Civil Liability for Nuclear Damage : threats, safety concerns and PIL
A Bill seeking to fix liability for nuclear damage and to specify procedures for compensating victims was introduced in the Lok Sabha on May 7, 2010 by the Ministry of Science & Technology and Earth Services. It was referred to the Standing Committee in Science & Technology, Environment & Forests on May 13, 2010. It met with vigorous opposition from a wide spectrum of citizens’ groups on the grounds that it indemnified manufacturers/suppliers of nuclear goods while at the same time fixing low liability caps for operators and furthermore, making exceptions violating the right to life, the principles of polluter pays and absolute liability. Despite this, it was notified in the official Gazette and came into force from November 11, 2011.
It will be recalled that Common Cause and other likeminded organizations had come together to file a writ in the Supreme Court to seek relief against the imminent public danger posed by the implementation of India’s present nuclear programme, as the new law seems to have glossed over many of these aspects.
Our readers will also recall that over the years our higher judiciary has evolved certain basic principles in its approach to dispensing justice in the matters of environment and public safety. This approach is founded on certain basic principles such as:
1. Principle of Absolute Liability in respect of Hazardous Industry
This principle is best captured in the words of the Supreme Court in the “Bhopal gas leak case” “The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm, and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part . . .
If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards.”
2. Polluter Pays Principle
The polluter pays principle which is more judicious and in keeping with the perils imposed by new hazards of industries is an improvement on the absolute liability principle as expounded by the Supreme Court in the Bicchri case, where it held“….Where an enterprise is engaged in a hazardous or inherently dangerous activity and causes harm to any one on account of an accident, the enterprise is strictly and absolutely liable to compensate all those who are effected by the accident and such liability is not subject to any of the exceptions as laid down in tortuous principles of strict liability under the rule laid down in Rylands Vs Flecher……..………..The ‘Polluter Pays’ principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution, Under the principle it is not the role of Government, to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.”
This principle has further been elaborated upon by the Supreme Court in the Vellore Tanneries Pollution case, as follows:
“……….The ‘Polluter Pays Principle’ as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of ‘Sustainable Development’ and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost reversing the damaged ecology.”
3. Precautionary Principle
The Supreme Court in the Vellore tanneries pollution case, has deemed the precautionary principle to be mandatorily applicable to further sustainable development and has held: We are however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development.” The “Precautionary Principle” – in the context of the law – means:
• Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
• The “onus of proof” is on the actor or the developer/industrialist to show that his action is/was environmentally benign.
We have no hesitation in holding that the precautionary principle and the Polluter Pays Principle are part of the Environmental Law of the Country.”
It may be noted that subsequent to filing of the writ, the union Government has notified the Civil Liability for Nuclear Damage Rules, 2011 to implement the provisions of the Civil Liability for Nuclear Damage Act, 2010. It is strange that both the Act and the rules have been notified on the same date but do not necessarily complement each other. On the contrary the rules mitigate certain unique provisions of the Act and surprisingly provide easy exit to the suppliers so far as their liability to mitigate damages are concerned.
As eminent Jurist Soli Sorabjee has recently pointed out, while giving his reactions before Greenpeace, an international activist group: “It is plain that the proposed Rule 24 is unduly restrictive as it limits the amount which can be claimed by exercise of the right of recourse to the extent of the operator’s liability or the value of the contract, whichever is less.” This was reported in The Hindu of 13th Dec 2011. Mr Sorabjee further said that Rule 24(1) was inconsistent with Section 6 of the Act, read with Section 17, in as much as it scaled down and reduced the liability. Consequently, the … proposed Rule is ultra vires the … Act and is invalid.
Similarly, according to him, the proposed Rule 24 (2), which restricts the time limit, cannot be said to be carrying out the purpose of the … Act but is in fact in conflict with it, ultra vires of the Act and was also invalid.
We reproduce below excerpts of the writ.
IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
Writ Petition (Civil) No. .................... of 2011
Public Interest Litigation
In the matter of:
Common Cause & Ors Versus Union of India & ORS
A Writ Petition in public interest under Article 32 of the Constitution of India seeking appropriate writ for declaring Nuclear Liability Act of 2010 as unconstitutional, for safety reassessment and cost-benefit analysis of all nuclear facilities in India, and overhaul of the dysfunctional regulatory system
To,
THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE HON’BLE SUPREME COURT OF INDIA
The Humble Petition of the Petitioners above-named MOST RESPECTFULLY SHOWETH: -
1) The petitioners are filing the instant writ petition in public interest challenging the Constitutional validity of the Civil Liability for Nuclear Damage Act, 2010, seeking a safety reassessment of all nuclear facilities in India, and a comprehensive long-term cost-benefit analysis of the nuclear plants in India. This petition seeks a stay on all proposed nuclear plants till the safety and costbenefit analysis is carried out. This petition also seeks certain other reliefs in the interest of right to life, right to clean environment and right to healthy & safe enjoyment of life. This petition uses the proposed Jaitapur nuclear power plant (considered to be the world’s largest) as a case study to highlight the mindless decision-making in recent times.
2) The recent Fukushima nuclear disaster in Japan has turned out far graver than originally feared. The reactors, and overheated spent-fuel pools have spewed out radioactivity that has now spread over hundreds of square kilometers. Water, soil, milk and vegetation in large areas have been contaminated and many countries around the world have banned food imports from Japan. The disaster has cost Japan hundreds of billions of dollars and has made a large area uninhabitable. The cost of repairs and finding new sources of electricity have been estimated to be more than a whopping $25 billion. The Fukushima disaster highlights, 25 years after the big nuclear disaster of Chernobyl, the inherent hazards of nuclear power generation. According to news broadcaster BBC, at Chernobyl the “legacy of radiation will last for centuries and would claim hundreds of thousands of more victims than Hiroshima and Nagasaki combined. More than 5 million people live on radiation contaminated land and they will develop new cancers and genetic mutations.”
3) Even a highly industrialized country with a good industrial safety record like Japan could not anticipate and control these hazards. After the Fukushima disaster, Germany, Italy and Switzerland have announced a complete withdrawal from further use of nuclear power. Japan is also considering phasing out its nuclear plants. However, in India, in the aftermath of Fukushima ,the Secretary of the Department of Atomic Energy, Govt. of India, who is the Chairman of the Atomic Energy Commission, stated that Indian nuclear plans are “one hundred percent safe.”
Such a statement without being based on facts or on assessments is intended to mislead the people in this country. Not only India has a poor industrial safety track record and dismal postdisaster management systems (as is clear from Bhopal gas tragedy, railway accidents, earthquakes etc.), our Government also seems to be in denial mode of the major safety risks of nuclear plants. If, for example, people from within 30km radius of the nuclear plant in Narora, Uttar Pradesh (which is about 150km from Delhi) have to be evacuated, then that would mean rehabilitating tens of millions of internal refugees, which in all likelihood would prove to be impossible.
4) This petition is not against the use of nuclear energy per se. This petition highlights that there are following risks and costs associated with nuclear energy and the same must be factored in risk & cost calculations, and fool-proof level of safety must be ensured through appropriate regulatory mechanisms. The costs & risks of nuclear power are:
a) Risk of catastrophic accident due to natural factors such as seismic events, floods etc., human errors, mechanical failures and other unanticipated factors, causing large-scale destruction of life & property, with far-reaching health and other effects across generations and across hundreds of kilometers, making large areas uninhabitable for decades, and costing tens of thousands of crore rupees
b) Risk of leakage of radioactive fuel and other radioactive material c) Storage of radioactive nuclear waste, considering no satisfactory sustainable solution has been found
d) Danger of theft of radioactive material, nuclear proliferation, nuclear terrorism, attack on nuclear installations and sabotage
e) Severe health and environmental effects of uranium mining
f) Lack of availability of usable uranium and its diminishing reserves world-wide, and the lack of a viable alternative to uranium
g) Exorbitant cost of setting up a nuclear power plant
h) Huge time requirement in commissioning of a plant
i) High maintenance and security costs
j) Exorbitant and ever-escalating cost of decommissioning the plant
k) High displacement and human cost
l) Huge demand of water and destruction of forests/trees
m) Lack of availability of trained workforce, and consequent risk of human error
n) Damage to marine environment and life as most nuclear projects are on the coastline
5) Considering that India is one of the largest producers of electricity in the world and also one of its most inefficient users, there is no reason why the country’s electricity needs cannot be met through its efficient use, by reducing the power-plant inefficiencies, reducing transmission & losses, and investment in solar and other renewable sources of energy that are becoming cheaper and efficient with each passing day. Since this analysis has not been done, the true risks and costs of nuclear energy have not been determined and no comparative cost-benefit analysis has been carried out, the Government plans to promote nuclear energy at a massive unmanageable scale are therefore made without proper application of mind, by ignoring relevant considerations, by taking into account irrelevant considerations and are arbitrary. The same, therefore, violates the mandate of Article 14 of the Constitution of India.
6) This petition comes at a time when India has decided to massively expand its nuclear power generation and set-up mega nuclear facilities in immediate future. Given the poor safety record of India’s nuclear programme and lack of independent & credible regulatory structure, the plans of the central government are misconceived, made for extraneous considerations and would seriously impair the fundamental right to life of the people of India.
7) The plans of the Government to build many expensive and extremely large-size reactor plants have already met huge resistance from local people where the Government has had to impose Section 144 CrPC, detain hundreds of people, blocked information from the proposed plants and several protestors have been injured in police firing. The Government does not seem to have learnt a lesson from Fukushima, Chernobyl or the Three Mile Island accidents. The promotion of nuclear power on a massive scale at huge cost to the exchequer is a classic example as to how the Government’s policy gets disconnected from concern for public welfare and gets corrupted and subverted by extraneous considerations and corporate pressures.
8) The above situation makes a compelling ground for the invocation of the Precautionary Principle. The precautionary principal necessitates that if there are reasonable scientific grounds for believing that a process, product or technology may not be safe then the industry must not be allowed to proceed ahead unless that industry or establishment is able to demonstrate reasonable certainty of no harm. This Hon’ble Court in A. P. Pollution Control Board vs. M V Nayudu, (1999) 2 SCC 718, held that precautionary principle is part of the law of the land.
9) The nuclear industry and the foreign countries of US, France and Russia with whom we have signed nuclear agreement, have been successful in pushing the Government to get a liability law for nuclear damage enacted that indemnifies nuclear manufacturers/suppliers and caps the financial liability of operators. Such a law clearly violates the ‘polluter pays’ principle and the ‘absolute liability’ principle that have become recognized as part of the law of the land under Article 21 of the Constitution, and puts to grave and imminent risk the right to safety, health, clean environment and life of the people of India guaranteed under Article 21 of the Constitution.
THE CASE IN BRIEF
10) The Government, under pressure from multi-billion dollar nuclear energy lobby within India and abroad, has decided to press full-steam ahead to promote nuclear energy in the country. Its plans have received a further boost with the completion of the US-India nuclear cooperation agreement because of which many contracts have been signed between India and foreign nuclear supplier companies. These countries have also succeeded in getting the Government to pass a law that limits liability of nuclear operators and suppliers (manufacturers) making a mockery of the ‘absolute liability’ principle and ‘polluter pays’ principle laid down by this Hon’ble Court while interpreting Article 21 of the Constitution. In effect, this law provides a huge subsidy to the reactor manufacturers as it exempts them from the likely burden of an accident liability, and also provides a huge disincentive to them to invest in safety technologies that are usually expensive. The Government is now vigorously pushing through large-scale, multiple-reactor “nuclear power parks” in coastal areas in utter disregard of the high environmental, radiation related safety and health, and economic costs of atomic power, as well as the requirements of transparency and accountability.
11) The above is happening at a time when, according to a detailed study on world nuclear industry conducted recently by noted international organization ‘Worldwatch Institute’, nuclear industry is in a serious decline as most countries have realized that it is both uneconomic and unsafe. The said study in its conclusion states:
“The so-called ‘nuclear renaissance’ was based on the claim that a new design of reactors would be offered that was both safer and cheaper than exiting designs. Whether this was a delusion on the part of the nuclear industry or a desperate attempt to get one more chance at the promise of cheap power is hard to say, but it was clearly a fallacy.”
Construction of New Power Plants and Recent Mining Activities
12) In 1969, India’s nuclear establishment had predicted that by the year 2000, there would be 43,500 MW of nuclear generating capacity, but as of 2011 the total capacity is only 4780 MW which is about 3% of total electricity generated. This figure is not likely to increase much in the coming two decades as most of the new plants having a long commissioning period. The government has planned to construct many additional nuclear power plants. NPCIL alone wishes to construct 36 imported reactors by 2032.
13) Four 700 MW Pressurized Heavy Water Reactors, two at Rawatbhata in Rajasthan and two at Kakrapur in Gujarat are under construction. Two reactors in Koodankulam district of Tamil Nadu and two reactors in Haripur district of West Bengal are under construction based on Russian design. The said Russian reactor is of extremely dubious quality and safety standard as is clear from a leaked Russian report. In addition to above, ‘in-principle’ approval has been granted for energy parks at five sites in five different states of Hrayana, Madhya Pradesh, West Bengal, Gujarat and Andhra Pradesh. The last 3 of the above proposed energy parks are along the sea coastline. Government has also announced that a fast breeder reactor would start in 2012 in Kalpakkam, Tamil Nadu.
14) The biggest of the proposed nuclear plant is the site at Jaitapur in Maharashtra where 6 reactors of 1650 MW each are to be imported from Areva Corporation in France. Land acquisition for the same started even before even the environmental clearance was granted. Two additional nuclear mega-reactor units of 700 MW each would be installed at Kaiga (Karnataka) in addition to the existing 4 relatively smaller units. There are also reports that nuclear plant in Haripur, West Bengal has been stopped by the State Government due to stiff local opposition.
15) All governments in the past have favoured nuclear energy and DAE’s budgets have always been high. For example, in 2002-03 DAE was allocated Rs. 33.5 billion dwarfing in comparison to the Rs. 4.7 billion allocated to Ministry of Renewable Energy which is in charge of developing solar, wind, small-hydro and bio-mass based power. Despite the smaller budgets and lack of governmental interest, energy produced from these sources was much more than that from nuclear. Now, Government’s aspiration to increase nuclear power capacity from about 4800MW now to about 64,000 MW by the year 2032 obviously means the construction of a large number of big nuclear parks with multiple reactors.. Such a scenario would exponentially increase the probability of a nuclear disaster in the country.
16) Uranium Corporation of India Limited (UCIL) recently began Mohuldih Uranium Mining Project in Saraikela district of Jharkhand, Tummalapalle Uranium Mining Project in Andhra Pradesh in Lambapur in Andhra Pradesh, Rajasthan and in Meghalaya. India does not have enough uranium to meet the needs even of existing plants and would be depending on uranium imports that would not be easily available. Even the International Atomic Energy Agency, (IAEA) was forced to acknowledge the severe shortage of uranium.
17) Moreover, domestic Indian uranium supplies are already insufficient to supply to existing nuclear power plants. According to Prof Sovacool, operators shut down 5 of 17 nuclear power plants in the country in 2007 and operated the remaining plants at 50% capacity for want of fuel. Many European and other countries have essentially stopped uranium mining and production in other countries is down, because of unviability of uranium mining and its serious health & environmental effects. Considering such shortage of uranium from both domestic and external sources, Govt.’s plants to increase dependence of the country on nuclear energy would have adverse long-term implications from strategic and economic point of view, posing a serious threat to India’s energy security.
18) Almost all the new construction plants have run into extremely strong resistance from the local populations. Most of the resistance has been due to concerns over nuclear safety. It is to be noted that nuclear plants affect a large number of people spread across large areas who might be unsafe from its radiation effects and face destruction in case of an accident. Therefore their views must be given considerable weightage before a project is given environment clearance. Under the EIA notification issued in 2006 under the Environment Protection Act, public hearing or jan sunwai has been made mandatory before clearance can be given. but according to a study, most of the public hearings regarding nuclear plants are a farce as near unanimous opposition is not even considered as a factor before the clearance is given. Also, Government exempts many nuclear projects from public hearings.
Need for safety reassessment
19) Nuclear power generation is inescapably fraught with ionizing radiation, an invisible, intangible and insidious poison, which is unsafe in all doses, however small. Radiation causes cancers and genetic damage, for which there is no cure, antidote or remedy. Nuclear plants expose not just occupational workers, but also the general public, to radioactive hazards in numerous ways. 20) Nuclear power generation is the only form of energy production that can produce a catastrophic accident like Chernobyl in 1986. All existing reactor types in the world are vulnerable to a core meltdown like Chernobyl, leading to the release of large quantities of radioactivity into the environment.
21) Even low intensity radiation termed “safe” by the respondents in instances of radiation leakages, can cause irreversible genetic alterations in the human body and the long-term implications of it have not yet been fully understood, as evident from a scientific article published in The Hindu on September 15, 2011 by K.S. Parthasarathy, Raja Ramanna Fellow in Department of Atomic Energy which states “The findings of the present study emphasize that a level of radiation exposure considered ‘safe’ by regulatory standards can induce profound biochemical and cellular adaptation.”
22) The argument used by the proponents of nuclear energy that nuclear power is free from carbonemissions is baseless as is conclusively demonstrated in an article written by eminent energy researcher Prof. Benjamin Sovacool where he records the carbon-emission cost of construction, operation, uranium mining and milling, and finally plant decommissioning that are all part of the lifecycle emissions of a nuclear plant.
23) A major difference between a nuclear bomb and a nuclear power reactor is that the nuclear ‘chain’ reaction in a power reactor is ‘controlled’. Since the reaction is controlled through an artificial process, there is no explosion and consequent release of radioactivity. The process of control of a nuclear chain reaction has to be made foolproof and must satisfy the highest standards of safety. Moreover, a nuclear reactor contains many times more radioactive material than a nuclear bomb.
24) Another major problem with use of nuclear energy is the storage of highly radioactive waste (spent fuel) that is generated by a nuclear plant. The leakage of such waste can cause enormous damage to human health and environment in general, and can make a large amount of area uninhabitable for many years. The said waste remains radioactive for hundreds of years and has to be stored in such a way as to remove all chances of leakage. Governments across the world have been grappled with the problem and have not been able to find any satisfactory sustainable solution. Top scientists in India have asked for either a moratorium on nuclear plants or their closure.
25) The other issue is the exorbitant cost and safety concerns involved in decommissioning and decontaminating a nuclear power plant. Each nuclear power plant has a life span of about 35 years after which it has to be decommissioned.
26) To the best of the knowledge of the petitioners, not a single aged nuclear power plant or a plant in which an accident has occurred has ever been decommissioned fully with complete decontamination of the site of its radioactive isotopes, since it is extremely difficult to do so. After the accident at Chernobyl, the authorities concerned failed to remove the remnants of the toxic radioactive isotopes and had no other option than to build a sarcophagus covering the plant to shield the local population from inter-generational effects of radioactivity. Similarly, the Japanese authorities do not find it feasible to decommission Fukushima Daiichi complex within the next two decades. In all likelihood Fukushima plant will meet the fate similar to that of Chernobyl. That is why a study by a team at MIT had noted “both the historical and probabilistic risk assessment data show an unacceptable accident frequency. The potential impact on the public from safety or waste management failure…makes it impossible today to make a credible case for the immediate expanded use of nuclear power.”
27) Also, nuclear plants are very vulnerable to theft as even if a small amount of radioactive material is blown up in a city, it can make the city completely uninhabitable for decades. The grave dangers of nuclear terrorism that can be caused by a simple theft of radioactive material from any of our nuclear facilities cannot be ignored. This is a real danger acknowledged by all governments and international bodies like IAEA.
28) A typical nuclear reactor produces enough plutonium every two months to create a nuclear weapon. But, even one kg of plutonium is equivalent to about 22 million kWh of heat energy. A dirty bomb laced with one kg of plutonoium can therefore produce an explosion equal to about 20,000 tons of chemical weapons. There are a large number of terrorists groups eager to acquire access to nuclear waste or fissile material.
29) Moreover, the Government has admitted that nuclear plants would continue to remain prime targets of terrorists. Minister of State for Home Affairs informed Rajya Sabha on 16.08.2011 “In view of the prevailing security scenario, the atomic establishments continue to remain prime targets of terrorist groups and outfits.” According to Prof. Sovacool, “A successful attack or accident at the power plant near New York City, apparently part of Al Qaeda’s original plan for September 11, 2001, would have resulted in 43,700 immediate fatalities and 518,000 cancer deaths, with cleanup costs reaching $2 trillion.”
30) Even during the normal operation of nuclear plants, large quantities of radioactive materials are routinely discharged into water and air. Transportation of nuclear material and wastes is also vulnerable to accidents or sabotage. Because nuclear technology is strategically “sensitive” in nature, large-scale and centralized energy generation through nuclear power demands and encourages secrecy, and generates vested interests in the form of an unaccountable, undemocratic technocratic elite.
31) The lesson from the Fukushima, Chernobyl, and Three Mile Island accidents is simply that nuclear power comes with the inevitability of catastrophic accidents. Most of the nuclear sites across the world are located in populated areas, and could cause large devastation should a mischance happen. 32) Even with “best” safety features, the possibility of major catastrophic accidents cannot be ruled out. This is a lesson that must immediately be learnt from the unfolding Fukushima tragedy in Japan.
33) Dr. A Gopalakrishnan, former Chairperson, Atomic Energy Regulatory Board (AERB) and one of country’s foremost nuclear scientist, has written a piece in Sci Dev Net stating that a dangerous species of radioactive fission could spread in Japan. There are 104 nuclear power plants in USA out of which more than 25% are known to be contaminating ground water and other water bodies with radioactive tritium. Tests have also shown that many US nuclear reactors are accident prone, a fact which shows that their regulator NRC has become too close to the nuclear establishment.
34) A report on the health effects of the Chernobyl disaster prepared by International Physicians for the Prevention of Nuclear War (IPPNW) dated April 2011, confirms serious health effects including terminal cancers that have afflicted a very large population in that region, highlighting the catastrophic potential of a nuclear accident.
35) Practically, all nuclear reactors and facilities operated by DAE have had accidents of varying severity. They show an alarming lack of importance given to nuclear safety by the DAE. The most serious one took place at Narora on March 31, 1993 when a major fire engulfed the entire turbine building. Similarly, there was Kalpakkam in 2003.
36) Petitioners submit that there have also been several such near-accidents and near-leaks in India and across the world, the number of which has been unacceptably high. With the increase in numbers of reactors in India coupled with the fact that most of them are of new untested designs with non-existent liability for manufacturers, puts our population at grave risk.
37) The health and environment effects of nuclear power should be determined after also taking into account the fact that nuclear power requires huge amounts of uranium that has to be mined at great risk to the health of miners and local population. In India extensive uranium mining takes place in Jadogoda in Jharkhand and in Rawatbhata in Rajasthan. In these places there is a history of physical deformities and serious health affects to workers and the local people because of radiation.
38) Another study done by Indian Doctors for Peace and Development confirms that there is extensive sterility, deformed existence, cancer and low life expectancy of people in Jadugoda. A study by Toxics Link published by Henrich Boll Stiftung encapsulates the effect of uranium mining and also of presence of radioactive waste has had on Indian people. Because of serious health effects of uranium mining, coupled with its unviability, many countries have essentially stopped uranium mining, and other countries have reduced it significantly.
Need for a comparative cost-benefit analysis
39) There is no dispute that nuclear power is continuing its decades-long collapse in the world. The decline of nuclear power can be gauged from the official figures of the International Atomic Energy Agency (IAEA), an organization known for promoting nuclear energy. According to these figures, there was only 1 nuclear power reactor in the world in 1955, 15 reactors in 1960, 84 reactors in 1970, 245 reactors in 1980 and 416 reactors in 1990. Hence till this time there was a huge increase in the number of reactors and nuclear industry was on an ascendance. However, after late 1980s when the Chernobyl accident occurred, most of the developed countries have not installed any new reactor. There were 435 reactors in the year 2000, up from 416 in 1990, and till today in 2011 there are 443 reactors.
40) Hence nuclear power industry that had seen a rapid rise in the initial decades has not seen any rise since 1990. That is the reason why countries like US, France and Russia are pushing developing countries like India to go in for imports of nuclear reactors from their firms.
41) Nuclear construction cost was already soaring by 2007, well before Fukushima. Orders from the world’s market-driven electricity systems stopped years ago. Of the 66 nuclear units officially listed as “under construction” worldwide at the end of 2010, 12 had been so listed for over 20 years, 45 had no official start-up date, half were late and all 66 were in centrally planned power systems. 50 of them were in just 4 countries of China, India, Russia, South Korea. In fact, India’s nuclear power expansion programme is based on a false assumption that nuclear power is on ascendance worldwide. The promotion of nuclear power on a massive scale at huge cost to the exchequer is a classic example as to how the Government’s policy gets disconnected from concern for public welfare and gets corrupted and subverted by extraneous considerations and corporate pressures. Nuclear power is considered the most expensive form of energy generation, considering its high capital costs. While thermal power plants cost around Rs. 4.5 crores per MW capacity, nuclear plants cost more than Rs. 10 crores per MW or more. There are many elements of cost of nuclear power that are difficult to quantify. For example, the longterm cost of waste processing and management cannot be quantified in the absence of readily available technologies. The cost of decommissioning is equally not measurable in the absence of actual experience of fool proof decommissioning of any plant in the world. Apart from the above costs, the cost of reprocessing of fuel, waste storage, fuel costs and the cost of providing security make nuclear energy prohibitively priced. The new expensive reactors that the Government wishes to import by means of multi-billion dollar deals with foreign suppliers like Areva at the cost of the national exchequer would mean a cost over Rs. 20 crores per MW.
42) Also, it has been noted that cost estimates always keep on increasing and the initial projections are far lesser than the actual cost eventually. A case in point is the response under RTI of public sector undertaking Bhartiya Nabhikiya Vidyut Nigam Ltd., that its initial estimate as per original approval was Rs. 5.60 crores per mega watt that due to cost overruns has become Rs. 11.35 crores per mega watt. The cost of Kaiga I and II was estimated to be Rs. 7307 crores but it’s revised cost was Rs 28,960 crores. Similarly, the cost of Tarapur III and IV was Rs. 24,475 crores but it’s revised cost was Rs 62,000 crores. Moreover, since the initial projected capacity in mega-watts of nuclear plants is far more than the power that is eventually realized, cost projections of amount spent per megawatt produced are further more underestimated.
43) Similar is the situation in the US, estimated cost at 1990 prices of its 75 nuclear plants was $45247, but the realized cost came to be $144650 i.e. 300% of the estimated cost. This has been observed worldwide. And unlike new alternate energy sources like Solar, nuclear energy has actually become more expensive over the last decade for various reasons.
44) Therefore, a strongly worded statement issued by former Chairperson of Atomic Energy Regulatory Board, Dr. Gopalakrishnan calls for a complete abandonment of import of nuclear reactors. It states: “By 2007-08, the PM had taken a unilateral decision to import at least 10,000 MW LWRs (light water reactors) from the US ... It would now appear that the PM had most likely made a firm commitment to the French President as well, to similarly import six of their still unbuilt and untested EPRs (European pressurized reactors) at an exorbitant cost. Both these actions were taken without informing Parliament and without seeking any detailed technoeconomic or safety analysis to justify this approach.”
45) Petitioner’s submit that the Government plans to order imports of nuclear plants and material of billions of dollars from select foreign companies through private negotiations, without proper technical and safety evaluation and without any competitive bidding/auction, are arbitrary and violate Article 14 of the Constitution.
46) Former finance minister Mr. Yashwant Sinha has written that “there is more to the Indo-US Ndeal and subsequent arrangements with France, Russia and the US than what meets the eye. The charitable explanation is that this corrupt government is making massive amounts of money through these deals.” In fact, both the BJP and the Left have called for a halt on the nuclear power projects.
47) It is submitted that in a country where there are huge transmission & distribution (T&D) losses and several thermal & hydro plants run at only 50% efficiency, then just by reducing losses and increasing efficiency, we can produce electricity several time over the current nuclear power capacity. For example, by investing on T&D network to reduce the losses by 10%, the saving in capacity in the year 2011 would have been 16,000 MW and a corresponding capacity saving of more than 70,000MW by the year 2031-32. If improvement in plant efficiencies is also considered, then the capacity savings would be far higher. Such capacity savings would far exceed the figure of 64,000MW of nuclear power generation capacity in the year 2032 as projected by Planning Commission in its Integrated Energy Policy report.
48) If end-user efficiency is ensured by the use of energy efficient industrial motors and pumps, appliances like CFLs or if some restriction is imposed on energy intensive appliances like ACs & heaters with low-star ratings, then we could save more electricity than the Government’s highest target for production from nuclear sources. The same investment that goes into constructing expensive and unsafe nuclear plants can go into promotion of end-user efficiencies.
49) The costs involved in the restoration work (of life and the environment) after the accident has occurred are huge. The original claim in the Bhopal Gas Leak case (which was also undervalued) was $3 billion dollars. The economic cost alone of the Chernobyl disaster over the last thirty years has been estimated at $230 billion dollars. The damage that a major accident can cause cannot be quantified and would probably run into tens of thousands of crores of rupees.
Nuclear Liability Act
50) The Civil Liability for Nuclear Damage Act, 2010 (hereinafter ‘the Act’) was passed by Parliament. The Act was not passed because of any pressure from the citizens, any mass demonstration for the need of a liability law or for any felt need to strength the nuclear safety regime. Countries with whom India has signed nuclear deals like US France and Russia have pressurized our government to purchase expensive nuclear reactors from suppliers based in their countries. The process of drafting of the Bill was initiated by Indian corporate lobbyist organization FICCI as is evident from a report published by FICCI in 2009.
51) The Act channels all the liability to the nuclear operator (which presently is the Government itself) and the victims are not allowed any recourse to sue the companies that supply nuclear reactors and other material. The Act under Section 6 also limits the liability of the operator to 1500 crore rupees, which is quite low, and states that the remaining damage may be made good by the Government at the cost of exchequer.
52) Thus clearly the Act, by excluding the liability of the nuclear supplier, violates the principle of ‘polluter pays’. This Hon’ble Court has held that “The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.” (Council for Environ-Legal Action v. Union of India, (1996) 3 SCC 212.) The said Act clearly violates this principle that this Hon’ble Court has held to be part of the law of the land under Article 21 of the Constitution of India. 53) Dr. Gopalakrishnan, wrote a detailed article on 13.08.2010 published on Rediff stating “the true reason for urgency for getting the bill passed is to meet the written commitment given by the prime minister…that India shall purchase a minimum of 10,000 MWe of US reactors.”
54) When the nuclear liability bill was being debated in Parliament, it met stiff resistance from many political parties including the left parties. D Raja of the CPI stated: “Does the bill represent the interest of the ordinary people who could be victims, or, does it protect the interest of the public sector operator, or, is it meant to guarantee the profits of the multinational supplier? ...The cap on liability will have an impact on the safety of nuclear installations in the country. Cost of a single reactor can be as high as Rs. 30,000 crores…So the cost of the reactor can be 20 times the amount of liability. This means that it might be cheaper for the operator to take the risk of paying the maximum liability than to spend, say, 10% extra to add safety features to the plant.”
55) The Act does not protect the Right of a person to a Clean, Healthy and Safe environment that is also part of the Article 21 of the Constitution of India. It indemnifies the supplier no matter what the cause of the accident is. This means that the supplier cannot be sued even when the cause of the accident is faulty design. The Three Mile Island accident, in Pennsylvania is testament to the fact that major nuclear accidents can occur due to faulty design. The suppliers of the nuclear reactor in that case failed to provide the operators with appropriate guidelines for dealing with certain kinds of occurrences (occurrences that eventually led to the accident). The supplier failed to do so not only on the first instance but also when it was informed of these dangers. If there is no financial liability, the supplier would not want to invest in safer technology as there would be no incentive in doing the same.
56) Additionally it should be noted that by indemnifying the supplier we are encouraging them to dispense with their liability at the earliest. Nuclear power is extremely expensive. Suppliers might want a reactor that is safe but at the same time they would want a reactor whose design is economical. Without liability there is less incentive for the supplier to design safe plants. Thus by indemnifying the supplier we are grossly neglecting the interest and safety of the people of this nation, in the interest of few multinational companies.
57) Secondly, liability is imposed on the operator of the plant but the same is limited. A study of the scenario shows that this is also done in the interest of a few companies that might potentially invest in the nuclear energy field. As of now, only the government can act as an operator of a nuclear plant. But this is likely to change in the future and private parties may be allowed to play a larger role in the field. In order to encourage the same the liability of an operator is limited to Rs. 1500 crores. Though the Act provides that the Government would cover any other costs, which would shift the burden on the taxpayer. Also, the cost of nuclear disasters as already stated necessarily exceeds this amount. The Government on its part has failed to even come up with an estimate of the damage that can be caused in the event of an accident. Thus the figure so presented in the Act is not only arbitrary but also hugely insufficient.
58) By limiting the financial liability and by indemnifying the supplier we are facilitating an environment where operators and suppliers would prefer to invest and develop cheaper nuclear reactor rather than safer reactors. The fact that the liability cap is much less compared to the cost of a reactor, which may be Rs. 30,000 crores, means that cost of even small repairs on the reactor may easily exceed the maximum liability. Hence this provides a huge incentive to the supplier and operator to take risks with safety.
59) Thus it is evident that these clauses are not in the interest of the people but in the interest of nuclear suppliers and corporates. This highlights the anti-democratic nature of the Act itself.
60) The provisions of the Act go against the principle of Absolute liability as laid down by this court in M.C. Mehta v UoI (Oleum Gas leak case). Understanding the need of increasing liability, this court in the Oleum gas leak case used the principle of strict liability as laid down in Rylands v Fletcher to devise the principle of Absolute liability. This was a step forward as the court desired to do away with the drawbacks of the strict liability principle and bring about greater accountability, thus the strict liability principle was made more rigid. This Hon’ble court in the said case (1987 1 SCC 395) held that if an enterprise engages in an inherently dangerous and hazardous activity and if some harm is caused as a result of this activity then the liability is absolute and not subjected to any exceptions as stated in Rylands v Fletcher. The rationale of the court for coming to this decision was because keeping in mind the change in industrial society that was technologically advanced and consisted of many hazardous industries. The court also believed that only the industry had the resources to discover, guard and warn against the hazards and dangers. The fact needs to be acknowledged that the industry is in the best position to absorb the cost of the accident and in the court's opinion the industry should bear the cost of the accident irrespective of what the cause of the accident was. As far as the supplier is concerned, the Act goes even further and grants full immunity.
61) Hence by, in effect, discouraging the use of safe practices, the Act puts the citizens of India at great risk of colossal damage that any nuclear accident can cause and therefore it violates the rights under Article 21 of the Constitution.
62) The Government’s defence in support of this patently irrational law that privatises the profits and socialises the risks is that this is made in conformity with international law. Government states that it has signed Convention on Supplementary Compensation for Nuclear Damage. The petitioners submit that this Convention was pushed by nuclear industry and the United States, and there was no reason for India to sign this Convention. The said agreement was signed just 6 days before the US President was to visit India. A release of CSE states that India signed this Convention as a gift for the US President. By signing this agreement and thrusting on the citizens a liability law that flouts constitutional norms is a singular act of bad faith on part of the Government.
63) The United States refused to ratify any treaty of this nature till 2008 because under the domestic law in US, nuclear suppliers/manufacturers are, in fact, legally liable. US signed this agreement in May 2008 because under a so-called ‘grandfather clause’ it allows them to retain their domestic law while forcing others to change their domestic legislation. The said Convention is discriminatory and US recognizes this fact. Only 4 countries in the world have ratified the said treaty and there is no reason for India to do so, especially when the treaty is in conflict with the Constitution of India. The petitioners submit that the Government must be stopped from ratifying the said Convention.
Nuclear Regulatory System
64) The administration of the Atomic Energy Act, 1962, is entrusted to the DAE. The Secretary, DAE, in turn constituted the Atomic Energy Regulatory Board (AERB) by an executive order in 1983, because of which the AERB is a subordinate entity of the DAE. The AERB is answerable to the Atomic Energy Commission (AEC), whose Chairman is also the Secretary, DAE. Indeed, one cannot conceive of a more subservient existence - the regulatory agency has to report to those whom it is required to regulate and control in the public interest. Hence AERB is riddled with conflicts of interests, as it is answerable to a department whose stated aim is to build more and more nuclear plants.
65) This organizational anomaly, compounded by the AERB’s lack of technical staff and facilities, has crippled the regulatory process in many ways. Today, 95 per cent of the members of the AERB’s evaluation committees are scientists and engineers on the payrolls of the DAE. This dependency is deliberately exploited by the DAE management to influence, directly and indirectly, the AERB’s safety evaluations and decisions. The interference has manifested itself in the AERB toning down the seriousness of safety concerns, agreeing to the postponement of essential repairs to suit the DAE’s time schedules, and allowing continued operation of installations when public safety considerations would warrant their immediate shutdown and repair.
66) Moreover, in the past some general safety audits have been conducted by AERB i.e. one just after the Three Mile Island accident in the US and one after the Chernobyl disaster. The third one was conducted after Dr. Gopalakrishnan took over as Chairman of AERB. In all these cases the reports have been kept “top secret” and no follow-up action has been taken to remedy the deficiencies revealed and thus putting to grave risk the safety of the people.
67) The non-disclosure clause under Section 18 of Atomic Energy Act has to be read in harmony with Article 19(1)(a) of the Constitution and the provisions of Right to Information Act, 2005 that empowers the citizens to obtain information on the functioning of all public authorities. In the aftermath of the agitation at Jaitapur and the use of coercive action against the protestors, a meeting took place on 26.04.2011 led by the Prime Minister who assured the nation that “the initial results of the six safety review Committees set up by the Government of India after the Fukushima accident will be made public. Action taken on previous safety reviews will be put in the public domain.” Till date the respondents have not complied with this assurance, which reinforces our apprehension that they have no intention to take the public into confidence on nuclear safety.
68) Hence, it is essential that India’s nuclear establishment functions transparently and puts out its safety audit reports, radiation, past accidents & near accidents, costs, power generation, fuel spent etc. of all existing & proposed nuclear facilities, in the public domain. The Aarhus Convention signed and ratified by 40 European countries gives their citizens right to information, public participation and access to justice in governmental decisions that have a bearing on environment. There is no reason why the same should be denied to our citizens.
69) In the U.S. the nuclear regulatory system was substantially strengthened only after experiencing the harsh realities of the Three Mile Island accident. Post-Chernobyl investigations found that the lack of independence of the then existing Soviet regulatory body was a major contributor to that accident. Thus it is essential that a completely independent expert nuclear regulator be created which should then take up extensive cost-benefit and safety assessment studies and would work in a completely transparent manner. The said regulator and the government must first make a case for viability of a proposed nuclear plant, before such a plant can be cleared. The said regulator, preferably, should be accountable to the Parliament. And till such a regulator is created, all proposed projects must remain stayed.
70) Prime Minister’s Office issued a press statement on 26.04.2011 stating that the Government would set-up an independent regulator, which petitioners submit, is implied acknowledgment of the fact that currently the regulatory system is virtually dysfunctional. Now in a bid to push for more reactors and counter the charge of having a dysfunctional regulatory system, Government has introduced a Bill called Nuclear Safety Regulatory Authority Bill 2011 creating a Nuclear Safety Regulatory Authority (NSRA). The said Bill envisages a regulator, whose chairperson and members would be selected entirely by central government, and hence regulator would be selected by an establishment that it is supposed to regulate. The said Bill envisages that the authority would be bound by law to follow all directions of the central government. The government is authorized o supersede the authority if those directions are not followed or in ‘public interest’. The authority would be completely subservient to the wishes of the central government even for its staff or finances. Hence, for example, it would be no position to question a project like Jaitapur that the Prime Minister and Cabinet have so strongly supported. Such a law, if passed, would obviously not inspire confidence and would necessitate a safety study by an independent body appointed by this Hon’ble Court.
Jaitapur Nuclear Project
71) The biggest of the projects that the Centre has planned, which also happens to be on paper the largest nuclear power station in the world, is planned in Jaitapur, in Maharastra’s Ratnagiri district on the scenic Konkan coast, to be executed by Nuclear Power Corporation of India Ltd (NPCIL), a subsidiary of the DAE with 6 giant reactors of 1650 megawatts each, designed and manufactured by French nuclear company Areva. The environment clearance was hastily given only six days before French President’s visit to India in December 2010. The environment ministry lists some vague “conditions” and grants environment clearance to the project. The press release of the MoEF signed by the Minister states: “The decision to accord environment clearance for NPCIL’s Jaitapur power generating complex has been difficult...But at the same time there are weighty strategic and economic reasons in favour of the grant of environmental clearance now.” Thus it is clear that the MoEF was constrained and armed-twisted by extraneous reasons to grant environment clearance over-ruling all the environment and safety concerns. For this reason alone the said clearance is liable to be set-aside.
72) Konkan region is extremely rich in biodiversity and this region’s rich natural resources are already under severe threat on account of several “development” projects along the Western Ghats. These include 15 coal-based power projects totalling nearly 25,000 MW, 40 medium and small ports, nearly 40 medium and mega Special Economic Zones, major mining projects, and “chemical hubs”. Construction of a mega nuclear power plant would damage the entire ecology of the Western Ghats Konkan region irreparably. Water discharged from the plant into the sea will be 5 °C hotter than the ambient sea temperature. But “even a 0.5 °C of continual thermal stress will lead to mortality of marine species,” says a Bombay Natural History Society (BNHS) report.
73) There are serious and genuine concerns about the safety and viability of Areva’s EPRs that are to be imported for the Jaitapur nuclear power “park”. Nowhere in the world has an EPR been fully built or commissioned so far. Two EPRs are already beset by serious safety and financial problems and delays. Areva itself has been going thorough a devastating financial crisis. In 2009, it sought $4 billion in a short-term bailout from French taxpayers. Its shares plunged by over 60 per cent. Over 3,000 safety and quality problems were recorded with the construction by the Finnish safety agency STUK, the French nuclear safety agency Autorité de Sûreté Nucléaire, and the UK’s Nuclear Installations Inspectorate. A joint press release issued by nuclear regulators of UK, French and Finland on 26.11.2009 states that safety aspect of reactors made by Areva need to be assessed.
74) Dr. A Gopalakrishnan in an article published in India Today stated “The import of (nuclear) reactors was the price that the prime minister paid as a quid pro quo arrangement for the NSG clearance (for the Indo-US nuclear deal), which has now landed India in the precarious position of becoming the dumping ground for hitherto unbuilt and untested high-cost nuclear reactors, such as the French EPRs at Jaitapur, which could endanger several thousand lives.” 75) The EPR is the largest-ever nuclear reactor designed in the world and has a much higher density of fission-causing neutrons and fuel burn-up than do normal reactors (of 500-1000 MW capacity). The EPR’s high fuel-combustion rate will lead to greater production of harmful radionuclides, including seven times higher production than normal of iodine-129, with dangerous implications for radioactivity releases, damage to the fuel cladding, and waste generation. India’s DAE has a long history of poor or non-existent regulation, persistent below-par performance, and accidents. Moreover, it has no experience of running huge reactors like EPRs. Most existing Indian reactors are up to eight times smaller (220 MW), the biggest ones being one-third (540 MW) the size of an EPR (1,650 MW).
76) It should also be noted that Jaitapur is located in an earthquake prone area. Although the Department of Atomic Energy claims that Jaitapur is located in Zone III in the earthquake hazardzoning map, ranging from I to V in the order of increasing seismic intensity, over the past 20 years alone, there have been three earthquakes in Jaitapur exceeding 5 points on the Richter scale. The possibility of a high intensity earthquake near the eastern sea-board cannot be discounted. A news report published in Times of India states that in the past 20 years there have been 92 earthquakes in and around Jaitapur.
77) Serious questions have been raised about the economic costs of the Jaitapur project based on the extremely expensive European Pressurised Reactors. Each of the six 1,650 MW reactors would cost around $7 billion assuming the capital cost of the EPR being built at Olkiluoto does not escalate beyond the latest estimate of 5.7 billion Euros. This works out to Rs 21 crores per megawatt (MW) of capacity.
78) In an article published in Tehelka on 07.05.2011, Dr. Gopalakrishnan states that “An EPR will cost no less that RS. 20 crore per MWe…As against this, an Indian Pressurised Heavy Water Reactor (PHWR) will cost at the most Rs 8 Crore per MWe.” This cost estimate, however, does not include other cost components—storage of nuclear waste; the cost of reactor decommissioning which could amount to one-third to one-half of the total construction cost; the extensive additional physical security costs, including anti-aircraft batteries and the extra coast guard deployment. The above cost calculation also does not include environmental costs, and health costs imposed on miners, plant workers, and the public living close to nuclear installations, and the associated medical expenses.
79) Comparing the likely cost of electricity generation in Jaitapur, based only on the capital cost, with other available options leads to alarming conclusions. According to the current Finnish estimate, itself conservative, the EPR’s capital costs (Rs 21 crores per MW) are far more expensive than those of the indigenous reactors installed at the Rajasthan, Madras, Narora and Kaiga power stations, which are about Rs 10 crores per MW. They are even higher than the capital costs of supercritical coal-fired thermal power stations (Rs 5 crores per MW). Put another way, the six EPRs at Jaitapur will together cost the Indian public about Rs 2 lakh crores. Hence, even the basic cost factor alone makes the Jaitapur nuclear plant unviable. 80) The Government plans for setting up nuclear plant at Jaitapur have already met huge resistance from local people where the Government has had to impose Section 144 CrPC, detain hundreds of people, block information from the plants and now one person has died & several injured in police firing of the protestors.
81) A statement has been issued by 70 eminent citizens opposing the go-ahead given to Jaitapur project by completely disregarding local opposition and grave safe risks. It states: “We are shocked at the government’s sheer insensitivity in announcing on the 25th anniversary of the Chernobyl catastrophe that it is going ahead with the Jaitapur nuclear power project. This means disregarding the overwhelming opposition to the project by 40,000 local people and the larger public, the caution counseled by numerous experts, and the grave safety concerns raised by still-unfolding Fukushima nuclear disaster in Japan.”
82) Now French company Areva, whose reactors Government wishes to import, has been found to be guilty of introducing toxic substances into underground water and for delay in communicating the leaks to the French safety authority. French appellate court has fined them Euro 40,000.
83) Thus it is absolutely essential, when huge costs and damage is likely, that under ‘Precautionary Principle’ (which is part of Article 21 of the Constitution) environmental clearance to Jaitapur plant is revoked and the project be halted till a comprehensive safety assessment and costbenefit analysis is carried out by an independent expert body or commission.
84) The Petitioners have not filed any other writ, complaint, suit or claim in any manner regarding the matter of dispute in this Hon’ble court or any other court or tribunal throughout the territory of India.
GROUNDS
A. The Government’s plans for expansion of nuclear power programme and construction of newer and huge nuclear power plants without undertaking a thorough safety and comparati
July– September, 2011
