SYNOPSIS AND LIST OF DATES 1.
The Appellant is filing the instant Civil Appeal under Section 22 of the
National Green Tribunal Act, 2010 against the Order dated 29.11.2016 passed by National Green Tribunal, Southern Zone, Chennai in Appeal No. 1 of 2012 (SZ). Earlier, the appellant had filed WP No. 24770 of 2011 and batch challenging the validity of the Environmental Clearance granted for the purpose of commissioning units 1 and 2 of Kudankulam Nuclear Power Plant ultimately resulting in a ruling of the Hon’ble Court in G.Sundarrajan v Union of India : (2013) 6 SCC 620. When the said judgment was delivered by the Hon’ble Court on 6 May 2013, the CRZ clearance dated 25.7.2012 given in respect of Units 3 to 6 of KKNPP was already under challenge before the National Green Tribunal vide Appeal No. 1 of 2012 filed on 23.10.2012 by the appellant. The appellant filed the said Appeal before the National Green Tribunal against the CRZ clearance dated 25.7.2012 mainly on the ground that environment impact assessment was not done by an accredited agency and was also not done in accordance with the accepted norms and procedure prescribed under the Environment (Protection) Act, and that therefore the CRZ clearance was required to be quashed by the National Green Tribunal.
2.
The appellant had during the course of hearing of the said appeal before
the National Green Tribunal raised the following contentions:
(a)
As early as on 2.12.2009 the Government of India had taken a decision in
respect of the accreditation of EIA Consultants with Quality Council of India (QCI)/National Accreditation Board of Education and Training (NABET) to the effect that all consultant/public sector undertakings working in the area of environmental impact assessment would be required to get themselves registered under the scheme of Accreditation and Registration of the NABET/QCI and such consultants would be confined to the accredited sectors and parameters for bringing in more specificity in the EIA document. However, M/s Engineers India, Gurgaon, which has prepared EIA in respect of KKNPP units 3 to 6, is not an accredited consultant in respect of nuclear power project as could be seen from the list of accredited EIA Consultant organizations prepared by NABET as on 5.12.2012.
When M/s Engineers India is not an accredited
consultant as per Office Memorandum dated 2.12.2009 issued by the Government of India, the CRZ clearance dated 25.7.2012 based on the EIA prepared by M/s Engineers India is not valid in law.
(b)
Respondent no.3, the project proponent, has taken two different stands in
respect of the total fresh water requirement for the proposed KKNPP units 3 to 6. In the EAC meeting of MoEF dated 10 and 11 May 2012, while considering the CRZ clearance for KKNPP units 3 to 6 and recommending the same to the MoEF, there is a specific finding that the total fresh water requirement for the proposed KKNPP units 3 to 6 will be 12388 cum/day and the same will be met from the desalination plant already under operation at the project site. However, in the reply filed by respondent no.3 dated 23.7.2016 before the NGT, it is stated that for the proposed KKNPP units 3 to 6 separate desalination plant of capacity 12388 cum/day will be set up afresh in the project site. In the light of the said contradictory stands taken by respondent no.3, the EAC’s recommendation for granting CRZ clearance itself suffers from the vice of non-application of mind and therefore the CRZ clearance deserves to be quashed.
(c )
As per the CRZ Notification issued by the MoEF dated 6.1.2011 (Clause (i)
(c ) of Para 4.2) the project proponent is required to apply with a comprehensive EIA with cumulative studies for projects in the stretches classified as low and medium eroding by MoEF based on scientific studies and in consultation with the State Governments and Union territory administration. Since this procedure has not been followed by respondent no.3 in respect of KKNPP units 3 to 6, the CRZ clearance 25.7.2012 is not valid in law.
3.
The National Green Tribunal has, however, not considered the grounds
raised in the appeal and reiterated during the course of hearing. Instead of deciding the appeal on merits, the National Green Tribunal relied on the following observations of the Hon’ble Court in G.Sundarrajan’s case (supra): “CRZ clearance was granted by MoEF on 25.7.2012 after following the procedure laid down in the CRZ Notification of 2011”, and dismissed the appeal of the appellant vide an order dated 29.11.2016. Unfortunately, the National Green Tribunal has ignored the fact that the appellant had never challenged the environmental clearance dated 25.7.2012 in G.Sundarrajan’s case (supra) and that the appellant had challenged the same before the National Green Tribunal for the first time vide Appeal No.1/2012.
It is against the said order dated
29.11.2016 passed by the National Green Tribunal in Appeal No. 1 of 2012 that the instant Civil Appeal has been preferred.
SUMMARY OF EVENTS 20.11.1988
An inter-governmental agreement was signed between Union of India and the erstwhile USSR for the establishment of two Nuclear Power plant at kudankulam. As per the agreement “Spent fuel” would be transported to the USSR.
19.4.1989
The then Hon'ble Prime Minister approved that an exemption of 500
Meter
norm may be allowed specifically for
Kudankulam Nuclear Power Project (KKNPP) subject to MoEF prescribing and ensuring sufficient safeguards for preserving the ecology of the beach. 9.05.1989
Environmental Clearance was granted to the said project. The environmental clearances came to be given by the MoEF even before the finalization of the site clearance by the AERB.
10.11.1989
AERB granted clearance for siting the KKNPP with two VVER1000 MWe Units at Kudankulam
21.06.1998
A supplemental agreement was signed between Union of India Russia regarding KKNPP. The term with regard to “Spent fuel” has been changed, and spent fuel would be stored within the premises of the plant.
06.09.2001
Ministry of Environment and Forests revalidated 1989 Environmental Clearance.
October 2001
AERB Clearance for Site Excavation.
11.10.2001
TNPCB issues notice to the NPCIL that it was found that NPCIL was putting up construction of KKNPP without obtaining consent to establish order.
30.12.2001
NPCIL makes application for consent to establish to the Tamil Nadu Pollution Control Board under the Air and Water Act respectively for KKNPP.
..01.2003
Comprehensive Environmental Impact Assessment was done by NEERI. This was never placed before the Ministry of Environment and Forests.
25.2.2004
TNPCB has issued a consent to establish order to establish KKNPP
in
Kudankulam,
Vijyapathi
Villages,
RadhapuramTaluk, Tirunelveli District under Section 25 of the Water Prevention and Control of Pollution Act, 1974, and under Section 21 of the Air Prevention and Control of Pollution Act, 1981. 2005-2006
Four desalination plants were constructed for supply of fresh water to KKNPP and the original arrangement of getting water from Pechiparai dam was dropped. This would be nothing but expansion of the plant. Though pollution level would increase with the arrival of desalination plants in KKNPP, no fresh environmental clearance was ever applied for.
31.05.2006
The Respondent no.3 – NPCIL submitted an application, before the AERB, seeking Siting Consent for locating two additional units (KKNPP Units 3 & 4) at Kudankulam Site.
6.06.2006
A revised application seeking Siting Consent for four additional at Kudankulam Site (KKNPP Units 3 to 6) was submitted without enclosing Site Evaluation Report (SER). NPCIL submitted SER for KKNPP Units 3 to 6 along with response to various pending stipulations of Siting Clearance for KKNPP Units 1&2 as per requirement indicated in the AERB
Safety Guide on “Consenting Process
for NPPs
&RRs” on March 06,2009. Accordingly the AERB by order dated 9th February, 2011, granted Siting consent for locating 4 x 1000 MWe VVERs based Nuclear Power Plants, KKNPP Units 3 to 6 at Kudankulam Site.
November 2008
AERB report “Atomic Energy Regulatory Board 25 years of Safety Regulation” released. The report says that the safety features installed in KKNPP are yet to be tested : “The design employs a number of systems and Engineered Safety Features (ESFs) of novel design. One of the salient features of the design is incorporation of ‘Four Train Safety Systems’, thus increasing reliability. Another important feature is provision of both active and passive systems to prevent accidents and/or to mitigate their consequences. Passive
systems such as Passive Heat Removal System (PHRS), Second stage ECCS accumulators, System for retaining and cooling of molten core (Ex-vessel Core Catcher) etc. have been provided for catering to BDBA. Quick Boron Injection System (QBIS) has been incorporated in addition to the active Emergency Boron Injection System (EBIS) for catering to Anticipated Transients Without Scram (ATWS) situations. All such systems were asked to be adequately justified by submission of details of developmental tests/analysis and relevant reports. NPCIL obtained reports on these aspects from the designers and these were reviewed. It was further stipulated
that
demonstrated
such to
systems
meet
their
should design
be
tested,
intents
and
during
commissioning.”
23.09.2008
MoEF gave environmental clearance for units 3 & 4 at KKNPP specifically
stating
therein
that
(i)
On-line
continuous
monitoring of the temperature of the discharged cooling water shall be carried out at the discharge point. It shall be ensured that the temperature differential of the discharged water w.r.t. the receiving water does not exceed 7 degree C at any given point of time. (vi) Greenbelt shall be developed all around the project boundary covering an area of 180 ha preferably with local species. 06.03.2009
NPCIL submitted SER for KKNPP Units 3 to 6 along with response to various pending stipulations of Siting Clearance for KKNPP Units 1&2 as per requirement indicated in the AERB Safety Guide on “Consenting Process for NPPs & RRs”.
31.12.2009
MoEF gave environmental clearance of units 5 & 6 at KKNPP specifically stating therein that (i) Environmental clearance is subject to obtaining prior clearance from wildlife angle as applicable due to proximity of Gulf of Mannar Biosphere Reserve.
21.09.2010
Civil Liability for Nuclear Damage Act 2010 comes into force that limits the liability of the nuclear operator and supplier to only Rs 1500 crores, in complete violation of absolute liability
principle propounded by this Hon’ble Court. Russia claims that it is even exempt from this minimal liability since their contract with the Indian government states that they would not be liable since it has signed a separate agreement with India wherein India has taken over all liability. 6.01.2011
CRZ Notification issued by the MoEF.
9.02.2011
The AERB by order dated 9th February, 2011, granted Siting consent for locating 4 x 1000 MWe VVERs based Nuclear Power Plants, KKNPP Units 3 to 6 at Kudankulam Site.
March 2011
There was an unprecedented nuclear disaster in Fukushima, Japan.Immediately after this nuclear disaster, the Government of India constituted a Task Force to review the safety of all nuclear plants in the country including Kudankulam Nuclear Power Project (KKNPP).
05.04.2011 – 06.04.2011
Expert Appraisal Committee considers the CRZ application filed by Respondent No.1. From the Minutes of the EAC it can be understood that EAC was initially critical of the project specifically in view of the poor quality of EIA. It flagged certain issues for in depth consideration. A perusal of the minutes of the EAC reveals that no detailed scrutiny was done by the EAC. The EAC was critical of the report submitted by the Respondent no.3 -NPCIL and concluded that it is ‘far below’ the basic requirement for consideration of CRZ clearance. Specifically, the EAC after considering the project and the documents supplied came to the following conclusion: (i)
That the EIA report needs to be updated in view of the fact that the data was for a period prior to 2004
(ii)
That Risk Assessment and Disaster Management Plan shall be submitted considering the recent Japan tragedy.
(iii)
The Committee advised the proponent to consider the pipeline for disposal instead of an open channel.
(iv)
That the earlier study by CWPRS relates to a 7 degrees Celsius variation in ambient temperature whereas the report says 3 degrees. This must be clarified and if necessary another study shall be carried out by CWPRS to meet the requirement in force.
(v)
Overall the report submitted is not readable/ legible as far below the basic requirement for consideration of CRZ Clearance.
21st- 23rd Sep 2011
The EAC met again in September and appraised the Kudankulam Expansion project KKNPP Units 3 to 6. It is clear from the minutes of the meeting held on 21st and 23rd of September, 2011, that it did not deal with the issue with respect to the 7 degree variation in the ambient temperature nor was any detailed deliberation with respect to the issues with respect to Risk Assessment and Disaster Management Plan. Further, it is significant to note that the EAC was ‘informed’ about the terrestrial marine EIA Updation and the fact that mathematical modeling of CCW discharge have been carried out by M/ S CESS Trivandrum.
The minutes do not
reveal whether any qualitative changes have taken place in the EIA document between the present meeting and the last other than updation of marine and terrestrial EIA, or whether the EAC was privy to the information contained in the terrestrial marine EIA updation, and also whether there was any discussion/ deliberation on the updated list and its implications. However, it is pertinent to note that the EAC observed as follows: “The Plant elevation is designed for Tsunami and flooding with sufficient conservatism. This may be further amplified with a comparison of the connected parameters with normal conditions highlighting the additional provisions made to withstand tsunami and the method adopted for quantification’ “‘The proponent reported that the plant having the most advanced safety features and is termed as ‘First of its kind’ in the safety aspect. The documentary evidence shall be
submitted in support of this statement which has a wider ramification in the context of what is happening around the world on similar development” The EAC decided to defer the proposal and directed that the same will be considered ‘afresh’. 19.11. 2011
WP No: 24770 of 2011 was filed in the Madras High Court by the Appellant challenging the Environmental Clearance granted to KKNPP Units 1&2.
2012
Government arrests thousands of peaceful protestors, slaps thousands of sedition cases, in order to brutally crush the agitation of the local population over fears for the safety of the nuclear plant.
February 2012
Russian Federal Security Services arrested Sergei Shutov, the
procurement
director
of
ZIO-Podolsk,
a
Russian
government owned company, on charges of corruption and fraud. The FSB has charged Shutov with buying low-quality raw materials on the cheap over years, passing them off as high – quality materials, and pocketing the difference. Crucial materials and reactor parts have been exported to KKNPP – 1 & 2 by ZIO-Podolsk. 16.03.2012
This Hon’ble Court admits a PIL (WPC 464/2011) filed by Common
Cause,
CPIL
and
several
eminent
citizens,
challenging the constitutional validity of the nuclear liability act since it violates the polluter pays and absolute liability principles. 26.03.2012
The petitioner filed WP No.8262 of 2012 in the Madras High Court for a direction to the Atomic Energy Regulatory Board to implement all the recommendations of the Task Force constituted post-Fukushima disaster before fuel loading in KKNPP.
10th- 11th May 2012
The minutes of the Expert Appraisal Committee held on 10th and 11th of May, 2012 in which the EAC recommended for the
grant of approval under the CRZ, was based on the following assumption: “The total fresh water requirement for the proposed KKNPP 3 to 6 units will be 12388 cum/ day and it will be met from the desalination plant already under operation at the project site.” EAC's admission records its knowledge of the fact that CRZ clearance was being considered by it for a desalination plant that had already been commissioned. Ignoring for the time being the inherent illegality in recommending a post-facto CRZ clearance, the EAC's assumption that the currently installed desalination plant of 320 cu.m/hour capacity would suffice to meet the needs of the four units, namely KKNPP 3 to 6, is itself faulty. It is faulty in view of the fact that the installed capacity of desalination plant as per the Comprehensive EIA is only sufficient for two plants (6194 cu.m/day). The impact assessment has also been conducted only for impact of discharge of 350 m3/hr – i.e. the discharge arising from a plant of 6194 m3/day capacity. This discharge is already ongoing through an open channel in violation of the EAC's post-facto recommendations of pipeline disposal, considering that the desalination plant is up and running even as per the EAC's own admission. 25.07.2012
The Respondent no.1-MoEF granted CRZ clearance to KKNPP units 3,4,5& 6.
July 2012
Fukushima Commission
Nuclear submits
Accident its
Independent
report
and
Investigation
blames
lack
of
independent regulator for the Fukushima tragedy. The report states: “the TEPCO Fukushima Nuclear Power Plant Accident was the result of collusion between the Government, the regulators and TEPCO and the lack of governance by the said parties. They effectively betrayed the nation’s right to be safe from nuclear accidents. Therefore, we conclude that the accident was clearly ‘manmade’. We believe that the root causes were the organizational and regulatory systems that supported faulty rationales for decisions and actions.”
02.08.2012
The Madras High Court reserved its orders in WP Nos. 24770 of 2011 and 8282 of 2012.
09.08.2012
107th Board meeting of AERB was held to consider the application of NPCIL for initial fuel loading in KKNPP Unit No.1.
10.08.2012
By totally ignoring the fact that the Madras High Court had reserved its judgment on 02.08.2012 and even before the pronouncement
of
judgment,
AERB
hurriedly
granted
clearance for Initial Fuel Loading for Unit 1 of KKNPP. 31.08.2012
The High Court dismissed petitions inWP Nos. 24770 of 2011 and 8282 of 2012, filed by Appellant.
.09.2012
Appellant files Special Leave Petition against the Order passed by High Court in WP Nos. 24770 of 2011 and 8282 of 2012, which was taken in file in Civil Appeal No.4440 of 2012.
23.10.2012
Appellant preferred an Appeal against the said CRZ clearance dated 6.06.2012, under Section 16 of the National Green Tribunal Act, 2010, before the National Green Tribunal, which was taken on file as Appeal No.1of 2012 (SZ). The appellant filed the said Appeal before the National Green Tribunal against the CRZ clearance dated 25.7.2012 mainly on the ground that environment impact assessment was not done by an accredited agency and was also not done in accordance with the accepted norms and procedure prescribed under the Environment (Protection) Act, and that therefore the CRZ clearance was required to be quashed by the National Green Tribunal.
06.05.2013
Hon'ble Supreme Court disposed of the Civil Appeal No. 4440 of 2012 with 15 directions to AERB and other authorities.
……2013
While disposing of the case titled G. Sundarrajanvs. Union of Indiareported in (2013) 6 SCC 620, this Hon’ble Court gave 15directions for due compliance by AERB, NPCIL, DAE, MoEF,TNPCB, State of Tamil Nadu, etc. Complaining that thosedirections had not been complied with, the Appellant herein filedWrit Petition No.19286 of 2013 before the Madras High Courtpraying for a declaration that the clearance granted
by AERB for‘First Approach to Criticality’ (FAC) of Unit 1 of KudankulamNuclear Power Project (KK NPP) on July 11, 2013 be declared asnull and void. Writ Petition was heard along with few other writpetitions like WP No.15829 of 2013 and Writ Petition No.20161 of2013 and the same were disposed of by a common judgment dated29.7.2013, against which the Appellantpreferreda Special Leave Petition. The same was taken in file in SLP (C) No.36179 of 2013.
8.05.2014
Theabovesaid SLP (C) No.36179 of 2013 was disposed of by this Hon’ble Court with the following observations: “8. After perusing the various affidavits filed by the Respondents,we notice that the directions given by this Court are being properlyaddressed by the Respondents and there is no laxity on the part ofthe Respondents in not carrying out various directions of this Court.For full implementation of directions, evidently, it may take somemore time and we are sure that the Respondents would makeearnest efforts to give effect to all the directions of this Court inletter and spirit.
9. ShriPrashantBhushan, learned senior counsel appearing forthe Petitioner, submitted that a team headed by a former Chairmanof the AERB be constituted to examine as to whether thesedirections are being properly implemented or not.We find itunnecessary to appoint any Committee at this stage since thestatus report and the affidavits indicate that the Respondents aretaking necessary steps so as to give effect to various directions,even though some of the directions are yet to be fulfilled, whichnaturally would take some more time. At the moment, we find noreason to give any further directions.” It is pertinent to not here that, even after 2 years, directions with regard to sifting of Spent Nuclear Fuel from KKNPP site, identifying permanent DGR, formalizing Nuclear Policy, compliance of Disaster Management are yet to be complied with by the concern authorities.
23.07.2016
Respondent no.3, the project proponent, has taken two different stands in respect of the total fresh water requirement for the proposed KKNPP units 3 to 6. In the EAC meeting of MoEF dated 10 and 11 May 2012, while considering the CRZ clearance for KKNPP units 3 to 6 and recommending the same to the MoEF, there is a specific finding that the total fresh water requirement for the proposed KKNPP units 3 to 6 will be 12388 cum/day and the same will be met from the desalination plant already under operation at the project site. However, in the reply filed by respondent no.3 dated 23.7.2016 before the NGT, it is stated that for the proposed KKNPP units 3 to 6 separate desalination plant of capacity 12388 cum/day will be set up afresh in the project site.
29.11.2016
The National Green Tribunal dismissed the Appeal filed by Appellant in Appeal No.1 of 2012 (SZ).
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. ___________of 2017
(Appeal under Section 22 of the National Green Tribunal Act, 2010 against the Order dated 29.11.2016 passed by National Green Tribunal, Southern Zone, Chennai in Appeal No. 1 of 2012 (SZ) )
IN THE MATTER OF: POSITION OF PARTIES
1. G. Sundarrajan 106/2 First floor, Kanaga Durga complex, Gangai Amman Koil street, Vadapalani, Chennai 600 026
NGT
Supreme Court
Appellant
Appellant
Respondent 1
Respondent 1
Respondent 2
Respondent 2
Respondent 3
Respondent 3
Versus 1.
2.
Union of India Through the Secretary Ministry of Environment & Forest ParyavaranBhavan, CGO Complex New Delhi
Tamil Nadu State Coastal Zone Management Authority Through the Chairman Department of Environment & Forests First Floor, Panagal Building Saidapet, Chennai 600 015
3. M/s Nuclear Power Corporation of India Limited Through its Managing
Director Entrance-2, NabhikiyaUrjaBhawan Anushaktinagar Mumbai 400 094 4. Tamil Nadu Pollution Control Board Through the Member Secretary 76, Mount Salai Guindy, Chennai 600 032 To,
Respondent 4
Respondent 4
The Hon’ble Chief Justice of India and His Hon’ble Companion Justices of The Hon’ble Supreme Court Of India
The humble Civil Appeal of the Appellant above named:
MOST RESPECTFULLY SHEWETH:
1.
The Appellant is filing the instant Civil Appeal under Section 22 of the
National Green Tribunal Act, 2010 against the Order dated 29.11.2016 passed by National Green Tribunal, Southern Zone, Chennai in Appeal No. 1 of 2012 (SZ).
QUESTIONS OF LAW
2.
The following question of law arises for consideration by this Hon'ble
Court:
(i)
Whether a CRZ clearance based on the Environment Impact Assessment made by a non-accredited EIA Consultant is valid in law?
(ii)
Whether the National Green Tribunal is right in refusing to exercise its jurisdiction and decide the validity of the CRZ clearance dated 25.07.2012 relying on certain observations of the Supreme Court in its judgment dated 06.05.2013 in Civil Appeal No.4440 of 2013 etc. (G. Sundarrajan v Union of India: (2013) 6 SCC 620) where the CRZ clearance dated 25.07.2012 was not under challenge?
(iii)
Whether the observation “CRZ clearance was granted by MoEF on 25.7.2012 after following the procedure laid down in the CRZ Notification of 2011” can be considered to be a finding of the Supreme Court in the light of the fact that an appeal against the said clearance dated 25.7.2012 (Appeal No.1 of 2012) was pending before the National Green Tribunal, Southern Zone?
FACTS OF THE CASE
3.
The appellant is an environmental activist and a trustee of Poovulagin
Nanbargal, a public trust, whose main object is to protect environment. Earlier, the appellant had filed WP No. 24770 of 2011 challenging the validity of the Environmental Clearance granted for the purpose of commissioning units 1 and 2 of Kudankulam Nuclear Power Plant ultimately resulting in a ruling of this Hon’ble Court in G.Sundarrajan v Union of India(2013) 6 SCC 620. 4.
The Union of India and USSR entered into an Inter Governmental
Agreement on 20.11.1988 for construction of Kudankulam Nuclear Power Plant, at Kudankulam, RadhapuramTaluk, Tirunelveli District, Tamil Nadu. As per the said agreement, the then USSR has agreed to establish atomic power station consisting of 2x 1000 MWe with VVER Russian made reactors at Kudankulam with its scientific experts in collaboration with the experts in India, apart from the AERB. In the said agreement, it was agreed between the two States that the spent fuel discharged by the Atomic Energy Project in the two reactors shall be shipped safely to the Soviet Union through sea route in sealed casks. 5.
The Department of Environment and Forests, Government of Tamil Nadu
has granted clearance on 26.12.1988 for installation of the plant at Kudankulam. It was in the light of the then existing law, the clearance has been granted. At that time, there was no statutory stipulations prohibiting the construction within 500 Meters of the High Tide Line (HTL), except a communication by the then Prime Minister of India to all Chief Ministers stated to have been effected in November, 1981 stating that no activity should be allowed within 500 Meters of the HTL in order to maintain the beauty and ecological integrity of the nation's beaches. However, the then Hon'ble Prime Minister on 19.4.1989 has approved that an exemption of 500 Meter norm may be allowed specifically for KKNPP. 6.
The AERB based on a letter from the NPCIL has also granted clearance
on 10.11.1989 for locating two VVERs of 1000 MWe capacity each at
Kudankulam site. In the meantime, due to disintegration of USSR, a Supplemental Agreement was entered into between the Government of India and Russia on 21.6.1998. In contra to the earlier agreement dated 20.11.1988, in the Supplemental Agreement a major change relating to the shipping of Spent Fuel to USSR, was madeand it was agreed that the Union of India will retain Nuclear Spent Fuel. 7.
By a letter dated 6 September 2001, the Ministry of Environment and
Forests of the Government of India made it clear that the request for environmental clearance made in 1989 was valid even in 2001. After about 12 years of the said environmental clearance, the National Environmental Engineering Research Institute submitted the Comprehensive Environmental Impact Assessment of nuclear Power Plant (Units 1 and 2), Kudankulam under the sponsorship of Nuclear Power Corporation of India Ltd, Mumbai. This was submitted in January 2003. 8.
On 31st May 2006, the Respondent no.3 – NPCIL submitted an application,
before the AERB, seeking Siting Consent for locating two additional units (KKNPP Units 3 & 4) at Kudankulam Site. Subsequently, on 6th June, 2006, a revised application seeking Siting Consent for four additional at Kudankulam Site (KKNPP Units 3 to 6) was submitted without enclosing Site Evaluation Report (SER). NPCIL submitted SER for KKNPP Units 3 to 6 along with response to various pending stipulations of Siting Clearance for KKNPP Units 1&2 as per requirement indicated in the AERB Safety Guide on “Consenting Process for NPPs
& RRs” on March
06,2009. Accordingly the AERB by order dated
9thFebruary, 2011, granted Siting consent for locating 4 x 1000 MWe VVERs based Nuclear Power Plants, KKNPP Units 3 to 6 at Kudankulam Site. 9.
The Environmental clearance for Kudankulam Nuclear Power Project
Expansion Units 3 & 4 (2 x 1000 MW), was granted in September, 2008 and for Kudankulam Nuclear Power Project Expansion Units 5 & 6 (2 x 1000 MW), in December, 2009,
based
on the
Comprehensive Environmental
Impact
Assessment carried out by NEERI, Nagpur. 10.
Subsequently,in the year 2011, the Respondent No.3-NPCIL made an
application for Coastal Regulation Zone (CRZ) clearance, under the Coastal Regulation Zone Notification, 2011, for Kudankulam Nuclear Power Project Expansion Units 3 to 6 (4 x 1000 MW) at Kudankulam site before the Respondent No.1.The application fallsunder CRZ-III category of the said CRZ Notification 2011.
11.
The application under for CRZ clearance under CRZ notification, 2011, for
the KKNPP Units 3 to 6 was appraised on three occasions by the Expert Appraisal Committee (EAC) of the Ministry of Environment and Forest dealing with ‘Infrastructure, Miscellaneous projects and CRZ’ between 2011 and 2012. From the Minutes of the EAC dated 05.04.2011 – 06.04.2011, it can be understood that EAC was initially critical of the project specifically in view of the poor quality of EIA. It flagged certain issues for indepth consideration. A perusal of the minutes of the EAC reveals that no detailed scrutiny was done by the EAC. The EAC was critical of the report submitted by the Respondent no.3-NPCIL and concluded that it is ‘far below’ the basic requirement for consideration of CRZ clearance. Specifically, the EAC after considering the project and the documents supplied came to the following conclusion: (i)
That the EIA report needs to be updated in view of the fact that the data was for a period prior to 2004
(ii)
That Risk Assessment and Disaster Management Plan shall be submitted considering the recent Japan tragedy.
(iii)
The Committee advised the proponent to consider the pipeline for disposal instead of an open channel.
(iv)
That the earlier study by CWPRS relates to a 7 degrees Celsius variation in ambient temperature whereas the report says 3 degrees. This must be clarified and if necessary another study shall be carried out by CWPRS to meet the requirement in force.
(v)
Overall the report submitted is not readable/ legible as far below the basic requirement for consideration of CRZ Clearance.
A copyof theMinutes of the EAC dated 05.04.2011 – 06.04.2011 is annexed herewith as Annexure P1 (pages_____to_____). 12.
The EAC met again in September and appraised the Kudankulam
Expansion project KKNPP Units 3 to 6. It is clear from the minutes of the meeting held on 21st and 23rd of September, 2011, that it did not deal with the issue with respect to the 7 degree variation in the ambient temperature nor was any detailed deliberation with respect to the issues with respect to Risk Assessment and Disaster Management Plan.Further, it is significant to note that the EAC was
‘informed’ about the terrestrial marine EIA Updation and the fact that mathematical modeling of CCW discharge have been carried out by M/ S CESS Trivandrum.
The minutes do not reveal whether any qualitative changes have
taken place in the EIA document between the present meeting and the last other than updation of marine and terrestrial EIA, or whether the EAC was privy to the information contained in the terrestrial marine EIA updation, and also whether there was any discussion/ deliberation on the updated list and its implications. However, it is pertinent to note that the EAC observed as follows: “The Plant elevation is designed for Tsunami and flooding with sufficient conservatism. This may be further amplified with a comparison of the connected parameters with normal conditions highlighting the additional provisions made to withstand tsunami and the method adopted for quantification’ “‘The proponent reported that the plant having the most advanced safety features and is termed as ‘First of its kind’ in the safety aspect. The documentary evidence shall be submitted in support of this statement which has a wider ramification in the context of what is happening around the world on similar development” The EAC decided to defer the proposal and directed that the same will be considered ‘afresh’. A copy of the Minutes of the EAC dated 21.09.2011 - 23.09.2011 is annexed herewith as Annexure P2 (pages_____to_____).
13.
The KKNPP Units 3 to 6 project was further considered by the EAC during
the meeting held in 10th – 11th May, 2012. As evident from the minutes, the first five paragraphs are repetition of the earlier minutes and is a general description of the project. Only one paragraph is devoted to some of the issues which are dealt in a perfunctory manner. The relevant paragraph reads: “The project was considered in the 99th meeting held on 5th and 6th of April, 2011 and 21st-23rd of September, 2011 and advised for considering pipeline discharge for CWW. Accordingly, the CCW has been modified to discharge the CCW through underwater pipelines to the discharge at a region of 4-5 Mts Bathymetry which is away from the shore. Also the additional provisions made in KKNPP for withstanding tsunami effects like grade separation of the building in addition to the
tsunami level and also the plant features like passive heat removal system etc.” It is therefore clear from the meeting that the EAC failed to undertake the detailed scrutiny as required under the process of appraisal. It is surprising that on such a sensitive environmental issues which possibility of serious consequence, the minutes of the EAC does not reveal any deliberation/ discussion by any of the experts. It is not evident as to whether the EAC comprising of experts of relevant disciplines applied its collective mind to the contents of the report specifically with respect to Tsunami. Further, the minutes do not reveal that the EAC applied its mind to the various consideration specially the safety issues. Merely stating that that additional provisions for withstanding Tsunami effects have been incorporated does not reflect due application of mind to an issue of serious concern. It was clearly mentioned in the previous meeting held on September, 2011 that the matter will be considered ‘afresh’. Further, nowhere does the EAC mention that the clearance under consideration by them includes CRZ clearance for a desalination plant that has already been constructed and commissioned. Indeed, it is this desalination plant that has been dedicated to serve the freshwater needs of the KKNPP units 1 and 2. The EAC was thus clearly oblivious to the ground level situation. A copy of the Minutes of the EAC Meeting held in 10th – 11th May 2012 is annexed herewith as Annexure P3(pages_____to_____).
14.
The minutes of the Expert Appraisal Committee held on 10th - 11th of May,
2012 in which the EAC recommended for the grant of approval under the CRZ, was based on the following assumption: “The total fresh water requirement for the proposed KKNPP 3 to 6 units will be 12388 cum/ day and it will be met from the desalination plant already under operation at the project site.” EAC's admission records its knowledge of the fact that CRZ clearance was being considered by it for a desalination plant that had already been commissioned. Ignoring for the time being the inherent illegality in recommending a post-facto CRZ clearance, the EAC's assumption that the currently installed desalination plant of 320 cu.m/hour capacity would suffice to meet the needs of the four units, namely KKNPP 3 to 6, is itself faulty. It is faulty in view of the fact that the installed capacity of desalination plant as per the Comprehensive EIA is only sufficient for two plants (6194 cu.m/day). The impact assessment has also been
conducted only for impact of discharge of 350 m3/hr – i.e. the discharge arising from a plant of 6194 m3/day capacity. This discharge is already ongoing through an open channel in violation of the EAC's post-facto recommendations of pipeline disposal, considering that the desalination plant is up and running even as per the EAC's own admission. 15.
The Respondent no.1-MoEF granted CRZ clearance for KKNPP Units 3 to
6 on 25th July 2012. A copy of the CRZ clearance granted by MoEF for KKNPP Units
3
to
6
on
25.07.2012
is
annexed
herewith
as
Annexure
P4(pages_____to_____).The said CRZ clearance was mainly based on the terrestrial and marine EIA updation and the mathematical modeling of CCW discharge carried out by M/s Engineers India Limited, Gurgaon, which not an accredited agency as required under the notification dated 02.12.2009 issued by the Respondent no.1. A copy of the Office Memorandum Dated 02.12.2009 issued
by
the
Respondent
No.1
is
annexed
herewith
as
Annexure
P5(pages_____to_____). Against the said CRZ clearance, on 23.10.2012, the Appellant preferred an Appeal before the National Green Tribunal, which was take into file as Appeal No.1 of 2012 (SZ).
16.
Earlier, the appellant had filed WP No. 24770 of 2011 and batch
challenging the validity of the Environmental Clearance granted for the purpose of commissioning units 1 and 2 of Kudankulam Nuclear Power Plant ultimately resulting in a ruling of the Hon’ble Court in G.Sundarrajan v Union of India (2013) 6 SCC 620. When the said judgment was delivered by the Hon’ble Court on 6 May 2013, the CRZ clearance dated 25.7.2012 given in respect of Units 3 to 6 of KKNPP was already under challenge before the National Green Tribunal vide Appeal No. 1 of 2012 (SZ) filed on 23.10.2012 by the appellant. The appellant filed the said Appeal before the National Green Tribunal against the CRZ clearance dated 25.7.2012 mainly on the ground that environment impact assessment was not done by an accredited agency and was also not done in accordance with the accepted norms and procedure prescribed under the Environment (Protection) Act, and that therefore the CRZ clearance was required to be quashed by the National Green Tribunal.
17.
The appellant had during the course of hearing of the said appeal before
the National Green Tribunal raised the following contentions:
(a)
As early as on 2.12.2009 the Government of India had taken a decision in
respect of the accreditation of EIA Consultants with Quality Council of India (QCI)/National Accreditation Board of Education and Training (NABET) to the effect that all consultant/public sector undertakings working in the area of environmental impact assessment would be required to get themselves registered under the scheme of Accreditation and Registration of the NABET/QCI and such consultants would be confined to the accredited sectors and parameters for bringing in more specificity in the EIA document. However, M/s Engineers India, Gurgaon, which has prepared EIA in respect of KKNPP units 3 to 6, is not an accredited consultant in respect of nuclear power project as could be seen from the list of accredited EIA Consultant organizations prepared by NABET as on 5.12.2012.
When M/s Engineers India is not an accredited
consultant as per Office Memorandum dated 2.12.2009 issued by the Government of India, the CRZ clearance dated 25.7.2012 based on the EIA prepared by M/s Engineers India is not valid in law.
(b)
Respondent No.3, the project proponent, has taken two different stands in
respect of the total fresh water requirement for the proposed KKNPP units 3 to 6. In the EAC meeting of MoEF dated 10 and 11 May 2012, while considering the CRZ clearance for KKNPP units 3 to 6 and recommending the same to the MoEF, there is a specific finding that the total fresh water requirement for the proposed KKNPP units 3 to 6 will be 12388 cum/day and the same will be met from the desalination plant already under operation at the project site. However, in the reply filed by respondent no.3 dated 23.7.2016 before the NGT, it is stated that for the proposed KKNPP units 3 to 6 separate desalination plant of capacity 12388 cum/day will be set up afresh in the project site. In the light of the said contradictory stands taken by respondent no.3, the EAC’s recommendation for granting CRZ clearance itself suffers from the vice of non-application of mind and therefore the CRZ clearance deserves to be quashed. A copy of the reply filed by respondent no.3 dated 23.7.2016 before the NGT is annexed herewith as Annexure P6(pages_____to_____). (c )
As per the CRZ Notification issued by the MoEF dated 6.1.2011 (Clause (i)
(c ) of Para 4.2) the project proponent is required to apply with a comprehensive EIA with cumulative studies for projects in the stretches classified as low and medium eroding by MoEF based on scientific studies and in consultation with the State Governments and Union territory administration. Since this procedure has not been followed by respondent no.3 in respect of KKNPP units 3 to 6, the CRZ clearance 25.7.2012 is not valid in law.
18.
The National Green Tribunal has, however, not considered the grounds
raised in the appeal and reiterated during the course of hearing. Instead of deciding the appeal on merits, the National Green Tribunal relied on the following observations of the Hon’ble Court in G.Sundarrajan’s case (supra): “CRZ clearance was granted by MoEF on 25.7.2012 after following the procedure laid down in the CRZ Notification of 2011”, and dismissed the appeal of the appellant vide an order dated 29.11.2016. Unfortunately, the National Green Tribunal has ignored the fact that the appellant had never challenged the environmental clearance dated 25.7.2012 in G.Sundarrajan’s case (supra) and that the appellant had challenged the same before the National Green Tribunal for the first time vide Appeal No.1/2012. It is against the said order dated 29.11.2016 passed by the National Green Tribunal in Appeal No. 1 of 2012 that this Civil Appeal is preferred on the following grounds:
GROUNDS
(A)
The National Green Tribunal has erred in holding that the Hon’ble Court
has already given a finding in G.Sundarrajan’s case (supra) that the CRZ clearance dated 25.7.2012 is valid in law and that therefore the National Green Tribunal has no jurisdiction to consider the validity of the said clearance.
(B)
The National Green Tribunal has erred in not considering that the appellant
herein or any one else had never challenged the CRZ clearance dated 25.7.2012 in the Hon’ble Court.
(C )
The National Green Tribunal ought to have held that G. Sundarrajan’s
case (supra) had dealt with only KKNPP Units 1 and 2, and not Units 3 to 6 and that the observations of the Hon’ble Court regarding CRZ clearance in respect of Units 3 to 6 would not be binding on the National Green Tribunal.
(D)
The National Green Tribunal failed to consider the following ground raised
by the appellant during the course of hearing of the appeal: As early as on 2.12.2009 the Government of India had taken a decision in respect of the accreditation of EIA Consultants with Quality Council of India (QCI)/National Accreditation Board of Education and Training (NABET) to the effect that all consultant/public sector undertakings working in the area of environmental impact assessment would be required to get themselves registered under the
scheme of Accreditation and Registration of the NABET/QCI and such consultants would be confined to the accredited sectors and parameters for bringing in more specificity in the EIA document. However, M/s Engineers India, Gurgaon, which has prepared EIA in respect of KKNPP units 3 to 6, is not an accredited consultant in respect of nuclear power project as could be seen from the list of accredited EIA Consultant organizations prepared by NABET as on 5.12.2012. When M/s Engineers India is not an accredited consultant as per Office Memorandum dated 2.12.2009 issued by the Government of India, the CRZ clearance dated 25.7.2012 based on the EIA prepared by M/s Engineers India is not valid in law.
(E)
The National Green Tribunal failed to consider the following contention
raised by the appellant during the course of hearing of the appeal: Respondent no.3, the project proponent, has taken two different stands in respect of the total fresh water requirement for the proposed KKNPP units 3 to 6.
In the EAC
meeting of MoEF dated 10 and 11 May 2012, while considering the CRZ clearance for KKNPP units 3 to 6 and recommending the same to the MoEF, there is a specific finding that the total fresh water requirement for the proposed KKNPP units 3 to 6 will be 12388 cum/day and the same will be met from the desalination plant already under operation at the project site. However, in the reply filed by respondent no.3 dated 23.7.2016 before the NGT, it is stated that for the proposed KKNPP units 3 to 6 separate desalination plant of capacity 12388 cum/day will be set up afresh in the project site. In the light of the said contradictory stands taken by respondent no.3, the EAC’s recommendation for granting CRZ clearance itself suffers from the vice of non-application of mind and therefore the CRZ clearance deserves to be quashed.
(F)
The National Green Tribunal ought to have considered the following
ground raised by the appellant during the course of hearing of the appeal: As per the CRZ Notification issued by the MoEF dated 6.1.2011 (Clause (i) (c ) of Para 4.2) the project proponent is required to apply with a comprehensive EIA with cumulative studies for projects in the stretches classified as low and medium eroding by MoEF based on scientific studies and in consultation with the State Governments and Union territory administration.
Since this procedure has not
been followed by respondent no.3 in respect of KKNPP units 3 to 6, the CRZ clearance 25.7.2012 is not valid in law.
(G)
The National Green Tribunal ought to have allowed Appeal No.1/2012 and
ought to have quashed the CRZ Clearance dated 25.7.2012.
19.
The Appellant has paid the requisite court fee. The matter involves issues
in interpretation of law and the monetary value of the issues involved cannot be ascertained.
20.
The Appellant states that no other appeal against the impugned order has
been filed by the Appellant before this Hon’ble Court or in any other court.
PRAYER:
For the reasons aforesaid and those that may be urged at the time of hearing it is most respectfully prayed that the Hon’ble Court be pleased to:
(a) Allow the instant Civil Appeal and set aside the order dated 29.11.2016 passed by the National Green Tribunal, Southern Zone, Chennai in Appeal No. 1 of 2012 (SZ); and
(b) Pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS THE APPELLANT AS IN DUTY BOUND SHALL EVER PRAY. Appellant Through Prashant Bhushan Counsel for the Appellant Drawn and Filed on: .03.2017 New Delhi
INDEX SL. PARTICULARS No. 1.
Notice of Motion
2.
Urgent Application
3.
Court Fee
4.
Memo of Parties
5.
Synopsis & List of Dates
6. 7.
List of Events Annexure P-1 :A Copy of the Minutes of the EAC dated 05.04.2011 – 06.04.2011 Annexure P-2 : A Copy of the Minutes of the EAC dated 21.09.2011 – 23.09.2011
8.
Page Nos.
Annexure P-3 :A Copy of the Minutes of the EAC Meeting Held on 10.05.201211.05.2012 2012 10. Annexure P-4 : A Copy of the CRZ clearance granted by MoEF for KKNPP Units 3 to 6 on 25th July 2012 11. Annexure P-5 : A Copy of the Office Memorandum Dated 2.12.2009 issued by the Respondent No.1 12. Annexure P-6 : A Copy of the Reply Filed By Respondent No.3 Dated 23.7.2016 Before The NGT 13. 9.
18. Vakalatnama on behalf of the petitioner.
