G. SUNDARRAJAN v. UNION OF INDIA AND ORS.

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A meant to protect the life and property of people including the environment, guaranteed under Article 21 of the Constitution of India.

KKNPP Project

47Copy pinpoint47. 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 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 IMO 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.

48Copy pinpoint48. The NPP site is situated in an are_'a~:·with expected earthquake intensity of up to V on the modifi~d intensity scale. H The site area falls within the seismic zone II whfCh is a

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[K.S. RADHAKRISHNAN, J.] moderately stable area as per Seismic Zoning Map (SZP) of A 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 B 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 c 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 0 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 locating a NPP, the effect of external events (natural and man- E induced) 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 F 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. G 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. H

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49Copy pinpoint49. KKNPP consists of two WER-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 B of them belong to PWR family, including 55 WERs. 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 off-normal conditions including total loss of electric power. Even E 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 F 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.

G Nuclear Spent Fuel CNSF)

50Copy pinpoint50. 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 H

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[K.S. RADHAKRISHNAN, J.] 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 sub- section (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 Wastes) c 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 an~ Import of Hazardous Chemical Rules 1989 under the Environmental (Protection) Act, 1986 has notified AERB as the authority to enforce directions and procedures as per the Atomic Energy Act, 1962 with respect to radioactive materials.

51Copy pinpoint51. 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 H

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A 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, c 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 applicable as per relevant standards. The specific 0 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 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:

G "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.

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[K.S. RADHAKRISHNAN, J.] 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 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. c 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. o 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 H

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A 2.4.1 The facility shall implement approved environmental monitoring a, ,d 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 B monitoring and surveillance.

2.4.2 The facility shall implement approved quality assurance programme on sampling, monitoring and analysis to ensure a reliable data.

c 2.⁵ Safety Assessment

2.⁵.1 A Safety assessment report shall be prepdred for waste management facilities including waste disposal facilities/repositories to demonstrate compliance with the D 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. E 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 I natural barriers."

52Copy pinpoint52. 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

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[K.S. RADHAKRISHNAN, J.] transfer of the responsibility of the management of radioactive A waste from one facility to another or to a different agency other 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. B The code provides that the waste generator I manager or both shall be responsible for identifying on an appropriate time- scale, a destination for the waste in accordance with the regulatory requirements and for seeking any necessary authorization. The waste generator/manager shall dispose of C 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. D

53Copy pinpoint53. 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, E it also stated that disposal may be in a Near Surface 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:

54Copy pinpoint54. 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 H·

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A plants convert almost all of their fuel into radioactive waste with little reduction in mass and even re-processing creates its own high-level waste. Further, it was also pointed out that mariy 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 8 permanent geologic repository. Appellants further pointed out 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 C 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.

55Copy pinpoint55. 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 E "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. F "6.³ Spent Fuel Management: First and foremost it should be remembered that Spent Fuel is not a waste in the Indian Nuclear Progra~me. A closed fuel cycle is followed, where the valuable fissile G 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, H

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[K.S. RADHAKRISHNAN, J.] 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." E

56Copy pinpoint56. 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 F India and USSR, spent fuel had to be transported to Russia, in a subsequent agreement in 1998 signed between two countries, 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 G 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 H

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A 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 B 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 BARG has got an overall view of radioactive waste c management in India and has developed certain guidelines for management of nuclear fuel.

NSF WASTE - TRANSPORTATION:

57Copy pinpoint57. 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 lhe observation of AERB and the Government of India.

58Copy pinpoint58. 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 G 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 repository and how save it is, if not properly kept, as we have already indicated, can cause serious health hazard not only to H the present generation but to the future generation as well, to

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[K.S. RADHAKRISHNAN, J.) whom we owe a responsibility. A

59Copy pinpoint59. 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 8 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 C accelerate the programme.

60Copy pinpoint60. 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 D 63000 MWe imported LWR and recycling LWR fuel to 275,000 MWe, by 2052. NPCIL has, therefore, taken up the stand that re-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). G 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 H

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A (Environmental Pollution in Baluchistan) PLO 1994 SC 102, took suo mote 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 and ruled that such dumping of Nuclear Waste is in violation of the fundamental rights to life enshrined in Article 9 of the Constitution.

61Copy pinpoint61. We may, in this connection, refer to the judgment of the US Court of Appeals in State of New York, ETAL v. NRG 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 D 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.

62Copy pinpoint62. 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, 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.

63Copy pinpoint63. 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 H r~views, made recommendations with respect to AFR facilities.

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[K.S. RADHAKRISHNAN, J.) In ACPSR 126th Meeting held on 15/16.9.2011, the issue A related to AFR was reviewed and it was recommended that AFR should be finalized well before 5 years of operation.

DEEP GEOLOGICAL REPOSITORY CDGR): 8

64Copy pinpoint64. 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 in-situ experiments, natural barrier characterisation, numerical modelling, conceptual design and natural analogue of waste forms and repository processes. Keeping in line with C 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 D 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 socio-political issue. E

65Copy pinpoint65. 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. F 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 project which has been established at KKNPP in implementation of the India's Nuclear Policy. G

66Copy pinpoint66. 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 H

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A 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, B 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 pennanent DGR is of utmost importance, which they should plan now.

Radioactive material

67Copy pinpoint67. 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 F 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 G 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 IAEA, NEA, The World Association of Nuclear Operations (WANO) etc. are being followed in India in H

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[K.S. RADHAKRISHNAN, J.] 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, c agricultural advantages to the present and generation.

68Copy pinpoint68. 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 D emphasized that the safety of nuclear power plants was a matter of highest priority for the Government and called for safety audits of all 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 E 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 F 1&2

- PHWRs at MAPS 1&2

- Standard PHWRs from NAPS onwards G

69Copy pinpoint69. 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 H

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A 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 B KKNPP, and another for 700 MWe PHWRs. NPCIL also constituted task forces on safety evaluation of the systems of KKNPP Post Fukushima which gave Hs interim report on 11.os.2p11. The task force found that KKNPP had already incorporated all safety standards, including passive systems to c ensure reactor shutdown.

70Copy pinpoint70. 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 F - Safety of NPPs under prolonged Station Black Out (SBO) and loss of Ultimate Heat Sink

- Safety of spent fuel storage facilities at NPPs against G external events

- Severe Accident Management provisions and guidelines (SAMG)

AERBSC-EE submitted its report on 31.08.2011. The AERB H has also taken cognizance of self-assessment carried out by

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[K.S. RADHAKRISHNAN, J.] . the NPCIL and the site specific focused regulatory inspections. A 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 : B

(i) External Events

(ii) Design

(iii) Severe Accident Management and Recovery C (Onsite)

(iv) National Organisations

(v) Emergency Preparedness and Response and Post-Accident Management (Offiste) D

(vi) International Cooperation

71Copy pinpoint71. The Government of India also submitted a National report in May 2012 on the actions taken for Indian NPPs, E 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.

72Copy pinpoint72. The expert committee of AERB, LWR in its final report dated 31.8.2011 gave 17 safety measures by way of abundant F 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 G 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: H

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A Sr. Recommendations Status Completion No. Schedule

3. Mobile self-power.ed Two fire tenders April 2013 pumping equipment with diesel for emergency use. operated pump B is available at site. To augment the capacity, two additional fire tenders are being c procured and-made available. Chassis has been procured and fabrication of the fire tender is in progress.

4. Facility for Present design of April 2013 monitoring safety KKNPP envisages parameters using 24 hour battery portable power bank for monitoring packs. parameters and 2 hour battery bank for valve operation during an event of station blackout. F In order to extent the duration of the monitoring for not less than 7 days, portable DG sets will be connected G to the instruments for monitoring safety parameters. One portable DG set is readily available for H

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[K.S. RADHAKRISHNAN, J.] use at site. Portable mGasuring devices are also available at site for local monitoring.

6. Primary Containment Based on design Long Term. B to be assessed for margins available, Under Ultimate Load it has been progress. Bearing Capacity assessed that for (ULBC). primary contain- ment, Ultimate c Load Baring Capacity (ULBC) is at least 1.⁵ times Design Basis Accident (DBA) D value. Detailed analysis for Ultimate Load Bearing Capacity (ULBC) will E be carried out progressively.

8. Ensuring that highly The required Long term. active water used analysis Under for cooling the core covering dose progress. F catcher vessel under estimation, equip- Beyond Design basi~ ment qualification Accident (BDBA) is assessment of contained inside the containing pressure primary containment. is being carried out. G

12. Adequacy of All the important April 2013 instrumentation parameters of the (Adequacy for monitoring plant reactor such as of instrum- status during Design neutron flux, entation basis Accident pressure above the ensured. H

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A (BDBA) core, containment Provision to pressure, Hydrogen extend concentration, power reactor coolant supply to level, radiation these B levels in instruments containment, will be coolant impleme- temperatures nted under in hot and cold legs item 4 c level of fuel above.) pool, and accumulators etc. will be monitored during Design D basis Accident (BDBA). Please refer item - 4 also.

17. Provision of One portable April 2013. E additional backup DG set is power supply readily available sources for for use at site. performing essential Another mobile safety functions, like Diesel F air cooled Diesel Generator Generator (DG) (DG) set is located at a high being made elevation, should be available considered. for redundancy.

73Copy pinpoint73. 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 H Basis Accidents (OBA) and Beyond Design Basis Accidents

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[K.S. RADHAKRISHNAN, J.] (BDBA) like Station Black Out (SBO), Anticipated Transients A Without Scram (ATWS), Metal Water reaction in the 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 B 17 recommendations were made after Fukushima accident the cause of which is natural phenomenon. The facts would indicate that Tsunami-genie 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 c hitting tsunami at Kudakulam, as the one that hit Fukushima, seems to be very remote.

Response to People's Resistance:

74Copy pinpoint74. The Government of India, in order to allay various D 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 E State Government nominees and 4 representatives of the people. Public hearing was held and views and suggestions 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. F

75Copy pinpoint75. 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 G 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: H

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A "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 B storms are taken into consideration at design stage. More than 20 WER-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 c established during commissioning. The radiological releases during the plant operation are expected to be well below 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. G 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 H evaluated against external event:; of natural origin viz ..

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[K.S. RADHAKRISHNAN, J.] earthquakes and possible flooding of the site from cyclonic A 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. B 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. c 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."

76Copy pinpoint76. The Committee prepared a detailed report in D 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. E

77Copy pinpoint77. 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 F 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 G of the licensing safety review.

CIVIL LIABILITY FOR NUCLEAR DAMAGE:

78Copy pinpoint78. Developing modern sources for energy through NPPs H

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A 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 B 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 c of a nuclear installation coupled with the limitation on liability.

79Copy pinpoint79. 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 D 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 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. G

80Copy pinpoint80. 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 reql!irements for the plant equipment are part of the detailed H

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[K.S. RADHAKRISHNAN, J.] specifications agreed between the vendor and the purchaser, A and as per the Quality Assurance Plan. NPCIL, AERB also should ensure that there can be no compromise on the quality of plant equipment, components and other systems.

81Copy pinpoint81. The India's Nuclear Liability Act states that the liability 8 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 C is under challenge.

82Copy pinpoint82. 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 D 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. E Supreme Court upheld the validity of the Act holding that it 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 F encouraged irresponsibility in the matter of safety and environmental protection.

83Copy pinpoint83. 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 G 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 H

710 SUPREME COURT REPORTS [2013J 8 S.C.R.

84Copy pinpoint84. We have examined the above principles only to highlight the importance of the Act and the steps taken for its E 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 sec 40, based on an earlier settlement, directed the F Union Carbide to 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 G 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. H

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[K.S. RADHAKRISHNAN, J.]

85Copy pinpoint85. Considering India's population density and our National A 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 comp~nsating environmental damage caused by the accidents, without merely limiting it to personal injury and damage to property.

DISASTER MANAGEMENT PLAN:

86Copy pinpoint86. 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. D

87Copy pinpoint87. 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, 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. H

712 SUPREME COURT REPORTS [2013] 8 S.C.R. ·

88Copy pinpoint88. 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 B 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 c of a common thread - the National Guidelines. Following that, NDMA, after conducting a detailed discussion with all the stake holders, issued the National Disaster Management Guidelines, 2009, which has the concurrence of the DAE, ARES. The guidelines recommended a series of actions on the part of 0 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. E 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 F domain.

89Copy pinpoint89. 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. G These emergencies have been broadly classified into the following five categories:

(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 H

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[K.S. RADHAKRISHNAN, J.] a large-scale release of radioactivity in the A 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 8 and gamma radiations.

(iii) An accident during the transportation of radioactive material.

(iv) The malevolent use of radioactive material as a C 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 D casualties and destruction of large areas and property.

90Copy pinpoint90. Chapter 2 deals with the Approach to Nuclear and Radiological Emergency Management, which spells out a four- E pronged 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 holistic approach, besides analysing the present status. F 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 G 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 H

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A 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 Nt•clear/Radiological B 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 c Implementation of the 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 time-frame and suitable indicators to enable monitoring and review of the actual progress made. Chapter 10 deals with the Summary of Action 0 Points and sums up the major recommendations that have been made in the text of the National Guidelines.

91Copy pinpoint91. NOMA, established under Section 3 of the OM Act, is responsible for each of the three phases of disaster E 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. NOMA will be assisted by the National Executive Committee, which is the executive arm of F NOMA. The National Crisis Management CommitteeJNational 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 mana~ement programmes in their respective areas and each State has to develop a detailed micro-level action plan in a mutually interactive and supplementary mode with its district level plans.

92Copy pinpoint92. 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.

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[K.S. RADHAKRISHNAN, J.] 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 C · 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 D and the wide publicity given to any nuclear/radiation- related incident, has resulted in several erroneous perceptions about nuclear technology. Not surprisingly, most people perceive ~hat any small nuclear/radiation- related incident will lead to a situation like Hiroshima or E 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 H

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A emergency exercise, awareness programmes are specially conducted for the public official'>, making them conversant with their responsibilities during any off-site emergency."

93Copy pinpoint93. NPCIL and the State of Tamil Nadu should take 8 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 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: c "3.9 Institutions for Education, Knowledge Management, Public Awareness and Training:

3.9.1 Education and Knowledge Management: D 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."

94Copy pinpoint94. The necessity for Enhancing Public Awareness about Nuclear/Radiation Hazards has also been dealt with in para 3.9.2, which reads as follows:

"3.9.2 Enhancing Public Awareness about Nuclear/ Radiation Hazards: H

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[K.S. RADHAKRISHNAN, J.] 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 c 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)."

95Copy pinpoint95. The necessity to accord proper training to the personnel involved in the management of radiation emergencies, which 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 G 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 strateQies. The availability of both adequate H

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A 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.

96Copy pinpoint96. It is also highly necessary to identify alternate sources of food, water and hygiene facilities. Because of the assembly of a 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/ D disasters.

97Copy pinpoint97. Major highlights indicated in para 3.20 of the Guidelines are of prime importance. Para 3.20 is extracted hereunder for easy reference: E "3.20 Highlights:

Some of the highlights of this chapter are given below:

F (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/ • NOMA) to ensure that the necessary technical/ G 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 H

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[K.S. RADHAKRISHNAN, J.] ensuring that proper safety design features and operating A 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. B (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 E 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 18 units of ERCs has been established by BARC to handle radiological F emergencies arising from a transport accident or the movemenVhandling of 'orphan sources' or any malevolent act like the explosion of an ROD, RED or IND at any time or anywhere in the country. G (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 H

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A 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. B 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. c (viii) The AERB, the national regulatory authority, has been regulating the nuclear and radiation facilities in the country very effectively and has, over the years, issued a large number of codes, standards and guides. D (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.

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[K.S. RADHAKRISHNAN, J.] (xi) Several major metros and other vulnerable locations A 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 8 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 C 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. D (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, 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. H

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A (xvi) To start with, the SDMAs, SECs and DDMAs concerne~ 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 B 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 c will also include the establishment of a nationwide capability for utilisation of the services of a large number of RSOs for managing both ROD-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 ROD. 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 well-defined 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 all-hazards approach. H

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[K.S. RADHAKRISHNAN, J.] (xx) In the emerging security threat scenario, there is a 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 ROD (also called a 'dirty bomb'). 8 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 establishmenV 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 simp!e 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 E blast of RDD).

(xxii) The values of the radiation dose levels at which intervention is required for various actions (like sheltering, iodine prophylaxis, evacuation, etc.) and the action levels F that will be needed to control the consumption of contaminated food items in the affected areas are presently not available either for any ROD 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. G

(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 H

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A 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 B awareness amongst the general public with the target audience of school and college students, teachers, technocrats and government officials."

98Copy pinpoint98. 2009 Guidelines issued by AERB are very exhaustive which have to be implemented and attended to forthwith. AERB, C in the Code of Practice on Safety in NPP Siting, also has dealt with 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 D 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."

99Copy pinpoint99. 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 of KKNPP, namely, Kudankulam, Vijayapathi

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[K.S. RADHAKRISHNAN, J.] (ldinthikarai) and lrrukkand1,1rai. As per 2001 census, the A 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. B

100Copy pinpoint100. 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 C 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 D 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 E have been chartered in the Emergency Preparedness Plan for effective implementation of counter measures. Eleven Emergency response reams such as warning and advise Team, Emergency Response Teams, Traffic Control Team, Prophylactics Distribution Team, Evacuation Advice Team, F 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 G

101Copy pinpoint101. 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 H

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A 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 s off-site emergency plan. The off-site emergency preparedness procedures was issued in July 2010 after incorporating the 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 c Preparedness Plan Vol. II (off-site Emergency Plan) which is very comprehensive and deals with almost all eventualities.

102Copy pinpoint102. 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.

103Copy pinpoint103. 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 off-site 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 H

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[K.S. RADHAKRISHNAN, J.] Administration and the State to meet the Off-Site emergencies, A 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. B CORPORATE SOCIAL RESPONSIBILITY (CSR):

104Copy pinpoint104. 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, C thermal power plants, since every step taken for generation of 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 (OPE), recently, issued a Comprehensive Guidelines on CSR for D 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 E 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- F 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 G livelihood to be a part of the National/Local initiatives to provide reliefs/rehabilitation in terms of natural disaster, calamities etc.

105Copy pinpoint105. NPCIL has allocated funds for providing health, education, infrastructural development under CSR at Kudankulam. The allocation and utilization of funds by NPCIL H

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A during the last three years and the current year are enumerated below:

Financial Year Funds Allocated Funds Utilized (rupees in lakhs) (rupees in lakhs) B 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 c 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 D 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 E CSR, in which it was decided to set up a fund of Rs.300 crores for the housing scheme for a projected period 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 F upgradation of public health centres, establishment of new public health centres etc.

106Copy pinpoint106. This Court in Banwasi Seva Ashram v. State of U.P. AIR 1987 SC 374 allowed the construction of NPP in a G, 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.

107Copy pinpoint107. NPCIL in association with the District Collector, H

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[K.S. RADHAKRISHNAN, J.] Tirunelveli should take effective steps to discharge their CSR A in accordance with the OPE 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. B PART II

108Copy pinpoint108. 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 C 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.' o 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) E

109Copy pinpoint109. 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 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 H

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A 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. 8

110Copy pinpoint110. 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 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 E!A Notification of F 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 Q! 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 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

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[K.S. RADHAKRISHNAN, J.] in force. A

111Copy pinpoint111. 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 D is not a project of DAE and that only those construction activities are allowed for which foreshore facilities are essential. 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 H

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A 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.

112Copy pinpoint112. NPCIL, AERB, MoEF as well as TNPCB have filed detailed counter affidavits and explained the steps they have 8 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 C Environmental Protection Act, Notifications issued thereunder and also following/taking into consideration guidelines laid down by well-known International organizations.

113Copy pinpoint113. 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 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 bpundary 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) G 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 H

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[K.S. RADHAKRISHNAN, J.] 9.⁵.1989. Further, it was pointed out that the environmental A 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 B contained in the clearance can be varied. Further, it was stated that since the discharge from Units 3 to 6 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. c

114Copy pinpoint114. 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 D 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 E 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 F 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 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, G 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 H

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A 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.

115Copy pinpoint115. MoEF has filed detailed counter affidavits and also B 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 C Prime Minister in November, 1981 to the Chief Ministers of coastal States regarding necessity to keep clear of all activities 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. D 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, E 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 F 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 G to the MoEF prescribing and ensuring sufficient safeguards for preserving the ecology, for which MoEF accorded approval to KKNPP Units 1 & 2 subject to the conditions stipulated therein.

116Copy pinpoint116. MoEF issued the CRZ Notification on 19 02.1991 imposing restrictions on the setting up and expansion of H

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[K.S. RADHAKRISHNAN, J.] it.dustries, operation or processes etc. in the coastal zone. This A 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.0.329(C) amended paragraph 2 on "prohibited activities" of the Notification dated 19.02.1991 by substituting B 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 c 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.

117Copy pinpoint117. 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.

118Copy pinpoint118. 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 G 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 H