Sterlite Industries Ltd’s copper plant, a unit of Vedanta Resources, in Thoothukudi. Credit: Reuters/Stringer/File.
Chennai: On August 18, 2020, Vedanta Ltd.’s Sterlite Copper received a double blow from the Madras high court. Justices T.S. Sivagnanam and Bhavani Subbaroyan ruled that Sterlite was responsible for a disastrous sulphur dioxide (SO2) leak in 2013, and that the decisions of the Tamil Nadu authorities to shut down the factory in 2013 and once again in 2018 for violation of license conditions were not only justified but also too late.
In the early hours of March 23, 2013, a large SO2 leak from the company’s sulphuric acid plant affected thousands of residents in Thoothukudi. This was the second time it was being shut down for a major leak of SO2; the first one, in 1997, sent more than 20 young women from a neighbouring dried flower packaging factory to the hospital. Thoothukudi residents still say Sterlite was responsible for that leak. But the company managed to convince the district administration and the Tamil Nadu Pollution Control Board (TNPCB) otherwise.
The 2013 leak was different. The two sulphuric acid plants in the factory complex had real-time online SO2 emissions monitors. On that fateful winter morning, the monitor atop a chimney of one of the plants recorded SO2 levels in excess of the meters’ upper limits. TNPCB ordered to shut down the 400,000-tonne-a-year smelter complex. But Vedanta reopened it on the strength of a favourable order from the New Delhi bench of the National Green Tribunal.
In 2019, deciding on an appeal filed by the Tamil Nadu authorities against the order, the Supreme Court dismissed the tribunal’s judgement saying it had no jurisdiction over the matter, and directed Sterlite to appeal to the Madras high court instead.
The second set of orders that went against Sterlite was in the appeals filed by the company in 2019, challenging several orders of the TNPCB and the Government of Tamil Nadu issued between April and May 2018, which led to the factory’s closure. Amidst a relentless public campaign targeting the company for its pollution, and the state for colluding with the polluter, TNPCB cited the company’s failure to comply with license conditions and refused to renew its license to operate on April 9, 2018.
On May 28, 2018, the Government of Tamil Nadu took a policy decision to shut the plant, and subsequently the factory was locked and sealed. This was the fifth time the company was being shut for violating the law.
In this instance as well, Sterlite bypassed appropriate fora in Tamil Nadu and obtained a favourable order from the principal bench of the National Green Tribunal in New Delhi. This order too was set aside by the Supreme Court for lack of jurisdiction. Vedanta was directed to file its appeals against the closure orders of the authorities in the Madras high court.
The Madras high court in turn has confirmed the orders of the TNPCB and the Government of Tamil Nadu, and dismissed all appeals filed by Sterlite. In doing so, it has strengthened environmental jurisprudence by categorically declaring that “when it comes to economy pitted against environment, environment will reign supreme. Therefore, economic considerations can have no role to play while deciding the sustainability of a highly polluting industry and the only consideration would be with regard to safeguarding the environment for posterity and remedying the damage caused.”
Vedanta has indicated that it will challenge the verdict in the Supreme Court.
Anger against the company and the government is still palpable in this southern coastal town. The hostile public sentiment, residents say, is a result of Sterlite’s polluting ways and its ability to do so with impunity. Marking the 100th day of an indefinite protest by townspeople, on May 22, 2018, tens of thousands of Thoothukudi residents converged on the collectorate to press their demands. Police and snipers opened fire, gave chase and shot 13 people dead. Hundreds were injured and a few more succumbed to injuries in the following days.
In Thoothukudi, the high court’s verdict was welcomed with celebration, firecrackers and dancing in the streets even as Vedanta CEO Pankaj Kumar expressed “utter shock” at the judgement, observing that “certain forces are conspiring to stifle our nation’s ability to be an independent copper manufacturer.”
The hearings in this case were remarkably different from any of the proceedings in Sterlite’s chequered history. For one, this had six public interest respondents. Second, the judges did not relegate any party to secondary status by limiting their floor time. The space given to respondents from Thoothukudi played a critical role in assuaging public cynicism against the state and TNPCB. Where the state had fresh blood on its hands, TNPCB was seen to be the failed regulator.
“[TNPCB and state government] are to blame. If they had done their jobs, matters would not have come this far,” said Fatima Babu, the ninth respondent that the judgement often refers to. “This was the first time we have ever felt that we are being heard. We have poured out 22 years of accumulated concerns, complaints and frustration, and are pleasantly surprised at the verdict in our favour. We are not used to being heard.”
Public participation weirded the pitch for Vedanta, a multinational company. People entered the court with their lived experiences, and were able to tell their stories through their lawyers. In the three-sided partnership between the legal teams, local people and solidarity workers, field-level intelligence and documents unearthed using the RTI Act were converted into usable evidence. As a tool to hold governments accountable, the RTI Act once again delivered on the promise in its preamble.
The 815-page judgement is not an easy read, but the contents are important. The judges exhibit a grasp of complex technical subjects, and have called out the company for misrepresentation, deception, pollution, under-design and repetitive non-compliance. The choicest criticism, however, was not targeted at Vedanta, the violator, but was reserved for TNPCB, the regulator, and to a lesser degree the district administration.
Publicly, Sterlite claims that it is a non-polluting, law-abiding company. Many Thoothukudi residents and Sterlite’s neighbours claim the contrary. This article relies on excerpts from the judgement to show how the Madras high court negotiated this contest. (The 815-page judgment is available in full here.)
The topics are not necessarily in the order that they appear in the judgement. However, the paragraph numbers have been retained to facilitate cross-referencing with the judgement. The sections in italics preceding each collection of excerpts are written by the author to provide context.
(Editor’s note: Longer paragraphs have also been split into relatively shorter ones to improve the reading experience.)
1. Settled law and exoneration
In 1997, less than a year after Sterlite commenced operations, a batch of public interest cases were filed in the Madras High Court challenging the Environmental Clearance issued for the project. On 28 September, 2010, the Madras High Court ordered the closure of the factory. On April 2, 2013, the Supreme Court set aside the 2010 order of the Madras High Court and allowed the company to reopen. The company was asked to pay a fine of Rs. 100 crore for various transgressions.
In the present case, Sterlite had argued that the Supreme Court had given them a clean chit, that issues prior to the date of the apex court’s orders had been resolved and that they cannot be relied upon for the purposes of this case. They sought to shut out the issues being brought in by intervenors that represented public interest.
The Court’s View
294. Paragraph 50 of the judgment is a clear indicator as to what the Hon’ble Supreme Court had to say in the matter and a careful reading of the said paragraph will give an answer to the question framed by us. By way of repetition, it is pointed out that the petitioner seeks to apply the principle of “washing off”, which is normally applied in service law jurisprudence. It is argued by the petitioner that they having paid Rs.100 Crores of compensation, none of the incidents, which were subject matter of the earlier round of litigation, can be looked into to assess as to whether the petitioner has to be closed down and sealed permanently.
295. The last sentence of paragraph 50 is very crucial wherein, the Hon’ble Supreme Court has made it clear that the judgment will not stand in the way of TNPCB issuing directions to the petitioner including a direction for closure of the plant, for protection of the environment in accordance with law. Therefore, in our considered view and proper understanding, the theory of “washing off” cannot be applied to the case on hand. The judgment of the Hon’ble Supreme Court, more particularly, the observations in paragraphs 42 and 45 clearly show that the petitioner did pollute the environment, violated the orders of consent, operated the plant for a considerable period of time without valid consent, etc. Therefore, to state that on payment of compensation of Rs.100 Crores, all the past misconducts stood wiped off is an argument, which is stated to be outrightly rejected as fallacious.
296. A careful reading of the decision of the Hon’ble Supreme Court will show that the appeals were allowed on the ground that the Division Bench of the High Court while setting aside the order of environment clearance and consents granted to the petitioner, transgressed the well-recognised principles of judicial review. In no part of the decision, the petitioner has been Exonerated.
300. Therefore, to state that there was a “clean chit” granted to the petitioner would be a statement which is contrary to facts.
Apart from that, the Court also noted that the petitioner is guilty of mis-representation and suppression of material fact in the Special Leave Petition and while obtaining interim orders, however, did not deny relief to the petitioner bearing in mind the plight of its employees and others. Therefore, the petitioner has not been exonerated by the Hon’ble Supreme Court and payment of Rs.100 Crores does not wipe away the earlier deficiencies, violations, etc., and it will be well open to the respondents to refer to them while taking a final decision in the matter, regarding permanent closure.
2. Sanctity of consent and consent conditions
Industries can’t be set up or operated in India without appropriate licenses under the Air (Prevention and Control of) Pollution Act 1981 and the Water (Prevention and Control of) Pollution Act 1974. These licenses, which are called ‘consent to establish (for setting up the industry) and consent to operate, respectively, are conditional permissions. The renewal of a license is subject to compliance with the corresponding conditions. Operating without consent or in violation of consent conditions is a punishable offence and can be grounds for closure.
The Court’s View
344. To be noted that the petitioner had no fundamental right to establish a polluting industry, but for the order of consent granted under the provisions of the Act, the petitioner could not have established or commenced production of its industry. Under Section 24, there is a prohibition from establishing a polluting industry, this prohibition is modified by grant of orders of consent, which are subject to conditions.
The conditions are sacrosanct, non-negotiable.
A consent order issued by the Board is not a licence to pollute, it is incumbent upon the grantee to comply with the conditions in the consent order individually as well as collectively.
513. Thus, the petitioner has operated for 16 years and 92 days without consent from the TNPCB, it has operated for 10 years, 2 months and 15 days without a HWM authorisation.
517. The regulator failed to discharge their duties diligently bearing in mind the purpose for which it was constituted.
3. Improper location, master plan violation
Operating a large ‘red category’ hazardous plant like a copper smelter in close proximity to residential neighbourhoods is an invitation to disaster. This matter had been brought to the court’s notice by the ninth and tenth respondents, Fatima Babu and S. Raja. They contested that the factory, which ought to be located within a zone reserved for ‘Special Industries and Hazardous Use’, was located improperly on lands classified ‘General Industries’ and ‘Agricultural Use’. Therefore, they argued that the location was illegal as it violated Thoothukudi’s master plan.
The Court’s View
311. The respondents had contended that the petitioner being a red category industry discharging hazardous substance can be located only in an area classified as ‘special hazardous use zone’. It is interesting to note that neither the State nor the Pollution Control Board have taken a firm stand on
the point canvassed by the 9th respondent.
312. In the brief note on submissions filed by the learned Senior Counsel for the petitioner [Sterlite] in paragraph B, they have dealt with misrepresentation of land area and land use classification. On a perusal of the response given by the petitioner to the contention raised by the respondents, we find the entire response deals only with the extent of land/land area and does not deal with the classification.
The point now canvassed before us by the 9th respondent is by contending that the petitioner being a red category industry cannot be located in a ‘general industrial use zone’ or an ‘agricultural use zone’ and permission can be granted only in an area classified as ‘special industrial and hazardous use zone’.
There appears to be no dispute on the said contention, as the Government in G.O.Ms.No.1730 dated 24.07.1974, while mentioning about the permitted usage of various zones, designated ‘special industrial and hazardous use zone’ for industries which are involved in handling, manufacturing and storage of toxic material. There is no challenge to the notification issued by the Government with regard to the zonation.
Consequently, the petitioner cannot question its applicability. The resultant conclusion to be drawn is that the petitioner being a red category industry generating hazardous substances cannot be located in any other location except in ‘special industrial and hazardous use zone’. If such is the factual position, the question to be considered is whether the industrial complex in which the petitioner industry is in existence could have permitted the petitioner industry of such magnitude producing toxic and hazardous substances. The answer to the question should be that the petitioner could not have been permitted to establish a red category industry in a ‘general industrial use zone’ or in an ‘agriculture use zone’.
319. The petitioner relied upon a letter from the Chairman and Managing Director, SIPCOT to the Commissioner, Town and Country Planning dated 13.05.2014 informing about the obtaining of a layout approval initially in 1987 and subsequently in 2001 by way of revised approval and this includes the land allotted to the petitioner and other red category industries. The layout approval has nothing to do with the categorisation of industries by the Pollution Control Board. It may be true that the land allotted to the petitioner forms part of an approved layout.
However, that does not improve the situation because, unless and until the land is classified as special industrial and hazardous use zone, the petitioner cannot be located in the said land and SIPCOT by mentioning the word “Red Category Industry” cannot improve the case of the petitioner. Further, the authorities themselves would admit that the SIPCOT Industrial Complex is located in Meelavittan and Therkkuveerapandiyapuram Villages, where there is no piece of land classified as special industrial and hazardous use zone and most of the red category chemical industries are located in general industrial use zone.
Therefore, it is clear that the petitioner could not have been permitted to locate their industry inside the Industrial Complex as it suffers from the zonal disqualification. During the course of argument, it was submitted that the issue pertaining to the zonation cannot be raised at this distance of time and 20 years is definitely a too long period and status quo prevailing cannot be dislodged on this ground assuming the respondent has made out a case.
320. To be noted, the first of the writ petitions filed before this Court as Public Interest Litigation, was much prior to the petitioner starting commercial production. These writ petitions of the year 1996 questioned the grant of environmental clearance. Therefore, the objection for location of the
industry, which started in 1996, has not died down till date. In fact, the Hon’ble Supreme Court in the 2013 judgment appreciated the efforts of the public interest litigants and the NGOs with specific reference to the magnitude of the petitioner and that very few people would be able to maintain a challenge against industries of such magnitude.
Therefore, if the location of the industry is hit by the zonation notification, there cannot be any via-media to the same. That apart, no attempt can be made by the State to now unsettle things to suit any third party. Thus, the 9th respondent is perfectly justified in her stand with regard to the zonation and accordingly, we sustain the objection raised by the 9th respondent with regard to the location of the petitioner industry.
4. Unlawful expansion
In 2004, Sterlite constructed a smelter complex – including additional smelting capacity– and a sulphuric acid plant, a refinery and an oxygen plant. The new factory, which took production capacity from 391 tonnes per day of copper anode to 900 tonnes, was constructed without a consent to establish or an environmental clearance. The illegalities were brought to the attention of the Supreme Court monitoring committee, which took a serious view of the matter. But regulators facilitated Sterlite’s illegal project instead of challenging it. This matter was also brought to the high court’s notice in the current case.
The Court’s View
584. The [Supreme Court Monitoring] Committee during its visit was informed that the petitioner is proceeding for a three times expansion of its capacity from 70,000 TPA to 1.8 lakhs TPA. On coming to know of the said fact, the Committee observed that the existing waste management practices of the petitioner are not in compliance with the environmental standards and solid hazardous waste generated also required to be properly managed, particularly in terms of available space and infrastructure and it would be inadvisable to consider expansion of the Unit at that stage.
The Committee made a categorical observation that environmental clearance for the proposed expansion should not be granted by the Mo&EF and it did not stop with that and made an observation that if it is granted, it shall be revoked.
It appears that the concerned authorities did not take note of the observations of the Committee nominated by the Hon’ble Supreme Court for a specific purpose. The Committee issued direction to the TNPCB to make a detailed visit to the plant to ascertain whether the Unit has already proceeded with the expansion of the project without prior permission from the authorities and in which case directed the TNPCB to take action under the provisions of the EIA notification as well as under the Air and Water Act and HW Rules. Thus, there was material available at the time when the Committee made the visit of the petitioner Unit in September 2004 indicating the petitioner has commenced expansion activities without prior permission.
585. If such was the state of affairs of the petitioner in 2004, going through the factual position and noting the various incidents and issues which have arisen, we can safely conclude that the sustainability as projected by the petitioner may appear good on paper.
5. Land fraud
In 2005, the company applied for a consent to establish to expand production capacity from 900 tonnes per day to 1,200 tonnes of copper at the Sterlite copper plant no. 1. In 2007, it applied for a post facto environmental clearance for the same expansion. In both applications, it claimed the project would require 172.17 ha of land, including waste disposal sites and other environmental infrastructure. Both licenses were given based on an assurance that the land was available. However, plant no. 1 only occupies 102.5 hectares.
The Court’s View
324. The Hon’ble Supreme Court held that it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. . .It was further held that fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. The principle of ‘finality of litigation’ cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.
In our view, this decision would be of relevance with regard to the submission made by the petitioner with regard to the extent of land held by them, when they sought for environmental clearance for the expanded capacity. Had the MoEF been rightly informed by the petitioner about their land holding, in all probabilities, environmental clearance for the increased capacity would not have been granted.
We have also found that the petitioner did not give a straightforward answer to the query raised by the MoEF with regard to the actual holding. Therefore, we can safely conclude that the act of the petitioner was deliberate as a result of which they stood to gain and it needs to be construed as a deliberate deception and anything obtained out of it, should necessarily to be vitiated.
479. On 09.09.2005, the petitioner submitted an application to TNPCB for grant of consent to establish the expanded production capacity for Smelter Plant No.I from 900 TPD1 to 1,200 TPD stating that the total extent of land required after the de-bottlenecking is 172.17 ha. Based on this application, TNPCB granted consent to establish. The petitioner filed an application on 02.01.2007 seeking post facto environmental clearance for the expanded capacity, that is, from 900 TPD to 1200 TPD and while seeking for such clearance on 09.08.2007, the total project area is mentioned as 172.17 ha and the green belt of 43 ha to be developed from the total extent of 172.17 ha.
480. The learned Senior Counsel appearing for the ninth respondent would submit that the petitioner had played fraud on the Central Government while obtaining environmental clearance. The petitioner seeks to steer themselves clear of the said allegation by referring to their letter dated 19.01.2007.
481. We have carefully analysed the said letter and we have found it to be not a direct answer to the query raised by MoEF. The fact remains that the petitioner did not hold an extent of 172.17 Ha on the date when environmental clearance was granted, the order granting environmental clearance dated 09.08.2007 mentions total project area as 172.17 ha, but for the petitioner furnishing this extent to the MoEF, the same would not have been mentioned in the order granting environmental clearance.
Therefore, the petitioner failed to disclose the actual extent held by them while they applied for environmental clearance.
482. The next question would be as to what would be the impact of the failure to disclose the actual extent of land held by the petitioner. In our considered view, this would have far reaching consequences because increased production would mean increased generation of waste, which obviously would require larger extent of land and this would have a chain reaction leading to various other issues some of which are beyond comprehension.
Thus, when the petitioner did not have 172.17 ha for Smelter Plant No.I, the question of granting environmental clearance for the proposed expansion would not arise. This failure to disclose the correct details has led to an order being passed by the MoEF granting environmental clearance on the ground that the petitioner possessed 172.17 ha. Thus, if the factual position is otherwise, the environmental clearance itself should be construed to be non-est.
6. Repeated non-compliance
The company has claimed that it ran a lawful operation. The respondents accused the company of being a repeat offender that has failed to comply with mandatory conditions imposed by authorities despite multiple reminders to do so.
The Court’s View
419. The purpose of conducting an inspection is to ensure that the unit faithfully complies with the conditions imposed in the earlier consent order and special conditions which were imposed from time to time. Without verifying and putting stringent conditions on the petitioner stating that unless and until all the earlier conditions were complied with they cannot operate, the Board has mechanically considered the application and recommended for renewal of consent reiterating the earlier conditions and the special conditions, which were being imposed on the petitioner from 2017 and even earlier.
Thus, it is evidently clear that there has been supine indifference on the part of the petitioner in compliance with the conditions. The so-called compliance report has not been examined for its correctness by the Board in its entirety. Had a genuine and concerted effort taken by the inspecting team, the report would have been fully against the petitioner.
420. The first and foremost duty cast on the inspecting team is to go back to the conditions and special conditions which have been imposed on the petitioner from 2013 and even if one of the conditions has not been complied with, the question of recommending for renewal of consent does not arise. As pointed out earlier, the conditions imposed on the petitioner are to be complied with individually and cumulatively. The conditions are non-negotiable. The inspecting team cannot extend time for compliance or once again recommend the same conditions which were not complied with by the petitioner for several years.
421. By way of illustration, if we see the conditions which were imposed from 2013, all of them directed the petitioner to construct the physical barrier to prevent the huge stock of slag dumped in private patta land, to prevent it from obstructing the flow of the river. This will clearly illustrate that the petitioner did nothing about it. Though a plea is raised before us saying that the responsibility rests with the owner, such a plea is not tenable, as is evident from the conditions imposed in the memorandum of understanding between the petitioner and the purchaser.
That apart, the memorandum of understanding shows about 1.5 lakh metric tonnes of slag to have been sold whereas, the slag which is lying dumped is about 3.52 lack metric tonnes along the river Uppar. This will clearly demonstrate that the purchaser is not a genuine purchaser, who is alleged to have purchased the slags for land filling, probably, a name lender.
Non compliance of this condition is fatal to the petitioner. We say so because, the opinion of CPCB/TNPCB that slag is non-hazardous, non-leachable, can be safely used for varied purposes are all based on data which is collected on an idealistic situation. Neither the CPCB, nor TNPCB can take a stand before us that 3.52 lakh metric tonnes of slag heaped in a place left to the fury of nature for several years can have no impact on the environment. Technical report says that dumping in abundance is hazardous.
428. In the preceding paragraphs, the Court took serious note of the inaction on the part of the TNPCB to act in the manner they were required to act. Thus, the Court would be well justified in assessing the conduct of the petitioner cumulatively, consider the various reports which clearly hold that the petitioner was not fully compliant. If such be the factual position, the TNPCB or the State cannot be found fault for taking a precautionary decision.
In fact, the decision, in our understanding, is not precautionary, but a decision taken belatedly after the damage was done and it is rather doubtful as to whether the damage caused to the environment by the petitioner’s continued operation violating the conditions of consent is remediable.
432. The chain of events will clearly reveal that the petitioner has been a chronic defaulter, taking advantage of the slackness on the part of the regulator they have been carrying thus far.
7. Inadequate greenbelt
According to the consent to establish issued by the TNPCB in 1995, the company was required to develop a greenbelt of 25 metres around the battery limits of the factory complex. Subsequent notices to the company required a minimum of 25% of the factory area, including the 25 metre belt along the perimeter, to be developed as a greenbelt. This translates to 25 ha for the facility until 2005, when land area was 102.5 ha, and 43 ha after its expansion to 1,200 ha (when Sterlite claimed to possess 172.17 ha). Respondents alleged that Sterlite didn’t comply on this count.
Ultimately, the petitioner would contend that the Hon’ble Supreme Court in its final judgment dated 02.04.2013 has held that the green belt of the petitioner unit to be adequate and it attained finality.
452. If the contention raised by the petitioner is to be accepted and there has been prompt compliance of the condition imposed in the consent to establish order dated 22.05.1995, in all probabilities, no further conditions would have been imposed. The fact remains till 2011, the petitioner did not have adequate green belt area and they were deficient. When they were faced with orders of closure and they were operating in order of stay, on inspection being done, time appears to have been granted to develop the green belt area.
Therefore, from the materials, which have been placed before this Court, what is evident is, from 1995 to 2011, the petitioner did not comply with the condition fully and faithfully. When inspection was conducted, inadequacy was pointed out, which according to the petitioner has been complied with.
453. The regulator, TNPCB states on oath that the petitioner is non-complaint of the said condition even as on date.
460. Thus, we have no hesitation to hold that there has been no faithful compliance of the green belt requirements and attempting to foreclose any discussion on the topic by referring to the 2013 judgment of the Hon’ble Supreme Court is an argument, which is not acceptable and the regulator, being clear in its mind, at last, has been able to point out that the petitioner remains non-complaint even as on date.
464. Thus, for all the above reasons, we hold that the petitioner has not complied with the green belt requirement, which is also a good and sufficient reason to not permit the petitioner to continue any further.
8. Slag dumps
Slag is a waste product produced by smelting operations. Roughly more than two tonnes of slag are generated for every tonne of copper. Slag is rich in toxic metals like arsenic, iron, lead and zinc. Under lab conditions, slag – a dark gravel-like mass that fused at extremely high temperatures – does not easily release its toxins. Its disposal is strictly regulated.
In its order revoking the Sterlite’s consent to operate, the TNPCB noted that Sterlite hadn’t removed slag that was illegally dumped along and obstructing the flow of the river Uppar, and that it had failed to comply with previous directions to build a wall between the private site and the river to prevent the slag from reaching the flowing water. The company sought to shift the liability for mishandling this slag and the onus of compliance with the TNPCB’s directions to the private party to which it claimed it sold the slag.
The Court’s View
364. To be noted that from 2011 to December 2017 the petitioner has generated 3915901MT of copper slag and they are stated to have disposed of 7,437,327 MT2 which includes the old stock. It has been reported that copper slag has been dumped in ten places outside the premises and the quantity so dumped is 537,765 MT. These sites are in Thoothukudi district.
In such a factual scenario, it has to be seen whether the petitioner has any responsibility on the slag upon sale of the same to a third party. To get an answer, we refer to the Memorandum of Understanding and Sale Agreement dated 25.09.2010 entered into by the petitioner with one Mr. A. Paul. Clause 4 of the Memorandum of Understanding deals with usage of copper slag in which the buyer confirms to the petitioner that he will use the copper slag for land filling and not for any other purpose, if he does so, he has to get written permission from the seller (petitioner). Further, the buyer undertook to the petitioner that he will not sell or dispose of the slag to any other third party without the petitioner’s previous permission in writing.
365. Reading of the above conditions will clearly show that the petitioner as the seller cannot disown responsibility. There is a duty cast upon them to ensure that the terms and conditions of the Memorandum of Understanding are scrupulously followed. The petitioner continues to have control over the material and in particular with regard to the manner of usage. Thus, if there is violation of the condition, the petitioner is liable to be proceeded against. Therefore to state that the liability of the petitioner ceases upon sale on ex-works basis is an argument which deserves to be rejected and stands rejected.
In the instant case, it is evidently clear that though the sale took place in 2010 all that the purchaser did was to dump the huge quantity of slag in his private patta land did nothing to utilise the same in terms of the MoU and the petitioner woke up only after the District Collector issued show cause notice on 14.07.2016. The petitioner failed to enforce the terms of the MoU for six years for reasons best suited.
The facts will clearly show that neither the TNPCB nor the District Administration took effective steps to abate the nuisance rather the slackness in the approach of TNPCB and the District Administration had led to the flooding of Thoothukudi town on account of the obstruction of the river course. The District Administration cannot plead ignorance because the quantity of slag dumped is virtually a small hillock and visible to any passer-by.
Therefore, this Court can safely conclude that the officials of the District Administration turned a blind eye to the illegality, probably unable to do anything considering the magnitude of the petitioner. The officials of the TNPCB at the relevant time are also equally culpable. What needs to be done to these officers is a matter which requires serious consideration and to serve as a deterrent to the serving officers of the Board.
Further more importantly, was there any political or official pressure on the Officials/District Administration to go slow, which may also be required to be probed to fix responsibility. It is high time the Government took action against those responsible at the earliest.
371. Therefore, the petitioner has to be held responsible for obstructing the river course for which separate proceedings need to be initiated and the damage caused due to the floods should be recoverable from the petitioner.
Therefore, viewed from any angle it has to be held that the petitioner has violated the consent condition and the default was chronic, the petitioner totally disregarded the condition which was imposed even in the year 1995 while granting consent to establish and therefore, no further indulgence needs to be given to the petitioner and rightly the respondents have taken a decision to close and permanently seal the petitioner’s Unit.
9. Hidden emissions – mercury
Fatima Babu brought to the court’s attention that the company had no infrastructure to keep mercury emissions from being released into the air resulting from their operations. She alleged the company also hadn’t revealed the considerable mercury emissions resulting from its processes, and that several tonnes of mercury were not accounted for and should be assumed to have been released into the environment. Notably, a health study commissioned by Sterlite acting on the directions of the TNPCB found the prevalence of brain tumours among males in a surrounding area to be 1,000-times the national incidence rate. A little over 12% of total deaths in the study population were attributed to nervous diseases.
The Court’s View
373. According to the 9th respondent, between 2004 and 2018, the petitioner should have generated a minimum quantity of 25.91 tonnes of mercury and they have gone scot free when the Hindustan Unilever Plant in Kodaikanal was shutdown for discharging 7.95 kgs of mercury. This aspect of the matter is of serious concern, which should have been examined by TNPCB, which appears to have not been done.
10. Unreliable air-quality monitoring
Sterlite claimed that no case can be made out against it for polluting the air as monitoring results indicate no pollution, and that its air pollution monitors have reported no problems. Babu brought to the notice of the court that the monitors have been perennially malfunctioning or have been tampered with, and that the data from the monitors is demonstrably unreliable. They also pointed out that there are no monitors in the villages from where the maximum complaints of pollution-related health effects have arisen.
The Court’s View
376. The learned counsel appearing for the 9th respondent drew our attention to the report submitted by M/s. Vimta Labs for Environmental Impact Assessment and the values given by the petitioner and the report of M/s. Vimta Labs shows that the data will not remain static between morning and night and it will vary. It is not clear as to why the regulator did not take any stringent action on this aspect of the matter.
Had TNPCB noted that the values remained static for several hours, they should have alerted the station or made an inspection to ascertain as to whether the monitors were functioning properly, was there any technical glitch, or was there any other factor which led to such abnormal display. Therefore, to rely upon such data from the AAQ monitoring systems situated within the factory premises and in the near vicinity would be inadvisable and we can also go to the extent of drawing adverse inference against the petitioner.
It is commented by the 9th respondent that the monitoring station at T.V.Puram is not located in the predominant wind direction. Villages of Meelavittan, Pandarampatti, Silvarpuram and other areas of Thoothukudi town, where the public have complained about pollution, do not have any monitoring mechanism.
If such is the admitted factual position, then it has to be held that the monitoring mechanism has not been adequate and the results which are reflected from the existing seven systems will give a distorted picture. The analysis of the data available in the Care Air Centre for the years 2015 to 2018 shows that the values have remained static for varying periods of time and certain readings were shown to be unrealistic, which will go to show that the air quality in the area was not monitored.
In the notes on submission submitted by the 9th respondent, annexures have been given showing the analysis of the CAAQ monitoring station data for the years 2015-16, 2016-17 and 2017-18. On perusal of the analysis for the year 2017-18, it is seen that the number of unvarying 15 minute readings for 8 hours or more is 7337 for NOx for PM 10 it is 7115, for SO2 it is 10692, for PM 2.5 it is 7.49. These are the data in the SIPCOT monitoring system.
Thus, we conclude by saying that the regulator did not effectively monitor the AAQ in the area.
11. Hazardous waste authorisation
Sterlite operated and continued to generate, handle and dispose of hazardous wastes without a valid license and beyond the pale of law from 2013 to 2018. The TNPCB cited this among several reasons when it refused to renew the company’s consent to operate. Babu brought to the notice of the court that the illegality of operating without authorisation was compounded by the inconsistencies in the company’s accounting of hazardous waste generation and disposal. For example, the respondent alleged that while operating without authorisation, the company improperly disposed of several thousand tonnes of arsenic-containing toxic wastes, including to Maharashtra-based Suhans Chemicals, which wasn’t authorised to handle such materials.
The Court’s View
385. The question is whether the petitioner could have been permitted to handle and dispose of hazardous and other waste after the expiry of the authorisation on 09.07.2013 without being monitored. The answer to this question should be a definite ‘No’. The petitioner would state that now they have filed a writ of Mandamus to renew the authorisation. It is not clear as to why they did not resort to the same procedure in the year 2013, probably circumstances suited them.
Unfortunately, the authorisation is not a license in the normal sense. As pointed out earlier, the petitioner has no fundamental right to establish and operate a polluting industry. The very establishment is based on a consent granted by the TNPCB subject to condition.
Therefore, the petitioner cannot state that as long as their application for renewal of authorisation was pending, they can continue to handle and dispose of hazardous and other waste. In fact, stringent action has to be initiated against the officials of the TNPCB who were in-charge at the relevant point of time equally the superior officers and others at the helm of affairs of the Board … The matter is a very serious issue and the petitioner cannot escape by contending that non-renewal of authorisation can have no impact on the consent to operate.
Or else a polluting industry based upon the consent to operate will continue to operate, generate hazardous waste, handle and dispose of them without authorisation under the HWM Rules which would mean that handling and disposal goes unmonitored. This position if allowed would be a death knell.
The order passed by the TNPCB refusing to renew the consent to operate on the ground that the HW authorisation was not in force is valid. It is true that the TNPCB did not take any action but that cannot be a license to the petitioner to pollute. Therefore, the said ground on which consent to operate was rejected is held valid and accordingly sustained.
12. Water contamination
Sterlite maintained that they operated a zero liquid discharge facility and complied with all laws. They also argued that other factories in the vicinity and seawater intrusion were responsible for the contamination, and that their operations couldn’t have degraded the water quality to the extent claimed before the court.
The Court’s View
377. NEERI, in their environmental audit report of March, 2005 have specifically mentioned that the groundwater does not meet the drinking water standards and also mentioned about the presence of arsenic above the stipulated limit and the levels of cadmium, chromium, copper and led were also found to exceed the drinking water standard in some wells.
In Chapter-VII of the report, which deals with ‘conclusions and recommendations’, it has been clearly pointed out that water in the wells are unfit for drinking, high level of heavy metals have been found, the concentration of total dissolved solids and sulphates exceed the limits stipulated by TNPCB for treated effluent, the occurrence of heavy metals in the soil was attributed, fugitive emission and solid waste dumped etc.
Though this was the factual position, the petitioner seeks to escape from the rigour by contending that there was no such charge against the petitioner. As pointed out earlier, the regulator failed to do their job and on account of their default, the petitioner cannot be exonerated.
395. The TNPCB has also furnished the chart mentioning comparison of year wise maximum value of parameters with baseline data collected during 1994 and NEERI reports of 1998, 1999, 2005 and 2011. The report is a clear indicator to show that there has been a steady and steep increase in TDS, chloride, sulphate and total hardness and there is a decline in the levels after closure of the petitioner.
We are inclined to accept the stand taken by the TNPCB to hold that the increase in the levels of TDS, chloride, sulphate and total hardness are all attributable to the petitioner’s operation and therefore the order of closure cannot be stated to be on account of speculation.
13. Height of chimney stacks
Heights of stacks attached to sulphuric acid plants are determined by a formula specified by the Central Pollution Control Board. The height is calculated to ensure effective dispersion of pollutants so that their ground level concentration at the point where the pollution plume descends is within healthy levels. Public respondents brought this to the court’s notice, and the TNPCB concurred that the stack heights were inadequate. The company argued instead that the heights were adequate, that the matter was brought up first by a public intervenor and not by the TNPCB.
The Court’s View
493. We deal with the preliminary objection raised by the petitioner at the first instance. Though it may be true that in the impugned order refusing to renew the consent to operate, inadequate stack height is not one of the grounds mentioned therein, the petitioner would admit that this issue was raised by the respondent-board in 2018 before the NGT. The petitioner would state that it is the intervenor, who raised the point, and thereafter, the TNPCB took up the issue.
This can hardly be a reason for this Court to refuse to test the correctness of the submission regarding inadequate stack height. This is so because, as a regulator, TNPCB is entitled to impose conditions. We have held these conditions to be binding, non-negotiable and cannot be questioned by the petitioner.
Therefore, if the regulator states that there is an inadequacy on the part of the petitioner, the source from which the regulator got inspiration to say so is irrelevant, as the factum whether there is inadequacy or not, is the only issue.
497. The former Professor of the Department of Chemical Engineering, IIT, Madras, has given his opinion wherein, he states that the height of the stack emitting SO2 or acid mist shall be of minimum 30m or as per the formulae H=14(Q)E+0.3, whichever is more, and by adopting this formulae and taking note of the total capacity of the petitioner with 2 kg/ton acid produced, the stack height would be 83.5m and if emission factor of 1 kg/ton was to be considered for stack height design, it would be 67.8m.
The expert concludes by stating that the sulphuric acid plant’s stack height of 60m is not in consonance with the CPCB Rules, nor is it adequate if the lower emission rates of 1 kg/ton is considered.
Further, the stack height will be inadequate for effective dispersion of SO 2 pollutants and it has to be verified, if this will attribute to excessive ground level concentration of SO 2 in ambient air under neutral or adverse meteorological conditions. Further, the stack height for furnace at 4 kg/ton acid produced would be 102.8m and height as per 1 kg/ton emission rate would be 67.8m.
Thus, the finding is the furnace stack height is only 60m as against 102.8m as per the CPCB norms and this will contribute to excessive ground level concentration of SO 2 in ambient air. Thus, viewed from any angle, what is abundantly clear is that, there is non-compliance of the stack height norm stipulated by the CPCB.
That apart, assuming TNPCB had failed in its duty in enforcing the norms stipulated by the MoEF/CPCB, that may not be a licence to the petitioner to contend that they satisfied the requirements. It is not clear as to why the TNPCB did not take note of this issue earlier and did so only in the year 2018.
14. 2013 gas leak
On March 23, 2013, thousands of residents in Thoothukudi town experienced symptoms varying from mild discomfort to vomiting, loss of consciousness, miscarriages, breathlessness and/or burning sensation in eyes, throat and nose – all suggestive of sulphur dioxide poisoning. And all fingers pointed at Sterlite. Online air quality monitors atop the company’s sulphuric acid plant registered SO2 emission levels above the rated upper limit of the analyser.
The company, however, explained the high readings as an error, that the company was only engaged in a calibration exercise and had inadvertently forgotten to turn the display to reflect the status. After giving Sterlite an opportunity to respond, the TNPCB shut the factory down. The company received a favourable order from the National Green Tribunal. The Government of Tamil Nadu appealed the order of the NGT. In 2019, the Supreme Court quashed the tribunal’s order and asked the company to approach the Madras high court instead.
The Court’s View
536. Next, we have to consider as to whether the defence raised by the petitioner stating that what was done by them was a calibration exercise is a correct and justifiable stand. The candid admission of the petitioner that the software was in a maintenance mode inadvertently is hard to believe especially when, the petitioner has taken a stand that they have adopted a state of art technology and even their trucks, which transport the raw material are GPS monitored. Therefore, the ‘story’ which they seek to tell about the maintenance mode of the software is unbelievable and to be disbelieved and there is something more than what meets the eye.
541. In our considered view, the technical opinion rendered by the Professor, who in fact, was part of the inspecting team constituted by the Hon’ble Supreme Court should be given due credence. The factual aspect regarding the maximum recordable level of the device as 1,123.6 ppm has been mentioned in the opinion, which in our considered view, is a very vital information, not made known to us by TNPCB, nor it has been shown that the opinion is wrong.
The company has claimed that its operations haven’t caused any pollution, so the question of health impacts on nearby residents doesn’t arise. They sought to refer to certain health data periodically submitted by them to the TNPCB to claim that the data reveals no health effects. Respondents, however, pointed to a government health study paid for by the company that highlighted significant health issues in the surrounding areas.
The Court’s View
544. The 9th respondent referred to the report submitted by the Department of Community Medicine, Tirunelveli Medical College in 2008 tilted “Health Status and Epidemiological Study around 5 km radius of the petitioner-industry”. The study covered a population of 80,725 people and compared the health status in villages around the petitioner-industry with the average health status prevailing in the State and two other locations, where there were no major industries.
The report indicated prevalence of brain tumours among males is 1000 times national incidence rate; 12.6% of death due to nervous diseases; 13.9% respiratory diseases were significantly more prevalent in the areas surrounding the factory; incidence of asthmatic bronchitis is 2.8%, more than double the State average of 1.29%; eczematous skin lesions were high (1.38%) in the region; women in the area had more menstrual disorders; disorders of the joint and musculoskeletal system were significantly elevated in the villages around the factory; iron content in the groundwater in Kumareddiapuram and Therkuveerapandiapuram were 17 and 20 times higher than permissible levels prescribed by the Bureau of Indian Standards (BIS) for drinking water and 2 out of 7 groundwater samples had higher levels of fluoride than the permissible levels.
546. In our considered view, the study conducted by the Department of Community Medicine, Tirunelveli Medical College cannot be discredited or outrightly discarded. The report states that it has covered a population of 80,725 people and the impact of the petitioner-industry has been brought out in the report.
No material has been placed before us to show that the petitioner has disputed the report at an earlier point of time and when this has been pointed out before this Court, it is the petitioner’s case that the report as a whole does not indicate any health concern due to the operation of the petitioner’s unit. The duty to provide a clean and health living atmosphere is the duty of the State, doctrine of public trust cast a duty on the State.
Nevertheless, if operation of the industry causes certain health concerns, it is a matter, which should have been taken with utmost seriousness by the appropriate authorities. When two sets of data are pitted against each other, that is, data collected by a Government Medical College and data submitted by the petitioner, the authorities should have made an endeavour to assess the health condition of the people of the locality.
The petitioner being a red category industry, a highly polluting industry, had no fundamental right to carry on its business, but for the consent/permission granted by the MoEF and the TNPCB.
Therefore, the burden is on the petitioner to prove that their operations are benign. Unfortunately, the appropriate authorities of the State appear to have not given a serious thought to the health aspect of the general public living in and around the industry.
Nityanand Jayaraman is a Chennai-based writer, and has been part of the campaign in Thoothukudi to hold Sterlite accountable.