Some extracts from the Supreme Court Judgment on appeals related to Kudankulam Nuclear Power Project

 CIVIL APPEAL NO. 4440 OF 2013

(Arising out of S.L.P. (C) No.27335 of 2012) 

WITH

CIVIL APPEAL NO. 4441 OF 2013

(Arising out of S.L.P. (C) No.27813 of 2012)

WITH

CIVIL APPEAL NO. 4442 OF 2013

(Arising out of S.L.P. (C) No.29121 of 2012)

WITH

CIVIL APPEAL NO. 4443 OF 2003

(Arising out of S.L.P. (C) No.32013 of 2012)

Two water cooled water moderated nuclear power reactors(VVER, 1000 MWe each) were about to be commissioned at Kudankulam in India. There were some movements by certain non-governmental organizations against setting up the power plant. Their protests became louder with large numbers of people in the surrounding villages joining in after the accident at the Fukushima nuclear power plant in Japan.

In spite of dedicated efforts by the Nuclear Power Corporation of India Limited (NPCIL) to respond to the concerns of the people, the agitations continued. The aggrieved parties filed several public interest litigations in the High Court at Chennai. Having not satisfied with the judgments of the High Court  several appeals were filed in the Supreme Court.

On May 6, 2013, the Court dismissed the appeals and gave its nod for commissioning the project after NPCIL,MOEF and AERB and DAE comply with some additional directions. The appeals were heard by Judges K S Radhakrishnan and Dipak Misra.

The 247 page judgment analyzed various issues.  The Supreme Court issued 15 directions related to ensuring the quality of various components and systems, management of spent nuclear fuel,  fulfillment  of conditions prescribed by the Ministry of Environment and Forests (MOEF) and the Atomic Energy Regulatory Board, enforcement of National Disaster Management Guidelines 2009 among others.

 The court directed that NPCIL and the Atomic Energy Regulatory Board (AERB) should maintain constant vigil and make periodical inspection of the plant at least once in three months and if any defect is noticed, the same has to be rectified forthwith.

Some extracts from the judgment

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178. Much hue and cry has been raised by some sections of the people about the possible impact of radiation from KKNPP Units 1 and 2, a point which has been addressed by the AERB, NPCIL, MoEF and all the Expert Committees constituted to go into the impact and effect of radiation from the units not only on humans but also on ecology. Experts Committees are of the unanimous opinion that there will not be any deleterious effects due to radiation from the operation of KKNPP, and that adequate safety measures have already been taken. We cannot forget that there are many potential areas of radiation reflected in many uses of radioactive materials. Radioactive materials are used in hospitals, surgeries and so on.

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179 We have, therefore, to balance “economic scientific benefits” with that of “minor radiological detriments” on the touchstone of our national nuclear policy. Economic benefit, we have already indicated has to be viewed on a larger canvas which not only augment our economic growth but alleviate

poverty and generate more employment. NPCIL, while setting up the NPP at Kudankulam, have satisfied the environmental principle like sustainable development, corporate social responsibility, precautionary principle, inter - intra generational equity and so on to implement our National Policy to develop, control and use of atomic energy for the welfare of the people and for economic growth of the country. Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21.

180. Public money running into crores and crores rupees have already been spent for the development, control and use of atomic energy for the welfare of the people and hence, we have to put up with such “minor inconveniences”, “minor radiological detriments” and minor environmental detriments” in our lives because the benefits we reap from KKNPP are

enormous since Nuclear energy remains as an important element in India’s energy mix which can replace a significant part of fossil fuels like coal, gas oil etc.

181. The necessity of establishing KKNPP at Kudankulam has elaborately been discussed in the earlier part of the judgment, hence not repeated. Justification for establishing KKNPP at Kudankulam, therefore has been vindicated and all safety and security measures have already been taken, necessary permissions and clearances have been obtained from all

statutory authorities. Apprehension expressed by some sections of the public that if the units are commissioned or put into operation, it will have far reaching consequences, not only on the present generation, but also on the future generation, of the possible radioactive effects of the units, in our view has no basis. Few of them raised the apprehension that it might repeat accidents like the one that had happened at Three Miles Island, Chernobyl, Union Carbide and Fukushima etc. Apprehension, however, legitimate it may be, cannot override the justification of the project. Nobody on this earth can predict what would happen in future and to a larger extent we have to leave it to the destiny. But once the justification test is satisfied, the apprehension test is bound to fail. Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.

182. Power generation through a nuclear plant set up after following all safety standards, rules and regulations, is for the welfare of the people and for the economic growth of the country, which is the object and purpose of the Atomic Energy Act. Nuclear energy assumes as an important element in India’s energy mix for sustaining economic growth of natural and domestic use which in future has to replace a significant part of fossil fuel like coal, oil, gas etc. Electricity is the heart and soul of modern life, a life meant not for the rich and famous alone but also for the poor and down trodden. They should also have an adequate means of livelihood, job opportunities for which we have to set up Industries and commercial undertakings in the public as well as private sector anand also have to invite foreign investment. Generation of electricity is of extreme importance for their establishment and functioning and also for domestic consumption. Power generation with the traditional means, through hydro, thermal electric project, coal etc are not effective substitution to the power generation through Nuclear Plant. India has a mammoth population unlike developed countries, and the consumption of electricity in domestic, industries, agricultural sector etc. is going up day-by-day. Most of the States are in the grip of power cut; day and night, for a number of hours, which has adverse effect on their economic and industrial growth. To sustain rapid economic growth, it is necessary to double the supply of energy. Energy tariff is also increasing, nuclear power in the long run will be much cheaper than other forms of energy.

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

184. Nuclear power plant is being established not to negate right to life but to protect the right to life guaranteed under Article 21 of the Constitution. The petitioner’s contention that the establishment of nuclear power plant at Kudankulam will make an inroad into the right to live guaranteed under Article 21 of the Constitution, is therefore has no basis. On the other hand it will only protect the right to life guaranteed under Article 21 of the Constitution for achieving a larger public interest and will also achieve the object and purpose of Atomic Energy Act.

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

189.KKNPP has, therefore been set up as part of India’s National Policy so as to develop, control and use of atomic energy for the welfare of the people of India. Policy makers consider nuclear energy as an important element in India’s energy mix for sustaining economic growth of natural and domestic use. For setting up the project, the project proponent has taken all safety requirements in site and off site and has followed the code of practices laid down by AERB, based on nationally and internationally recognized safety methods. Safeguarding the nuclear plants, radioactive materials and ensuring its physical security have become a central part of Nuclear Law. Adequate measures have, therefore, to be taken for storage of NSF at site, and also for the physical safety of stored NSF. Of the seventeen suggested safety measures, by AERB, LWR, twelve have already been implemented and the rest, in a phased manner have to be implemented which the experts say, are meant for extra security. DMP is already in place, so also the emergency preparedness plan, off site and on site and all programmes under CSR are progressing in the right direction with the co-operation and assistance of the District Administration.

190. NPCIL, has also received necessary environmental clearance from MoEF, TNPCB, etc for Units 1 to 6. No violation of CRZ is also noticed. Desalination Plant is also established after following rules and regulations and there is no violation of CRZ. Experts say that there will be no impact on the marine eco-system due to discharge of +7ºCC, CCW over and above

the ambient temperature of the sea. Radiation impact on the eco-system is also within the standard set by AERB, MoEF, EAC, Pollution Control Board etc., so opined by the Experts. In other words, all the expert teams are unanimous in their opinion of the safety and security of the KKNPP both to life and property of the people and the environment which includes marine life. Court has to respect national nuclear policy of the country reflected in the Atomic Energy Act and the same has to be given effect to for the welfare of the people and the country’s economic growth and it is with these objectives in mind KKNPP has been set up.

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229.Before proceeding to issue certain directions, it is required to be stated that the appellant, by this Public Interest Litigation, has, in a way, invoked and aroused the conscience/concern of the court to such an issue. True it

is, the prayer is for the total closure of the plant and the Court has not acceded to the said prayer but his noble effort is appreciated to put forth the grievance of the local people and the necessity of adequate safety measures as is perceived. When such cause comes up before this Court, it is the bounden duty to remind the authorities “Be alert, remain always alert and duty calls you to nurture constant and sustained vigilance and nation warns you not to be complacent and get into a mild slumber”. The AERB as the regulatory authority and the MoEF are obliged to perform their duty that safety measures are adequately taken before the plant commences its operation. That is the trust of the people in the authorities which they can ill

afford to betray, and it shall not be an exaggeration to state that safety in a case of this nature in any one’s hand has to be placed on the pedestal of “Constitutional Trust”.

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Two central ministers are reportedly afraid of telecom tower radiation!

The Economic Times (12 April 2013) carried a news item titled "Cell Troubles at Moily's Home" reporting that  Moily and women development minister Krishna Tirath have refused to have a telecom tower  for fear of radiation. 

I  am not surprised. Recently, I came to know about similarapprehensions of two members of the Faculty of IIT Bombay  Do they all  believe in the  false propaganda by "experts"  selling dubious products to save the "suffering humanity" from the alleged ill effects of cell tower radiation? 

The efforts of Shri Kapil Sibal and his dynamic team of ministers to educate the masses on the health  impact, if any, of cell tower radiation appear to have failed. Department of Telecommunications published a simple 15 page booklet titled " Mobile Communication Radio Waves and safety".

This booklet concluded thus:

"Intensive International  research has not established any adverse health effect in the short or long term of Radio Frequency radiation exposure from mobile phones and cell tower antennas".

If the reported apprehensions of Shri Veerappa  Moily and Ms Krishna Tirath  are correct, it is a case of no light under the lighthouse.

I hope the following statements from authentic sources  will set their minds at rest.

·          

      There has been exhaustive, critical and up to date  reviews of  studies on the health effects of cell tower radiation. After such a review, the UK Health  Protection Agency (HPA) concluded that although substantial  amount of research has been conducted in this area ,there is no convincing evidence that radiofrequency field exposure below internationally accepted  guidance levels causes health effects in adults or children.

·      

     The guidelines recommended by the International Commission on Non  Ionizing Radiation Protection (ICNIRP)  are enforced by  ninety percent of the nations. Currently,  India is enforcing  one tenth of the ICNIRP guidelines. At these levels , no adverse health effects are expected.

·          

      On  May 31, 2011, the International Agency for Research on Cancer of the World Health Organization IARC/WHO  classified mobile phone use and other radiofrequency electromagnetic fields as a possible carcinogen (group 2B). This news got lot of publicity. IARC's Group 2B carcinogen list has 275 items including Coffee, pickled vegetables, talcum powder, certain fatty acids from coconut oil used to make soaps etc.

·        

           Shortly thereafter, in June 2011, the WHO commented thus in its Fact Sheet No 193: "A large number of studies have been performed over the last two decades to assess whether mobile phones pose a potential health risk. To date, no adverse health effects have been established as being caused by mobile phone use.

 I request the ministers and others afraid of cell phone/tower radiation to read (if time permits) the following five articles on the topic.

1. Risks from cell tower/phone radiation are negligible (The Deccan Herald 18 May 2013)

http://www.deccanherald.com/content/319823/risks-cell-towerphone-radiation-negligible.html

2. Raising the bogey of radiation (The Hindu , 13 February 2013)

http://www.thehindu.com/todays-paper/tp-features/tp-sci-tech-and-agri/raising-the-bogey-of-radiation/article4413307.ece

3. Myths  about radiation risks from cell tower (The Economic Times  31 January 2013)

http://articles.economictimes.indiatimes.com/2013-01-31/news/36658996_1_icnirp-cell-phone-towers-bioinitiative-report

4. A biased, unscientific report on electromagnetic radiation(The Hindu 16 January 2013)

http://www.thehindu.com/sci-tech/science/biased-unscientific-report-on-electromagnetic-radiation/article4313241.ece

5. A classic example of biased and unscientific  study (The Hindu 23 August 2012)

http://www.thehindu.com/sci-tech/technology/a-classic-example-of-biased-and-unscientific-study/article3808249.ece.

Risks from cell tower/phone radiation are negligible

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‘Risks from cell tower/phone radiation are negligible’

K S Parthasarathy, March 18, 2013

 

Cell phone use has registered a phenomenal increase over the past few years. People have begun attributing all types of major and minor diseases and symptoms to the highly visibly cell towers. A document  titled ‘Report on cell tower radiation’ submitted to the Department of Telecommunication (DoT) by the Indian Institute of Technology, Bombay was particularly scary. It is freely accessible.

Using cherry-picked references, the report invented countless risks and exaggerated a few. The World Health Organisation (WHO) or other specialist institutions such as the National Institute of Cancer do not support them.

This writer sent  excerpts from the IIT report to Dr Kari Jokela, a Member of the International Commission on Non Ionizing Radiation Protection (ICNIRP) and research professor at the Radiation and Nuclear Safety Authority, Finland. ICNIRP is the standard setting body for non ionizing radiation. Dr Jokela  promptly showed that  the IIT report’s interpretations of ICNIRP guidelines are incorrect.

Most  countries enforce ICNIRP Guidelines. On a recommendation from an Inter Ministerial Committee (IMC), India is enforcing a radiation limit of one tenth of the ICNIRP guidelines, nation-wide.

The member scientist, Indian Council of Medical Research (ICMR) persuaded the committee to reduce the values. He argued that Indians have lower body mass index, lower fat content etc. Factors such as low body mass index, potentially higher thermal sensitivity in certain population groups, such as the frail and/elderly, infants and young children extreme weather conditions besides several other variables are already included by the ICNIRP. (ICNIRP guidelines for limiting exposure to time varying electric and electromagnetic fields (up ot 300GHz ) Health Physics 74(4) : 494-522; 1998).

Lowering the  guidelines for cell tower/phone radiation is a symbolic gesture because ‘people’ wanted it. It appears to be a bad precedent as matters in which specialists participate must be decided on scientific merit  and not on popular sentiment.

The IMC noted that measured radiation levels even in metro cities are hundreds of times lower than the ICNIRP reference levels. It asserted that safety standards should be rational and should avoid excessive safety margins. In spite of these sound arguments and the fact that the ICNRIP guidelines themselves have a safety factor of 50, the IMC lowered the radiation levels on highly speculative reasons. With the new stipulation, the safety factor in DoT guidelines is 500.

Great disservice

The IMC did a great disservice by listing selectively many reports which showed adverse effects while ignoring many reports which did not show any adverse impact. IMC did say that there is no conclusive proof of harm from cell tower radiation. Scare mongers are now demanding lower levels. The committee unwittingly gave a handle to them.

Some agents organised ‘workshops,’ made presentations in metro cities, and fanned the fire. They cited anecdotal evidence of vague symptoms such as joint pains, sleeplessness and cancer among those who resided near cell towers.

Unlike x-rays or gamma rays, cell tower radiation has a million times less energy. It cannot damage the cells in the body to change some of them into rogue cells with no rules or its own rules to multiply uncontrollably to form cancer. It may just warm up the tissue. Physically, cell tower radiation is not capable of inducing cancer in human body.  Never mind there is no scientific evidence. In the guise of saving persons suffering from a laundry list of diseases, agents  masquerading as experts started  selling expensive shields and screens against radiation!

 The IIT report wrongly  claimed that  the Specific Absorption Rate (SAR) limit for cell phones — a safety standard of 1.6 W per kg — is actually for six minutes per-day usage!  so do not use phones  for more than 18-20 minutes daily, the report cautioned. With large clusters of cell towers erected everywhere, the report's author claimed that Mumbai is like an open microwave oven!

Many reporters uncritically publicised the dramatic but wrong sound bites from scare mongers. A cell phone kept near the ear will cause a small increase in temperature in regions close to the phone. Thermoregulatory mechanisms such as blood flow remove the heat establishing equilibrium in about six minutes. Thereafter, there will not be any increase in temperature. The six-minute interval is the time the body’s defence takes to reach equilibrium temperature. So, it is patently absurd to say that using a phone longer multiplies the risk.

What is the increase in temperature of  a person exposed to cellular radiation at the level of ICNIRP limit? In response to this writer’s query, Dr Mike Repacholi, Chairman, Emeritus, ICNIRP  stated that temperature increase in the human body exposed at the level of ICNIRP standards could not exceed 0.1° C. At DOT levels, it will be 0.01°C! Obviously, Mumbai is not an open microwave oven!.

The review of levels measured nationwide shows that though highly conservative, the DoT levels can be enforced effectively. Internet contains all types of information. But trust only those from authentic sources such as the WHO. You should not listen to scare mongers and lose sleep over the alleged risks from cell tower radiation.
(The writer is a former secretary, Atomic Energy Regulatory Board)