with the temperature of the
condenser and also with radioactive rays, solid and semisolid
generated during various operations including proper
containment to fix the radio activity as per the standards /
guidelines prescribed by ICRB / AERB. Condition for periodical
environmental surveillance was also stipulated so also the
necessity of educating the people, monitoring the health and
Page 140
140
also the provisions for onsite and offsite disaster management
plan and the need for framing a detailed rehabilitation plan.
After the receipt of the nuclear clearance, the process of land
acquisition was initiated and the land acquisition was
completed during the period 1991-1993. Project activities like
construction of boundary was initiated and completed during
the said period. AERB on 10.11.1989 granted clearance for
locating nuclear power plant at Kudankulam after evaluation of
the site by the Site Selection Committee of DAE with
stipulations given in the Annexure alongwith that letter.
Following are the stipulations laid down by AERB:
1. Stipulations made by various State and Central
authorities in giving clearance, should be met. In
addition, plantation in the area under control of the
project should be taken up along with site development.
Studies to assess thermal pollution by making
appropriate models should be carried out.
2. An exclusion zone of 1.6 km radius from the NPP stack
should be established with access control. The Dose
limits specified by AERB will be complied with at this
boundary.
3. The Board noted that Vairavikinaru quarry, Idinthikarai
and Kudankulam settlements are beyond 2 km distance
but within sterilized zone. Suitable legislative and
administrative control measures should be taken
through state authorities to prevent increase in
Page 141
141
population within the sterilized zone beyond natural
growth. Also arrangements must be made to terminate
the lease of the lime stone quarry in 1994.
4. Facility to store at site adequate quantities of water
should be provided to meet the make up requirements
of uninterrupted cooling of core and other safety related
systems on a long term basis. Facilities engineered at
site should meet the requirements even in the event of
possible disruption of piped water supply from
Pechiparai Dam. Ground water sources in the site area
should be surveyed and developed to serve as an
additional back up source to meet the safety needs of
the plant, if water supply from the Pechiparai dam is
interrupted due to any contingency.
5. The Board requires that the safety of the long pipeline
from Pechiparai dam should be ensured by appropriate
security arrangement.
6. NPCIL should take up the water management schemes
with the state government so that water supply to NPP
is ensured all the time. The intake well at the dam
should be provided at lower elevation than the
minimum draw down level of the reservoir.
The Board desires that the structure stability of the
Pechiparai dam should be assessed taking into account
the recent work of strengthening the dam.
7. In the unlikely event of the breach of the dam
alternative sources of water supply should be available
for the site within a reasonable time. NPCIL should
conceptualize schemes at the Detailed Project Report
Page 142
142
(DPR) stage for utilization of the water from upper
Kodiyar storage reservoir for such eventuality.
8. Site related design considerations such as seismic
aspects etc. are to be established before submission of
PSAR. Design should be engineered to meet site
related design basis events.
9. The Board noted that as per the estimate of Health
Physics Division, Maximum Flood Level (MFL) should be
+7.5 m after considering a return period of 1000 years
for the maximum storm. This was reviewed against the
estimated figure of 5.9 m given by the CWPRS. The
Board suggested that MFL must be re-evaluated by
CWPRS conforming with the requirements of IAEA
Safety Guide 50-SG-S10B on “Flooding on Coastal
Sites”. Revised Report of CWPRS should be submitted
to Design Safety Committee.
10. Bore-hole investigations are to be carried out at the
proposed location of various buildings and structures.
The report should be forwarded to design group for
taking into account at the time of actual design.
11. Radiological impact should be assessed with proper
source terms, consideration of topography and relevant
dispersion characteristics of the site. Dose limits
prescribed should be met at a distance of 1.6 km by
incorporating design features in the plant. The
radioactivity releases should be maintained in line with
ALARA principle.
12. The typical radioactivity emission rates used in
evaluation of the site should be compared with the
releases from similar reactors and should be suitably
Page 143
143
adjusted taking into consideration acceptable failed fuel
rates during evaluation by the design safety committee.
13. The Board desires that the adequacy of stack height
of 100 m should be confirmed by NPC at the design
stage, specifically in view of the change in the ground
level of about 40 m on the north side of the plant.
14. Environmental Survey Laboratory should be set up at
site and instruments are to be installed at site to collect
meteorological data and background radiation.
15. Two independent reliable sources of start up power
connected to two points in the electrical network
located in different regions of the grid should be made
available. Availability of a dedicated source of reliable
start up power should be examined.
16. Power evacuation studies particularly that influence
the plant-grid interaction should be pursued. Feasibility
of operation on islanding mode may be studied in
collaboration with CEA.
17. Studies on Biofouling and Jelly-fish etc. that may
affect the water supply should be taken up.
18. Studies on accretion/erosion rate around the plant
site should be carried out. If required, proper protection
should be provided.
19. At least two evacuation routes from plant site during
an emergency should be provided.
Page 144
144
20. The Board recommends that NPCIL shall consider the
possibility of providing an additional facility for spent
fuel storage in future (Away from Reactor Storage AFR).
The site for this should be reserved after considering
the transportation and handling requirement of spent
fuel.
21. Over Dimension Consignment (ODC) committee of
NPCIL should evaluate suitability of transportation of
ODC at design stage.
22. Analysis for the quality of construction water is to be
carried out.
23. This approval is given only for the location of two
units of VVER of 1000 MWe capacity each at the
proposed site. Other detailed investigations are
necessary and NPCIL will have to apply and obtain
permission of AERB before construction at the site
begins.
Coastal Regulation Zone (CRZ)
130. India is a gifted country which has coastal seas, bays,
estuaries, creeks, rivers, backwaters. Critical importance of sea
coast in a country like India need not be over emphasized, the
protection of the same calls for scientific care and diligence and
following Tsunami, Cyclone, earthquake etc., the protection of
the sea coast has assumed added importance.
Page 145
145
131. MoEF in exercise of powers conferred under Section 3(i)
and 3(2)(v) of the Environmental (Protection) Act, 1986 and
Rule 5(3)(d) of the Environmental (Protection ) Rules, 1986
issued a Notification dated 19.2.1991 declaring coastal
stretches as Coastal stretches of seas, backwaters, creeks,
rivers and backwaters which are influenced by tidal action (in
the landward side) upto 500 Mtrs. from the HTL and the land
between the low tide line (LTL) and the HTL are called coastal
regulation zone and regulating activities in the CRZ, both
prohibited and permitted activities. However, it did not prohibit
the project already in operation and granted clearance prior to
the date of the issue of notification. Later by an amendment
dated 12.4.2001 S.O.329(C) amended paragraph 2 on
“prohibited activities” and the notification dated 19.2.1991 by
substituting clause (1) to the following effect “setting up of new
industries and expansion of existing industries except (a) those
directly related to water front or directly needing foreshore
facilities (b) projects of Department of Atomic Energy”.
Page 146
146
132. We find with regard to the location of KKNPP within the
prescribed 500 mtr. within the CRZ an exemption had already
granted as per the then existing norms even prior to 1991 by
the then Prime Minister of India by the communication dated
19.4.1989. Over and above, paragraph 2(1) of 1991 CRZ
Notification as amended by Notification dated 12.4.2011,
exempted projects of Department of Atomic Energy. A
cumulative reading of the permission dated 19.04.1989
accorded by the then existing norms read with paragraph 2(1)
of 1991 Notification, as amended by Notification dated
12.4.2011, we are of the view the KKNPP Units 1 and 2 have not
violated the 1991 CRZ Notification.
EIA Notification 1994 and Environmental clearance:
133. MoEF in exercise of powers conferred under sub-section
(1) and clause (v) of sub-section (2) of Section 3 of the
Environment (Protection) Rules, 1986 read with clause (d) of
sub-rule(3) of Rule 5 of the Environment (Protection) Rules,
1986, issued a Notification dated 27.1.1994 directing that on
and from the date of publication of that notification in the
Official Gazette expansion or modernization of any activity
Page 147
147
(without pollution load is to exceed the existing one) or a new
project listed in Schedule 1 of that Notification shall not be
undertaken in any part of India unless it has been accorded
environmental clearance by the Central Government in
accordance with the procedure specified in the Notification.
The Notification contains an explanatory note regarding the
impact of the assessment Notification dated 27.1.1994.
Relevant portions of the notification are given below for easy
reference:
Expansion and modernization of existing projects:
“A project proponent is required to seek
environmental clearance for a proposed
expansion/modernization activity if the resultant
pollution load is to exceed the existing levels. The
words ‘pollution load” will in this context cover
emission, liquid effluents and solid or semi-solid
wastes generated. A project proponent may
approach the concerned State Pollution Control Board
(SPCB) for certifying whether the proposed
modernization/expansion activity as listed in
Schedule-I to the notification is likely to exceed the
existing pollution load or not. If it is certified that no
increase is likely to occur in the existing pollution
load due to the proposed expansion or
Page 148
148
modernization, the project proponent will not be
required to seek environmental clearance, but a copy
of such certificate issued by the SPCB will have to be
submitted to the Impact Assessment Agency (IAA) for
information. The IAA will, however, reserve the right
to review such cases in the public interest if material
facts justifying the need for such review come to
light.”
134. The Note also deals with exemption for project already
initiated under the explanatory Note 8 which reads as follows:
8. Exemption for projects already initiated:
“For projects listed in Schedule-I to the notification in
respect of which the required land has been acquired
and all relevant clearances of the State Government
including NOC from the respective State Pollution
Control Boards have been obtained before 27th
January, 1994, a project proponent will not be
required to seek environmental clearance from the
IAA. However, those units who have not as yet
commenced production will inform the IAA.”
135. Schedule 1 of the Notification refers to Nuclear power
project and related projects such as heavy water plants,
Page 149
149
nuclear fuel complex, rare earths etc. and the same also deals
with Thermal Power Plant as well.
136. The Central Government, later in exercise of the powers
conferred under Section 23 of Environment Protection Act,
1986 issued a Notification S.O.318(E) dated 10.4.1997,
whereby inter alia introduced Schedule IV into the 1994
Notification prescribing the procedure for public hearing. MoEF
later issued Circular dated 23.7.1998 after reviewing the
progress of cases which were accorded environmental
clearance prior to 27.1.1994 Notification and it had been
observed that a large number of projects had not commenced
constructions or other operations due to various reasons like
non-availability of financial resources, non-availability of
forestry clearance, inter-State water disputes and nonavailability
of essential infrastructure like land, electricity, road
etc. Further it was also noticed that certain projects which
were environmentally appraised even as early as 1980 had not
commenced construction activities. MoEF felt there might have
been significant changes during those years which would have
implications to the environment and ecology of the area. MoEF
Page 150
150
issued the above Circular pointing out that the environment
clearance issued prior to 1994 would not be valid in the cases,
where work did not commence before 1.8.1998. Further it was
also clarified in all such cases fresh environmental clearance
would be required, if those come in the 29 categories listed in
the EIA Notification. Further it was also clarified that projects
which were not listed in Schedule 1 in EIA Notification would
not require environmental clearance.
137. MoEF later inspected the site of the plant on 31.8.2001
and found that land acquisition had been completed and the
construction work on various components such as township,
Environmental and Health Research Centre and RO plant was in
progress. Further, it was noticed that afforestation programme
was undertaken by M.S. Swaminathan Research Foundation
and that till August 2001, Rs.377.30 crore was spent for KKNPP
on various activities.
138. MoEF, noticing the above facts, vide its letter dated
6.9.2001 clarified that environmental clearance granted on
9.5.1989 stands valid and that there is no need to conduct
Page 151
151
public hearing and seek fresh environmental clearance. A chart
giving the details of land acquisition and compensation amount
paid reads as follows:
LAND ACQUISITION DETAILS OF KKNPP
S.No. Name of
Village
Private
land (in
hectares)
Puramboke
land (in
hectares)
Total (in
hectares)
For Plant site
1 Kudankulam 862.775 112.945 975.720
2 Irukkundarai -- 2.675 2.675
3 Vijayapathi 66.750 1.815 68.565
Sub Total 929.525 117.435 1046.960
For Township
1 Chettikulam 153.905 24.300 178.205
Total Land acquired 1225.165
Hectares
Land and Acquisition completed and
awards pronounced
1991-1993
Number of displaced persons Nil
Type of acquired land Dry
Compensation details
S.No. Village Amount paid (Rs.)
Kudankulam 62,02,332.00
Irukkundarai 31,09,727.00
Vijayapathi 6,09,834.00
Total 99,21,893.00
139. We are of the view that the EIA Notification of 1994 would
not apply to KKNPP Units 1 and 2 for which environmental
Page 152
152
clearance was granted on 19.5.1989. 1994 notification, in our
view, would be operative only prospectively except in the case
of expansion and modernization of any activity (if the pollution
load is to exceed the existing one) as on the date of publication
of that notification or a new project listed in Schedule 1 for
which environmental clearance is necessary as per the
notification dated 27.01.1994. So far as KKNPP units 1 and 2
are concerned, they had the relevant clearance from the State
Government including the NOC from the State Pollution Control
Board. Facts stated above would indicate that the land
acquisition process for the plant site and township had
commenced during the year 1990-1991 and awards were
pronounced during the period 1991-1993 by the Land
Acquisition Officer and Special Tehsildars (Land Acquisition)
Government of Tamil Nadu. Annexure R-15 produced along
with the affidavit filed by the MoEF dated 18.10.2012 indicates
the details of total land acquired, the awards pronounced and
the details of the compensation paid. Further sites surveys,
infrastructure design, construction of boundary wall, roads and
some buildings etc. had been completed between1989 to 1994.
The Committee on Conservation of Seashore of Government of
Page 153
153
Tamil Nadu had also granted clearance on 25.2.1988 and the
TNSEC had also granted clearance on 15.12.1988, modified on
13.2.1989. Above facts clearly indicate that the EIA Notification
dated 27.1.1994 would not apply to KKNPP Unites 1 and 2 since
these units stood exempted from the Notification and the
Explanatory Note 8 to the Notification and also the Circular
issued by the MoEF on 23.7.1998 make it more explicit.
140. We may now examine whether there has been any
expansion or modernization of units 1 and 2 resulting in
increase in pollution loads. Plant capacity, we have noticed,
always remained 1000 MWs X2, and the plant model V-412
remained to be as envisaged in 1988 Agreement and 1998
supplementary agreement of 1988. Further, for the purpose of
cooling the steam generated in the steam generator sea water
is required which goes through the steam turbine which runs
the electrical generator to produce electricity. Sea water
consumption is 2,40,000 m3/Hr and the water is to be drawn
from the sea and pass through the condenser for both Units 1
and 2 and once the cooling process is over, it is to be released
to the sea, a process, which has undergone no change from
Page 154
154
what was envisaged before obtaining clearance from MoEF in
9th May, 1989 till date and hence we find no necessity for a
fresh clearance.
Desalination Plant
141. We may now examine whether prior environmental
clearance is a pre-requisite for the establishment of a
desalination plant in terms of EIA Notification dated 27.1.1994
or in terms of the subsequent Notification dated 14.9.2006
which superseded the Notification dated 27.1.1994. Further we
may also examine whether establishment of desalination plant
is permissible in CRZ. We have already indicated that prior
environmental clearance is required only for those activities
which are listed in Schedule 1 to the EIA Notification dated
27.1.1994 or the subsequent Notification dated 14.9.2006
which superseded earlier Notification dated 27.1.1994.
Desalination plant is not seen listed under the abovementioned
notifications. The decision to establish desalination
plant for the purpose of domestic water requirement was taken
by the NPCIL in the year 2004. Earlier when environmental
clearance was granted on 9.5.1989 the proposal was to take
Page 155
155
fresh water from the Pachipari Dam, situated at about 65KM
away from the plant site. The same had to be given up in view
of the involvement of forest land as well as the apprehensions
expressed by the local villagers that the withdrawal of water
from the Dam would deplete the scarce natural resource,
especially at the time of drought. Desalination plant functions
on distillation (Mechanical Vapour Compression) principle. Sea
water would be drawn and would be fed to the plant which
consists of four streams each having capacity of 106.66 cubic
mtr. p.h. Cumulative feed flow of all three operating streams is
670 cubic.mtr p.h. and cumulative reject flow is 350 cubic mtr
ph., balance 320 cubic mtr. p.h. is purified water. Facts would
indicate that there is no generation of air emission, solid waste
and effluent are flowing from the desalination process except
rejects (which also called brine) which is nothing but
concentrated sea water which remains after desalination
process and does not contains external elements. The rejects
will have concentration of 69000 parts per million which would
be mixed with the sea water 1,20,000 cubic mtr. p.h. and
discharged through the outlet channel into the sea which would
give dilution 343 times and reduce the reject to the ambient
Page 156
156
sea water concentration of 35000 parts per million. Experts
say the process would not cause any increase in pollution load
due to desalination.
142. CRZ Notification of 1991, though prohibited, the setting up
of new industries as well as expansion within CRZ, it had
permitted the laying of pipeline and conveying system. 1991
Notification was amended on 21.05.2002 and it was provided
that the desalination plants could be established in the notified
special economic zone, for non-polluting industries within CRZ.
On 19.10.2002, it was again amended and it was provided that
the desalination plants could be established within CRZ except
CRZ – 1(i) – i.e. eco-sensitive areas viz. mangroves, sand dunes,
reserve forests etc. MoEF later issued another notification
dated 06.01.2011 superseding 1991 notification, as per that
para 3(i)(c) and as per para 4(ii)(h) (of 06.01.2011 notification)
makes provisions for the establishment of desalination plants
within CRZ area except CRZ – 1(i).
143. NPCIL informed TNPCB for the inclusion of desalination
facility which was not earlier included in the original application
Page 157
157
for ‘Consent to Operate’. TNPCB considered the request and
accorded “Consent to Operate’ on 20.08.2012 which included
desalination plant. The establishment of desalination plant,
therefore, would not require any fresh environmental
clearance, especially when the same has not been included in
the Schedule 1 to the EIA Notification dated 27.1.1994 or in the
subsequent Notifications dated 14.9.2006, 06.01.2011 etc.
except within CRZ – 1(i).
Change in Temperature Limit
144. We may now examine whether, in the light of paragraph 5
of the clearance dated 9.5.1989 and the amendment to Rule 84
of the Environment (Protection) Rules 1986 by Notification
dated 22.12.1988, the stipulation of 5°C contained in the
clearance can be varied. Environment (Protection) Rules, 1986
was amended vide notification dated 22.12.1988 as
Environment (Protection) Second Amendment Rules, 1988.
Rule 84 deals with the temperature limit for discharge of
condensed cooling water which reads as follows:
Page 158
158
“84. Temperature limit for Discharge of
Condenser Cooling Water from Thermal Power
Plant:
A. New thermal power plants, which will be using water
from rivers/lakes/reservoirs, shall install cooling
towers irrespective of location and capacity. Thermal
power plants which will use sea water for cooling
purposes, the condition below will apply.
B. New projects in coastal areas using sea water:
The thermal power plants using sea water should
adopt suitable system to reduce water temperature
at the final discharge point so that the resultant rise
in the temperature of receiving water does not
exceed 7°C over and above the ambient temperature
of the receiving water bodies.
C. Existing thermal power plants:
Rise in temperature of condenser cooling water from
inlet to the outlet of condenser shall not be more
than 10°C.
D. Guidelines for discharge point:
The discharge point shall preferably be located at the
bottom of the water body at mid-term for proper
dispersion of thermal discharge.
Page 159
159
In case of discharge of cooling water into sea, proper
marine outfall shall be designed to achieve the
prescribed standards. The point of discharge may be
selected in consultation with concerned State
Authorities/NIO.
No cooling water discharge shall be permitted in
estuaries or near ecologically sensitive areas such as
mangroves, coral reefs/spawning and breeding
grounds of aquatic flora and fauna.”
145. Rule 84, of course, deals with the Thermal Power Plant,
which states that the resultant rise in temperature of receiving
water shall not exceed 7°C over and above the ambient
temperature of the receiving water body. Facts indicate that
the limit prescribed under Rule 84 will equally be applicable to
Nuclear Power Plant as well since the technology for condenser
cooling in both, thermal as well as Nuclear Power Plant is the
same. In both systems condenser is cooled by using water,
therefore, the limit on temperature of discharged water will
have to be the same.
146. Let us also examine whether there will be any impact on
the marine eco-system due to +7oC CCW water, for which
Page 160
160
detailed study was conducted by the Institute of Ocean
Management, Anna University, which has submitted its report
in July 2008 and the Engineers India Ltd. along with CHFRI
submitted its report in August 2011. Environmental Impact was
analysed in desalination and the experts are unanimous in their
views, that there would be no impact on the marine ecosystem.
Reports were also considered by the MoEF through the EAC
before giving environmental clearance for the units 3 to 6 on
23.09.2008 and 31.12.2009 and the CRZ clearance on
25.07.2012. TNPCB has also accorded consent to operate on
28.08.2012 for KKNPP Units 1 and 2 by stipulating that
condenser cooling water discharge limit as 7oC as per the
amended Environmental Protection Rules. Therefore, the
contention raised by the appellants that the rise in temperature
of receiving water due to rise in temperature of condenser
cooling water would affect marine eco-system and cannot be
sustained.
147. Appellants have also raised a contention under the EIA
Notification of 1994 that those projects where “all clearances”
including “NOC” from State “PCBs” had not been obtained
Page 161
161
required fresh environmental clearance from MoEF in
accordance with the said notification. Reference was made to
Explanation 8 of the EIA Notification of 1994. Further it was
pointed out that all projects having environmental implications
“required previous consent” to establish and “to operate”
under the Water Act, 1974 and Air Act, 1981 from the State
Pollution Control Board and unless those consents are existing,
plant cannot said to have “all clearances from the State PCBs
as required by the Explanation 8 of the EIA Notification of
1994”.
148. We are of the view that the “environmental clearance” or
“No Objection Certificate” cannot be equated to “consent to
establish” under Section 25 of the Air Act and “consent to
operate” under Section 21 of the Water Act, which were
granted on 25.2.2004 and 28.8.2012 respectively. NPCIL had
undertaken various activities with respect to KKNPP subsequent
to the environment clearance granted by TNSEC on 26.12.1988,
subsequently modified on 13.2.1989.
Page 162
162
149. TNSEC had on 15.12.1988 had already cleared the project,
which tantamount to No Object Certificate (NOC). Only after
clearance or NOC, the question of ‘establishing’ or ‘operating’ a
plant arises. Environmental clearance or NOC was granted to
KKNPP units 1 and 2 as early as 26.12.1988 though the TNPCB
had granted ‘consent to establish’ under Section 25 of the Air
Act on 25.02.2004 and ‘consent to operate’ under the Water
Act on 28.08.2012. Explanatory Note 8 to the Environment
Notification dated 27.01.1994 speaks of exemption for projects
already initiated that is land has been acquired and clearance
of the State Government including NOC, from Pollution Control
Board had been obtained before 27th January 1994, for which no
fresh environmental clearance would be required from Impact
Assessment Agency (IAA). KKNPP units 1 and 2 is, therefore,
entitled to get the benefit of the Explanatory Note 8 to EIA
notification dated 27.01.1994.
150. We also notice that there has been no expansion or
modernization of units 1 and 2, which has resulted in increase
of pollution load. Plant capacity remained the same i.e. 1000
MWs X2, till date and there is no substantial difference in plant
Page 163
163
model and the specifications envisaged in the 1988 agreement
and 1998 supplement agreement. Plant model remains as V-
412, consequently the 1994 EIA notification will not apply qua
KKNPP units 1 and 2.
151. NPCIL, as part of the continuous process to ensure safety
of environment made a Rapid Environmental Impact
Assessment (REIA) of KKNPP Units 1 and 2 in the year 2001.
The National Environmental Engineering Research Institute
(NEERI) retained by NPCIL for conducting their assessment.
REIA report of NEERI examined the baseline data collected
during summer season 2001 within the impact zone for air,
noise, water, land, biological and socio economic environment
including data on radiological parameters which has formed the
basis for predicting, evaluating the potential impact due to
proposed two units of KKNPP at Kudankulam. NEERI submitted
its report in May 2002. In the year 2003 there was yet another
comprehensive EIA by NEERI of KKNPP units 1 and 2 which took
into account the entire season i.e. 12 months. Assessments
were made as part of the continuous process to monitor the
safety of the environment as well as to establish an existing
Page 164
164
base-line status with respect to various environmental points
like air, noise, water, land, biological and socio-economic for
identifying, predicting and evaluating the environmental
potential impact as also to formulate an effective
Environmental Management Plan (EMP). Report was submitted
in January 2003 which was later implemented under the expert
guidance of MS Swaminathan Research Foundation.
Environmental Clearance for KKNPP Units 3 to 6
152. NPCIL consent letter dated 18.2.2007, for grant of
environmental clearance for expansion of the then existing
Nuclear Project (2 x 1000 MW, by adding 2x1000 MW Units 3 &
4), pointed out that the land acquired for locating the proposed
units was already available within the NPP Complex and no
additional land would be required for expansion of the project.
Further it was stated that water for condenser cooling system
would be drawn from the sea and sweet water requirement
would be met from the desalination plant. Further it was
pointed out that no forest land was involved in the project. The
Gulf of Mannar Marine National Park is about 87 KM from the
site, though the Gulf of Mannar Biosphere Reserve Boundary is
Page 165
165
at a distance of about 20-50 mtr. Further it was pointed out
that no displacement of population was envisaged. Project, it
was stated, was to be located in the CRZ-III and that exemption
from 500 mtr. norm in respect of CRZ for Units 1 and 2 was
obtained from the Government of India as far as back in 1989.
Further it was also stated that public consultation was held on
2.6.2007 and that the total cost of the project would be
Rs.14,000 crores which included 307.50 crore for
environmental protection measures.
153. MoEF considered the above-mentioned proposal in
accordance with paragraph 12 of the EIA Notification 2006 read
with paragraph 2.2 sub-clause 2.2.1 (i)(a) of Circular dated
13.10.2006 and MoEF accorded clearance vide communication
dated 23.09.2008 under the provisions of EIA Notification of
2006 subject to the implementation of several conditions,
which read as follow:
(i) On-line continuous monitoring of the temperature of
the discharged cooling water shall be carried out at
the discharged point. It shall be ensured that the
temperature differential of the discharged water
Page 166
166
w.r.t. the receiving water does not exceed 7°C at any
given point of time.
(ii) Necessary prior clearance under the provisions of
CRZ Notification, 1991 for the activities to be located
in CRZ shall be obtained from the Competent
Authority.
(iii) No additional land shall be acquired for any
activity/facility of project.
(iv) AERB clearance for the site shall be obtained before
starting any construction work and a copy of the
same shall be provided to the Ministry of
Environment & Forests.
(v) A scheme for rain water harvesting shall be prepared
in consultation with an expert agency/State Ground
Water Board and details furnished within 3 months of
the issue of the environment clearance letter.
(vi) Greenbelt shall be developed all around the project
boundary covering an area of 180 ha preferably with
local species.
(vii) Noise levels shall be limited to 75dBA. For people
working in the high noise area, requisite personal
protective equipment like earplugs/ear muffs etc.
shall be provided.
(viii) Regular monitoring of conventional gaseous
pollutants, radioactive pollutants in the air as well in
Page 167
167
the discharged water shall be monitored regularly as
per AERB standards.
(ix) Regular monitoring of ambient air quality shall be
carried out in and around the power plant and
records maintained. The location of the monitoring
stations and frequency of monitoring shall be decided
in consultation with SPCB. Periodic reports shall be
submitted to the Regional Office of this Ministry.
Besides air quality, water, food samples and soil shall
also be monitored regularly for radioactive levels in
the surrounding areas and records maintained.
(x) A Disaster Management Plan and Emergency
Preparedness Plan shall be prepared and put in place
as per the norms of AERB. Regular mock drills shall
be undertaken and based on the same, any
modification required, if any, shall also be
incorporated.
(xi) The radioactive waste shall be managed as per the
norms prescribed by AERB.
(xii) The non-radioactive waste water generated from the
plant premises will be suitably treated in STP and the
treated effluents shall be recycled and reused within
the plant premises for greenbelt etc.
(xiii) The radioactive liquid waste emanating from the
plant will be treated and managed as per the
guidelines of AERB/ICRD in this regard.
Page 168
168
(xiv) Provision shall be made for the housing of
construction labour within the site with all necessary
infrastructure and facilities such as fuel for cooking,
mobile toilets, mobile STP, safe drinking water,
medical health care, crèche etc. The housing may be
in the form of temporary structures to be removed
after the completion of the project.
(xv) The project proponent shall advertise in at least two
local newspapers widely circulated in the region
around the project, one of which shall be in the
vernacular language of the locality concerned within
seven days from the date of this clearance letter,
informing that the project has been accorded
environmental clearance and copies of clearance
letter are available with the State Pollution Control
Board/Committee and may also be seen at Website
of the Ministry of Environment and Forest at
http://envfor.nic.in
(xvi) A separate environment management cell with
qualified staff shall be set up for implementation of
the stipulated environment safeguards.
(xvii) Half yearly report on the status of implementation of
the stipulated conditions and environmental
safeguards shall be submitted to this
Ministry/Regional Office/CPCB/SPCB.
(xviii) Regional Office of the Ministry of Environment &
Forests located at Bangalore will monitor the
Page 169
169
implementation of the stipulated conditions. A
complete set of documents including Environmental
Impact Assessment Report and Environment
Management Plan along with the additional
information submitted from time to time shall be
forwarded to the Regional Office for their use during
monitoring.
(xix) Separate funds shall be allocated for implementation
of environmental protection measures along with
item-wise break-up. These cost shall be included as
part of the project cost.
(xx) Full cooperation shall be extended to the
Scientists/Officers from the Ministry /Regional Office
of the Ministry at Chandigarh/the CPCB/ the SPCB
who would be monitoring the compliance of
environmental status.”
154. Notification also stated that the environmental clearance
would be valid for a period of five years to start the operation of
the power plant and that in case of any deviation or alteration
in the project proposed and already submitted to the MoEF for
clearance, a fresh reference should be made to the MoEF to
assess the adequacy of the conditions imposed and to add
additional protection measures required, if any. Further it was
also pointed out that the above stipulations would be in force
Page 170
170
amongst others under the Water Act, 1974, The Air Act, 1981
and the Environment (Protection) Act, 1986 and the Rules
thereunder, Hazardous Wastes (Management and Handling)
Rules, 1989 and its Rules, the Public Liability Insurance Act,
1991 and its amendment.
155. NPCIL submitted yet another application dated 19.11.2009
for environmental clearance for KKNPP expansion Units 5 & 6 (2
x 1000MW). Environmental clearance was granted by the MoEF
vide its communication dated 31.12.2009 incorporating all the
conditions which were stipulated in respect of Units 3 and 4 in
the Notification dated 23.9.2008 and also with additional
conditions which reads as under:
I. “Environmental clearance is subject to obtaining prior
clearance from wildlife angle as applicable due to
proximity of Gulf of Mannar Biosphere Reserve.
II. The grant of environmental clearance does not
necessarily implies that wildlife clearance shall be
granted to the project and that their proposal for
wildlife clearance will be considered by the respective
authorities on their merits and decision taken. The
investment made in the project, if any, based on
environmental clearance so granted, in anticipation of
Page 171
171
the clearance from wildlife angle shall be entirely at the
cost and risk of the project proponent and Ministry of
Environment and Forests shall not be responsible in this
regard in any manner.
III. Environmental clearance is subject to final order of the
Hon’ble Supreme Court of India in the matter of Goa
Foundation v. Union of India in Writ Petition (Civil)
No.460 of 2004, as may be applicable to this project.
IV. First aid and sanitation arrangements shall be made for
the drivers and the contract workers during
construction phase.
V. A sewage treatment plant shall be provided and the
treated sewage conforming to the prescribed standards
shall be used for raising green belt/plantation.
VI. The proponent shall upload the status of compliance of
the stipulated EC conditions, including results of
monitored data on their website and shall update the
same periodically. It shall simultaneously be sent to the
Regional Office of MoEF, the respective Zonal Office of
CPCB and the SPCB. The criteria pollutant levels (stack
and ambient levels) indicated for the project shall be
monitored and displayed at a convenient location near
the main gate of the company in the public domain.
VII. The project proponent shall also submit six monthly
reports on the status of compliance of the stipulated EC
conditions including results of monitored data (both in
Page 172
172
hard copies as well by e-mail) to the respective
Regional Office of MoEF, the respective Zonal Office of
CPCB and the SPCB.
VIII. A copy of the clearance letter shall be sent by the
proponent to concerned Panchayat, Zila
Parishad/Municipal Corporation, urban local Body and
the Local NGO, if any, from whom
suggestions/representations, if any, were received while
processing the proposal. The clearance letter shall also
be put on the website of the Company by the
proponent.
IX. The Environment statement for each financial year
ending 31st March in Form-V as is mandated to be
submitted by the project proponent to the concerned
State Pollution Control Board as prescribed under the
Environment (Protection) Rules, 1986, as amended
subsequently, shall also be put on the website of the
company along with the status of compliance of EC
conditions and shall also be sent to the respective
Regional Offices of MoEF by e-mail.
This issues with the approval of the Competent
Authority.”
156. As provided under EIA 2006 Notification before applying
for environmental clearance for Units 3 to 6 a comprehensive
Page 173
173
EIA study was conducted for Units 3 to 6 which included the
impact of Units 1 and 2 aspect as a base-line for computing
additional impacts of Units 3 to 6. Concern of the public
regarding safety, livelihood, radiation etc. had been addressed
during the public hearing on units 3 to 6 held on 2.6.2007.
Issues raised in the public hearing were:
1. Use of water from Pachi Pari Dam
2. Effect of temperature of discharge water on marine life
3. Radiation emission
4. Solid waste and fuel management
5. Welfare activities of the nearby villagers
6. Compliance with MoEF, IEA and AERB guidelines
7. Environmental impact and monitoring and
8. Site location criteria.
157. It was discussed in the meeting that sea water intake
structure would be located at a depth of 10 mtr. from the Main
Sea Level (MSL ) and at a distance of 1.2 Kms. off shore from
Page 174
174
the shore line. The temperature differential of cooling water at
the discharge point would be limited to 7°C with respect to the
ambient temperature. Discharge of all units, including the
existing two units will be let off into a common discharge
channel parallel to the shore bound and release at the two
extreme ends of the channel. Gates will be provided on East
and West side of the channel, which will be operated depending
upon the ocean current direction in different season. The
modeling was done for all the units of 1000MW each taking into
consideration the futuristic plan of expansion at the proposed
site. The impact zone was shown to be 5 KM.
158. The Environmental Appraisal Committee (EAC) after
holding the public meeting on 02.06.2007 again met on
22.8.2008 and made its recommendations for environmental
clearance for Units 3 and 4 subject to their obtaining CRZ
clearance. We have already indicated that the proposal of EAC
was approved by the MoEF on 23.9.2008 with respect to Units 3
and 4. Later after getting the administrative approval from the
Competent Authority for Units 5 and 6, the same was also
Page 175
175
reported by NPCIL to the MoEF and MoEF vide its letter
accorded clearance on 31.12.2009 for Units 5 and 6 as well.
159. Appellants, therefore, cannot contend that the procedure
laid down under the 1994 and 2006 Notifications had not been
followed. In our view, the EIA for the expansion of KKNPP i.e.
for setting up Units 3 to 6 included the environment impact on
Units 1 and 2 and the cumulative effect of all the six units
definitely formed the base line for the clearance granted by the
MoEF on 23.9.2008 and 31.12.2009. The concern of the public
regarding safety, livelihood, radiation, impact on marine life,
rehabilitation, impact on the sea shore etc. were also
considered and following that necessary clearance was
granted.
160. KKNPP 3 to 6, after having got environmental clearance
from MoEF in September 2008 and December 2009 entrusted
the task of updation of EIA study to M/s Engineers India Ltd.
(EIL), Gurgaon (a Govt. of India Undertaking). EIL, accordingly
carried out the study along with the Central Marine Fisheries
Research Institute (CHFRI) for the expansion of projects on air,
Page 176
176
water, land, noise, biological and socio-economic aspects within
a radius of 10 km from the proposed location. Detailed study
was conducted on the Reactor system of KKNPP 3 to 6, impact
on environment existing environmental status, its prediction
and on environmental management plan report was submitted
in August 2011. The report has also analysed the
environmental impact on the marine ecosystem due to +7oC
CCW water and concluded that it will have no impact on the
marine ecosystem. EIA was considered EAC, while granting
CRZ clearance for the additional reactors 3 to 6 at KKNPP along
with sea water intake and outfall facilities for cooling purpose.
CRZ clearance was granted by MoEF on 25.07.2012 after
following the procedure laid down in the CRZ notification of
2011. TNPCB, as already indicated, has also accorded consent
to operate vide proceeding dated 28.08.2012 incorporating
stringent standard of 7oC over and above the ambient
temperature of sea for the discharge of effluents, through the
cooling water and trade effluent and included permission for
discharge of effluents from desalination plant.
Sustainable Development and impact on eco-system
Page 177
177
161. The Government of India, as already stated, constituted a
fifteen member experts group covering all fields technical,
scientific, environment etc. to provide clarifications on the
various issues raised by group of general public. Efforts were
made by the group to have interaction with the agitators but
met with little success. Group elaborately discussed apart from
safety features of the plant, its ecological effects on
environment and marine life and a Report was submitted to the
Government of India on December 2011. The Government of
Tamil Nadu also appointed an Expert Committee headed by the
former President of AEC Prof. R. Srinivasan along with three
other experts to review the safety features. There has been
consensus among all the expert committee on safety and
security of the plant as well as on the effect on marine ecology,
high protection, impact on land, agriculture, livestock, food,
impact on flora and fauna, biosphere, environmental clearance,
CRZ clearance, fresh water supply, desalination plants,
emergency preparedness etc. Detailed studies have been
conducted on various occasions of the effect of the NPP on air,
water, noise, land, environment and also on biological, marine
Page 178
178
and socio-economic environment; to allay the apprehension
voiced by a section of the people and its worth.
162. Royal Commission on Environmental pollution (UK) in its
very first report, 4(1971) stated as follows:
“The problem we face is how to strike a balance
between the benefits of rising standard of living
and its costs in terms of deteriorations of the
physical environment and the quality of life. In the
past, the danger of polluting the air, water and land
was not fully recognized, but now there is no doubt
that it is a matter of great concern”.
163. Royal Commission had said so in the year 1971. Next
year 1972, the international community convened the United
Nations Conference on Human Environment at Stockholm
(Stockholm Conference) of which India is a signatory.
164. Stockholm Conference not only brought into focus the
human rights approach to the problem of environmental
protection but also recognized the linkage between the
development and environment from which the concept of
“sustainable development” has emerged. The Conference
Page 179
179
noticed that while man is both creature and moulder of this
environment, rapid advances in science and technology had
invested man with the potent power to transform his
environment in countless ways and on an unprecedented scale.
The benefits of development and opportunity to enhance
quality of life, if wrongly or carelessly used, man could do
incalculable harm to human beings and to the environment.
The responsibility of the people to protect and improve the
environment for the present and the future generations was
also recognized. Later the Nairobi Conference and Declaration
1982 re-stated the principles of Stockholm Conference and
high-lighted the importance of intensifying the efforts at the
global, regional and national levels to protect and improve
environment. The United Nations General Assembly (UNGA) in
October 1982 adopted “The World Charter For Nature” and laid
down general principles of environmental protection, action
plan and implementation of scheme which high-lighted the
conservation principles. New Delhi hosted the Delhi
International Conference on Environmental Education 1982
where the International Community called for massive
programme of environmental research and monitoring. The
Page 180
180
Conference suggested that environmental education should
start from childhood and it should be both formal and informal.
165. The United Nations General Assembly vide Resolution
38/161, in the year 1983 suggested the creation of “The World
Commission on Environment and Development” for suggesting
and recommending legal principles based on Stockholm
Conference and Nairobi Conference and many other, then
existing International Conventions and General Assembly
Resolutions. The World Commission submitted its report in
year 1987 which indicated that politicians, industrial leaders
and environmental groups around the world had endorsed
“sustainable development” i.e. meeting the needs of the
present without compromising the ability of future generations
to meet their own needs. United Nations convened a
conference in the year 1983 at Vienna for protection of Ozone
layer which provided foundation for global multilateral
undertakings to protect the environment and public health from
the potential adverse effects of depletion of Stratospheric
Ozone.
Page 181
181
166. United Nations Environmental Programme (UNEP)
convened a Conference at Plenipotentiaries in Montreal in the
year 1987, called the Montreal Protocol 1987, which highlighted
the necessity of limiting and reducing the use of
chlorofluro carbons and other chemicals that deplete ozone.
India has acceded to both the Vienna Convention 1985 and the
related Montreal Protocol, 1987, in the year 1992.
167. Following the Stockholm Conference the second landmark
on environmental protection and development was “United
Nations Conference on Environment and Development
(UNCED), 1992 (Rio Summit). The Conference was held at Rio
(Brazil) in the year 1992 which addressed the twin problems of
environment and development. Rio declaration sets out
general non-binding commands for “sustainable development”
i.e. “human beings who are at the centre of sustainable
development concerns have to exercise their right to healthy
and productive life in harmony with nature”. The Rio
Conference also high-lighted the principle of inter generational
equity. Principles like “precautionary principle” so as to
prevent the environmental degradation and the principle of
Page 182
182
“polluter pays” i.e. to bear the cost of pollution with due regard
to public interest” were high-lighted. The Conference resulted
in conclusion of a treaty on climate change with a general
recognition of the importance of curbing emission of green
house gases, another treaty on bio-diversity aiming at the
preservation of flora and fauna was also concluded. The Rio
Conference also adopted Agenda 21. Section II of that Agenda
deals with topics like protection of the atmosphere, land
resources, deforestation, sustainable agriculture and rural
development, conservation of biodiversity, protection of
oceans, fresh water, toxic chemicals management, hazardous
waste management, solid waste management and radioactive
waste management.
168. An international instrument expressing international
concern for the protection of global environment was the
convention on the Climate Change (UNFCCC) 1992. The
Convention high-lighted the necessity to reduce emissions of
green-house gases believed to be contributing to global
warming. Yet another, convention was The Biodiversity
Convention, 1992 which sought to ensure that animals, plants
Page 183
183
and micro-organisms as well as genetic variety and ecosystem,
water, land and air, in which they live are property protected.
It obligates the countries to promote the protection of ecosystems,
natural habitat and the maintenance of viable
populations of species in natural surroundings. Following the
Rio Summit a Special Session of UNFA held in June 1997 in New
York to review the progress of Rio Earth Summit called “Earth
Summit+5” which adopted a comprehensive document titled
“Programme For Further Implementation of Agenda 21”. The
Conference noticed that since the Rio Conference, global
environment had continued to deteriorate with rising level of
polluting emissions, notably of green house gases, toxic
substances and waste volumes and at operational levels,
including the lowest administrative levels.
169. UN Millennium Declaration, 2000 articulated that prudence
must be shown in the management of all living species and
natural resources, based on the principle of “sustainable
development” and that only then, can the immeasurable riches
provided to us by the nature be preserved for posterity.
Further it was declared that current unsustainable pattern of
Page 184
184
production and consumption must be changed in the interest of
our future welfare and that of our descendants.
170. United Nations General Assembly (UNGA) following the Rio
Declaration and Agenda 21 created a Commission on
Sustainable Development under the United Nations Economic
and Social Council to ensure the effective implementation at
the local, national, regional and international levels of what had
been agreed at the Rio Conference, to ensure follow up of Rio
Summit, to enhance adequate international, scientific and
technological cooperation to catalyse inter-governmental
decision making capacity to ensure regular and effective
reporting on the Agenda 21 and at the national, regional and
global levels.
171. The Delhi Sustainable Development Summit (DSDS) held
in February 2002 at New Delhi, examined and elaborated the
dynamics of concept of sustainable development, with a view
to make recommendations for consideration at the World
Summit at sustainable development to be held in
Johannesburg. Delhi Summit sought to focus on poverty
Page 185
185
alleviation as the overriding concern to achieve sustainable
development.
172. The World Summit on Sustainable Development
(Johannesburg Summit) 2002 convened under the auspices of
commission of sustainable development recommended various
steps for further implementation of Rio Principles and Agenda
21. The Summit recognized that the reduction of poverty is the
greatest global challenge facing the world, for which the World
Solidarity Fund was required to be established to eradicate
poverty and to promote social and human development in
various developing countries. Further, Conference also noticed
that since oceans, seas, islands and coastal areas form an
integrated and essential component of earth’s ecosystem and
are crucial for global food security and for sustaining economic
prosperity and the well-being of many national economies,
particularly, developing countries, it is necessary to ensure
sustainable development of the oceans.
173. United Nations Conference on Sustainable Development,
Rio +20 took place in Rio de Janeiro in June 2012, which also
Page 186
186
took forward looking decisions on a number of thematic areas
including energy, food security, oceans, cities etc. Conference
also focused its attention on green economy in the context of
sustainable development, poverty eradication and an
institutional framework for sustainable development.
174. We have already found on facts that the KKNPP has been
set up and is made functional on the touchstone of sustainable
development and its impact on ecology has been taken care of
following all national and international environmental
principles.
Public Interest and Human Rights
175.We have to resolve the issue whether the establishment of
NPP would have the effect of violating the right to life
guaranteed under Article 21 to the persons who are residing in
and around Kudankulam or by establishing the NPP, it will
uphold the right to life in a larger sense. While balancing the
benefit of establishing KKNPP Units 1 to 6, with right to life and
property and the protection of environment including marine
life, we have to strike a balance, since the production of nuclear
Page 187
187
energy is of extreme importance for the economic growth of
our country, alleviate poverty, generate employment etc.
While setting up a project of this nature, we have to have an
overall view of larger public interest rather than smaller
violation of right to life guaranteed under Article 21 of the
Constitution.
176. Problems highlighted, while setting up a nuclear plant, are
not unique to this nation, because other countries are also
grappling with those situations. In R. v. Inspectorate of
Pollution, ex p Greenpeace Ltd (1994) ALLER 321, the Court
of Appeal in England had occasion to examine the correctness
of the decision taken by Her Majesty’s Inspectorate of Pollution
(HMIP) and Ministry of Agriculture, Fisheries and Food (MAFF)
for allowing testing of new Thermal Oxide reprocessing plant
THORP at Sellafield, HMIP and MAFF had concluded that the
radiological impact of emissions from THORP would be very
small, a plea which was accepted by the court. In R. v. The
Secretary of State for the Environment, ex p
Greenpeace Ltd. (1994) 4 All England Reports 352, the
Greenpeace and Lancashire Country Council sought to quash
Page 188
188
the decision to grant authorization for the disposal of
radioactive waste from THORP. Overall, Potts J. concluded that
Minister had acted correctly in considering first the human
issues related to acceptability of risk and then examining the
wider issue of justification as if they were relevant even though
Minister (incorrectly) believed that they were not relevant, they
had, in fact, weighed the benefits and detriments and were
entitled to reach the conclusion that balance came down on the
side of justification. In R. v. Secretary of State for
Environment, Food and Rural Affairs, ex p Friends on
the Earth Ltd (2002) Environmental Law Review 24, the Court
of Appeal in England had to consider the application of the
principle of justification to the substantive decision in October
2001 with the proposed practice by the British Nuclear Fuels
Limited (BNFL) of manufacturing mixed oxide fuel (MOX) at
Sellafield. Government’s stand was that the “economic
benefits” were sufficient to justify “the very minor radiological
detriments” which would result from the manufacture of MOX.
The Court of Appeal accepted the stand of the Government. In
Marchiorii v. Environment Agency (2002) EWCA Civ 3, the
Court of Appeal examined the validity of the authorization
Page 189
189
granted by the environment agency for the discharge of liquid
wastes from the Atomic Weapons Establishment (AWE) on the
basis of that they could not be justified having regard to the
humanitarian and international law objections to the use of
nuclear weapons. The environment agency took the stand that
the practice of designing, constructing, maintaining and
dismantling nuclear weapons at the AWE justified in the light of
the government’s defence policy. The Court of Appeal rejected
the suggestion that the government decisions on matters such
as the national nuclear deterrent should be subjected to review
by the Courts on merits. However, in R. (Greepeace Ltd) v.
Secretary of State for Trade and Industry (2007)
Environmental Law Reports 29, Sullivan J. high-lighted the
importance of ‘public participation in decision making and
access to justice’ in environmental matters and held that the
government was obliged to honour the promise that it had
made of the fullest public consultation, even if it had made no
such promise which was difficult to see how anything less could
have been consistent with the obligations to provide
opportunities for public participation accepted by the
Government under the United Nations Economic Commission of
Page 190
190
Europe (UNECE). In S.V. France 3RUOH (1991), the European
Commission of Human Rights found that noise, night time
illumination of the power plant, nuclear risk and changes in the
micro climate while interfering with the applicant’s private life
had to be weighed with the general interests of the community.
177. The United States Supreme Court in Metropolitan
Edison Co. v. People Against Nuclear Energy [460 US 766
(1983)] was called upon to determine whether psychological
health damage flowing directly from the perceived risk of a
nuclear accident, in the context of restarting the second reactor
at Three Mile Island, following the accident affecting the other
reactor fell within the scope of environmental impact
assessment under the National Environmental Policy Act. The
Court regarded the perceived risk of a nuclear accident as “a
pervasive element of modern life” and held that such risk was
not an effect on the physical environment. In Alberta
Wilderness Association v. Express Pipelines Ltd. 137 DLR
(4th) 177, in Canadian Court held that no information about
probable future effects of a project can ever be complete or
exclude all possible future outcomes. This principle has been
Page 191
191
endorsed by the Federal Court of Appeal, Canada in
Inverhuron District Ratepayers’ Assn v. Canada (Minister
of the Environment) 2001 FCA 203 in a case involving a dry
storage facility for used nuclear fuel.
178. Much hue and cry has been raised by some sections of the
people about the possible impact of radiation from KKNPP Units
1 and 2, a point which has been addressed by the AERB, NPCIL,
MoEF and all the Expert Committees constituted to go into the
impact and effect of radiation from the units not only on
humans but also on ecology. Experts Committees are of the
unanimous opinion that there will not be any deleterious effects
due to radiation from the operation of KKNPP, and that
adequate safety measures have already been taken. We
cannot forget that there are many potential areas of radiation
reflected in many uses of radioactive materials. Radioactive
materials are used in hospitals, surgeries and so on. Mobile
phone use, though minor, also causes radiation. In a report of
the Department of Telecommunication “Mobile Communication
– Radio Wave and Safety released in October 2012, it has been
stated that a human body is exposed to more electromagnetic
Page 192
192
field radiation in case of a call from mobile phone in
comparison to the radiation from a mobile tower.
179. We have, therefore, to balance “economic scientific
benefits” with that of “minor radiological detriments” on the
touchstone of our national nuclear policy. Economic benefit,
we have already indicated has to be viewed on a larger canvas
which not only augment our economic growth but alleviate
poverty and generate more employment. NPCIL, while setting
up the NPP at Kudankulam, have satisfied the environmental
principle like sustainable development, corporate social
responsibility, precautionary principle, inter - intra generational
equity and so on to implement our National Policy to develop,
control and use of atomic energy for the welfare of the people
and for economic growth of the country. Larger public interest
of the community should give way to individual apprehension of
violation of human rights and right to life guaranteed under
Article 21.
180. Public money running into crores and crores rupees have
already been spent for the development, control and use of
Page 193
193
atomic energy for the welfare of the people and hence, we
have to put up with such “minor inconveniences”, “minor
radiological detriments” and minor environmental detriments”
in our lives because the benefits we reap from KKNPP are
enormous since Nuclear energy remains as an important
element in India’s energy mix which can replace a significant
part of fossil fuels like coal, gas oil etc.
181. The necessity of establishing KKNPP at Kudankulam has
elaborately been discussed in the earlier part of the judgment,
hence not repeated. Justification for establishing KKNPP at
Kudankulam, therefore has been vindicated and all safety and
security measures have already been taken, necessary
permissions and clearances have been obtained from all
statutory authorities. Apprehension expressed by some
sections of the public that if the units are commissioned or put
into operation, it will have far reaching consequences, not only
on the present generation, but also on the future generation, of
the possible radioactive effects of the units, in our view has no
basis. Few of them raised the apprehension that it might
repeat accidents like the one that had happened at Three Miles
Page 194
194
Island, Chernobyl, Union Carbide and Fukushima etc.
Apprehension, however, legitimate it may be, cannot override
the justification of the project. Nobody on this earth can
predict what would happen in future and to a larger extent we
have to leave it to the destiny. But once the justification test is
satisfied, the apprehension test is bound to fail. Apprehension
is something we anticipate with anxiety or fear, a fearful
anticipation, which may vary from person to person.
182. Power generation through a nuclear plant set up after
following all safety standards, rules and regulations, is for the
welfare of the people and for the economic growth of the
country, which is the object and purpose of the Atomic Energy
Act. Nuclear energy assumes as an important element in
India’s energy mix for sustaining economic growth of natural
and domestic use which in future has to replace a significant
part of fossil fuel like coal, oil, gas etc. Electricity is the heart
and soul of modern life, a life meant not for the rich and famous
alone but also for the poor and down trodden. They should also
have an adequate means of livelihood, job opportunities for
which we have to set up Industries and commercial
Page 195
195
undertakings in the public as well as private sector and also
have to invite foreign investment. Generation of electricity is of
extreme importance for their establishment and functioning
and also for domestic consumption. Power generation with the
traditional means, through hydro, thermal electric project, coal
etc are not effective substitution to the power generation
through Nuclear Plant. India has a mammoth population unlike
developed countries, and the consumption of electricity in
domestic, industries, agricultural sector etc. is going up day-byday.
Most of the States are in the grip of power cut; day and
night, for a number of hours, which has adverse effect on their
economic and industrial growth. To sustain rapid economic
growth, it is necessary to double the supply of energy. Energy
tariff is also increasing, nuclear power in the long run will be
much cheaper than other forms of energy.
183. This Court in Chameli Singh and others v. State of
U.P. and another (1996) 2 SCC 549 held that an organized
society right to live as a human being is not ensured by
meeting only the animal needs of man, but secured only when
he is assured of all facilities to develop himself and is freed
Page 196
196
from restrictions which inhibit his growth. Right to shelter
includes adequate living space, safe and decent structure,
clean and decent surroundings, sufficient light, pure air and
water, electricity, sanitation and civil amenities like road etc. so
as to have easy access to his daily avocation.
184. Nuclear power plant is being established not to negate
right to life but to protect the right to life guaranteed under
Article 21 of the Constitution. The petitioner’s contention that
the establishment of nuclear power plant at Kudankulam will
make an inroad into the right to live guaranteed under Article
21 of the Constitution, is therefore has no basis. On the other
hand it will only protect the right to life guaranteed under
Article 21 of the Constitution for achieving a larger public
interest and will also achieve the object and purpose of Atomic
Energy Act.
EXPERTS’ VIEWS –TECHNICAL AND SCIENTIFIC
185. AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert bodies,
are all unanimous in their opinions that adequate safety and
security measures have already taken at KKNPP which are to be
Page 197
197
given due weight that they deserve. Further, as already
indicated NPCIL Task Force Report on Security of all NPPs
including KKNPP dated March 2011, 11.5.2011, AERB-EE Expert
Opinion on Design Committee Safety dated 31.8.2011, 15
Member Expert Team Committee Report (post Fukishama)
dated December 2011, Supplementary Report dated 31.2.2012
on the Grievances raised by some of the agitators, report
submitted by Sri R. Srinivasan, Former President, Atomic
Energy Commission appointed by the State of Tamil Nadu are
all unanimous in their view on the safety and security of KKNPP.
186. MoEF, EAC, TNPCB, Report of IOM, Anna University dated
July 2008 on Impact of NPP on Marine Eco-system, Committee
on Conservation of Sea-Shore of the State of Tamil Nadu,
Report of Engineers India Limited with CHFRI dated August
2011, NEERI dated May 2002 and January 2003 on the Impact
on Air, Water, Land, Eco-system etc. are all unanimous that the
radiation as well as the discharge of water from NPP to the sea
shore will not have serious impact on the marine ecology or on
marine life.
Page 198
198
187. A Constitution Bench of this Court in University of
Mysore v. C. D. Govinda Rao AIR 1965 SC 491, held that,
normally, Court should be slow to interfere with the opinion
expressed by the Experts and it would normally be wise and
safe for the courts to leave the decisions to experts who are
more familiar with the problems which they face than the
courts generally can be which has been the consistent view
taken by this Court. Reference may be made to the judgments
of this Court in State of Bihar v. Asis Kumar Mukherjee
(Dr.) (1975) 3 SCC 602, Dalpat Abasaheb Solunke v. B. S.
Mahajan (1990) 1 SCC 305, Central Areca Nut & Cocoa
Marketing & Processing Coop. Ltd. v. State of Karnataka
(1997) 8 SCC 31, Dental Council of India v. Subharti K. K.
B. Charitable Trust & Another (2001) 5 SCC 486,
Basavaiah (Dr.) v. Dr. H. L. Ramesh (2010) 8 SCC 372 and
Avishek Goenka v. Union of India (2012) 5 SCC 275. In
Woon Tankan and Seven Others v. Asian Rare Earth Sdn.
Ehd. CLJ (1992) 2 207, the Supreme Court of Malaysia vide its
judgment dated 23.12.1993 examined the effect of low-level
radioactive waste on the health of the population. The
Supreme Court upheld the plea of the company, placing
Page 199
199
reliance on the expert opinion expressed by the Atomic Energy
Licensing Board (AELB) and took the view that since the
company has been operating under license granted by AELB,
an expert body, it will be taken that the expert body had the
expertise to speak on the radiation level of the radioactive
waste, on the health of the population.
188. We have noticed that, so far as this case is concerned,
from the safety and security point of view of life and property,
on environment and all that related aspects, all the Expert
Bodies are unanimous in their opinion that KKNPP has fully
satisfied all safety norms to safeguard the human life, property
and environment which, we are sure, will allay the fears and
apprehensions expressed by the people living in and around
Kudankulam. The Court, in our view, cannot sit in judgment on
the views expressed by the Technical and Scientific Bodies in
setting up of KKNPP plant at Kudankulam and on its safety and
security.
CONCLUSION
Page 200
200
189.KKNPP has, therefore been set up as part of India’s
National Policy so as to develop, control and use of atomic
energy for the welfare of the people of India. Policy makers
consider nuclear energy as an important element in India’s
energy mix for sustaining economic growth of natural and
domestic use. For setting up the project, the project proponent
has taken all safety requirements in site and off site and has
followed the code of practices laid down by AERB, based on
nationally and internationally recognized safety methods.
Safeguarding the nuclear plants, radioactive materials and
ensuring its physical security have become a central part of
Nuclear Law. Adequate measures have, therefore, to be taken
for storage of NSF at site, and also for the physical safety of
stored NSF. Of the seventeen suggested safety measures, by
AERB, LWR, twelve have already been implemented and the
rest, in a phased manner have to be implemented which the
experts say, are meant for extra security. DMP is already in
place, so also the emergency preparedness plan, off site and on
site and all programmes under CSR are progressing in the right
direction with the co-operation and assistance of the District
Administration.
Page 201
201
190. NPCIL, has also received necessary environmental
clearance from MoEF, TNPCB, etc for Units 1 to 6. No violation
of CRZ is also noticed. Desalination Plant is also established
after following rules and regulations and there is no violation of
CRZ. Experts say that there will be no impact on the marine
eco-system due to discharge of +7ºCC, CCW over and above
the ambient temperature of the sea. Radiation impact on the
eco-system is also within the standard set by AERB, MoEF, EAC,
Pollution Control Board etc., so opined by the Experts. In other
words, all the expert teams are unanimous in their opinion of
the safety and security of the KKNPP both to life and property of
the people and the environment which includes marine life.
Court has to respect national nuclear policy of the country
reflected in the Atomic Energy Act and the same has to be
given effect to for the welfare of the people and the country’s
economic growth and it is with these objectives in mind KKNPP
has been set up.
Dipak Misra, J.
191. I have my respectful concurrence with the views and
conclusions expressed by my respected learned Brother
Page 202
202
Radhakrishnan on all aspects. However, I propose to add a few
words in addition to what has been eruditely stated by my
learned Brother.
Prologue
192.At the very inception, I may state that in the cases at hand,
we are faced with a situation whether to interfere in the
establishment, operation and functionalism of a nuclear
plant coming up at Kudankulam and interdict its operation
because of numerous grounds assiduously urged in
voluminous pleadings encompassing the broad canvas,
namely, statutory violations of the entire gamut of
environmental law, exhibition of non-chalant attitude
towards public opinion, show of total disrespect towards
nature’s inconsistencies, keeping at bay the constant
apprehension and threat of the known and the unknown,
absolute contempt for predictable danger that has
surfaced on certain parts of the Globe and the
unpredictable disaster that may be faced by the populace
of the locality and, most importantly, the public safety in
praesenti and in futuro, or take cognizance of the needs
and necessities of the public at large, the concept of public
Page 203
203
policy and the scope of judicial review, the precautions
already undertaken and further assured to be taken within
a specific time span, the opinion of the experts, the
impossible avoidance of certain facets of existence in
today’s world, the global phenomena of requirement of
electricity as a source of energy and various innovative
methods to meet the same, the safety measures carried
out and the steps undertaken to manage the disaster in
case it occurs and finally to march ahead with life allaying
all apprehensions with a scientific mindset accepting the
nature’s unpredictability to survive on the planet earth on
the bedrock of the doctrine – survival of the fittest.
The concern for safety under the Atomic Energy Act,
1948:
193.Bearing in mind the broad scenario, few aspects are
required to be harped upon. Independent India perceived
the need and use of nuclear energy in this country. The
Atomic Energy Act, 1948 conceived the constitution of the
Atomic Energy Commission which came into being in 1954.
After the repeal of the 1948 Act and coming into force of
Page 204
204
the Atomic Energy Act, 1962 (for brevity “the 1962 Act”), a
larger field was covered. The 1962 Act was enacted to
provide for the development, control and use of atomic
energy for the welfare of the people of India and for other
peaceful purposes and for matters connected therewith.
The dictionary clause as contained in Section 2 takes into
consideration many an aspect pertaining to equipment,
substance, radiation and radioactive substance, etc.
194.Certain provisions of the 1962 Act may be usefully referred
to. Section 3 of the 1962 Act deals with general powers of
the Central Government. Sub-section (e) of Section 3
reads as follows:-
“3. General powers of the Central
Government
Subject to the provisions of this Act, Central
Government shall have power –
(e) to provide for control over radioactive
substances or radiation generating plant in order
to-
(i) prevent radiation hazards;
(ii) secure public safety and safety of persons
handling radioactive substances or radiation
generating plant; and
Page 205
205
(iii) ensure safe disposal of radioactive
wastes;”
[Emphasis supplied]
195.Section 17 deals with special provisions for safety which
reads as follows :-
Special provisions as to safety
(1) The Central Government may, as regards any
class or description of premises or places, being
premises or places, in which radioactive
substances are manufactured, produced, mined,
treated, stored or used or any radiation generating
plant, equipment or appliance is used, make such
provision by rules as appear to the Central
Government to
be necessary —
(a) to prevent injury being caused to the health of
persons employed at such premises or places
or other persons either by radiations, or by the
ingestion of any radioactive substance;
(b) to secure that any radioactive waste products
resulting from such manufacture, production,
mining, treatment, storage, or use as aforesaid
are disposed of safely;
(c) to prescribe qualifications of the persons for
employment at such premises or places and
the regulation of their hours of employment,
minimum leave and periodical medical
examination. and the rules may, in particular
and without prejudice to the generality of this
Page 206
206
subsection provide for imposing requirements
as to the erection or structural alterations of
buildings or the carrying out of works.
(2) The Central Government may, as respects the
transport of any radioactive substance or any
prescribed substance specified by an order issued
under this Act as being dangerous to health, make
such rules as appear to be necessary to prevent
injury being caused by such transport to the
health of persons engaged therein and other
persons.
(3) Rules made under this section may provide for
imposing requirements, prohibitions and
restrictions on employers, employed persons and
other persons.
(4) Any person authorised by the Central
Government under this section, may, on
producing, if so required, a duly authenticated
document showing his authority, enter at all
reasonable hours any premises, or any vehicle,
vessel or aircraft for the purpose of ascertaining
whether there has been committed, or is being
committed, in or in connection with the premises,
vehicle, vessel or aircraft, any contravention of the
rules made under this section.
(5) In the event of any contravention of the rules
made under this section, the Central Government
shall have the right to take such measures as it
may deem necessary to prevent further injury to
persons or damage to property arising from
radiation or contamination by radioactive
substances including, without prejudice to the
generality of the foregoing provisions, and to the
right to take further action for the enforcement of
Page 207
207
penalties under section 24, the sealing of
premises, vehicle, vessel, or aircraft, and the
seizure of radioactive substances and
contaminated equipment.”
[Emphasis added]
196.I have referred to the aforesaid provisions to highlight the
emphasis laid on the public safety and safety of persons
handling radioactive substances and to control the
repercussions by the legislature. Before I dwell upon in
detail with regard to the necessity of safety, the measures
taken and the constant vigil for future, it is apt to scan the
anatomy of the Preamble, which has already been referred
to. The preamble can be segregated into three parts
namely, (i) development, control and use of atomic
energy, (ii) for the welfare of the people of India and (iii)
for other peaceful purposes. Thus, on one hand, the need
was felt to get into the global arena for producing nuclear
energy and, on the other, which is as important as the first
one, for the welfare of the people. The necessity to
generate energy from various sources in India was and still
is a felt necessity. It has been submitted by the learned
counsel for the appellant with immense emphasis that
Page 208
208
apart from violation of the Environment (Protection) Act,
1986 and the notifications framed thereunder, the study
would reflect that there would be multiple ecological
problems and further the safety of the local people would
be absolutely in peril. My learned brother has already
dealt in detail with regard to the submissions pertaining to
the violations of the statutory provisions, the Rules and the
Notifications relating to various environmental issues. I do
not intend to add anything in that regard. My deliberation
shall be on the concept of welfare and safety relating to
the use of nuclear energy for the purpose of development.
Needless to say, it has to be totally guided by the
conception of public safety and welfare of the citizens.
The term ‘welfare’ is always related to the living
generation and generations to come. It has been
contended before us by the learned counsel for the
appellant that the basic care has not been taken to make
the nuclear plant at Kudankulam a safe one and further
when the entire globe has been shaken by the Fukushima
tragedy, the Government of India, without taking recourse
to the participative process of public hearing and showing
Page 209
209
scant respect for public safety, has plunged into such an
activity. That apart, it is highlighted that the radioactive
substances have the real potentiality to gravely affect the
present generation and that, in turn, will usher in immense
disaster and suffering for the future generations. Per
contra, learned counsel for the respondents would urge
that the plant is based and founded on sophisticated
technology and there are more than three layers of
protection for safety which is not available in other nuclear
plants in other parts of the world. In essence, it is
submitted that all possible measures have been taken to
avoid any kind of calamity.
197.It is borne out from the material on record that two aspects
have weighed with many a nation while thinking of a
nuclear energy plant, namely, the caution and
circumspection at the time of operation and how to deal
with radioactive waste. We have been apprised how the
re-use of radioactive waste is done by a sophisticated
method and the danger is kept at bay. On one hand, there
is requirement of energy and the need of progress and
development and, in a way, to compete with the
Page 210
210
progressive phenomenon of the other countries in many a
sphere and, on the other, the likelihood of danger to be
caused to the people of the locality and the effectpotentiality
to affect the larger section of public because of
disposal of radioactive waste and transportation.
Certain Conventions pertaining to safety:
198.At this juncture, I may profitably refer to the Convention on
Nuclear Safety adopted on 17th June, 1994 in the
Conference convened by the International Atomic Energy
Agency at its Headquarters. India is a signatory to the said
Convention. The Preamble of the Treaty reads as follows: -
i.“Aware of the importance to the international
community of ensuring that the use of nuclear
energy is safe, well regulated and environmentally
sound;
ii.Reaffirming the necessity of continuing to promote
a high level of nuclear safety worldwide;
iii.Reaffirming that responsibility for nuclear safety
rests with the State having jurisdiction over a
nuclear installation;
iv.Desiring to promote an effective nuclear safety
culture;
v.Aware that accidents at nuclear installations have
the potential for transboundary impacts;
vi.Keeping in mind the Convention on the Physical
Protection of Nuclear Material (1979), the
Convention on Early Notification of a Nuclear
Accident (1986), and the Convention on Assistance
Page 211
211
in the Case of a Nuclear Accident or Radiological
Emergency (1986);
vii.Affirming the importance of international cooperation
for the enhancement of nuclear safety
through existing bilateral and multilateral
mechanisms and the establishment of this
incentive Convention;
viii.Recognizing that this Convention entails a
commitment to the application of fundamental
safety principles for nuclear installations rather
than of detailed safety standards and that there
are internationally formulated safety guidelines
which are updated from time to time and so can
provide guidance on contemporary means of
achieving a high level of safety;
ix.Affirming the need to begin promptly the
development of an international convention on the
safety of radioactive waste management as soon
as the ongoing process to develop waste
management safety fundamentals has resulted in
broad international agreement;
x.Recognizing the usefulness of further technica l
work in connection with the safety of other parts
of the nuclear fuel cycle, and that this work may,
in time, facilitate the development of current or
future international instruments;”
[Emphasis supplied]
199.Article 10 deals with priority to nuclear safety. It reads as
follows: -
“Each Contracting Party shall take the appropriate
steps to ensure that all organizations engaged in
activities directly related to nuclear installations shall
establish policies that give due priority to nuclear
safety.”
[Emphasis added]
Page 212
212
200.Article 14 provides for assessment and verification of
safety. It is as under: -
“(i) comprehensive and systematic safety
assessments are carried out before the construction
and commissioning of a nuclear installation and
throughout its life. Such assessments shall be well
documented, subsequently updated in the light of
operating experience and significant new safety
information, and reviewed under the authority of the
regulatory body;
(ii) verification by analysis, surveillance, testing
and inspection is carried out to ensure that the
physical state and the operation of a nuclear
installation continue to be in accordance with its
design, applicable national safety requirements,
and operational limits and conditions.”
[Emphasis supplied]
201.Article 16 stipulates emergency preparedness. It reads as
follows: -
“1. Each Contracting Party shall take the
appropriate steps to ensure that there are on-site
and off-site emergency plans that are routinely
tested for nuclear installations and cover the
activities to be carried out in the event of an
emergency.
For any new nuclear installation, such plans
shall be prepared and tested before it commences
operation above a low power level agreed by the
regulatory body.
Page 213
213
2. Each Contracting Party shall take the appropriate
steps to ensure that, insofar as they are likely to
be affected by a radiological emergency, its own
population and the competent authorities of the
States in the vicinity of the nuclear installation are
provided with appropriate information for
emergency planning and response.
3. Contracting Parties which do not have a nuclear
installation on their territory, insofar as they are
likely to be affected in the event of a radiological
emergency at a nuclear installation in the vicinity,
shall take the appropriate steps for the
preparation and testing of emergency plans for
their territory that cover the activities to be
carried out in the event of such an emergency.”
202.Article 19 deals with operations. It is as follows: -
“Each Contracting Party shall take the appropriate
steps to ensure that:
(i) the initial authorization to operate a nuclear
installation is based upon an appropriate safety
analysis and a commissioning programme
demonstrating that the installation, as
constructed, is consistent with design and
safety requirements;
(ii) operational limits and conditions derived from
the safety analysis, tests and operational
experience are defined and revised as
necessary for identifying safe boundaries for
operation;
(iii) operation, maintenance, inspection and testing
of a nuclear installation are conducted in
accordance with approved procedures;
(iv) procedures are established for responding to
anticipated operational occurrences and to
accidents;
(v) necessary engineering and technical support in
all safety-related fields is available throughout
the lifetime of a nuclear installation;
Page 214
214
(vi) incidents significant to safety are reported in a
timely manner by the holder of the relevant
licence to the regulatory body;
(vii) programmes to collect and analyse operating
experience are established, the results obtained
and the conclusions drawn are acted upon and
that existing mechanisms are used to share
important experience with international bodies
and with other operating organizations and
regulatory bodies;
(viii) the generation of radioactive waste resulting
from the operation of a nuclear installation is
kept to the minimum practicable for the process
concerned, both in activity and in volume, and
any necessary treatment and storage of spent
fuel and waste directly related to the operation
and on the same site as that of the nuclear
installation take into consideration conditioning
and disposal.”
[Underlining is mine]
203.The aforesaid Convention, as is demonstrable from the
various Articles, lays down the priority to nuclear safety,
comprehensive and systematic safety assessments at all
stages including the life span of the plants, verification by
analysis, surveillance, testing and inspection, regard being
had to the safety requirements, emergency planning and
preparedness to take care of the people in the vicinity of
the nuclear installation, necessary engineering and
technical support in all safety related fields available
throughout the life time of the nuclear installation,
Page 215
215
constant reporting by the operator to the regulatory body
pertaining to safety and the handling of radioactive waste
resulting from the operation and the measures of safety
carried thereon.
204.In this regard, I may refer with profit to another
Convention, namely, the Joint Convention on the Safety of
Spent Fuel Management and on the Safety of Radioactive
Waste Management dated 5th September, 1997. I may
hasten to add that India is not a signatory to the same but
the said Convention is worth referring to in order to
understand and appreciate the world-wide concern for
public safety. Chapter 2 deals with safety of spent fuel
management, Chapter 3 deals with safety of Radioactive
Waste Management and Chapter 4 deals with General
safety provisions. Article 4 occurring in Chapter 2 deals
with general safety requirements. Clauses (v) and (vii)
read as follows: -
“Article 4. General Safety Requirements
Each Contracting Party shall take the
appropriate steps to ensure that at all stages of
spent fuel management, individuals, society and the
Page 216
216
environment are adequately protected against
radiological hazards.
In so doing, each Contracting Party shall take
the appropriate steps to:
(v) take into account the biological, chemical and
other hazards that may be associated with spent fuel
management;
(vii) aim to avoid imposing undue burdens on future
generations.”
205.Article 11 in Chapter 3 pertains to General Safety
Requirements. It is reproduced below: -
“Each contracting Party shall take the appropriate
steps to ensure that at all stages of radioactive
waste management individuals, society and the
environment are adequately protected against
radiological and other hazards.
In so doing, each Contracting party shall take
the appropriate steps to:
(i) ensure that criticality and removal of residual
heat generated during radioactive waste
management are adequately addressed;
(ii) ensure that the generation of radioactive waste
is kept to the minimum practicable;
(iii) take into account interdependencies among the
different steps in radioactive waste
management;
(iv) provide for effective protection of individuals,
society and the environment, by applying at the
national level suitable protective methods as
Page 217
217
approved by the regulatory body, in the
framework of its national legislation which has
due regard to internationally endorsed criteria
and standards;
(v) take into account the biological, chemical and
other hazards that may be associated with
radioactive waste management;
(vi) strive to avoid actions that impose reasonable
predictable impacts on future generations
greater than those permitted for the current
generation;
(vii) aim to avoid imposing undue burdens on future
generations.”
[Emphasis added]
206.Article 15 deals with Assessment of Safety of facilities.
The relevant clauses are as under: -
“Each Contracting Party shall take the appropriate
steps to ensure that:
(i) before construction of a radioactive waste
management facility, a systematic safety
assessment and an environmental assessment
appropriate to the hazard presented by the
facility and covering its operating lifetime shall
be carried out;
(ii) in addition, before construction of a disposal
facility, a systematic safety assessment and
environmental assessment for the period
following closure shall be carried out and the
results evaluated against the criteria
established by the regulatory body;
(iii) before the operation of a radioactive waste
management facility, updated and detailed
Page 218
218
versions of the safety assessment and of the
environmental assessment shall be prepared
when deemed necessary to complement the
assessments referred to in paragraph (i).”
207.Article 22 that occurs in Chapter 4 deals with Human and
Financial Resources. It is apt to reproduce the same: -
“Each Contracting Party shall take the appropriate
steps to ensure that:
(i) qualified staff are available as needed for
safety-related activities during the operating
lifetime of a spent fuel and a radioactive waste
management facility;
(ii) adequate financial resources are available to
support the safety of facilities for spent fuel and
radioactive waste management during their
lifetime and for decommissioning;
(iii) financial provision is made which will enable the
appropriate institutional control and monitoring
arrangements to be continued for the period
deemed necessary following the closure of a
disposal facility.”
208.Article 23 deals with quality assurance. It reads as
follows:-
“Each Contracting Party shall take the necessary
steps to ensure that all appropriate quality assurance
programmes concerning the safety of spent fuel and
radioactive waste management are established and
implemented.”
Page 219
219
209.The aforesaid Convention, as is seen, lays emphasis on
ecological hazards, avoidance of undue burden on future
generations, management of radioactive waste, adequate
protection against radiological and other hazards,
application of suitable protective methods approved by the
regulatory body keeping in view the interest of the
individual and the society, to avoid actions that impose
reasonable predictable impact on future generations, the
systematic safety assessment and environmental
assessment appropriate to the hazards presented by the
facility and covering its operating lifetime, the institutional
control and mandatory arrangements and ensuring of
appropriate quality assurance programmes concerning the
safety from spent fuel and radioactive waste. I am
absolutely conscious that India has not ratified the said
Convention but the safety concern at any level is a
fundamental human concern. I have referred to the same,
to repeat at the cost of repetition, to show the concern of
many countries, especially, relating to safety measures
taken at all times. The 1962 Act and the Convention which
has been ratified by India speak eloquently about that.
Page 220
220
The conception of public safety, at no stage, can be
brushed aside or ignored. It has to be treated with
paramount primacy and highest priority for the simon pure
reason life delights every person and creates an innate
desire to live.
Necessity of Electrical Energy by the State and Concept
of Public Safety:
210.In Anderson v. Dunn1, the U.S. Supreme Court, in a
different context, long back had stated about the role of
the State and the safety of the citizens: -
“No one is so visionary as to dispute the assertion,
that the sole end and aim of all our institutions is the
safety and happiness of the citizen. But the relation
between the action and the end, is not always so
direct and palpable as to strike the eye of every
observer. The science of government is the most
abstruse of all sciences; if, indeed, that can be called
a science which has but few fixed principles, and
practically consists in little more than the exercise of
a sound discretion, applied to the exigencies of the
state as they arise. It is the science of experiment.”
After so stating, the U.S. Supreme Court proceeded to
observe as follows: -
1 19 U.S. [6 Wheat.] 204 (1821)]
Page 221
221
“That ‘the safety of the people is the supreme law’,
not only comforts with, but is indispensable to, the
exercise of those powers in their public functionaries,
without which that safety cannot be guarded.”
211.In Charan Lal Sahu v. Union of India2, this Court, while
dealing with the constitutional validity of the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985, observed
that the said enactment was passed as a sequel to a grim
tragedy that occurred on the night of December 2, 1984.
This Court treated it to be the most tragic industrial
disaster in recorded human history. While discussing the
concept of parens patriae, the learned Chief Justice
observed that the conception of the parens patriae theory
is the obligation of the State to protect and it takes into
custody the rights and the privileges of its citizens for
discharging its obligation. While dealing with the said
concept, it has been opined that the maxim salus populi
suprema lex – regard for public welfare - is the highest law.
212.I have referred to the said pronouncement solely to
emphasize on the role of the State to act in the greater
welfare of the collective and how the public welfare has
been treated to be at the zenith of law.
2 (1990) 1 SCC 613
Page 222
222
213.In Union Carbide Corporation v. Union of India and
others3, a Constitution Bench regarded the Bhopal Gas
Leak Tragedy as a horrendous industrial mass disaster,
unparalleled in its magnitude, and the devastation and
remains a ghastly monument to the dehumanizing
influence of inherently dangerous technologies. While
dealing with the justness and reasonableness of the
quantum of settlement, the Constitution Bench adverted to
the problems emerging from the pursuit of such dangerous
technologies for economic gains by multinationals,
availability of cheap labour, captive markets and the facets
of economic exploitation in developing countries where the
matters of concern were propounded before the court and
in that context, it has been observed as follows: -
“32. These issues and certain cognate areas of even
wider significance and the limits of the adjudicative
disposition of some of their aspects are indeed
questions of seminal importance. The culture of
modern industrial technologies, which is sustained on
processes of such pernicious potentialities, in the
ultimate analysis, has thrown open vital and
fundamental issues of technology options.
Associated problems of the adequacy of legal
protection against such exploitative and hazardous
3 (1989) 3 SCC 38
Page 223
223
industrial adventurism, and whether the citizens of
the country are assured the protection of a legal
system which could be said to be adequate in a
comprehensive sense in such contexts arise. These,
indeed, are issues of vital importance and this
tragedy, and the conditions that enabled it happen,
are of particular concern.”
214.Thereafter, the Court referred to the technology in
agriculture that has given a big impetus to enterprises of
chemical fertilizers and its serious problems. Thereafter, it
has been stated thus: -
“34. Indeed, there is also need to evolve a national
policy to protect national interests from such ultrahazardous
pursuits of economic gains. Jurists,
technologists and other experts in economics,
environmentology, futurology, sociology and public
health etc. should identify areas of common concern
and help in evolving proper criteria which may
receive judicial recognition and legal sanction.”
215.In Pritam Pal v. High Court of Madhya Pradesh,
Jabalpur through Registrar4, the maxim salus populi
suprema lex, i.e., welfare of the people is the supreme law,
was again emphasised upon, though in a different context.
4 1993 Supp (1) SCC 529
Page 224
224
216.At this juncture, I must also refer to the other maxim salys
republicae supreme lex, i.e., safety of the State is the
supreme law and in case of any conflict, an individual must
yield to the collective interest. But, it should not be done
at the cost of safety. At all times and at all quarters,
sincere efforts are to be made to maintain and sustain the
safety of the people. That has been spoken by the
ancients when the Kings ruled and the same reigns
supreme in a democratic set-up. True it is, there are
exceptions, but the exceptions are to remain in the realm
of exceptions only and should not be brought into play
either at the whim or fancy of the executive. The purpose
of saying is that the law has many a mansion and the
mosaic of law covers many spectrums so that both the
maxims, namely, solus populi supreme lex and salus
republicae supreme lex, can harmoniously coexist. The
present case is one where there is need for nuclear energy
for the welfare of the public and for other welfare of the
people of India and for peaceful purpose. Definitely, the
interest of the economy and the interest of safety are to be
the real concerns of a Welfare State. In this regard, I may
Page 225
225
usefully refer to the following observations made by this
Court, though in a different context, in State of
Karnataka and others v. Dr. Praveen Bhai Thogadia5:
-
“Welfare of the people is the ultimate goal of all
laws, and State action and above all the Constitution.
They have one common object, that is to promote
the well-being and larger interest of the society as a
whole and not of any individual or particular groups
carrying any brand names. It is inconceivable that
there can be social well-being without communal
harmony, love for each other and hatred for none.
The core of religion based upon spiritual values,
which the Vedas, Upanishads and Puranas were said
to reveal to mankind seem to be: “Love others, serve
others, help ever, hurt never” and “sarvae jana
sukhino bhavantoo”.”
217.The concept of welfare State is a facet of Article 38 of the
Constitution of India. It is the obligation of the State to see
that the welfare of the people is appositely promoted. It is
the obligation passed by the Constitution of the State to
establish a welfare State. The words used in the Preamble
of the 1962 Act are “welfare for the people” and “peace”.
There is a necessity for generation of electrical energy and
regard being had to the hazards, there has to be guidance
5 (2004) 4 SCC 684
Page 226
226
which the Acts, Rules and Notifications provide. The
collective interests should not totally be thrown overboard
for the development of the power sector. If the safety
measures are adequately not taken and the apprehensions
are not removed and the fear is not totally ostracized from
the minds of the people of the locality, posterity may not
recognize the same as a development or a progressive
step. The conscientious and conscious policy decisions by
the Government are to be taken with due care and
consideration, keeping in mind the welfare of the people at
large. True it is, when such policies are framed, especially
for establishment of nuclear plants or such big projects,
the safety measures become the primary concern and the
same have to be adequately addressed to and taken care
of. However, the Courts, in exercise of power of judicial
review, cannot assume the role of approving authority for
laying safety measures, but, a significant one, what the
regulatory authorities have stated are to be regarded as
the primary and principal concern.
AERB Report:
Page 227
227
218.In this context, I may refer to the report of the AERB to
review the safety of Indian Nuclear Power Plants against
External Events of Natural Origin. For the sake of necessity
and completeness, it is reproduced below: -
“SAFETY ASSESSMENT OF KUDANKULAM NUCLEAR
POWER PLANT UNITS-1&2 (KK NPP1&2) IN THE WAKE
OF FUKUSHIMA ACCIDENT
Two Units of VVER Pressurized Water Reactors
(Model V-412) each of 1000 MW rating are being built
at the Kudankulam Site in Tamil Nadu. Initial
commissioning activities for Unit # 1 have started
with AERB issuing clearance for “Hot-Run” on June
30, 2011. Construction of Unit # 2 is in an advanced
stage of completion.
The design of KK NPP incorporates a number of
engineered safety features (ESFs) for catering to
design basis accident (DBAs) and beyond design
basis accidents (BDBAs), and several other design
safety features.
ESFs for catering to DBA.
a. Emergency Core Cooling System (ECCS)
b. Secondary circuit protection against overpressurisation
c. Emergency Gas Removal System
d. Fission Products Removal and Control Systems
e. Emergency Safety Boron Injection System
f. Quick Boron Injection System (QBIS)
Page 228
228
ESFs for catering to
BDBA
· Passive Heat Removal System (PHRS)
· Additional System for core passive flooding
· Annuls passive filtering system (APFS)
· System for retaining and cooling of molten core
Other salient design safety
Features
· 4 x 100% active safety system trains and 4 x
33% passive safety system trains
· Large water inventory in I and II stage ECCS
hydro-accumulators
· Automatic Reactor Scram on seismic signal
· Battery banks with 24 hrs capacity
· Sea water pumps located at more than 2.2m
above design basis flood level (DBFL)
· Safety related buildings and structures located
at least 3.0m above DBFL
· A shore protection rubble wall
Post-Fakushima safety Assessment
A Task Force (TF) constituted by NPCIL carried out
safety assessment of KKNPP-1&2 in the light of
Fakushipa accident and its findings were reviewed by
the AERB’s Advisory committee on Project safety
review of light water reactors (ACPSR-LWR) and the
AERB Committee on safety review of Indian NPPs in
the light of Fukushima accident. Salient points
Page 229
229
emerging from the assessment and its reviews are
given below: -
· Back up provisions from alternate sources should
be made for
- Charging water to secondary side of SGs
- Make-up of borated water to spent fuel pools
- Injection of borated water in the reactor
coolant system.
· Sciesmic qualification of emergency water storage
facility and augmentation of its storage capacity
for core decay heat removal for a period of at least
one week.
· Mobile self powered pumping equipment for
emergency use
· Facility for monitoring safety parameters using
portable power packs
· Finalization of emergency operating procedures
for BDBA conditions
· Primary Containment to be assessed for ultimate
load bearing capacity.
· Doors and barrels of airlocks to be qualified for
proof test pressure.
· Ensuring that highly active water used for cooling
the core catcher vessel under BDBA is contained
inside the primary containment.
· Reconfirmation of design adequacy of hydrogen
management system.
· Environmental qualification of core catcher
temperature monitoring system
Page 230
230
· Adequacy of design provision for remote water
addition to core catcher
· Adequacy of instrumentation for monitoring plant
status during BDBA.
· Details of margin available on location of various
safety related SSCs above DBFL should be
reviewed again,
· Need for design provision for containment venting,
that has been deleted, should be re-examined.
· The backup sources for water injection to SG
secondary side should be seismically qualified.
· Provisions for addition of water to core catcher
require a detailed study, to ensure that there is no
possibility of any steam explosion.
· Provision of additional backup power supply
sources for performing essential safety functions,
like air cooled DGs located at a high elevation,
should be considered.
The recommendations are being examined and
NPCIL’s response would be reviewed in ACPSRLWR
before initial fuel loading in unit-1.
219.A status report has been filed by NPCIL. An affidavit has
been filed on 3.12.2012 and it is asserted therein that most
of the recommendations have already been complied with.
It has been dealt with by my respected learned Brother
that there is substantial compliance of the same and dates
or fixed time frame has been given for compliance of
certain recommendations which have not yet been
Page 231
231
complied. This Court has been apprised of the fact that the
AERB and, in turn, the MoEF are in total control of things
and scrutiny is made and the same shall be looked into
from time to time and all possible measures shall be taken
to avoid any kind of accident. As advised, at present, I
have noted the categorical assurance of the Statutory
Authority.
Nuclear Energy development and doctrine of balance
and proportionality vis-à-vis safety:
220.It must be stated that the safety of the people residing in
Kudankulam and the areas in its vicinity and also the
people who are likely to be affected because of radioactive
generation has to be respected, for their human dignity is
their divinity. This Court has not directed for closure of the
plant on the basis of the asseverations made before this
Court. But, it is the highest concern of this Court that a
devastating disaster should be avoided at all costs by the
people who are in-charge of looking after the safety
measures. The statutory regulatory authority should
responsibly keep the vigil and no one, who has the
Page 232
232
responsibility, should be complacent. The tragedy that has
occurred at Fukushima shall remain as one of the darkest
elements of history. The catastrophe of the Bhopal Gas
Leak Disaster has not been erased or effaced from the
minds of the public. The moan and mourns of the affected
people of Bhopal who have been injured or lost their kith
and kin are still heard and humane sensitivity would not
permit one to ignore it. The nuclear scientists, the
administrators and other authorities cannot remain
oblivious or totally insensitive to the possible hazards when
the nuclear plant operates.
221.When one thinks of safety in the context of establishment
of a nuclear plant, the inevitable thought that gets into the
depth of mind is security. Safety and security, in this
context, are insegregably inter-twined commencing the
planning, quality of construction, committed efforts to
avoid operational jeopardy and monitoring and all are
bound to remain in a singular chain. All endeavours are to
be made to prevent, monitor and control. The concept of
disaster management cannot be allowed to remain on
Page 233
233
paper. Its procrastination itself rings the bell of peril. The
administration has to be alive to the said situation and the
awakening to manage the disaster in case of an
unfortunate incident has to be founded on scientific and
sophisticated methods. Taking care of the situation of the
present alone is not the solution. All concerned with the
same are required to look to the future because that
elevates the real concern. The danger of the future should
be seriously taken note of and should not be veiled in the
guise of thought for the present. Not for nothing, it has
been said that he who prepares for the future and remains
prepared for the future has a good control over the
present, and if one remains in a state of blindness thinking
the future to be uncertain, he suffers the agony of the
present and the anguish of the future. This is not only the
truth in respect of an individual life but also the paramount
truth for the collective of the present generation and the
future generations. The present generation has no right to
enjoy by eating away the time of the future generation.
The protection of the environment and the safety for the
Page 234
234
present generation in its connotative sense covers the
posterity.
222.I have already discussed about the signification of the
safety needed in respect of nuclear plants. Generation of
nuclear energy is a necessity in a progressive modern
State. As has been stated earlier, there is an enactment
and notifications governing the field in various aspects. A
policy decision has been taken to establish the nuclear
plant at Kudankulam. Promotion of development and
protection of environment are to be harmonized at the
same time. In Intellectuals Forum, Tirupathi v. State
of A.P. and others6, it has been held that merely
asserting an intention for development will not be enough
to sanction the destruction of local ecological resources.
What is required to be prescribed is the principle of
sustainable development and find a balance between the
developmental needs and the environmental degradation.
223.In Bombay Dying & Mfg. Co. Ltd. (3) v. Bombay
Environmental Action Group and others7, while
6 (2006) 3 SCC 549
7 (2006) 3 SCC 434
Page 235
235
dealing with the concept of sustainable development and
planned development vis-à-vis Article 21 of the
Constitution, a two-Judge Bench has opined thus: -
“It is often felt that in the process of encouraging
development the environment gets sidelined.
However, with major threats to the euvironment,
such as climate change, depletion of natural
resources, the eutrophication of water systems and
biodiversity and global warming, the need to protect
the environment has become a priority. At the same
time, it is also necessary to promote development.
The harmonisation of the two needs has led to the
concept of sustainable development, so much so that
it has become the most significant and focal point of
environmental legislation and judicial decisions
relating to the same. Sustainable development,
simply put, is a process in which development can be
sustained over generations. Brundtland Report
defines “sustainable development” as development
that meets the needs of the present generations
without compromising the ability of the future
generations to meet their own needs. Making the
concept of sustainable development operational for
public policies raises important challenges that
involve complex synergies and trade offs.”
224.In M.C. Mehta v. Union of India and others8, while
stating about sustainable development and the needs of
the present without compromising the ability of the future
8 (2004) 12 SCC 118
Page 236
236
generation to meet their own needs, this Court has
expressed thus: -
“The definition of “sustainable development” which
Brundtland gave more than 3 decades back still
holds good. The phrase covers the development that
meets the needs of the present without
compromising the ability of the future generation to
meet their own needs. In Narmada Bachao Andolan
v. Union of India9 this Court observed that
sustainable development means the type or extent
of development that can take place and which can be
sustained by nature/ecology with or without
mitigation. In these matters, the required standard
now is that the risk of harm to the environment or to
human health is to be decided in public interest,
according to a “reasonable person's” test. [See
Chairman Barton: The Status of the Precautionary
Principle in Australia (Vol. 22, 1998, Harv. Envtt. Law
Review, p. 509 at p. 549-A) as referred to in para 28
in A.P. Pollution Control Board v. Prof. M.V.
Nayudu10.]”
225.In Tirupur Dyeing Factory Owners Association v.
Noyyal River Ayacutdars Protection Association and
others11, while dealing with the concept of sustainable
development, the Court has observed as under: -
“The concept of “sustainable development” has
been explained that it covers the development that
9 (2000) 10 SCC 664
10 (1999) 2 SCC 718
11 (2009) 9 SCC 737
Page 237
237
meets the needs of the person without compromising
the ability of the future generation to meet their own
needs. It means the development, that can take
place and which can be sustained by nature/ecology
with or without mitigation. Therefore, in such
matters, the required standard is that the risk of
harm to the environment or to human health is to be
decided in public interest, according to a “reasonable
person's” test. The development of the industries,
irrigation resources and power projects are
necessary to improve employment opportunities and
generation of revenue, therefore, cannot be ignored.
In such eventuality, a balance has to be struck for
the reason that if the activity is allowed to go on,
there may be irreparable damage to the environment
and there may be irreparable damage to the
economic interest. A similar view has been reiterated
by this Court in T.N. Godavarman Thirumulpad (104)
v. Union of India12 and M.C. Mehta v. Union of
India13.”
226.In T.N. Godavarman Thirumalpad (through K.M.
Chinnappa) v. Union of India and others14, this Court
observed that it cannot be disputed that no development is
possible without some adverse effect on the ecology and
environment, and the projects of public utility cannot be
abandoned and it is necessary to adjust the interest of the
people as well as the necessity to maintain the
environment. A balance has to be struck between the two
12 (2008) 2 SCC 222
13 (2009) 6 SCC 142
14 (2002) 10 SCC 606
Page 238
238
interests. Where the commercial venture or enterprise
would bring in results which are far more useful for the
people, difficulty of a small number of people has to be
bypassed. The comparative hardships have to be balanced
and the convenience and benefit to a larger section of the
people has to get primacy over comparatively lesser
hardship.
227.In Narmada Bachao Andolan v. Union of India and
others15, a three-Judge Bench, while dealing with the
public projects and policies, has opined that the court does
not become the approving authority of such policies.
Thereafter, the Bench observed thus: -
“Normally such decisions are taken by the
Government after due care and consideration. In a
democracy welfare of the people at large, and not
merely of a small section of the society, has to be the
concern of a responsible Government.”
228.I have referred to the aforesaid pronouncements only to
highlight that this Court has emphasized on striking a
balance between the ecology and environment on one
15 (2000) 10 SCC 664
Page 239
239
hand and the projects of public utility on the other. The
trend of authorities is that a delicate balance has to be
struck between the ecological impact and development.
The other principle that has been ingrained is that if a
project is beneficial for the larger public, inconvenience to
smaller number of people is to be accepted. It has to be
respectfully accepted as a proposition of law that individual
interest or, for that matter, smaller public interest must
yield to the larger public interest. Inconvenience of some
should be bypassed for a larger interest or cause of the
society. But, a pregnant one, the present case really does
not fall within the four corners of that principle. It is not a
case of the land oustees. It is not a case of “some
inconvenience”. It is not comparable to the loss caused to
property. I have already emphasized upon the concept of
living with the borrowed time of the future generation
which essentially means not to ignore the intergenerational
interests. Needless to emphasize, the dire
need of the present society has to be treated with urgency,
but, the said urgency cannot be conferred with absolute
supremacy over life. Ouster from land or deprivation of
Page 240
240
some benefit of different nature relatively would come
within the compartment of smaller public interest or
certain inconveniences. But when it touches the very atom
of life, which is the dearest and noblest possession of every
person, it becomes the obligation of the constitutional
courts to see how the delicate balance has been struck and
can remain in a continuum in a sustained position. To
elaborate, unless adequate care, caution and monitoring at
every stage is taken and there is constant vigil, life of
“some” can be in danger. That will be totally shattering of
the constitutional guarantee enshrined under Article 21 of
the Constitution. It would be guillotining the human right,
for when the candle of life gets extinguished, all rights of
that person perish with it. Safety, security and life would
constitute a pyramid within the sanctity of Article 21 and
no jettisoning is permissible. Therefore, I am obliged to
think that the delicate balance in other spheres may have
some allowance but in the case of establishment of a
nuclear plant, the safety measures would not tolerate any
lapse. The grammar has to be totally different. I may
hasten to clarify that I have not discussed anything about
Page 241
241
the ecology and environment which has been propounded
before us, but I may particularly put that the
proportionality of risk may not be “zero” regard being had
to the nature’s unpredictability. All efforts are to be made
to avoid any man-made disaster. Though the concept of
delicate balance and the doctrine of proportionality of risk
factor gets attracted, yet the same commands the highest
degree of constant alertness, for it is disaster affecting the
living. The life of some cannot be sacrificed for the
purpose of the eventual larger good.
229.Before proceeding to issue certain directions, it is required
to be stated that the appellant, by this Public Interest
Litigation, has, in a way, invoked and aroused the
conscience/concern of the court to such an issue. True it
is, the prayer is for the total closure of the plant and the
Court has not acceded to the said prayer but his noble
effort is appreciated to put forth the grievance of the local
people and the necessity of adequate safety measures as
is perceived. When such cause comes up before this
Court, it is the bounden duty to remind the authorities “Be
Page 242
242
alert, remain always alert and duty calls you to nurture
constant and sustained vigilance and nation warns you not
to be complacent and get into a mild slumber”. The AERB
as the regulatory authority and the MoEF are obliged to
perform their duty that safety measures are adequately
taken before the plant commences its operation. That is
the trust of the people in the authorities which they can ill
afford to betray, and it shall not be an exaggeration to
state that safety in a case of this nature in any one’s hand
has to be placed on the pedestal of “Constitutional Trust”.
230. We, therefore, fully endorse the view taken by the Division
Bench of the High Court, however, in the facts and
circumstances of the case, we are inclined to give the
following directions:
DIRECTIONS:
1. The plant should not be made operational unless AERB,
NPCIL, DAE accord final clearance for commissioning of
the plant ensuring the quality of various components and
systems because their reliability is of vital importance.
Page 243
243
2. MoEF should oversee and monitor whether the NPCIL is
complying with the conditions laid down, while granting
clearance vide its communication dated 23.9.2008 under
the provisions of EIA Notification of 2006, so also the
conditions laid down in the environmental clearance
granted by the MoEF vide its communication dated
31.12.2009. AERB and MoEF will see that all the
conditions stipulated by them are duly complied with
before the plant is made operational.
3. Maintaining safety is an ongoing process not only at the
design level, but also during the operation for the nuclear
plant. Safeguarding NPP, radioactive materials, ensuring
physical security of the NSF are of paramount importance.
NPCIL, AERB, the regulatory authority, should maintain
constant vigil and make periodical inspection of the plant
at least once in three months and if any defect is noticed,
the same has to be rectified forthwith.
Page 244
244
4. NPCIL shall send periodical reports to AERB and the AERB
shall take prompt action on those reports, if any fallacy is
noticed in the reports.
5. SNF generated needs to be managed in a safe manner to
ensure protection of human health and environment from
the undue effect of ionizing radiation now and future, for
which sufficient surveillance and monitoring programme
have to be evolved and implemented.
6. AERB should periodically review the design-safety aspects
of AFR feasibly at KKNPP so that there will be no adverse
impact on the environment due to such storage which
may also allay the fears and apprehensions expressed by
the people.
7. DGR has to be set up at the earliest so that SNF could be
transported from the nuclear plant to DGR. NPCIL says
the same would be done within a period of five years.
Effective steps should be taken by the Union of India,
NPCIL, AERB, AEC, DAE etc. to have a permanent DGR at
the earliest so that apprehension voiced by the people of
Page 245
245
keeping the NSF at the site of Kudankulam NPP could be
dispelled.
8. NPCIL should ensure that the radioactive discharges to the
environmental aquatic atmosphere and terrestrial route
shall not cross the limits prescribed by the Regulatory
Body.
9. The Union of India, AERB and NPCIL should take steps at
the earliest to comply with rest of the seventeen
recommendations, within the time stipulated in the
affidavit filed by the NPCIL on 3.12.2012.
10. SNF is not being re-processed at the site, which has
to be transported to a Re-Processing facility. Therefore,
the management and transportation of SNF be carried out
strictly by the Code of Practices laid down by the AERB,
following the norms and regulations laid down by IAEA.
11. NPCIL, AERB and State of Tamil Nadu should take
adequate steps to implement the National Disaster
Management Guidelines, 2009 and also carry out the
periodical emergency exercises on and off site, with the
Page 246
246
support of the concerned Ministries of the Government of
India, Officials of the State Government and local
authorities.
12. NPCIL, in association with the District Collector,
Tiruneveli should take steps to discharge NPCIL Corporate
Social Responsibilities in accordance with DPE Guidelines
and there must be effective and proper monitoring and
supervision of the various projects undertaken under CSR
to the fullest benefit of the people who are residing in and
around KKNPP.
13. NPCIL and the State of Tamil Nadu, based on the
comprehensive emergency preparedness plan should
conduct training courses on site and off site administer
personnel, including the State Government officials and
other stake holders, including police, fire service, medicos,
emergency services etc.
14. Endeavour should be made to withdraw all the
criminal cases filed against the agitators so that peace
and normalcy be restored at Kudankulam and nearby
places and steps should be taken to educate the people of
Page 247
247
the necessity of the plant which is in the largest interest of
the nation particularly the State of Tamil Nadu.
15. The AERB, NPCIL, MoEF and TNPCB would oversee
each and every aspect of the matter, including the safety
of the plant, impact on environment, quality of various
components and systems in the plant before
commissioning of the plant. A report to that effect be filed
before this Court before commissioning of the plant.
The appeals are accordingly disposed of without any
order as to costs.
…………………………………J.
(K. S. RADHAKRISHNAN)
…………………………………J.
(DIPAK MISRA)
New Delhi,
May 6, 2013
Share this article :

Post a Comment

 
Copyright © 2013. ToxicsWatch Alliance (TWA) - All Rights Reserved
Proudly powered by Blogger