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Supreme Court’s Judgement on Koodankulam Worrying Omissions

 EPW Vol – XLVIII No. 32, August 10, 2013 | N D Jayaprakash

The Supreme Court of India has not yet granted permission for commissioning the Koodankulam nuclear power plant in Tamil Nadu, as its judgment on 6 May 2013 makes obvious. But unfortunately it does not seem to have paid serious attention to concerns raised by the former chairperson of the Atomic Energy Regulatory Board, among others, on the quality of components provided by the Russian supplier. It also does not appear to have had the opportunity to ponder over the fi ndings of the Fukushima Nuclear Accident Independent Investigation Commission, which was forthright in its view that the Fukushima disaster was man-made.

N D Jayaprakash ([email protected]) is Joint Secretary, Delhi Science Forum.

Contrary to most media reports, the Supreme Court (SC) has not yet formally granted permission for commissioning the Koodankulam nuclear power plant (KKNPP) in Tamil Nadu (see its judgment dated 6 May 2013 in Special Leave Petition – Civil (SLP-C) No 27335 of 2012). The SC has clearly stipulated in para 1 of its directions,

The plant should not be made operational unless Atomic Energy Regulatory Board (AERB), Nuclear Power Corporation of India Ltd (NPCIL), Department of Atomic Energy (DAE) accord final clearance for commissioning of the plant ensuring the quality of various components and systems because their reliability is of vital importance.

In para 15, it has added,

The AERB, NPCIL, Ministry of Environment and Forests (MoEF) and Tamil Nadu Pollution Control Board (TNPCB) would oversee each and every aspect of the matter, including the safety of the plant, impact on environment, quality of various components and systems in the plant before commissioning of the plant. A report to that effect be filed before this Court before commissioning of the plant.1

It may, however, be noted that although the two-judge bench of the SC unanimously pronounced on the rationes decidendi (the operative part and directions) of the judgment, the opinions expressed by them – justices K S Radhakrishnan and Dipak Misra – on some of the critical aspects related to the subject are vastly different. Moreover, while the two judges have underlined the importance of “ensuring the quality of various components” at the KKNPP by focusing attention on it twice in the operative part of the judgment, it is disheartening to note that there is only a passing reference to it in para 80 of the 230-para obiter dicta (explanatory part). That the SC desisted from elaborating the point is all the more strange since prima facie evidence on installation of substandard components at the KKNPP was actually brought to its attention. On 23 April 2013, through an application seeking interim directions, Prashant Bhushan and Sanjay Parikh, counsel for the petitioner, had submitted before the apex court that A Gopalakrishnan, former chairperson of the AERB, had raised serious concerns about the quality of components that the Russian supplier had provided to the KKNPP. Gopalakrishnan’s apprehensions were expressed in an article that was published in the New Indian Express on 19 April 2013.2

According to Gopalakrishnan, the first of the two 1,000 MWe VVER nuclear reactors (unit 1) at the KKNPP, under commissioning and testing, is supplied by the Russian atomic energy corporation, Rosatom, through its subsidiary, Atomstroyexport. On the Indian side, the KKNPP is owned by the NPCIL, a public sector undertaking of DAE. The overall safety regulation responsibility is with the AERB. A Russian government-owned company called Machine Building Plant Zio-Podolsk, which is another Rosatom subsidiary, has exported crucial materials and reactor parts to the KKNPP’s units 1 and 2.

Alarming Report

An alarming report published online on 28 February 2012 by the Bellona Foundation, an international environmental non-governmental organisation (NGO) based in Norway, stated that the Russian Federal Security Service (FSB) had arrested Sergei Shutov, the procurement director of Zio-Podolsk, on charges of corruption and fraud. The FSB charged Shutov with buying cheap, low-quality raw materials over the years, passing them off as high-quality materials, and pocketing the difference.3 Thus, according to Gopala-krishnan, “The problems with Zio-Podolsk supplies to the KKNP-1 project, seen in the context of the widespread allegations of corruption and poor quality, indicate that the root cause of KKNP-1 problems lies in those substandard supplies”.4

The charge of poor-quality supplies to unit 1 from the Russian supplier was not a wild allegation. The AERB found at least four defective valves during the second round of inspections at unit 1, the results of which were revealed on 19 April 2013.5 (Incidentally, the defective valves were detected only after activists in Koodankulam, who found out about the Shutov scam in Russia, raised a furore.)6 The claim that the Russian supplier has supplied only four defective valves to the KKNPP is a little difficult to digest. That the officials concerned in India are hardly perturbed by the arrest of the procurement director of Zio-Podolsk by the Russian government for large-scale fraud is even more disturbing. Even before news of the faulty valves came out, Gopalakrishnan had cautioned decision-makers in India,

There could be a large number of equipment, components and materials of substandard quality from ZiO-Podolsk already installed in various parts of KKNP-1 and 2 whose deficiencies and defects are dormant today, but these very same shortcomings may cause such parts to catastrophically fail when the reactor is operated for some time. Many such parts and materials may have been installed within the reactor pressure vessel itself, which is now closed and sealed in preparation for the start-up. Once the reactor is made critical and reaches power operation, much of these components and materials inside will become radioactive and/or will be in environments where they cannot be properly tested for quality or performance. Under the circumstances, KKNP Unit-1 commissioning and KKNP-2 construction work must be stopped forthwith, and there can be no question of resuming these works towards start-up of both these reactors until a thorough and impartial investigation is carried out into the impact of this corruption scandal and sub-standard supplies on the safety of these reactors. And these investigations must be carried out by a team, where majority membership must not be from DAE, NPCIL and AERB, but include subject experts from other organisations in the country. India must also seriously consider inviting an IAEA [International Atomic Energy Agency] expert team specially constituted to investigate the specific issues which this scandal has thrown up.7

Recently, in another article dated 19 June 2013, Gopalakrishnan has drawn attention to yet another safety concern. According to him,

Besides the probable installation of substandard parts in KKNPP reactors due to laxity of quality control, it is now evident that another major safety issue related to the instrumentation and control (I&C) systems is worrying the KKNPP management and the AERB, because of which the Unit 1 start-up is now postponed to July 2013. This inference is reached by piecing together information now available in the public domain. The problem, to put it simply, appears to be the inability to eliminate spurious signals of untraced origin appearing in many of the instrumentation cables of paramount importance to safety, like the reactor neutron chamber output lines, wiring of the safety and shut-off rod control systems, etc. Such phenomena belong to a broad class of problems known as Electro-Magnetic Interference (EMI). …It is most likely that the KKNPP cable system, as completed today, has not conformed to the norms and standards of cable selection, EMI shielding, or layout as per Russian, Indian or any other standards. No wonder the EMI problem is persisting, because there is no other short-cut solution other than re-doing a sizeable part of the I&C cabling and its layout in accordance with a set of modern standards, agreeable also to the Russians. This may take several more months and extensive re-working, but this must be done in the interest of public safety.8

In this context, it may be noted that justice Radhakrishnan, in para 24 of the judgment, has observed,

Safety and security of the people and the nation are of paramount importance when a nuclear plant is being set up and it is vital to have in place all safety standards in which public can have full confidence to safeguard them against risks which they fear and to avoid serious long term or irreversible environmental consequences.

Violation of Safety Norms

While the judgment has explicitly stated that “safety and security of the people and the nation are of paramount importance”, it failed to take note of the concerns expressed by Gopalakrishnan with the importance that they deserved. Nothing prevented the judges from giving specific directions to the AERB and the NPCIL to allay the apprehensions expressed by Gopalakrishnan, who has the scientific and technical expertise to raise questions on the quality of the components installed at units 1 and 2. Although the operative part of the judgment has placed ample emphasis on the need for ensuring the quality of components installed at units 1 and 2, the inability to dwell on the actual failures in this regard in the explanatory part is a glaring omission. It is an undeniable fact that the NPCIL failed to detect the existence of the four faulty valves at the pre-installation stage and that the AERB also did not detect them during the first round of inspections that it carried out at unit 1. The AERB’s permission to NPCIL to load fuel rods into the reactor core (from 20 September 2012 onwards when the four defective valves were still in place at unit (1) was a gross violation of safety precautions.9 Considering that justice Radhakrishnan has taken pains to explain at length the various laws and guidelines purportedly in place for ensuring the requisite safety standards in nuclear power plants, in all fairness, the Court should have taken the AERB and the NPCIL to task for their laxity in implementing those very laws and guidelines.

The reasons for the reluctance on the part of the court to pass strictures against the AERB and the NPCIL are apparent from the manner in which justice Radhakrishnan has addressed the problem. It is rather unfortunate that he has placed complete faith in the scientific and technical competence of the NPCIL (the operator) and the AERB (the regulator), as well as their impartiality, to satisfactorily address all issues related to safety and security at the KKNPP despite the operator and the regulator being two wings of the same establishment. On the premise that the Court is not competent to pronounce on the veracity of scientific and technical opinions, justice Radhakrishnan, in para 188 of the judgment, has stated,

The Court, in our view, cannot sit in judgment on the views expressed by the Technical and Scientific Bodies in setting up of KKNPP plant at Koodankulam and on its safety and security.

While this may be true, it was certainly not prudent on the part of the Court to discount the possibility of the availability of a body of competent independent experts who could provide a technically sound second opinion on the matter. After the Fukushima disaster in Japan, the Government of India introduced the Nuclear Safety Regulatory Authority Bill in Parliament on 7 September 2011, which was to purportedly create an independent and transparent regulatory mechanism to oversee the safety and security of nuclear establishments in the country.10 While the various clauses of the present bill effectively stifle all hopes of creating an independent and transparent regulatory body that the government actually dabbled with the idea of creating one was a radical departure from its usually narrow views on this subject.11 Considering that safety and security of nuclear power plants are paramount for ensuring the health and well being of the people living near and around them, the SC could have easily passed appropriate directions for creating an independent and transparent nuclear regulatory authority. Therefore, as to whether the Court has reneged from its duty of upholding the spirit of Article 21 of the Constitution (right to life and personal liberty) is a matter that requires to be examined in a little more detail.

Contradictory Views

Justice Radhakrishnan, on his part, has tried to turn the essence of Article 21 on its head. His opinion that the petitioner’s complaint against violation of Article 21 “has no basis” since the alleged violation was actually an act in fulfilment of the object and purpose of Article 21 amounts precisely to that. Justice Radhakrishnan, indeed, has stated so in para 184 of the judgment,

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 Koodankulam will make an inroad into the right to live guaranteed under Article 21 of the Constitution …therefore has no basis.

In para 178 of the judgment, he has expressed his opinion on the applicability of Article 21, “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.” None other than his colleague on the two-judge bench, justice Misra, found it hard to agree to such a farfetched interpretation of Article 21. His view on the matter, which he has elaborated in para 228 of the judgment, is as follows,

It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. …It is not a case of “some inconvenience”. It is not comparable to the loss caused to property. …Needless to emphasise, the dire need of the present society has to be treated with urgency, but, the said urgency cannot be conferred with absolute supremacy over life. … But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is taken and there is constant vigil, life of “some” can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution. It would be guillotining the human right, for when the candle of life gets extinguished, all rights of that person perish with it. Safety, security and life would constitute a pyramid within the sanctity of Article 21 and no jettisoning is permissible. Therefore, I am obliged to think that the delicate balance in other spheres may have some allowance but in the case of establishment of a nuclear plant, the safety measures would not tolerate any lapse. The grammar has to be totally different. …All efforts are to be made to avoid any man-made disaster. Though the concept of delicate balance and the doctrine of proportionality of risk factor gets attracted, yet the same commands the highest degree of constant alertness, for it is disaster affecting the living. The life of some cannot be sacrificed for the purpose of the eventual larger good.

That there is wide difference of opinion between the two judges regarding the scope of Article 21 is very evident.

Undue Faith

Justice Radhakrishnan also appears to have reposed complete faith in the infallibility of the reports submitted by the various official agencies. In para 185 of the judgment, he has expressed his view on this very approvingly,

AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert bodies, are all unanimous in their opinions that adequate safety and security measures have already [been] 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 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 Fukushima) dated December 2011, Supplementary Report dated 31.2.2012 on the Grievances raised by some of the agitators, report submitted by Sri R Srinivasan, Former President, Atomic Energy Commission appointed by the State of Tamil Nadu are all unanimous in their view on the safety and security of KKNPP.

How could these official claims made during 2011-12 that “adequate safety and security measures have already [been] taken at KKNPP” be taken at face value when the AERB was forced to disclose on 19 April 2013 that four defective valves at unit 1 had to be replaced? Yet, justice Radhakrishnan is dismissive of views or opinions that are critical of the official reports on the ground that they are unwarranted apprehensions. According to him, “Apprehension, however, legitimate it may be, cannot override the justification of the project. …But once the justification test is satisfied, the apprehension test is bound to fail”.12 This is a wholly untenable argument because, even if there is adequate justification for setting up a particular project, there could still be many legitimate apprehensions about its design, quality, execution, and operation especially whether they meet the required safety standards. Unfortunately, he appears to discount all such possibilities.

Moreover, it is one thing to claim that the official “expert bodies, are all unanimous in their opinions that adequate safety and security measures have already [been] taken at KKNPP”and quite another to ignore the considered opinions of non-official experts. When none other than the former chairperson of the AERB, Gopalakrishnan, has repeatedly drawn attention to the violation of various safety norms at the plant, it was not very judicious to practically brush aside his opinion as that of a non-expert.13 If official reports were to be accepted as unquestionable truth, there would be no need or occasion for courts to adjudicate on matters and dispense justice in accordance with various constitutional provisions. Justice Misra’s opinion on the matter is certainly different, as is evident from para 229 of the judgment.

The AERB as the regulatory authority and the MoEF are obliged to perform their duty that safety measures are adequately taken before the plant commences its operation. That is the trust of the people in the authorities which they can ill afford to betray, and it shall not be an exaggeration to state that safety in a case of this nature in any one’s hand has to be placed on the pedestal of ‘Constitutional Trust’.

Lessons from Fukushima

It also appears that the SC did not have the opportunity to deliberate on the findings of the Fukushima Nuclear Accident Independent Investigation Commission (NAIIC), which the National Diet of Japan set up on 8 December 2011 in response to the Fukushima disaster of 11 March 2011. The NAIIC report, which was released on 12 September 2012, is explicit and forthright in expressing the view that the Fukushima disaster was a “manmade disaster”. The chairperson of the NAIIC, Kiyoshi Kurokawa (former president of the Science Council of Japan), in his message in the executive summary of the report makes this amply clear. After saying that the calamity at the Fukushima Daiichi Nuclear Power Plant “cannot be regarded as a natural disaster”, he points out,

It was a profoundly manmade disaster – that could and should have been foreseen and prevented. And its effects could have been mitigated by a more effective human response. …Our report catalogues a multitude of errors and willful negligence that left the Fukushima plant unprepared for the events of March 11. …What must be admitted – very painfully – is that this was a disaster “Made in Japan.” Its fundamental causes are to be found in the ingrained conventions of Japanese culture: our reflexive obedience; our reluctance to question authority; our devotion to ‘sticking with the programme’; our groupism; and our insularity. …This conceit was reinforced by the collective mindset of Japanese bureaucracy, by which the first duty of any individual bureaucrat is to defend the interests of his organisation. Carried to an extreme, this led bureaucrats to put organisational interests ahead of their paramount duty to protect public safety. Only by grasping this mindset can one understand how Japan’s nuclear industry managed to avoid absorbing the critical lessons learned from Three Mile Island and Chernobyl; and how it became accepted practice to resist regulatory pressure and cover up small-scale accidents. It was this mindset that led to the disaster at the Fukushima Daiichi Nuclear Plant.14

The conclusions of the NAIIC report are equally damning. It unequivocally states,

(a) The Tokyo Electric Power Company (TEPCO) Fukushima Nuclear Power Plant accident was the result of collusion between the government, the regulators and TEPCO, and the lack of governance by said parties. They effectively betrayed the nation’s right to be safe from nuclear accidents. Therefore, we conclude that the accident was clearly “manmade”.

(b) There were many opportunities for taking preventive measures prior to March 11 [2011]. The accident occurred because TEPCO did not take these measures, and NISA [Nuclear and Industrial Safety Agency] and the Nuclear Safety Commission (NSC) went along. They either intentionally postponed putting safety measures in place, or made decisions based on their organisation’s self interest, and not in the interest of public safety.

(c) The regulators should have taken a strong position on behalf of the public, but failed to do so. As they had firmly committed themselves to the idea that nuclear power plants were safe, they were reluctant to actively create new regulations. Further exacerbating the problem was the fact that NISA was created as part of the Ministry of Economy, Trade and Industry (METI), an organisation that has been actively promoting nuclear power.

(d) The regulators did not monitor or supervise nuclear safety. …Their independence from the political arena, the ministries promoting nuclear energy, and the operators was a mockery. They were incapable, and lacked the expertise and the commitment to assure the safety of nuclear power. Moreover, the organisation lacked transparency. Without the investigation by this Commission, operating independently of the government, many of the facts revealing the collusion between the regulators and other players might never have been revealed.15

The recommendations of the NAIIC include creation of an independent and transparent regulatory body, which would function under the supervision of Japan’s National Diet. Since the mindset in India is probably more rigid than the one in Japanit is hoped that the SC of India will peruse the NAIIC report and draw appropriate conclusions before giving its final ruling on the commissioning of KKNPP. It is also hoped that the AEC, DAE, NPCIL, AERB, and the TNPCB will learn appropriate lessons from the NAIIC report and act accordingly.

Notes

1 Judgment delivered by justice K S Radhakrishnan and Justice Dipak Misra on 6 May 2013, available at http://judis.nic.in/supremecourt/chejudis.asp, p 242.

2 A Gopalakrishnan (2013): “Resolve Koodankulam Issues”, New Indian Express, 19 April, available at http://newindianexpress.com/opinion/Resolve-Koodankulam-issues/2013/04/1…

3 “Bellona.Org: Rosatom-owned Company Accused of Selling Shoddy Equipment to Reactors at Home and Abroad, Pocketing Profits”, 28 February 2012, available at http://www.anti-atom.ru/en/node/3468

4 A Gopalakrishnan (2013), “Resolve Koodankulam Issues”, New Indian Express, 19 April, available at http://newindianexpress.com/opinion/Resolve-Koodankulam-issues/2013/04/1…

5 P Sunderarajan (2013), “Four Valves Found ‘Deficient’ at Kudankulam Being Replaced: AERB”, The Hindu, 20 April, available at http://www.thehindu.com/news/national/tamil-nadu/four-valves-found-deficient-at-kudankulam-being-replaced-aerb/article4634626.ece

6 Letter to the NPCIL, dated 28 January 2013, filed by S P Udaykumar under the Right to Information Act, 2005.

7 A Gopalakrishnan (2013), “Resolve Koodankulam Issues”, New Indian Express, 19 April, available at http://newindianexpress.com/opinion/Resolve-Koodankulam-issues/2013/04/1…

8 A Gopalakrishnan (2013), “Flaws in Koodankulam Plant”, New Indian Express, 19 June, available at http://newindianexpress.com/opinion/Flaws-in- Koodankulam-plant/2013/06/19/arti cle1641376.ece

The Hindu (2012): “Fuel Loading Begins at Kudankulam after AERB’s Green Signal”, 21 September, available at http://wwwthehindu.com/news/ national/ tamil-nadu/fuel-loading-begins-at-kudankulam-after-aerbs-green-signal/article3922714.ece

10 The Hindu (2011): “Nuclear Safety Bill Introduced”, 8 September, available at http://www.thehindu.com/news/national/nuclear-safety-bill-introduced/ article 2433384.ece

11 A Gopalakrishnan (2011), “A Nuclear Regulator without Teeth”, The Hindu, 16 September, available at http://www.thehindu.com/opinion/op-ed/a-nuclear-regulator-without-teeth/…. ece

12 Para 181 of the judgment, available at http://judis.nic.in/supremecourt/ chejudis.asp

13 Numerous other scientists have also raised concerns; The Hindu (2013): “Sixty Scientists Voice Concern over Kudankulam Plant Safety”, 16 May, available athttp://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/sixty-scien… plant-safety/article4719786.ece

14 The Official Report of the Fukushima Nuclear Accident Independent Investigation Commission, Executive Summary, p 9, available at http://warp.da.ndl.go.jp/info:ndljp/pid/3856371/naiic.go.jp/en/report/

15 The Official Report of the Fukushima Nuclear Accident Independent Investigation Commission, Executive Summary, pp 16, 17, 20, available athttp://warp.da.ndl.go.jp/info:ndljp/pid/3856371/naiic.go.jp/en/report/

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