Kudankulam on Shaky Legal Ground
KUDANKULAM ANTI-NUCLEAR SATYAGRAHA, INDIA, 5 Nov 2012
Violations of Coastal Regulation Zone and Environmental Impact Assessment notifications make official claims questionable.
The debate over nuclear energy will go on, but the issue with the Kudankulam Nuclear Power Plant (KKNPP) is one of the several illegalities on which it is founded.
In 1988, India inked the Koodankulam Nuclear Power Plant deal with the former Soviet Union. Two key elements in it were: the highly dangerous and toxic “Spent Nuclear Fuel” (SNF) would be shipped back to the Soviet Union; and the massive volumes of fresh water required to cool the plant would be supplied from Pechiparai dam, in Kanyakumari district, Tamil Nadu. The Ministry of Environment and Forests (MoEF) formally granted approval on May 9, 1989 on this basis. But there was no further progress until 1997.
In 1997, India signed another agreement, this time with Russia, to revive the KKNPP.
Between 1989 and 1997, the Coastal Regulation Zone (CRZ) and Environment Impact Assessment (EIA) Notifications were issued in 1991 and 1994 mandating compulsory clearances by environmental regulators before any new plant could be set up.
The CRZ prohibited all industrial activity within 500 metres of the high tide line. The only exception to this was industries and projects of the Department of Atomic Energy (DAE) directly requiring waterfront or foreshore facilities. The KKNPP today claims exemption from CRZ notification. This is untenable. The Nuclear Power Corporation of India Ltd. (NPCIL), which set up the KKNPP, is registered under the Companies Act as a commercial venture to engage in the business of power projects and “… to enter into partnerships with any person, including private entity or any foreign investing entity.” The NPCIL-KKNPP is thus, under law, only a “Company” and not a project of the DAE. The Supreme Court has consistently held that government departments are distinct from government companies. Further, merely because it draws seawater, it does not become an industry requiring waterfront facilities as per the decision of the Supreme Court in the shrimp farming case. Thus the KKNPP is not exempted from CRZ and the plant has been built in violation of the CRZ notification.
The EIA notification stipulated that for notified industries, environmental clearance is mandatory for new projects or expansion or modernisation of existing ones. Nuclear power is a notified industry and as per EIA notification, an EIA report must be prepared and made public. A public hearing should be conducted to record objections. The entire record would be considered by an independent “Expert Appraisal Committee” before environmental clearance is granted. Clearances are valid for five years. If the project does not commence within the five-year period, then fresh clearances will have to be obtained after fresh public hearings.
The NPCIL, the Atomic Energy Regulatory Board (AERB) and the MoEF all claim that the EIA notification is not applicable to KKNPP as it has obtained clearance in 1989. Is this claim valid? An explanatory note to the EIA notification says that in respect of existing projects as of 1994 (the year when the EIA notification was promulgated) only those which have completed the land acquisition process and which have obtained the “Consent to Establish” from the State Pollution Control Boards are exempt. The KKNPP has not even applied for “Consent to Establish” from the Tamil Nadu Pollution Control Board; nor was the land acquisition process completed.
Hence the repeated assertions of exemption from environmental regulations are untenable and seriously compromise environmental safety. The NPCIL started construction work only in 2001. More than 12 years had gone by since the grant of approval in 1989.
Two significant changes
There were two significant changes to the project. The first was that, contrary to the original proposal to ship out the SNF to Russia, the highly radioactive SNF from the nuclear power plant was to be stored, transported and reprocessed within India.
The second change was equally major: the freshwater requirement was now to be met by the construction of six desalination plants instead of sending piped water from Pechiparai dam. The environmental impact of the desalination plant on coastal ecology and marine life are serious concerns with implications for the livelihoods of the fishing community.
The environmental impact of storage, transportation and reprocessing of spent fuel as well as the impact of six desalination plants on marine ecology were not assessed at the time of initial clearance, and not since.
After launch of construction, the National Environmental Engineering Research Institute (NEERI) prepared an EIA report in 2003. Even in this report the environmental impact of spent fuel and desalination plants was not assessed. It is important to note that generally for all EIAs the baseline data on air, water, flora and fauna in and around the proposed plant are vital to assess the likely impact of the plant on them.
In the EIA for plants three to six, NEERI used baseline data from the Coast of Travancore on the west coast though the KKNPP is located in the east. The NEERI concluded that the heat from the coolant water from the KKNPP on the east will not affect marine life on the west coast, although it doesn’t require scientific expertise to arrive at such a conclusion.
The NPCIL and the AERB (the MoEF also agrees) put forward the erroneous proposition that spent fuel is no issue at all; it is actually an asset; it can be safely stored at the plant site for five years, then safely transported and reprocessed safely in a facility at a location which is yet to be decided. What is the supporting material for this assertion? Nothing.
In the U.S., Japan
No country has ever been able to reprocess more than a third of spent fuel. Even that involves significant quantities of High Level Waste which is equally radioactive and has to be stored.
In the United States, licences for nuclear power plants have been subject to the Nuclear Regulatory Commission’s (NRC) assurance in 1984 that a permanent storage by way of a geological repository would be available for all SNF by 2007-09 and spent fuel can be safely stored on site at the plants until then. In 1990 the deadline was extended to 2025. In December 2010, it was revised to conclude that a suitable repository will be available “when necessary” and in the meantime the spent fuel can be stored safely on site. This ruling was challenged before the U.S. Court of Appeals for the District of Columbia Circuit. In “State of New York, et. al., vs Nuclear Regulatory Commission and USA” the court ruled that spent nuclear fuel “poses a dangerous, long-term health and environmental risk.” It will remain dangerous “for time spans seemingly beyond human comprehension.” The court struck down the NRC’s ruling on two grounds. First, in concluding that permanent storage will be available “when necessary,” the commission did not calculate the environmental effects of failing to secure permanent storage — a possibility that cannot be ignored. Second, in determining that spent fuel can be safely stored on site at nuclear plants for 60 years after the expiration of a plant’s licence, the commission failed to properly examine future dangers and key consequences. In other words, no EIA was done by the NRC before coming to such a conclusion.
The real lesson from Fukushima is not merely on improved technical safeguards at plants from tsunamis and earthquakes. The “Fukushima Nuclear Accident Independent Investigation Commission” appointed by the Japanese Parliament warned that the disaster was man-made. The commission found that it was the government of Japan’s single-minded pursuit of nuclear power which resulted in collusion between the government, the regulators and the plant operator, TEPCO — leading to the practice of resisting regulatory measures and covering up violations.
The writers are advocates. V. Suresh is also National General Secretary, PUCL.
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