Sterlite closure order unsustainable: NGT

On December 15, the Principal Bench of the National Green Tribunal (NGT) in New Delhi, presided by its Chairman, Justice Adarsh Kumar Goel, set aside the order of closure, issued by the Tamil Nadu Pollution Control Board (TNPCB) and the State Government in May, of the copper smelter plant run by M/s Vedanta Limited at the SIPCOT Industrial Complex in Thoothukudi, Tamil Nadu.

The other members of the bench were Justices Raghuvendra S. Rathore and K. Ramakrishnan and two experts Dr Satyawan Singh Garbyal, and Dr Nagin Nanda.

The order of closure in May merely cited the “larger public interest” to justify itself and was, therefore, vulnerable to being set aside by the appellate body for arbitrariness and failure to give convincing reasons. Besides, it smacked of a knee-jerk response in the light of outrage following the death of 13 persons in the police firing during residents’ protests against the pollution caused by the plant. It also raised questions about the role of the TNPCB in monitoring the plant’s activities that were prejudicial to the environment.

The challenge to the closure order before the NGT, initiated by Vedanta, raised both procedural and scientific grounds.

The NGT set up a committee of experts, headed by the former Chief Justice of the Meghalaya High Court, Tarun Agarwal, to undertake a site visit and compile the opinions of various stakeholders. The committee’s report recommending setting aside of the closure order was questioned by both the TNPCB and the Tamil Nadu government.

On merits, the Tribunal found the closure order unsustainable for specific reasons. First, the ground water analysis reports were available with the TNPCB if anything was still required to be done in that regard by the appellant (Vedanta), so this could not be a ground for rejecting consent for renewal or for closing the unit without opportunity of hearing to the appellant. Even if there was a technical breach, as contended on behalf of the respondents, the breach was trivial in nature and caused no prejudice to anyone, the Tribunal held.

Second, on copper slag, the NGT held that a physical barrier could be directed to be constructed for the entire area, and no opportunity was given to the appellant to comply with any such requirement.

Third, on the claim that authorisation under the Hazardous Wastes (Management, Handling, and Transboundary Movement) Rules, 2016, had expired, the Tribunal held that the appellant had submitted the requisite application. It was the TNPCB itself which was sitting over the matter, the Tribunal pointed out. No harm has been caused by such a technical breach, the Tribunal held.

Fourth, on the allegation of violation of air quality norms by the appellant, the NGT concluded that the company had conducted analysis and there was no requirement of analysis to be done in a particular laboratory in the absence of the TNPCB not having its own laboratory.

The NGT found the fifth ground, of not constructing a gypsum pond as per the Central Pollution Control Board’s (CPCB) revised guidelines, as unfounded as time to do so was still available and the pond had been earlier constructed as per the guidelines then applicable.

The NGT observed: “The TNPCB has adopted hypertechnical approach unmindful of object of law. So long as establishment is complying with pollution control norms and is willing to take further precautionary steps, the PCBs cannot arbitrarily close such establishments on hyper technicalities, as has been done in the present case. We expect TNPCB to have more focussed and professional approach in performing its regulatory functions.”

The NGT, while setting aside the closure order, took note of the fact that the plant contributed substantially to the copper production in India and that copper was used in defence, electricity, automobile, construction and infrastructure sectors. The plant had about 1,300 employees and it also provided employment to a large number of people through contractors. A number of ancillary industries were also dependent on the plant. Through its various transactions, the plant generated a huge revenue to Central and State governments in terms of excise, custom duties, income tax and VAT (value added tax). It also contributed to 10 per cent of the total cargo volume of Tuticorin port.

In 2013, the NGT had held that cogent evidence was required, as against mere suspicion, to order closure of the unit while setting aside the then order of closure on the grounds of alleged air pollution.

The NGT, in its latest order, referred to submissions made by the Tamil Nadu government and the TNPCB regarding expert opinion confirming pollution caused by gypsum waste and copper slag. But the NGT held that there was no scientific evidence to accept it, as such opinions were based on the technology available in dealing with those factories during 1950 and prior to that. “Technology has changed, and the impact of byproducts on environment could be reduced to a larger extent on account of the new scientific methods available in manufacturing the main project by the industry”, the NGT held.

According to the NGT, there is a duty cast on the SPCB and the CPCB to provide remedial measures to prevent environmental pollution by industries in such circumstances and without adopting those remedial measures refusing the consent and direct closure on that ground is illegal and not sustainable in law.

Besides, the NGT held that the respondents did not show evidence to prove that any notice of inspection was given and that a copy of the report was furnished to the appellant factory to remedy the shortcoming, if any, noticed at the time of inspection under Section 26 of the Air Act and Section 27 of the Water Act. Therefore, such report, if it violates Section 26(3) and (4) of the Air Act was not admissible, it held.

Directions

The NGT has directed Vedanta to create a dedicated and interactive website with participatory public forum wherein the affected stakeholders can lodge their environment-related grievance for time-bound redress and disposal by the unit. This website should be publicised widely and should have links with the website of the district administration, the TNPCB and the CPCB, which shall be the oversight body to monitor such public grievances and their timely disposal, it held.

The NGT also directed Vedanta to monitor the ground water quality regularly and upload the data in comprehensible form without fail on the website. Failure of timely analysis and uploading of the same shall result in appellant unit paying an environmental compensation at the rate of Rs.10 lakh for every default with the District Legal Services, which shall maintain a separate account for the same and supervise its spending in matters like environmental education and awareness.

The NGT, relying on the appellant’s allegation, held that the district administration, by not cooperating in complying with directions passed by it on August 9 and August 20 for carrying out the recommendations of the CPCB to handle the hazardous situation, virtually put public safety at risk. Any failure in future to comply with its directions to ensure public safety would invite coercive action, the NGT cautioned.

During the hearing, Vedanta offered to spend Rs.100 crore for welfare activities for the inhabitants of the area as a goodwill measure, on projects such as water supply, hospital and health services, and skill development. The NGT directed Vedanta to spend the amount within three years, with an action plan for its utilisation, after getting approval from the Ministry of Environment, Forest & Climate Change (MoEF&CC), which may also oversee the compliance thereof.

It is reliably learnt that the TNPCB, the Tamil Nadu government and the interveners will appeal against the judgment in the Supreme Court, although it is not clear whether the apex court will be convinced of the grounds for its intervention.