G. SUNDARRAJAN v. UNION OF INDIA AND ORS.

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A required. Further, it was pointed out that the same would not preclude MoEF from considering the issue of desalination plant from the CRZ point of view. Referring to CRZ amended notification dated 19.02 .1991, it was submitted that the desalination plant could be established within CRZ area except B CRZ-l(i)-i.e. eco-sensitive areas viz. mangroves, sand dunes reserve forests etc. Reference was also made to CRZ notification dated 06.01.2011, which superseded the CRZ Notification dated 19.02.1991. MoEF therefore. maintained the stand that in view of the legal position desalination plant could c be established within the CRZ area. However, it was pointed out that even though the desalination plant is a permissible activity within the CRZ area, MoEF would again take into account the establishment of the desalination plant from the CRZ point of view and ensure that it would continue to function to the full satisfaction of MoEF. 0

119Copy pinpoint119. MoEF has also in the affidavit dealt with the issue of change in the temperature limit of condenser cooling water discharge and its impact on marine environment. It was pointed out that at the time of grant of environmental clearance on E 09.05.1989, the standard temperature difference between the inlet and outlet of condensed cooling water for discharge for temperature was fixed at 5oC. However, vide notification dated 22.12.1998, Environment (Protection) Rules, 1986 were amended. Rule 84 dealing with the thermal power plant, the limit prescribed therein would equally apply to NPPs as the technology for condenser cooling in both thermal as well as NPPs are the same. The environmental impact on the marine ecosystem due to +7oC Condenser Cooling Water (CCW) has been considered by MoEF through the EAC before giving the environmental clearances for the units 3-4 and 5-6 by stipulating that the temperature differential of the discharged water with respect to the receiving water would not exceed 7oC. MoEF therefore concluded that during the appraisal of the CRZ clearance for units 3-6 of KKNPP before grant of CRZ H clearance on 25.07.2012, the EAC considered the marine

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[K.S. RADHAKRISHNAN, J.] impact assessment, thermal dispersion modeling studies A conducted for condenser cooling water discharge considering the CCW discharge from all the 6 units i.e. KKNPP 1-6. Further, it was also pointed out that TNPCB has also accorded consent to operate on 28.08.2012 for KKNPP units 1 & 2 by stipulating the CCW discharge limit as 7oC as per the amended B Environmental Protection Rules. MoEF also maintained the stand that it will continue to monitor the environmental standards of KKNPP and periodically inspect as to examine whether KKNPP units conform to the safety of environment set by MoEF.

120Copy pinpoint120. Shri Guru Krishna Kumar, learned senior counsel C appearing for TNPCB submitted that it had vide its letter dated 21.06.2001 requested the DAE to apply and obtain a fresh environmental clearan~ from the MoEF. MoEF, at that time, maintained the stand that NPCIL had already taken steps to implement the project and hence there was no necessity of a D fresh environmental clearance. TNPCB's officials then inspected the site of KKNPP on 19.09.2001 and found that it had started construction of the NPP without valid consent for establishment as required under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of E Pollution) Act, 1981, consequently, show cause notices vide proceedings No. DEE/TNPCB/TNV/F.NPP-RDF/W/2001 dated 11.10.2001 and DEE/TNPCB/TNV/F.NPP-RDF/A/2001 dated 11.10.2001 were issued calling for explanation. NPCIL later filed applications dated 20.12.2001 for consent of the TN PCB F for the NPP of capacity 2X1000 MW. The TNPCB issued consent for Establishment vide proceeding dated 25.02.2004. NPCIL had a proposal to use sea water for cooling, Pechiparai reservoir for fresh water and ground water for construction. Later, they applied for revised consent which included additional G facilities for desalination plant using sea water as an input, in place of water supply from Pechiparai dam. The TN PCB later issued Consent to Operate vide proceedings dated 23.07.2012 with tolerance limits prescribed for trade effluent discharge, as per Board Proceeding dated 21.02.1984, which H

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A included-the tolerance limit for temperature as 45oC at the point of discharge. Later, TNPCB vide proceedings dated 22.08.2012 altered the condition to be read as "not to exceed 7oC over and above the ambient temperature of sea for trade effluents". B

121Copy pinpoint121. Appellants filed detailed common rejoinder affidavit traversing the various statements made by AERB, NPCIL, MoEF.

122Copy pinpoint122. Appellants urged that all facilities related to nuclear fuel and nuclear waste required an environment clearance under the EIA notifications of 1994 and 2006. Further, it is pointed out that when the supplemental agreement with Russia was entered into in the year 1998 that envisaged this critical change and hence NPCIL ought to hive applied for a fresh clearance from the MoEF. But MoEF had consistently condoned such violations of law. Desalination plant, it was pointed, is bound to cause serious environmental implications and significant impact on marine life. It was pointed out that plant has been constructed without mandatory previous "Consent to E Establish" from the TNPCB under the Water Act. The TNPCB consent to establish was given in the year 2004 while the desalination plant was envisaged only in the year 2006 and the construction of the plant has also violated in provisions of the Water Act since any activity that discharges anything in water required PCB clearance. Fresh environmental clearance was therefore not just required for the desalination plant, but for the nuclear plant as a whole because the desalination plant introduced a significantly different dimension to pollution, especially given the fact that highly concentrated salty water is being released into the eco-sensitive Gulf of Mannar Biosphere Reserve. Further, without any legal sanction, NPCIL has unilaterally increased the temperature from 5oC to 7oC. The appellant, therefore maintained the stand that unless and until the plant conforms to the environmental protection laws, the same shaM not be allowed to be commissioned which gives H

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[K.S. RADHAKRISHNAN, J.] threat to the life and property of the people who are staying in and around the plant and it will have adverse effect on the environment as well as marine life.

Judicial evaluation

123Copy pinpoint123. We will first examine the question whether NPCIL, the project proponent while establishing the KKNPP, had obtained all necessary environmental clearance and other requisite permission from the authorities. No plant specifically the one dealing with radioactive materials can be allowed to function or commission even if it has been cleared by AEC, AERB, C NPCIL etc. unless it strictly conforms to the standards set by the statutory authorities like MoEF, TNPCB etc. and follow the environmental laws. Most of the issues referred to hereinbefore, as already indicated, are inter-related and inter-connected, therefore, there are bound to be some overlapping while examining Jhe same. Before examining various legal issues raised before us, let us first examine the factual foundation on which they rest. ·

124Copy pinpoint124. The G.overnment of India after due deliberation with AEC, AERB, NPCIL and other organizations decided, in principle, to set up a NPP, for which Site Selection Committee of DAE was constituted and the Committee examined various sites in the Coramandel Coast of Tamil Nadu and selected the site at Kudankulam as the most ideal for selling up of NPP on scientific, technical, safety, security and environmental point of view. No regulatory requirement of CZR (except 500 metres norm) at the sea coast was in force at that time. The Prime Minister of India had written a letter in November 1981 to all the Chief Ministers of Coastal States in which it was stated as under: G

"The degradation and misutilization of beaches in the coastal states is worrying as the beaches have aesthetic and environmental value as well as other values. They have to be kept clear of all activities at least up to 500 metres H

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A from the water at the maximum high tide. If the area is vulnerable to erosion, suitable trees and plants have to be planted on the beaches without marring their beauty Beaches must be kept free from all kinds of artificial development. Pollution from industrial and town wastes 8 must also be avoided totally."

125Copy pinpoint125. Following the letter of the Prime Minister, a nine Member Working Group comprising experts in the fields of marine biology, nature conservation, tourism, pollution control and human settlements was constituted to formulate guidelines for the development of beaches. The Committee formulated the environment guidelines for development of beaches in July

1983. Before selecting the site at Kudankulam, a detailed study was conducted as to the suitability of the site, safety, radiological impact and its assessment, external natural events, foundation conditions, water availability and various other factors. Following that, an application was submitted in the year 1988 by the NPCIL before the State of Tamil Nadu for location of NPP at Kudankulam. The application was considered by the Committee on conservation of seashore of Government of E Tamil Nadu since the plant had to be set up at the sea shore. The committee after considering the proposal accorded clearance for the location of the plant at Kudankulam which is reflected in the letter dated 25.02.1988 sent by the Secretary to the Government, State of Tamil Nadu. F

126Copy pinpoint126. NPCIL later submitted its application to the Government of Tamil Nadu for grant of environmental clearance vide its application dated 12.12.1988. As per the then existing practice, applications for environmental clearance of a project like NPP had to be placed before TNSEC which consisted of G high ranking officials including the Chairman and Secretary of TNPCB etc. Application was placed before the Committee which met on 15.12.1988 and discussed various issues. The Executive Director of the project NPCIL explained the project in detail to the Committee with particular reference to safety H

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[K.S. RADHAKRISHNAN, J.] measures. It was also pointed out that a disaster management A plan had already been prepared and submitted by them to the Government of India and that no rehabilitation of the people around the site would be necessary. Some of the Members expressed the apprehension that cyclone condition might affect nuclear plant, which was allayed by the Executive Director, B NPCIL stating that the proximity of Srilanka would deactivate the cyclone. The Additional Director (Public Health and Preventive Medicines) expressed the apprehension that the project might pollute the sea water thereby affecting the fish and the consumers. The Executive Director, NPCIL had assured that c an Environmental Survey Laboratory (ESL) would be set up 30 km away from Kudankulam and samples of water and fish would be analysed to find out the amount of radioactivity on the flora and fauna. Safety issues were also discussed in that meeting. After detailed discussions on various aspects, the D Committee decided to clear the project subject to the monitpring by a Special Committee, which Committee, it was stated,. would go into the details of safety and rehabilitation measures proposed in the areas communicated in the project report. E

127Copy pinpoint127. The decision of the TNSEC dated 15.12.1988 was communicated to NPCIL vide letter dated 26.12.1988 followed by another letter dated 30.12.1988. On 13.02.1989, TNSEC modified the environmental clearance contained in its letter dated 26.12.1988 and decided that environmental clearance F accorded for the installation of KKNPP would be subject to the thirty one conditions specified in the annexure to the letter dated 13.02.1989.

128Copy pinpoint128. The DAE, Government of India sought relaxation in G. respect of proposed KKNPP of the guidelines that the coastal beaches should be kept clear from all building activities upto 500 metres from the HTL. At that point of time only the Environment Protection Act, 1986 was in force and the letter of the Prime Minister of 1981 and 1983 Environmental H

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A Guidelines for Development of Beaches. On 19.04.1989, the then Prime Minister approved an exemption of 500 metre norm specifically for KKNPP project subject to the MoEF prescribing and ensuring sufficient safeguards for preserving the ecology of the beach. The MoEF vide its Office Memorandum dated B 09.05.1989 accorded approval to KKNPP -Units 1 & 2 (2x1000 MW} subject to following conditions which are given below:

"2. Approval of this Ministry from environmental angle is accorded subject to the following conditions:- c (i) Special exemption from the present ban on undertaking any construction within 500 metres from high tide line (HTL) is accorded to this project subject to the condition that: · D (a) In such area only the plant and essential associated structures may be put up and nothing else should come up in this area;

(b) Attempts should be made to keep such construction within 500 metres of high tide line as far way from high tide line as possible;

(c) Adequate measures and environmental safeguards will be taken for ensuring preservation of the ecology of the beach;

(d) Since this area has been declared as a bio- sphere reserve, the project authorities should take special precautions to avoid any damage to the coral reefs or changes in the water quality near the shore; and

(e) At Environmental Management Plant (EMP) for the area upto 500 metres from HTL should be submitted to the Ministry for review. H

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[K.S. RADHAKRISHNAN, J.] (ii) The temperature of the condenser water should not exceed 5oC over and above the ambient temperature of the water at the point of discharge in the sea.

(iii) The liquid effluents emanating from the different plants of the power station should be treated to conform to the standards stipulated by Central/ State Pollution Control Board and International Commission for Radiological Protection (ICRP)/ AERB. Steps should be taken to prevent ground water pollution. Adequate number of coastal water c quality monitoring stations should be setup.

(iv) Radio-active wastes (solids and semi-solids) generated during various operations, both low level and high level, should be properly treated and disposed of after proper containment to fix the radio-activity as per the standards/guidelines prescribed by ICRP/AERB.

(v) No radio-active emissions, fugitive or otherwise, will be permitted beyond the safety standards prescribed by AERB.

(vi) The location/alignment of the off-shore berth/jetty should be selected in such a way that no damage is caused to the coral reefs. Such construction should be kept at the minimum.

(vii) The route of the pipeline from P,echiprai reservoir to the power station should preferably be so selected that it does not affect forest areas. G (viii) Efforts should be made to avoid forest areas to be affected due to the proposed transmission corridors and power evacuation system.

(ix) Adequate precautionary measures should be taken H

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A in transportation of radioactive fuel/ spent fuel/ radioactive wastes, in/out of the country.

(x) p·eriodical environmental surveillance and monitoring for radioactive emissions should be undertaken for measuring radioactivity and record B maintained.

(xi) Necessary steps may be taken for educating local people about the project to allay their apprehension due to the proposed power station. c (xii) All the vacant lands within the project zone should be afforested with a tree density of 1000 per acre. The type of tree species should be so selected that they will be able to give maximum density of canopy. D (xiii) From the initial stages of the project the environmental surveillance and monitoring of this particular area including the health status of the population around the power station location should be carried out and records maintained. This activity should continue in future also.

(xiv) On-site and Off-site Disaster Management Plan (DMP) should be prepared as per the 9l!idelines stipulated by ICRP/AERB and approved by the National Emergency Response Committee (NERC) of Department of Atomic Energy, Government of India.

(xv) Necessary approval under the Forest G (Conservation) Act, 1980 and the Wildlife (Protection) Act, 1972 will be obtained, when applicable.

(xvi) A committee will be set up by the Department of H Atomic Energy consisting of Additional Secretary,

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[K.S. RADHAKRISHNAN, J.] Department of Atomic Energy, Additional Secretary, A Ministry of Environment and Forests, Project Director, Kudankulam Atomic Power Project, representative of AERB, Director NEERI, representative of Government of Tamil Nadu and two prominent public persons for review of the rehabilitation programmes, environmental protection measures and public awareness concerning the project.

(xvii) A detailed rehabilitation plan should be prepared covering the affected persons within a radius of 2 kms exclusion zone. It will also be necessary to provide for some package of benefits for the people residing in the sterilized zone as there will be some restriction on the activities of this area. These should be submitted to this Ministry for review after examination by the Committee.

3. There should be an environmental cell with suitable personnel and a laboratory in the project. E

4. Adequate financial provisions should be made for implementation of the above conditions.

5. Conditions may be varied or new conditions imposed in the interest of environmental protection. F

6. The stipulations will be implemented among others, under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986."

129Copy pinpoint129. MoEF has a duty to see that the above-mentioned G conditions are fully complied; which has also dealt with the exemption from the ban which was at that point of time only a norm prohibiting any construction within 500 metres of the HTL. Permission granted also dealt with the temperature of the condenser and also with radioactive rays, solid and semisolid H

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A generated during various operations including proper containment to fix the radio activity as per the standards I guidelines prescribed by ICRB I AERB. Condition for periodical environmental surveillance was also stipulated so also the necessity of educating the people, monitoring the health s and also the provisions for onsite and offsite disaster management plan and the need for framing a detailed rehabilitation plan. After the receipt of the nuclear clearance, the process of land acquisition was initiated and the land acquisition was completed during the period 1991-1993. c Project activities like construction of boundary was initiated and completed during the said period. AERB on 10.11.1989 granted clearance for locating nuclear power plant at Kudankulam after evaluation of the site by the Site Selection Committee of DAE with stipulations given in the Annexure alongwith that letter. Following are the stipulations laid down by 0 AERB:

1. Stipulations made by various State and Central authorities in giving clearance, should be met. In addition, plantation in the area under control of the E project should be taken up along with site development. Studies to assess thermal pollution by making appropriate models should be carried out. '

F 2. An exclusion zone of 1.6 km radius from the NPP stack should be established with access control. The Dose limits specified by AERB will be complied with at this boundary.

3. The Board noted that Vairavikinaru quarry, ldinthikarai and Kudankulam settlements are beyond 2 km distance but within sterilized zone. Suitable legislative and administrative control measures should be taken through state authorities to prevent increase in population within the sterilized zone beyond natural growth. Also

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[K.S. RADHAKRISHNAN, J.] arrangements must be made to terminate the lease A of the lime stone quarry in 1994.

4. Facility to store at site adequate quantities of water should be provided to meet the make up requirements of uninterrupted cooling of core and 8 other safety related systems on a long term basis. Facilities engineered at site should meet the requirements even in the event of possible disruption of piped water supply from Pechiparai Dam. Ground water sources in the site area should be surveyed and developed to serve as an c additional back up source to meet the safety needs of the plant, if water supply from the Pechiparai dam is interrupted due to any contingency.

5. The Board requires that the safety of the long pipeline from Pechiparai dam should be ensured by appropriate security arrangement.

6. NPCIL should take up the water management schemes with the state government so that water supply to NPP is ensured all the time. The intake well at the dam should be provided at lower elevation than the minimum draw down level of the reservoir.

The Board desires that the structure stability of the F Pechiparai dam should be assessed taking into account the recent work of strengthening the dam.

7. In the unlikely event of the br.each of the dam alternative sources of water supply should be G available for the site within a reasonable time. NPCIL should conceptualize schemes at the Detailed Project Report (DPR) stage for utilization of the water from upper Kodiyar storage reservoir for such eventuality. H

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A 8. Site related design considerations such as seismic aspects etc. are to be established before submission of PSAR. Design should be engineered to meet site related design basis events.

9. The Board noted that as per the estimate of Health Physics Division, Maximum Flood Level (MFL) should be + 7.5 m after considering a return period of 1000 years for the maximum storm. This was reviewed against the estimated figure of 5.9 m given by the CWPRS. The Board SU!Jgested that c MFL must be re-evaluated by CWPRS conforming with the requirements of IAEA Safety Guide 50-SG- S1 OB on "Flooding on Coastal Sites". Revised Report of CWPRS should be submitted to Design Safety Committee. D

10. Bore-hole investigations are to be carried out at the proposed location of various buildings and structures. The report should be forwarded to design group for taking into account at the time of actual design.

11. Radiological impact should be assessed with proper source terms, consideration of topography and relevant dispersion characteristics of the site. Dose limits prescribed should be met at a distance of 1.6 km by incorporating design features in the plant. The radioactivity releases should be maintained in line with ALARA principle.

12. The typical radioactivity emission rates used in evaluation of the site should be compared with the releases from similar reactors and should be suitably adjusted taking into consideration acceptable failed fuel rates during evaluation by the design safety committee. H

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[K.S. RADHAKRISHNAN, J.]

13. The Board desires that the adequacy of stack A height of 100 m should be confirmed by NPC at the design stage, specifically in view of the change in the ground level of about 40 m on the north side of the plant. B

14. Environmental Survey Laboratory should be set up at site and instruments are to be installed at site to collect meteorological data and background radiation.

15. Two independent reliable sources of start up power c connected to two points in the electrical network located in different regions of the grid should be made available. Availability of a dedicated source of reliable start up power should be examined. D

16. Power evacuation studies particularly that influence the plant-grid interaction should be pursued. Feasibility of operation on islanding mode may be studied in collaboration with CEA.

17. Studies on Biofouling and Jelly-fish etc. that may E affect the water supply should be taken up.

18. Studies on accretion/erosion rate around the plant site should be carried out. If required, proper protection should be provided. F

19. At least two evacuation routes from plant site during an emergency should be provided.

20. The Board recommends that NPCIL shall consider the possibility of providing an additional facility for G spent fuel storage in future (Away from Reactor Storage AFR). The site for this should be reserved after considering the transportation and handling requirement of spent fuel. H

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A 21. Over Dimension Consignment (ODC) committee of NPCIL should evaluate suitability of transportation of ODC at design stage.

22. Analysis for the quality of construction water is to be carried out. B

23. This approval is given only for the location of two units of WER of 1000 MWe capacity each. at the proposed site. Other detailed investigations are necessary and NPCIL will have to apply and obtain permission of AERB before construction at the site begins.

Coastal Regulation Zone (CRZ)

130Copy pinpoint130. India is a gifted country which has coastal seas, bays, estuaries, creeks, rivers, backwaters. Critical importance of sea coast in a country like India need not be over emphasized, the protection of the same calls for scientific care and diligence and following Tsunami, Cyclone, earthquake etc., the protection of the sea coast has assumed added importance. E

131Copy pinpoint131. MoEF in exercise of powers conferred under Section 3(i) and 3(2)(v) of the Environmental (Protection) Act, 1986 and Rule 5(3)(d) of the Environmental (Protection ) Rules, 1986 issued a Notification dated 19.2.1991 declaring coastal stretches as Coastal stretches of seas, backwaters, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 Mtrs. from the HTL and the land between the low tide line (LTL) and the HTL are called coastal regulation zone and regulating activities in the CRZ, both prohibited and permitted activities. However, it did not prohibit the project already in operation and granted clearance prior to the date of the issue of notification. Later by an amendment dated 12.4.2001 S.0.329(C) amended paragraph 2 on "prohibited activities" and the notification dated 19.2.1991 by substituting clause ( 1) to the following effect "setting up of new

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[K.S. RADHAKRISHNAN, J.] industries and expansion of existing industries except (a) those directly related to water front or directly needing foreshore facilities (b) projects of Department of Atomic Energy''.

132Copy pinpoint132. We find with regard to the location of KKNPP within the prescribed ·500 mtr. within the CRZ an exemption had already granted as per the then existing norms even prior to 1991 by the then Prime Minister of India by the communication dated 19.4.1989. Over and above, paragraph 2(1) of 1991 CRZ Notification as amended by Notification dated 12.4.2011, exempted projects of Department of Atomic Energy. A cumulative reading of the permission dated 19.04.1989 C accorded by the then existing norms read with paragraph 2(1) of 1991 Notification, as amended by Notification dated 12.4.2011, we are of the view the KKNPP Units 1 and 2 have not violated the 1991 CRZ Notification. D EIA Notification 1994 and Environmental clearance:

133Copy pinpoint133. MoEF in exercise of powers conferred under sub- section (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Rules, 1986 read with clause (d) of sub-rule(3) of Rule 5 of the Environment (Protection) Rules, 1986, issued a Notification dated 27.1.1994 directing that on and from the date of publication of that notification in the Official Gazette expansion or modernization of any activity (without pollution load is to exceed the existing one) or a new project listed in Schedule 1 of that Notification shall not be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure specified in the Notification. The Notification contains an explanatory note regarding the impact of the assessment Notification dated 27 .1.1994. Relevant portions of the notification are given below for easy reference:

Expansion and modernization of existing projects:

"A project proponent is required to seek H

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A environmental clearance for a proposed expansion/ modernization activity if the resultant pollution load is to exceed the existing levels. The words 'pollution load" will in this context cover emission, liquid effluents and solid or semi-solid wastes generated. A project proponent may B approach the concerned State Pollution Control Board (SPCB) for certifying whether the proposed modernization/ expansion activity as listed in Schedule-I to the notification is likely to exceed the existing pollution load or not. If it is certified that no increase is likely to occur in the existing c pollution load due to the proposed expansion or modernization, the project proponent will not be required to seek environmental clearance, but a copy of such certificate issued by the SPCB will have to be submitted to the Impact Assessme'nt Agency (IAA) for information. The IAA will, however, reserve the right to review such D cases in the public interest if material facts justifying the need for such review come to light."

134Copy pinpoint134. The Note also deals with exemption for project already initiated under the explanatory Note 8 which reads as follows: E Exemption for projects already initiated:

"For projects listed in Schedule-I to the notification in respect of which the required land has been acquired and all relevant clearances of the State F Government including NOC from the respective State Pollution Control Boards have been obtained before 27th January, 1994, a project proponent will . not be required to seek environmental clearance from the IAA. However, those units who have not as G yet commenced production will inform the IAA."

135Copy pinpoint135. Schedule 1 of the Notification refers to Nuclear power project and related projects such as heavy water plants, nuclear fuel complex, rare earths etc. and the same also deals with H Thermal Power Plant as well.

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[K.S. RADHAKRISHNAN, J.]

136Copy pinpoint136. The Central Government, later in exercise of the powers conferred under Section 23 of Environment Protection Act, 1986 issued a Notification S.0.318(E) dated 10.4.1997, whereby inter alia introduced Schedule IV into the 1994 Notification prescribing the procedure for public hearing. MoEF later issued Circular dated 23. 7 .1998 after reviewing the progress of cases which were accorded environmental clearance prior to 27 .1.1994 Notification and it had been observed that a large number of projects had not commenced constructions or other operations due to various reasons like non-availability of financial resources, non-availability of forestry c clearance, inter-State water disputes and non-availability of essential infrastructure like land, electricity, road etc. Further it was also noticed that certain projects which were environmentally appraised even as early as 1980 had not commen.ced construction activities. MoEF felt there might have 0 been significant changes during those years which would have implications to the environment and ecology of the area. MoEF issued the above Circular pointing out that the environment clearance issued prior to 1994 would not be valid in the cases, where work did not commence before 1.8.1998. Further it was E also clarified in all. such cases fresh environmental clearance would be required, if those come in the 29 categories listed in the EIA Notification. Further it was also clarified that projects which were not listed in Schedule 1 in EIA Notification would not require environmental clearance. F

137Copy pinpoint137. MoEF later inspected the site of the plant on 31.8.2001 and found that land acquisition had been completed and the construction work on various components such as township, Environmental and Health Research Centre and RO plant was in progress. Further, it was noticed that afforestation G programme was undertaken by M.S. Swaminathan Research Foundation and that till August 2001, Rs.377.30 crore was spent for KKNPP on various activities.

138Copy pinpoint138. MoEF, noticing the above facts, vide its letter dated H

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A 6.9.2001 clarified that environmental clearance granted on 9.5.1989 stands valid and that there is no need to conduct public hearing and seek fresh environmental clearance. A chart giving the details of land acquisition and compensation amount paid reads as follows:

B LAND ACQUISITION DETAILS OF KKNPP S.No. Name of Private land Puramboke Total Village (in hectares) land (in (in hectares) hectares) c For Plant site 1 Kudankulam 862.775 112.945 975.720 2 lrukkundarai -- 2.675 2.675 3 Vijayapathi 66.750 1.815 68.565 Sub Total 929.525 117.435 1046.960 D For Township 1 Chettikulam 153.905 24.300 178.205 Total Land acquired 1225.165 Hectares E Land and Acquisition completed 1991- and awards pronounced 1993 Number of displaced persons Nil Type of acquired land Dry F Compensation details S.No. Village Amount paid (Rs.) Kudankulam 62,02,332.00 lrukkundarai 31,09,727.00 G Vijayapathi 6,09,834.00 Total 99,21,893.00

139Copy pinpoint139. We are of the view that the EIA Notification of 1994 would not apply to KKNPP Units 1 and 2 for which H environmental clearance was granted on 19.5.1989. 1994

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[K.S. RADHAKRISHNAN, J.] notification, in our view, would be operative only prospectively A except in the case of expansion and modernization of any activity (if the pollution load is to exceed the existing one) as on the date of publication of that notification or a new project listed in Schedule 1 for which environmental clearance is necessary as per the notification dated 27 .01.1994. So far as B KKNPP units 1 and 2 are concerned, they had the relevant clearance from the State Government including the NOC from the State Pollution Control Board. Facts stated above would indicate that the land acquisition process for the plant site and township had commenced during the year 1990-1991 and c awards were pronounced during the period 1991-1993 by the Land Acquisition Officer and Special Tehsildars (Land Acquisition) Government of Tamil Nadu. Annexure R-15 produced along with the affidavit filed by the MoEF dated 18.10.2012 indicates the details of total land acquired, the 0 awards pronounced and the details of the compensation paid. Further sites surveys, infrastructure design, construction of boundary wall, roads and some buildings etc. had been completed between 1989 to 1994. The Committee on Conservation of Seashore of Government of Tamil Nadu had also granted clearance on 25.2.1988 and the TNSEC had also E granted clearance C?n 15.12.1988, modified on 13.2.1989. Above facts clearly indicate that the EIA Notification dated 27.1.1994 would not apply to KKNPP Unites 1 and 2 since these units stood exempted from the Notification and the Explanatory Note 8 to the Notification and also the Circular F issued by the MoEF on 23.7.1998 make it more explicit.

140Copy pinpoint140. We may now examine whether there has been any expansion or modernization of units 1 and 2 resulting in increase in pollution loads. Plant capacity, we have noticed, G always remained 1000 MWs X2, and the plant model V-412 remained to be as envisaged in 1988 Agreement and 1998 supplementary agreement of 1988. Further, for the purpose of cooling the steam generated in the steam generator sea water is required which goes through the steam turbine which runs H

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A the electrical generator to produce electricity. Sea water consumption is 2,40.000 m3/Hr and the water is to be drawn from the sea and pass through the condenser for both Units 1 and 2 and once the cooling process is over, it is to be released to the sea, a process, which has undergone no change from B what was envisaged before obtaining clearance from MoEF in 9th May, 1989 till date and hence we find no necessity for a fresh clearance.

Desalination Plant

141Copy pinpoint141. We may now examine whether prior environmental clearance is a pre-requisite for the establishment of a desalination plant in terms of EIA Notification dated 27.1.1994 or in terms of the subsequent Notification dated 14.9.2006 which superseded the Notification dated 27.1.1994. Further we D may also examine whether establishment of desalination plant is permissible in CRZ. We have already indicated that prior environmental clearance is required only for those activities which are listed in Schedule 1 to the EIA Notification dated 27.1.1994 or the subsequent Notification dated 14.9.2006 E which superseded earlier Notification dated 27.1.1994. Desalination plant is not seen listed under the above-mentioned notifications. The decision to establish desalination plant for the purpose of domestic water requirement was taken by the NPCIL in the year 2004. Earlier when environmental clearance was granted on 9.5.1989 the proposal was to take fresh water from the Pachipari Dam, situated at about 65KM away from the plant site. The same had to be given up in view of the involvement of forest land as well as the apprehensions expressed by the local villagers that the withdrawal of water from the Dam would deplete the scarce natural resource, especially at the time of drought. Desalination plant functions on distillation (Mechanical Vapour Compression) principle. Sea water would be drawn and would be fed to the plant which consists of four streams each having capacity of 106.66 cubic mtr. p.h. Cumulative feed flow of all three operating streams is H 670 cubic.mtr p.h. and cumulative reject flow is 350 cubic mtr

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[K.S. RADHAKRISHNAN, J.] ph., balance 320 cubic mtr. p.h. is purified water. Facts would indicate that there is no generation of air emission, solid waste and effluent are flowing from the desalination process except rejects (which also called brine) which is nothing but concentrated sea water which remains after desalination process and does not contains external elements. The rejects will have concentration of 69000 parts per million which would be mixed with the sea water 1,20,000 cubic mtr. p.h. and discharged through the outlet channel into the sea which would give dilution 343 times and reduce the reject to the ambient sea water concentration of 35000 parts per million. Experts say the c process would not cause any increase in pollution load due to desalination.

142Copy pinpoint142. CRZ Notification of 1991, though prohibited, the setting up of new industries as well as expansion within CRZ, it had permitted the laying of pipeline and conveying system. D 1991 Notification was amended on 21.05.2002 and it was provided that the desalination plants could be established in the notified special economic zone, for non-polluting industries within CRZ. On 19.10.2002, it was again amended and it was provided that the desalination plants could be established within E CRZ except CRZ - 1 (i) - i.e. eco-sensitive areas viz. mangroves, sand dunes, reserve forests etc. MoEF later issued another notification dated 06.01.2011 superseding 1991 notification, as per that para 3(i)(c) and as per para 4(ii)(h) (of 06.01.2011 notification) makes provisions for the establishment of desalination plants within CRZ area except CRZ - 1(i).

143Copy pinpoint143. NPCIL informed TNPCB for the inclusion of desalination facility which was not earlier included in the original application for 'Consent to Operate'. TNPCB considered the request and accorded "Consent to Operate' on 20.08.2012 which included desalination plant. The establishment of desalination plant, therefore, would not require any fresh environmental clearance, especially when the same has not been included in the Schedule 1 to the EIA Notification dated H

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A 27.1.1994 or in the subsequent Notifications dated 14.9.2006, 06.01.2011 etc. except within CRZ - 1(i).

Change in Temperature Limit

144Copy pinpoint144. We may now examine whether, in the light of B paragraph 5 of the clearance dated 9.5.1989 and the amendment to Rule 84 of the Environment (Protection) Rules 1986 by Notification dated 22.12.1988, the stipulation of 5°C contained in the clearance can be varied. Environment (Protection) Rules, 1986 was amended vide notification dated C 22.12.1988 as Environment (Protection) Second Amendment Rules, 1~88. Rule 84 deals with the temperature limit for discharge of condensed cooling water which reads as follows:

"84. Temperature limit for Discharge of Condenser D Cooling Water from Thermal Power Plant:

A. New thermal power plants, which will be using water from rivers/lakes/reservoirs, shall install cooling towers irrespective of location and capacity. Thermal power plants which will use sea water for cooling purposes, the condition below will apply.

B. New projects in coastal areas using sea water:

The thermal power plants using sea water should adopt suitable system to reduce water temperature at the final discharge point so that the resultant rise in the temperature of receiving water does not exceed 7°C over and above the ambient temperature of the receiving water bodies. _, G C. Existing thermal power plants:

Rise in temperature of condenser cooling water from inlet to the outlet of condenser shall not be more than 10°C. H

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[K.S. RADHAKRISHNAN, J.] D. Guidelines for discharge point: A

The discharge point shall preferably be located at the bottom of the water body at mid-term for proper dispersion of thermal discharge.

In case of discharge of cooling water into sea, B proper marine outfall shall be designed to achieve the prescribed standards. The point of discharge may be selected in consultation with concerned State Authorities/NIO. c No cooling water discharge shall be permitted in estuaries or near ecologically sensitive areas such as mangroves, coral reefs/spawning and breeding grounds of aquatic flora and fauna."

145Copy pinpoint145. Rule 84, of course, deals with the Thermal Power D Plant, which states that the resultant rise in temperature of receiving water shall not exceed 7°C over and above. 'the ambient temperature of the receiving water body. F,ai;:ts indicate that the limit prescribed under Rule 84 will equally·be applicable to Nuclear Power Plant as well since the tech-nolegy E for condenser cooling in both, thermal as well as Nuclear Power Plant is the same. In both systems condenser is cooled by using water, therefore, the limit on temperature of discharged water will have to be the same. F

146Copy pinpoint146. Let us also examine whether there will be any •mpact on the marine eco-system due to +7oC CCW water, for which detailed study was conducted by the Institute of Ocean Management, Anna University, which has submitted its report in July 2008 and the Engineers India Ltd. along with CHFRI G submitted its report in August 2011. Environmental Impact was analysed in desalination and the experts are unanimous in their views, that there would be no impact on the marine ecosystem. Reports were also considered by the MoEF through the EAC before giving environmental clearance for the units 3 to 6 on H

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A 23.09.2008 and 31.12.2009 and the CRZ clearance on 25.07.2012. TNPCB has also accorded consent to operate on 28.08.2012 for KKNPP Units 1 and 2 by stipulating that condenser cooling water discharge limit as 7oC as per the amended Environmental Protection Rules. Therefore, the B contention raised by the appellants that the rise in temperature of receiving water due to rise in temperature of condenser cooling water would affect marine eco-system and cannot be sustained.

147Copy pinpoint147. Appellants have also raised a contention under the C EIA Notification of 1994 that those projects where "all clearances" including "NOC" from State "PCBs" had not been obtained required fresh environmental clearance from MoEF in accordance with the said notification. Reference was made to Explanation 8 of the EIA Notification of 1994. Further it was pointed out that all projects having environmental implications "required previous consent" to establish and "to operate" under the Water Act, 1974 and Air Act, 1981 from the State Pollution Control Board and unless those consents are existing, plant cannot said to have "all clearances from the State PCBs as required by the Explanation 8 of the EIA Notification of 1994".

148Copy pinpoint148. We are of the view that the "environmental clearance" or "No Objection Certificate" cannot be equated to "consent to establish" under Section 25 of the Air Act and "consent to operate" under Section 21 of the Water Act, which were granted on 25.2.2004 and 28.8.2012 respectively. NPCIL had undertaken various activities with respect to KKNPP subsequent to the environment clearance granted by TNSEC on 26.12.1988, subsequently modified on 13.2.1989.

149Copy pinpoint149. TNSEC had on 15.12.1988 had already cleared the project, which tantamount to No Object Certificate (NOC). Only after clearance or NOC, the question of 'establishing' or 'operating' a plant arises. Environmental clearance or NOC was granted to KKNPP units 1 and 2 as early as 26.12.1988 though H the TNPCB had granted 'consent to establish' under Section

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[K.S. RADHAKRISHNAN, J.] 25 of the Air Act on 25.02.2004 and 'consent to operate' under A the Water Act on 28.08.2012. Explanatory Note 8 to the Environment Notification dated 27 .01.1994 speaks of exemption for projects already initiated that is land has been acquired and clearance of the State Government including NOC, from Pollution Control Board had been obtained before B 27th January 1994, for which no fresh environmental clearance would be required from Impact Assessment Agency (IAA). KKNPP units 1 and 2 is, therefore, entitled to get the benefit of the Explanatory Note 8 to EIA notification dated 27.01.1994.

150Copy pinpoint150. We also notice that there has been no expansion or C modernization of units 1 and 2, which has resulted in increase of pollution load. Plant capacity remained the same i.e. 1000 MWs X2, till date and there is no substantial difference in plant model and the specifications envisaged in the 1988 agreement and 1998 supplement agreement. Plant model remains as V- D 412, consequently the 1994 EIA notification will not apply qua KKNPP units 1 and 2.

151Copy pinpoint151. NPCIL, as part of the continuous process to ensure safety of environment made a Rapid Environmental Impact E Assessment (REIA) of KKNPP Units 1 and 2 in the year 2001. The National Environmental Engineering Research Institute (NEERI) retained by NPCIL for conducting their assessment. REIA report of NEERI examined the baseline data collected during summer season 2001 within the impact zone for air, noise, water, land, biological and socio economic environment including data on radiological parameters which has formed the basis for predicting, evaluating the potential impact due to proposed two units of KKNPP at Kudankulam. NEERI submitted its report in May 2002. In the year 2003 there was yet another comprehensive EIA by NEERI of KKNPP units 1 and 2 which took into account the entire season i.e. 12 months. Assessments were made as part of the continuous process to monitor the safety of the environment as well as to establish an existing base-line status with respect to various H

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A environmental points like air, noise, water, land, biological and socio-economic for identifying, predicting and evaluating the environmental potential impact as also to formulate an effective Environmental Management Plan (EMP). Report was submitted in January 2003 which was later implemented under the expert B guidance of MS Swaminathan Research Foundation.

Environmental Clearance for KKNPP Units 3 to 6

152Copy pinpoint152. NPCIL consent letter dated 18.2.2007, for grant of environmental clearance for expansion of the then existing C Nuclear Project (2 x 1000 MW, by adding 2x1000 MW Units 3 & 4), pointed out that the land acquired for locating the proposed units was already available within the NPP Complex and no additional land would be required for expansion of the project. Further it was stated that water for condenser cooling D system would be drawn from the sea and sweet water requirement would be met from the desalination plant. Further it was pointed out that no forest land was involved in the project. The Gulf of Mannar Marine National Park is about 87 KM from the site, though the Gulf of Mannar Biosphere Reserve Boundary E is at a distance of about 20-50 mtr. Further it was pointed out that no displacement of population was envisaged. Project, it was stated, was to be located in the CRZ-111 and that exemption from 500 mtr. norm in respect of CRZ for Units 1 and 2 was obtained from the Government of India as far as back in 1989. F Further it was also stated that public consultation was held on 2.6.2007 and that the total cost of the project would be Rs.14,000 crores which included 307.50 crore for environmental protection measures.

153Copy pinpoint153. MoEF considered the above-mentioned proposal in accordance with paragraph 12 of the EIA Notification 2006 read with paragraph 2.2 sub-clause 2.2.1 (i)(a) of Circular dated 13.10.2006 and MoEF accorded clearance vide communication dated 23.09.2008 under the provisions of EIA Notification of 2006 subject to the implementation of several conditions, which read as follow:

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[K.S. RADHAKRISHNAN, J.] (i) On-line continuous monitoring of the temperature of A the discharged cooling water shall be carried out at the discharged point. It shall be ensured that the temperature differential of the discharged water w.r.t. the receiving water does not exceed 7°C at any given point of time. B (ii) Necessary prior clearance under the provisions of CRZ Notification, 1991 for the activities to be located in CRZ shall be obtained from the Competent Authority. c (iii) No additional land shall be acquired for any activity/ facility of project.

(iv) AERB clearance for the site shall be obtained before starting any construction work and a copy of the same shall be provided to the Ministry of Environment & Forests.

(v) A scheme for rain water harvesting shall be prepared in consultation with an expert agency/ State Ground Water Board and details furnished within 3 months of the issue of the environment clearance letter.

(vi) Greenbelt shall be developed all around the project boundary covering an area of 180 ha preferably with local species.

(vii) Noise levels shall be limited to 75dBA. For people working in the high noise area, requisite personal protective equipment like earplugs/ear muffs etc. shall be provided. G

(viii) Regular monitoring of conventional gaseous pollutants, radioactive pollutants in the air as well in the discharged water shall be monitored regularly as per AERB standards. H

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A (ix) Regular monitoring of ambient air quality shall be carried out in and around the power plant and records maintained. The location of the monitoring stations and frequency of monitoring shall be decided in consultation with SPCB. Periodic B reports shall be submitted to the Regional Office of this Ministry. Besides air quality, water, food samples and soil shall also be monitored regularly for radioactive levels in the surrounding areas and records maintained. c (x) A Disaster Management Plan and Emergency Preparedness Plan shall be prepared and put in place as per the norms of AERB. Regular mock drills shall be undertaken and based on the same, any modification required, if any, shall also be incorporated.

(xi) The radioactive waste shall be managed as per the norms prescribed by AERB.

(xii) The non-radioactive waste water generated from the plant premises will be suitably treated in STP and the treated effluents shall be recycled and reused within the plant premises for greenbelt etc.

(xiii) The radioactive liquid waste emanating from the plant will be treated and managed as per the guidelines of AERB/ICRD in this regard.

(xiv) Provision shall be made for the housing of construction labour within the site with all necessary infrastructure and facilities such as fuel for cooking, mobile toilets, mobile STP, safe drinking water, medical health care, creche etc. The housing may be in the form of temporary structures to be removed after the completion of the project.

H (xv) The project proponent shall advertise in at least two

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[K.S. RADHAKRISHNAN, J.] local newspapers widely circulated in the region around the project, one of which shall be in the vernacular language of the locality concerned within seven days from the date of this clearance letter, informing that the project has been accorded environmental clearance and copies of clearance letter are available with the State Pollution Control Board/Committee and may also be seen at Website of the Ministry of Environment and Forest at http://envfor.nic.in

(xvi) A separate environment management cell with c qualified staff shall be set up for implementation of the stipulated environment safeguards.

(xvii) Half yearly report on the status of implementation of the stipulated conditions and environmental safeguards shall be submitted to this Ministry/ Regional Office/CPCB/SPCB.

(xviii) Regional Office of the Ministry of Environment & Forests located at Bangalore will monitor the implementation of the stipulated conditions. A complete set of documents including Environmental Impact Assessment Report and Environment Management Plan along with the additional information submitted from time to time shall be forwarded to the Regional Office for their use during monitoring.

(xix) Separate funds shall be allocated fo·r implementation of environmental protection measures along with item-wise break-up. These G cost shall be included as part of the project cost.

(xx) Full cooperation shall be extended to the Scientists/ Officers from the Ministry /Regional Office of the Ministry at Chandigarh/the CPCB/ the SPCB who H

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A would be monitoring the compliance of environmental status."

154Copy pinpoint154. Notification also stated that the environmental clearance would be valid for a period of five years to start the operation of the power plant and that in case of any deviation 8 or alteration in the project proposed and already submitted to the MoEF for clearance, a fresh reference should be made to the MoEF to assess the adequacy of the conditions imposed and to add additional protection measures required, if any. C Further it was also pointed out that the above stipulations would be in force amongst others under the Water Act, 1974, The Air Act, 1981 and the Environment (Protection) Act, 1986 and the Rules thereunder, Hazardous Wastes (Management and Handling) Rules, 1989 and its Rules, the Public Liability Insurance Act, 1991 and its amendment. D

155Copy pinpoint155. NPCIL submitted yet another application dated 19.11.2009 for environmental clearance for KKNPP expansion Units 5 & 6 (2 x 1000MW). Environmental clearance was granted by the MoEF vide its communication dated 31.12.2009 E incorporating all the conditions which were stipulated in respect of Units 3 and 4 in the Notification dated 23.9.2008 and also with additional conditions which reads as under:

I. "Environmental clearance is subject to obtaining prior clearance from wildlife angle as applicable due to proximity of Gulf of Mannar Biosphere Reserve.

II. The grant of environmental clearance does not necessarily implies that wildlife clearance shall be granted to the project and that their proposal for wildlife clearance will be considered by the respective authorities on their merits and decision taken. The investment made in the project, if any, based on environmental clearance so granted, in anticipation of the clearance from wildlife angle shall

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[K.S. RADHAKRISHNAN, J.] be entirely at the cost and risk of the project proponent and Ministry of Environment and Forests shall not be responsible in this regard in any manner.

Ill. Environmental clearance is subject to final order of the Hon'ble Supreme Court of India in the matter of Goa Foundation v. Union of India in Writ Petition (Civil) No.460 of 2004, as may be applicable to this project.

IV. First aid and sanitation arrangements shall be c made for the drivers and the contract workers during construction phase.

v. A sewage treatment plant shall be provided and the treated sewage conforming to the prescribed standards shall be used for raising green belt/ plantation.

VI. The proponent shall upload the status of compliance of the stipulated EC conditions, including results of monitored data on their website and shall update the same periodically. It shall simultaneously be sent to the Regional Office of MoEF, the respective Zonal Office of CPCB and the SPCB. The criteria pollutant levels (stack and ambient levels) indicated for the project shall be monitored and displayed at F a convenient location near the main gate of the company in the public domain.

VII. The project proponent shall also submit six monthly reports on the status of compliance of the stipulated G EC conditions including results of monitored data (both in hard copies as well by e-mail) to the respective Regional Office of MoEF, the respective Zonal Office of CPCB and the SPCB.

VIII. A copy of the clearance letter shall be sent by the H

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A proponent to concerned Panchayat, Zila Parishad/ Municipal Corporation, urban local Body and the Local NGO, if any, from whom suggestions/ representations, if any, were received while processing the proposal. The clearance letter shall B also be put on the website of the Company by the proponent.

IX. The Environment statement for each financial year ending 31st March in Form-Vas is mandated to be submitted by the project proponent to the c concerned State Pollution Control Board as prescribed under the Environment (Protection) Rules, 1986, as amended subsequently, shall also be put on the website of the company along with the status of compliance of EC conditions and shall D also be sent to the respective Regional Offices of MoEF by e-mail.

This issues with the approval of the Competent Authority." E

156Copy pinpoint156. As provided under EIA 2006 Notification before applying for environmental clearance for Units 3 to 6 a comprehensive EIA study was conducted for Units 3 to 6 which included the impact of Units 1 and 2 aspect as a base-line for computing additional impacts of Units 3 to 6. Concern of the F public regarding safety, livelihood, radiation etc. had been addressed during the public hearing on units 3 to 6 held on 2.6.2007. Issues raised in the public hearing were:

1. Use of water from Pachi Pari Dam G

2. Effect of temperature of discharge water on marine life

3. Radiation emission

H 4. Solid waste and fuel management

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[K.S. RADHAKRISHNAN, J.]

5. Welfare activities of the nearby villagers A

6. Compliance with MoEF, IEA and AERB guidelines

7. Environmental impact and monitoring and

8. Site location criteria. B

157Copy pinpoint157. It was discussed in the meeting that sea water intake !>tructure would be located at a depth of 10 mtr. from the Main :Sea Level (MSL ) and at a distance of 1.2 Kms. off shore from the shore line. The temperature differential of cooling water at the discharge point would be limited to 7°C with respect to the ;ambient temperature. Discharge of all units, including the 'existing two units will be let off into a common discharge channel parallel to the shore bound and release at the two extreme ends of the channel. Gates will be provided on East and West side of the channel, which will be operated depending upon the ocean current direction in different season. The modeling was done for all the units of 1OOOMW each taking into consideration the futuristic plan of expansion at the.proposed site. The impact zone was shown to be 5 KM. E

158Copy pinpoint158. The Environmental Appraisal Committee (EAC) after holding the public meeting on 02.06.2007 again met on 22.8.2008 and made its recommendations for environmental clearance for Units 3 and 4 subject to their obtaining CRZ clearance. We have already indicated that the proposal of EAC F was approved by the MoEF on 23.9.2008 with respect to Units 3 and 4. Later after getting the administrative approval from the Competent Authority for Units 5 and 6, the same was also reported by NPCIL to the MoEF and MoEF vide its letter accorded clearance on 31.12.2009 for Units 5 and 6 as well. G

159Copy pinpoint159. Appellants, therefore, cannot contend that the procedure laid down under the 1994 and 2006 Notifications had not been followed. In our view, the EIA for the expansion of KKNPP i.e. for setting up Units 3 to 6 included the environment imoact on Units 1 and 2 and the cumulative effect of all the six H

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A units definitely formed the base line for the clearance granted by the MoEF on 23.9.2008 and 31.12.2009. The concern of the public regarding safety, livelihood, radiation, impact on marine life, rehabilitation, impact on the sea shore etc. were also considered and following that necessary clearance was B granted.

160Copy pinpoint160. KKNPP 3 to 6, after having got environmental clearance from MoEF in September 2008 and December 2009 entrusted the task of updation of EIA study to M/s Engineers India Ltd. (Ell), Gurgaon (a Govt. of India C Undertaking). Ell, accordingly carried out the study along with the Central Marine Fisheries Research Institute (CHFRI) for the expansion of projects on air, water, land, noise, biological and socio-economic aspects within a radius of 1O km from the proposed location. Detailed study was conducted on the D Reactor system of KKNPP 3 to 6, impact on environment existing environmental status, its prediction and on environmental management plan report was submitted in August 2011. The report has also analysed the environmental impact on the marine ecosystem due to +7oC CCW water and concluded that it will have no impact on the marine ecosystem. EIA was considered EAC, while granting CRZ clearance for the additional reactors 3 to 6 at KKNPP along with sea water intake and outfall facilities for cooling purpose. CRZ clearance was granted by MoEF on 25.07.2012 after.following the procedure laid down in the CRZ notification of 2011. TNPCB, as already indicated, has also accorded consent to operate vide proceeding dated 28.08.2012 incorporating stringent standard of 7oC over and above the ambient temperature of sea for the discharge of effluents, through the cooling water and trade effluent and included permission for discharge of effluents from desalination plant.

Sustainable Development and impact on eco-system

161Copy pinpoint161. The Government of India, as already stated, constituted a fifteen member experts group covering all fields

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[K.S. RADHAKRISHNAN, J.] technical, scientific, environment etc. to provide clarifications A on the various issues raised by group of general public. Efforts were made by the group to have interaction with the agitators but met with little success. Group elaborately discussed apart from safety features of the plant, its ecological effects on environment and marine life and a Report was submitted to the B Government of India on December 2011. The Government of Tamil Nadu also appointed an Expert Committee headed by the former President of AEC Prof. R. Srinivasan along with three other experts to review the safety features. There has been consensus among all the expert committee on safety and c security of the plant as well as on the effect on marine ecology, high protection, impact on land, agriculture, livestock, food, impact on flora and fauna, biosphere, environmental clearance, CRZ clearance, fresh water supply, desalination plants, emergency preparedness etc. Detailed studies have been 0 conducted on various occasions of the effect of the NPP on air, water, noise, land, environment and also on biological, marine and socio-economic environment; to allay the apprehension voiced by a section of the people and its worth.

162Copy pinpoint162. Royal Commission on Environmental pollution (UK) E in its very first report, 4(1971) stated as follows:

"The problem we face is how to strike a balance between the benefits of rising standard of living and its costs in terms of deteriorations of the physical environment and the F quality of life. In the past, the danger of polluting the air, water and land was not fully recognized, but now there is no doubt that it is a matter of great concern".

163Copy pinpoint163. Royal Commission had said so in the year 1971. Next year 1972, the international community convened the United G Nations Conference on Human Environment at Stockholm (Stockholm Conference) of which India is a signatory.

164Copy pinpoint164. Stockholm Conference not only brought into focus the human rights approach to the problem of environmental H

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A protection but also recognized the linkage between the development and environment from which the concept of "sustainable development" has emerged. The Conference noticed that while man is both creature and moulder of this environment, rapid advances in science and technology had B invested man with the potent power to transform his environment in countless ways and on an unprecedented scale. The benefits of development and opportunity to enhance quality of life, if wrongly or carelessly used, man could do incalculable harm to human beings and to the environment. The c responsibility of the people to protect and improve the environment for the present and the future generations was also recognized. Later the Nairobi Conference and Declaration 1982 re-stated the principles of Stockholm Conference and high-lighted the importance of intensifying the efforts at the D global, regional and national levels to protect and improve environment. The United Nations General Assembly (UNGA) in October 1982 adopted "The World Charter For Nature" and laid down general principles of environmental protection, action plan and implementation of scheme which high-lighted the conservation principles. New Delhi hosted the Delhi E International Conference on Environmental Education 1982 where the International Community called for massive programme of environmental research and monitoring. The Conference suggested that environmental education should start from childhood and it should be both formal and informal. F

165Copy pinpoint165. The United Nations General Assembly vide Resolution 38/161, in the year 1983 suggested the creation of "The World Commission on Environment and Development" for suggesting and recommending legal principles based on G Stockholm Conference and Nairobi Conference and many other, then existing International Conventions and General Assembly Resolutions. The World Commission submitted its report in year 1987 which indicated that politicians, industrial leaders and environmental groups around the world had H endorsed "sustainable development" i.e. meeting the needs of

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[K.S. RADHAKRISHNAN, J.] the present without compromising the ability of future A generations to meet their own needs. United Nations convened a conference in the year 1983 at Vienna for protection. of Ozone layer which provided foundation for global multilateral undertakings to protect the environment and public health from the potential adverse effects of depletion of Stratospheric B Ozone.

166Copy pinpoint166. United Nations Environmental Programme (UNEP) convened a Conference at Plenipotentiaries in Montreal in the year 1987, called the Montreal Protocol 1987, which high- C lighted the necessity of limiting and reducing the use of chlorofluro carbons and other chemicals that deplete ozone. India has acceded to both the Vienna Convention 1985 and the related Montreal Protocol, 1987, in the year 1992.

167Copy pinpoint167. Following the Stockholm Conference the second landmark on environmental protection and development was "United Nations Conference on Environment and Development (UNCED), 1992 (Rio Summit). The Conference was held at Rio (Brazil) in the year 1992 which addressed the twin problems of environment and development. Rio declaration sets out general non-binding commands for "sustainable development" i.e. "human beings who are at the centre of sustainable development concerns have to exercise their right to healthy and productive life in harmony with nature·. The Rio Conference also high-lighted the principle of inter generational equity. F Principles like "precautionary principle" so as to prevent the environmental degradation and the principle of "polluter pays• i.e. to bear the cost of pollution with due regard to public interest" were high-lighted. The Conference resulted in conclusion of a treaty. on climate change with a general G recognition of the importance of curbing emission of green house gases, another treaty on bio-diversity aiming at the preservation of flora and fauna was also concluded. The Rio Conference also adopted Agenda 21. Section II of that Agenda deals with topics like protection of the atmosphere, land H

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A resources, deforestation, sustainable agriculture and rural development, conservation of biodiversity, protection of oceans, fresh water, toxic chemicals management, hazardous waste management, solid waste management and radioactive waste management. B

168Copy pinpoint168. An international instrument expressing international concern for the protection of global environment was the convention on the Climate Change (UNFCCC) 1992. The Convention high-lighted the necessity to reduce emissions of green-house gases believed to be contributing to global C warming. Yet another, convention was The Biodiversity Convention, 1992 which sought to ensure that animals, plants and micro-organisms as well as genetic variety and ecosystem, water, land and air, in which they live are property protected. It obligates the countries to promote the protection of eco- D systems, natural habitat and the maintenance of viable populations of species in natural surroundings. Following the Rio Summit a Special Session of UNFA held in June 1997 in New York to review the progress of Rio Earth Summit called "Earth Summit+5" which adopted a comprehensive document titled "Programme For Further Implementation of Agenda 21". The Conference noticed that since the Rio Conference, global environment had continued to deteriorate with rising level of polluting emissions, notably of green house gases, toxic substances and waste volumes and at operational levels, including the lowest administrative levels.

169Copy pinpoint169. UN Millennium Declaration, 2000 articulated that prudence must be shown in the management of all living species and natural resources, based on the principle of G "sustainable development" and that only then, can the immeasurable riches provided to us by the nature be preserved for posterity. Further it was declared that current unsustainable pattern of production and consumption must be changed in the interest of our future welfare and that of our descendants.

170Copy pinpoint170. United Nations General Assembly (UNGA) following

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[K.S. RADHAKRISHNAN, J.] the Rio Declaration and Agenda 21 created a Commission on A Sustainable Development under the United Nations Economic and Social Council to ensure the effective implementation at the local, national, regional and international levels of what had been agreed at the Rio Conference, to ensure follow up of Rio Summit, to enhance adequate intern·ational, scientific and B technological cooperation to catalyse inter-governmental decision making capacity to ensure regular and effective reporting on the Agenda 21 and at the national, regional and global levels.

171Copy pinpoint171. The Delhi Sustainable Development Summit (DSDS) C held in February 2002 at New Delhi, examined and elaborated the dynamics of concept of sustainable development, with a view to make recommendations for consideration at the World Summit at sustainable development to be held in Johannesburg. Delhi Summit sought to focus on poverty alleviation as the overriding concern to achieve sustainable development.

172Copy pinpoint172. The World Summit on Sustainable Development (Johannesburg Summit) 2002 convened under the auspices of commission of sustainable development recommended various steps for further implementation of Rio Principles and Agenda

21. The Summit recognized that the reduction of poverty is the greatest global challenge facing the world, for which the World Solidarity Fund was required to be established to eradicate poverty and to promote social and human development in various developing countries. Further, Conference also noticed that since oceans, seas, islands and coastal areas form an integrated and essential component of earth's ecosystem and are crucial for global food security and for sustaining economic prosperity and the well-being of many national economies, particularly, developing countries, it is necessary to ensure sustainable development of the oceans.

173Copy pinpoint173. United Nations Conference on Sustainable Development, Rio +20 took place in Rio de Janeiro in June H

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A 2012, which also took forward looking decisions on a number of thematic areas including energy, food security, oceans, cities etc. Conference also focused its attention on green economy in the context of sustainable development, poverty eradication and an institutional framework for sustainable development. B

174Copy pinpoint174. We have already found on facts that the KKNPP has been set up and is made functional on the touchstone of sustainable development and its impact on ecology has been taken care of following all national and international environmental principles. c Public Interest and Human Rights

175Copy pinpoint175. We have to resolve the issue whether the establishment of NPP would have the effect of violating the right 0 to life guaranteed under Article 21 to the persons who are residing in and around Kudankulam or by establishing the NPP, it will uphold the right to life in a larger sense. While balancing the benefit of establishing KKNPP Units 1 to 6, with right to life and property and the protection of environment including marine life, we have to strike a balance, since the production of nuclear energy is of extreme importance for the economic growth of our country, alleviate poverty, generate employment etc. While setting up a project of this nature, we have to have an overall view of larger public interest rather than smaller violation of right to life guaranteed under Article 21 of the Constitution.

176Copy pinpoint176. Problems highlighted, while setting up a nuclear plant, are not unique to this nation, because other countries are also grappling with those situations. In R. v. Inspectorate of Pollution, exp Greenpeace Ltd (1994) ALLER 321, the Court of Appeal G in England had occasion to examine the correctness of the decision taken by Her Majesty's Inspectorate of Pollution (HMIP) and Ministry of Agriculture, Fisheries and Food (MAFF) for allowing testing of new Thermal Oxide reprocessing plant THORP at Sellafield, HMIP and MAFF had concluded that the H radiological impact of emissions from THORP would be very

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[K.S. RADHAKRISHNAN, J.] small, a plea which was accepted by the court. In R. v. The A Secretary of State for the Environment, ex p Greenpeace Ltd. (1994) 4 All England Reports 352, the Greenpeace and Lancashire Country Council sought to quash the decision to grant authorization for the disposal of radioactive waste from THORP. Overall, Potts J. concluded that Minister had acted B correctly in considering fir$t the human issues related to acceptability of risk and then examining the wider issue of justification as if they were relevant even though Minister (incorrectly) believed that they were not relevant, they had, in fact, weighed the benefits and detriments and were entitled to c reach the conclusion that balance"came down on the side of justification. In R. v. Secretary of State-for Environment, Food and Rural Affairs, ex p Friends on· th.e Earth Ltd (2002) Environmental Law Review 24, the Court of Appeal in England had to consider the application of the prinCiple of justification 0 to the substantive decision in October 200.1 with the proposed practice by the British Nuclear Fuels L.imi~ed (BNFL) of manufacturing mixed oxide fuel (MOX) ~t Sellafield. Government's stand was that the "economic b~nefits" were sufficient to justify "the very minor radiological detriments" which would result from the manufacture of MOX. The Cqurt of Appeal accepted the stand of the Government. In M,archiorii v. Environment Agency (2002) EWCA Civ 3, the Coun of Appeal examined the validity of the authorization granted by the environment agency for the discharge of liquid wastes .from the Atomic Weapons Establishment (AWE) on the basis of that they could not be justified having regard to the humanitarian and international law objections to the use of nuclear weapons. The environment agency took the stand that the practic.e of designing, constructing, maintaining and dismantling nuclear weapons at the AWE justified in the light of the government's G defence policy. The Court of Appeal rejected the suggestion that the government decisions on matters such as the national nuclear deterrent should be subjected to review by the Courts on merits. However, in R. (Greepeace Ltd) v. Secretary of State for Trade and Industry (2007) Environmental Law Reports 29, H

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A Sullivan J. high-lighted the importance of 'public participation in decision making and access to justice' in environmental matters and held that the government was obliged to honour the promise that it had made of the fullest public consultation, even if it had made no such promise which was difficult to see B how anything less could have been consistent with the obligations to provide opportunities for public participation accepted by the Government under the United Nations Economic Commission of Europe (UNECE). In S.V. France 3RUOH (1991), the European Commission of Human Rights c found that noise, night time illumination of the power plant, nuclear risk and changes in the micro climate while interfering with the applicant's private life had to be weighed with the general interests of the community.

177Copy pinpoint177. The United States Supreme Court in Metropolitan D Edison Co. v. People Against Nuclear Energy [460 US 766 (1983)) was called upon to determine whether psychological health damage flowing directly from the perceived risk of a nuclear accident, in the context of restarting the second reactor at Three Mile Island, following the accident affecting the other E reactor fell within the scope of environmental impact assessment under the National Environmental Policy Act. The Court regarded the perceived risk of a nuclear accident as "a pervasive element of modern life" and held that such risk was not an effect on the physical environment. In Alberta Wilderness F Association v. Express Pipelines Ltd. 137 DLR (4th) 177, in Canadian Court held that no information about probable future effects of a project can ever be complete or exclude all possible future outcomes. This principle has been endorsed by the Federal Court of Appeal, Canada in lnverhuron District G Ratepayers' Assn v. Canada (Minister of the Environment) 2001 FCA 203 in a case involving a dry storage facility for used nuclear fuel.

178Copy pinpoint178. Much hue and cry has been raised by some sections of the people about the possible impact of radiation from H

G. SUNDARRAJAN v. UNION OF INDIA AND -ORS. 779 [K.S. RADHAKRISHNAN, J.] KKNPP Units 1 and 2, a point which has been addressed by A the AERB, NPCIL, MoEF and all the Expert Committees constituted to go into the impact and effect of radiation from the units not only on humans but also on ecology. Experts Committees are of the unanimous opinion that there will not be any deleterious effects due to radiation from the operation of B KKNPP, and that adequate safety measures have already been taken. We cannot forget that there are many potential areas of radiation reflected in many uses of radioactive materials. Radioactive materials are used in hospitals, surgeries and so on. Mobile phone use, though minor, also causes radiation. In c a report of the Department of Telecommunication "Mobile Communication - Radio Wave and Safety released in October 2012, it has been stated that a human body is exposed to more electromagnetic field radiation in case of a call from mobile phone in comparison to the radiation from a mobile tower. D

179Copy pinpoint179. We have, therefore, to balance "economic scientific benefits" with that of "minor radiological detriments" on the touchstone of our national nuclear policy. Economic benefit, we have already indicated has to be viewed on a larger canvas which not only augment our economic growth but alleviate poverty and generate more employment. NPCIL, while setting up the NPP at Kudankulam, have satisfied the environmental principle like sustainable development, corporate social responsibility, precautionary principle, inter - intra generational equity and so on to implement our National Policy to develop, control and use of atomic energy for the welfare of the people and for economic growth of the country. Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21. G

180Copy pinpoint180. Public money running into crores and crores rupees have already been spent for the development, control and use of atomic energy for the welfare of the people and hence, we have to put up with such "minor inconveniences", "minor H

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A radiological detriments" and minor environmental detriments" in our lives because the benefits we reap from KKNPP are enormous since Nuclear energy remains as an important element in India's energy mix which can replace a significant part of fossil fuels like coal, gas oil etc. B

181Copy pinpoint181. The necessity of establishing KKNPP at Kudankulam has elaborately been discussed in the earlier part of the judgment, hence not repeated. Justification for establishing KKNPP at Kudankulam, therefore has been vindicated and all safety and security measures have already been taken, necessary permissions and clearances have been obtained from all statutory authorities. Apprehension expressed by some sections of the public that if the units are commissioned or put into operation, it will have far reaching consequences, not only on the present generation, but also on the future generation, of the possible radioactive effects of the units, in our view has no basis. Few of them raised the apprehension that it might repeat accidents like the one that had happened at Three Miles Island, Chernobyl, Union Carbide and Fukushima etc. Apprehension, however, legitimate it may be, cannot override the justification of the project. Nobody on this earth can predict what would happen in future and to a larger extent we have to leave it to the destiny. But once the justification test is satisfied, the apprehension test is bound to fail. Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.

182Copy pinpoint182. Power generation through a nuclear plant set up after following all safety standards, rules and regulations, is for the welfare of the people and for the economic growth of the country, which is the object and purpose of the Atomic Energy Act. Nuclear energy assumes as an important element in India's energy mix for sustaining economic growth of natural and domestic use which in future has to replace a significant part of fossil fuel like coal, oil, gas etc. Electricity is the heart and soul of modern life, a life meant not for the rich and famous H

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[K.S. RADHAKRISHNAN, J.] alone but also for the poor and down trodden. They should also have an adequate means of livelihood, job opportunities for which we have to set up Industries and commercial undertakings in the public as well as private sector and also have to invite foreign investment. Generation of electricity is of extreme importance for their establishment and functioning and also for domestic consumption. Power generation with the traditional means, through hydro, thermal electric project, coal etc are not effective substitution to the power generation through Nuclear Plant. India has a mammoth population unlike developed countries, and the consumption of electricity in domestic, c industries, agricultural sector etc. is going up day-by-day. Most of the States are in the grip of power cut; day and night, for a number of hours, which has adverse effect on their economic and industrial growth. To sustain rapid economic growth, it is necessary to double the supply of energy. Energy tariff is also 0 increasing, nuclear power in the long run will be much cheaper than other forms of energy.

183Copy pinpoint183. This Court in Chameli Singh and others v. State of U.P. and another (1996) 2 sec 549 held that an organized society right to live as a human being is not ensured by meeting only the animal needs of man, but secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and civil amenities like road etc. so as to have easy access to his daily avocation.

184Copy pinpoint184. Nuclear power plant is being established not to negate right to life but to protect the right to life guaranteed under Article 21 of the Constitution. The petitioner's contention that the establishment of nuclear power plant at Kudankulam will make an inroad into the right to live guaranteed under Article 21 of the Constitution, is therefore has no basis. On the other hand it will only protect the right to life guaranteed under H

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A Article 21 of the Constitution for achieving a larger public interest and will also achieve the object and purpose of Atomic Energy Act.

EXPERTS' VIEWS -TECHNICAL AND SCIENTIFIC

185Copy pinpoint185. AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert bodies, are all unanimous in their opinions that adequate safety and security measures have already taken at KKNPP which are to be given due weight that they deserve. Further, as already indicated NPCIL Task Force Report on Security of all NPPs C including KKNPP dated March 2011, 11.5.2011, AERB-EE Expert Opinion on Design Committee Safety dated 31.8.2011, 15 Member Expert Team Committee Report (post Fukishama) dated December 2011, Supplementary Report dated 31.2.2012 on the Grievances raised by some of the agitators, D report submitted by Sri R. Srinivasan, Former President, Atomic Energy Commission appointed by the State of Tamil Nadu are all unanimous in their view on the safety and security of KKNPP.

186Copy pinpoint186. MoEF, EAC, TNPCB, Report of IOM, Anna University dated July 2008 on Impact of NPP on Marine Eco-system, E Committee on Conservation of Sea-Shore of the State of Tamil Nadu, Report of Engineers India Limited with CHFRI dated August 2011, NEERI dated May 2002 and January 2003 on the Impact on Air, Water, Land, Eco-system etc. are all unanimous that the radiation as well as the discharge-Of water from NPP to the sea shore will not have serious impact on the marine ecology or on marine life.

187Copy pinpoint187. A Constitution Bench of this Court in University of Mysore v. C. D. Govinda Rao AIR 1965 SC 491, held that, normally, Court should be slow to interfere with the opinion expressed by the Experts and it would normally be wise and safe for the courts to leave the decisions to experts who are more familiar with the problems which they face than the courts generally can be which has been the consistent view taken by this Court. Reference may be made to the judgments of this

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[K.S. RADHAKRISHNAN, J.] Court in State of Bihar v. Asis Kum_ar Mukherjee (Dr.) (1975) A 3 SCC 602, Dalpat Abasaheb SQlunke v. B. S. Mahajan (1990) ,1 SCC 305, Central Areca Nut & Cocoa Marketing & Processing Coop. Ltd. v. State of Karnataka (1997) 8 SCC 31, Dental Council of India v. Subharti K. K. B. Charitable Trust & Another (2001) 5 SCC 486, Basavaiah (Dr.) v. Dr. H. B L. Ramesh (2010) 8 SCC 372 and Avishek Goenka v. Union of India (2012) 5 SCC 275. In Wo_9n Tankan and Seven Others v. Asian Rare Earth Sdn. Ehct. CLJ (1992) 2 207, the Supreme Court of Malaysia vide its judgment dated 23.12.1993 examined the effect of low-level radioactive waste on the health c of the population. The Supreme Court upheld the plea of the company, placing reliance on the expert opinion expressed by the Atomic Energy Licensing Board (AELB) and took the view that since the company has been operating under license granted by AE:LB, an expert body, it will be taken that the expert D body had the expertise to speak on the radiation level of the radioactive waste, on the health of the population.

188Copy pinpoint188. We have noticed that, so far as this case is concerned, from the safety and security point of view of life and property, on environment and all that related aspects, all the E Expert Bodies are unanimous in their opinion that KKNPP has fully satisfied all safety norms to safeguard the human life, property and environment which, we are sure, will allay the fears and apprehensions expressed by the people living in and around Kudankulam. The Court, in our view, cannot sit in F judgment on the views expressed by the Technical and Scientific Bodies in setting up of KKNPP plant at Kudankulam and on its safety and security.

CONCLUSION G 189.KKNPP has, therefore been set up as part of India's National Policy so as to develop, control and use of atomic energy for the welfare of the people of India. Policy makers consider nuclear energy as an important element in India's energy mix for sustaining economic growth of natural and H

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A domestic use. For setting up the project, the project proponent has taken all safety requirements in site and off site and has followed the code of practices laid down by AERB, based on nationally and internationally recognized safety methods. Safeguarding the nuclear plants, radioactive materials and ensuring its physical security have become a central part of Nuclear Law. Adequate measures have, therefore, to be taken for storage of NSF at site, and also for the physical safety of stored NSF. Of the seventeen suggested safety measures, by AERB, LWR, twelve have already been implemented and the rest, in a phased manner have to be implemented which the experts say, are meant for extra security. DMP is already in place, so also the emergency preparedness plan, off site and on site and all programmes under CSR are progressing in the right direction with the co-operation and assistance of the District Administration. 0

190Copy pinpoint190. NPCIL, has also received necessary environmental clearance from MoEF, TNPCB, etc for Units 1 to 6. No violation of CRZ is also noticed. Desalination Plant is also established after following rules and regulations and there is no violation of E CRZ. Experts say that there will be no impact on the marine eco-system due to discharge of+ 7°CC, CCW over and above the ambient temperature of the sea. Radiation impact on the eco-system is also within the standard set by AERB, MoEF, EAC, Pollution Control Board etc., so opined by the Experts. F In other words, all the expert teams are unanimous in their opinion of the safety and security of the KKNPP both to life and property of the people and the environment which includes marine life. Court has to respect national nuclear policy of the country reflected in the Atomic Energy Act and the same has G to be given effect to for the welfare of the people and the country's economic growth and it is with these objectives in mind KKNPP has been set up.

Dipak Misra, J.

191Copy pinpoint191. I have my respectful concurrence with the views and

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[DIPAK MISRA, J.] conclusions expressed by my respected learned Brother A Radhakrishnan on all aspects. However, I propose to add a few words in addition to what has been eruditely stated by my learned Brother.

Prologue B

192Copy pinpoint192. At the very inception, I may state that in the cases at hand, we are faced with a situation whether to interfere in the establishment, operation and functionalism of a nuclear plant coming up at Kudankulam and interdict its operation because of numerous grounds assiduously urged in voluminous pleadings encompassing the broad canvas, namely, statutory violations of the entire gamut of environmental law, exhibition of non-chalant attitude towards public opinion, show of total disrespect towards nature's inconsistencies, keeping at bay the constant apprehension and threat of the known and the unknown, absolute contempt for predictable danger that has surfaced on certain parts of the Globe and the unpredictable disaster that may be faced by the populace of the locality and, most importantly, the public safety in praesenti and in futuro, or take cognizance of the needs and necessities of the public at large, the concept of public policy and the scope of judicial review, the precautions already undertaken and further assured to be taken within a specific time span, the opinion of the - experts, the impossible avoidance of certain facets of existence in today's world, the global phenomena of requirement of electricity as a source of energy and various innovative methods to meet the same, the safety measures carried out and the steps undertaken to manage the disaster in case it occurs and finally to march ahead with life allaying all apprehensions with a scientific mindset accepting the nature's unpredictability to survive on the planet earth on the bedrock of the doctrine - survival of the fittest.

The concern for safety under the Atomic Energy Act, 1948: H

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193Copy pinpoint193. Bearing in mind the broad scenario, few aspects are required to be harped upon. Independent India perceived the need and use of nuclear energy in this country. The Atomic Energy Act, 1948 conceived the constitution of the Atomic Energy Commission which came into being in 1954. After the B repeal of the 1948 Act and coming into force of the Atomic Energy Act, 1962 (for brevity "the 1962 Act"), a larger field was covered. The 1962 Act was enacted to provide for the development, control and use of atomic energy for the welfare of the people of India and for other peaceful purposes and for c matters connected therewith. The dictionary clause as contained in Section 2 takes into consideration many an aspect pertaining to equipment, substance, radiation and radioactive substance, etc.

194Copy pinpoint194. Certain provisions of the 1962 Act may be usefully D referred to. Section 3 of the 1962 Act deals with general powers of the Central Government. Sub-section (e) of Section 3 reads as follows:-

"3. General powers of the Central Government E Subject to the provisions of this Act, Central Government shall have power -

(e) to provide for control over radioactive substances or radiation generating plant in order to- F (i) prevent radiation hazards:

(ii) secure public safety and safety of persons handling radioactive substances or radiation generating plant: and G (iii) ensure safe disposal of radioactive wastes:"

[Emphasis supplied]

195Copy pinpoint195. Section 17 deals with special provisions for safety H

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[DIPAK MISRA, J.] which reads as follows :- A

Special provisions as to safety (1) The Central Government may, as regards any class or description of premises or places, being premises or places, in which radioactive substances are manufactured, B produced, mined, treated, stored or used or any radiation generating plant, equipment or appliance is used, make such provision by rules as appear to the Central Government to c be necessary -

(a) to prevent injury being caused to the health of persons employed at such premises or places or other persons either by radiations. or by the ingestion of any radioactive substance: 0

(b) to secure that any radioactive waste products resulting from such manufacture, production, mining, treatment, storage, or use as aforesaid are disposed of safely; E (c) to prescribe qualifications of the persons for employment at such premises or places and the regulation of their hours of employment, minimum leave and periodical medical examination. and the rules may, in particolar and without prejudice to the generality of this subsection provide for imposing requirements as to the erection or structural alterations of buildings or the carrying out of works.

(2) The Central Government may, as respects the transport of any radioactive substance or any prescribed substance specified by an order issued under this Act as being dangerous to health, make such rules as appear to be necessary to prevent injury being caused by such transport to the health of persons engaged therein and other H

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

A persons.

(3) Rules made under this section may provide for imposing requirements, prohibitions and restrictions on employers, employed persons and other persons. B (4) Any person authorised by the Central Government under this section, may, on producing, if so required, a duly authenticated document showing his authority, enter at all reasonable hours any premises, or any vehicle, vessel or aircraft for the purpose of ascertaining whether there has c been committed, or is being committed, in or in connection with the premises, vehicle, vessel or aircraft, any contravention of the rules made under this section.

(5) In the event of any contravention of the rules made under this section, the Central Government shall have the right to take such measures as it may deem necessary to prevent further injury to persons or damage to property arising from radiation or contamination by radioactive substances including, without prejudice to the generality of the foregoing provisions, and to the right to take further action for the enforcement of penalties under section 24, the sealing of premises, vehicle, vessel, or aircraft, and the seizure of radioactive substances and contaminated equipment."

F [Emphasis added]

196Copy pinpoint196. I have referred to the aforesaid provisions to highlight the emphasis laid on the public safety and safety of persons handling radioactive substances and to control the repercussions by the legislature. Before I dwell upon in detail with regard to the necessity of safety, the measures taken and the constant vigil for future, it is apt to scan the anatomy of the Preamble, which has already been referred to. The preamble can be segregated into three parts namely, (i) development, control and use of atomic energy, (ii) for the welfare of the