KUDREMUKH CONCERNS

Kudremukh Iron Ore Company Limited faces an uncertain future following a legal challenge to its mining operations and plans in a biodiversity-rich region that has been notified as a national park.

AFTER an 11-day break, Kudremukh Iron Ore Company Limited (KIOCL) resumed its mining operations on August 5 in the picturesque hill ranges of Kudremukh, 110 km west of Mangalore in Karnataka. Mining had come to a halt on July 24, when a second temporary working permission granted by the State and Central governments expired. The company has now secured permission to work for three more months on the already broken-up area of 1,452.74 hectares. But this period is going to be suspenseful for its workers and farmers, environmentalists and other sections of society who are concerned about the mining activity. The Supreme Court is expected to issue soon its verdict on a petition seeking a ban on mining in Kudremukh, which could change the destiny of the Rs.1,200-crore, profit-making public sector company.

KIOCL has been conducting its operations on an area of 4,604.55 ha for over 20 years. Opposition to its activities has built up over the years - from environmentalists and wildlife conservationists who are concerned about the threat to the region's flora and fauna, and farmers who are affected by the pollution of the streams that originate in the mining area. The campaign for a ban on mining gained strength with the support of conservation scientists such as Ullas Karanth and literary personalities such as U.R. Anantha-murthy and K.P. Poor-nachandra Tejasvi. The company made some efforts to contain pollution but a combination of factors such as problems associated with open-cast mining, the steep terrain, the loose soil and heavy rainfall defeated them.

Farmers living in downstream villages told Frontline that the paddy yield had declined from 50 quintals to 30 quintals a hectare because of the accumulation of silt and waste tailings in the fields. Said a farmer of Nellibeedu: "Every monsoon the water brings with it silt and tailings. These solidify and harden in summer. Nothing grows on the field." The tailings rendered the sand unfit even for construction purposes, they complained.

A team of experts from the Centre for Ecological Sciences of the Indian Institute of Science (IISc.), Bangalore made a study of the 'Impact of Iron Ore Mining on the Flora and Fauna of Kudremukh National Park and Environs'. Its leader R. Sukumar said: "When the decision to locate the mine at Kudremukh was taken in the early 1970s, the effects and consequences of habitat fragmentation and biodiversity loss were poorly understood. It is time we considered the impact of ongoing and future mining in the region in the light of new scientific knowledge. It is now well known that habitat fragmentation is the single largest threat to biodiversity and biological integrity."

The study was commissioned by the State Forest Department. The report, which was submitted in January 2001, says: "Open-cast mining by its very nature is a very destructive activity that causes virtually irreparable damage." It notes that the mining areas that have been abandoned, leave alone those where mining is on, stand in stark contrast to the adjoining natural grasslands and forests. It points out that the situation has been aggravated by the high rainfall. The mining and associated activities have resulted in the loss of habitat and the fragmentation of the otherwise contiguous block of tropical moist forest and grasslands in the Western Ghats. In the mining area, biodiversity is at a low level. Although several species of grass and herbs have sprung up in areas abandoned after mining, they are insufficient to stabilise the broken soil.

Problems such as turgidity of the water downstream, sedimentation and siltation were not within the scope of the study. Farmers complain that mining has deforested the upper reaches of the hills, resulting in an increased flow of silt and iron ore tailings down the streams. The silt and tailings are either deposited in the fields or carried to the Bhadra reservoir. Environmentalists say that sedimentation could reduce the life span of the reservoir, which is designed to last 180 years. There have been no studies on the effects of siltation. Even a long-term study by the Nagpur-based National Environmental Engineering Research Institute (NEERI) has not examined samples of the water taken during the monsoon when the silt load is high.

Said Sukumar: "When we started field work in August 2000 the peak monsoon had already passed and mining had also been stopped because of a leak in the slurry pipe. The level of dissolved iron in the water was all right. A round-the-year study to gather data on aspects such as silt loads at various points along the river, the difference in silt loads before and after the mining areas, and the rate of siltation of the downstream reservoir will have to be undertaken if a proper assessment is to be made."

Jagadish Krishnaswamy, a hydrologist, said: "The topography and rainfall characteristics, in combination with the open-cast mining, road-building and other land-surface disturbances caused by KIOCL operations, are likely to lead to high sediment discharges in the Bhadra river system in the short and long term. But curiously, one of the glaring drawbacks of the studies conducted in the region has been the poor attention given to water quality and the omission of wet-season sampling of streams."

Environmentalists say that KIOCL's measures to check pollution have had very little impact. However, the company does not agree with this assessment. Admitting that the mining has caused pollution, it says it has been able to keep the level of pollution to the minimum. Officials of KIOCL give a list of anti-pollution measures they have undertaken. According to them, the company has constructed two rock-fill check-dams and a series of check-bunds in the small valleys to prevent the wash-off from mine faces and mine roads from reaching the Bhadra river during the monsoon. It has also built a 100-metre dam across the Lakya, a tributary of the Bhadra, into which the waste tailings in the form of slurry are discharged. An underground pipeline has been laid to carry the slurry concentrate from the Kudremukh plant to the pelletisation plant at Mangalore and the New Mangalore Port, to be shipped abroad. It has also planted 75 lakh trees as part of an afforestation programme.

One of the major problems faced by KIOCL is the disposal of waste tailings. They have to be either disposed of or permanently stored to prevent them from being carried off into the river by rainwater. The dam across the Lakya breached once, in 1992. According to KIOCL, the dam can take six to nine million tonnes more of tailings if its height is increased by one metre. The report of the IISc. team calls for a detailed study of the structural stability of the dam if KIOCL plans to store tailings permanently in it. But the company has sought the government's permission to build another dam (Kachige Holey) after the one across the Lakya is filled. The Lakya dam has submerged 572 ha of shola forests and a new dam could submerge more areas.

As part of its compensatory afforestation programme, KIOCL has planted about eight million saplings of eucalyptus and Accacia auriculiformis over 800 ha of grasslands. Company officials proudly display satellite images from the National Remote Sensing Agency, Hyderabad, that show that there has been a net positive development in the area leased out to KIOCL over the past 23 years. Almost the entire lot of trees, planted on the advice of the Forest Department, are in areas that have not been mined. The mined areas are still shorn of all vegetation.

The IISc. report disputes the company's claims regarding afforestation. The company, it says, has termed the grasslands wastelands and planted exotic species there. According to Sukumar, the grasslands are certainly not wastelands. "The montane grasslands of the Western Ghats have now been shown to be natural high-altitude grasslands. They have their unique complement of plant and animal life that needs to be preserved. Even while recognising that the grasslands at Kudremukh occur at lower altitudes and that this could be partly because of anthropogenic disturbances in the historical past, there is no biological justification for converting these grasslands into plantations of exotics."

He argues that the introduction of exotic species, which are fast-growing, hardy and resistant to climatic factors, would have undesirable long-term effects on the grasslands and the adjoining shola forests.

Although environmentalists have commended KIOCL for planting seedlings of a large number of native evergreen species even in the abandoned areas, the IISc. report says that this appreciation is misplaced. According to the report, the first step in the direction of stabilising the soil is to grow herbaceous plants.

THE Central and State governments have gone out of their way to help KIOCL. In September 1987, the Government of Karnataka declared its intention to convert the area into a national park under Section 35(1) of the Wildlife (Protection) Act, 1972. According to a notification dated June 16, 2001, the State government, "after waiting out the period for preferring claims and (after) all claims had been inquired", notified an area of 56,328.798 ha as constituting the Kudremukh National Park (KNP) under Section 35(4) of the Act. It is the largest tropical wet evergreen forest in Karnataka to be declared a protected area. The notification, however, excluded from the proposed park 3,703.55 ha in the South Bhadra forests; of this, 3,203.55 ha has been leased to KIOCL and the remaining 500 ha was submerged when the company increased the height of the Lakya dam in 1994. The decision to exclude 3,703.55 ha was questioned by Forest Department officials, including Madhu Sharma, Deputy Conservator of Forests (DCF), Chikmagalur, and S.K. Chakrabarti, Principal Chief Conservator of Forests (Wildlife), in July 2000 when it was first brought to their notice. The Law Department overruled their objections.

The Bhadra, its waters near-pristine before it enters the mining area, and turgid as it leaves the area.

According to informed sources, the settlement officer of the Revenue Department - of the rank of Assistant Commissioner (A.C.) - interpreted the Wildlife (Protection) Act in such a way as to mean that he could leave out areas of reserved forest without consulting the Forest Department. But in reality he had authority over only revenue or patta land, and not forest land. The State government went by the settlement officer's recommendation.

The sources said that the A.C. kept the Forest Department in the dark about the wrong interpretation and that it was only in July 2000 that the DCF, Chikmagalur, heard about the State government's intention to leave certain areas out of the KNP and its communication to the Union government in this regard. One informed source said: "The DCF unilaterally filed objections stating that the A.C. had exceeded his powers and approached the Deputy Commissioner (D.C.), Chikmagalur, asking for a copy of the A.C.'s report. The D.C. then asked her to give a para-wise comment on the A.C.'s report. By October 2000 she had submitted her remarks, which included the recommendation that the 3,703.55 ha should not be left out of the area of the park. The D.C. and the then Principal Chief Conservator of Forests (Wildlife) concurred with her views. Their views were sent to the Union Ministry of Environment and Forests (MoEF)."

The State Law Department initially went along with the reports of the DCF and the D.C. In fact, it even praised the DCF. But, after a long silence, the State government wrote to the MoEF stating that it excluded certain areas from the KNP. According to informed sources, the DCF's objection was based on the fact that the areas sought to be excluded had been notified as a reserved forest after the settlement of all rights even before its inclusion in the 1987 notification regarding the KNP. No rights could have accrued thereafter, they said. Also, the Supreme Court ruled in 1996 that except in exceptional circumstances no forest land could be excluded at the time of notification after the intention to notify it had been declared.

Officials of the MoEF did not support the views of the DCF and the Principal Chief Conservator of Forests (Wildlife). A senior official is said to have remarked that the MoEF did not receive their reports. According to informed sources, high-ranking MoEF officials maintained that the State government did have the power to exclude specified forest areas from the KNP. In support of their claim, the sources showed letters written by a senior official in the Prime Minister's Office suggesting that the areas being mined by KIOCL be excluded from the KNP, that permission be granted expeditiously to the company to mine in the area and that more areas be handed over to it for mining.

A letter (8-69/99 - FC, dated 25-7-2000) written by Rajiv Kumar Gupta, Assistant Inspector-General of Forests, MoEF, to the Secretary (Forests), Government of Karnataka, in response to the State government's request for the renewal of mining lease to KIOCL, also makes it clear that MoEF officials were aware of the State government's decision to exclude 3,703.55 ha from the KNP. It says: "I am directed to refer to your letter No FEE 41 FFM 98, dated 18-7-2000, communicating to this Ministry the decision of the State government to exclude 4,605 ha of area including the broken up area of KIOCL from the (Kudremukh) National Park on the basis of the report of the A.C., Chikmagalur - the Settlement Officer appointed under Wildlife (Protection) Act, 1972. The Ministry (MoEF) also took note of the request of the State government for renewal of mining lease over already broken up area of 1,452.74 ha and 92.68 ha of additional land to be broken afresh along with extension of temporary working permission by another year for mining in favour of KIOCL."

The letter also states that the State government's request had been examined holistically, keeping in mind that "the present notification of the KNP is only a notification of intent", that "the State government has clearly communicated its decision to exclude the proposed area from the purview of the National Park" and that "the decision (to do so) was based on the report of the settlement officer appointed by the State government under the Wildlife (Protection) Act, 1972".

The MoEF even issued a year's temporary working permission to KIOCL on the basis of the Karnataka government's submission that the area concerned would not form part of the area to be notified as a national park. The permission was subject to the State government issuing a notification on the constitution of the KNP by September 30, 2000 (which it did in June 2001) and the completion of the environmental impact assessment report within six months (which it did by January 2001).

Curiously, a year later, the MoEF has made an about-turn. The change in its stand became known in the course of legal proceedings in connection with KIOCL.

Wildlife First, a non-governmental organisation (NGO), filed an interlocutory application in the Supreme Court in May 2001 seeking a ban on mining in Kudremukh. The application said that the mining was illegal and violative of the court's orders on December 12, 1996 on a writ petition, banning non-forestry activity in forests, and on an interlocutory application dated February 14, 2000, prohibiting the removal of even dead and dying trees and grass from national parks and sanctuaries. The NGO's application, which was filed through the amicus curiae Harish Salve, also challenged the granting of temporary working permission to KIOCL by the MoEF twice (in July 1999 and July 2000) under the Forest Conservation Act, 1980, on the grounds that there were no provisions under the Act to grant such permission. The amicus curiae has questioned the validity of the decision to leave certain areas out of the KNP.

On May 10, a three-member Bench ordered issue of notices to the three respondents, the Union of India, the Government of Karnataka and KIOCL, directing them to file affidavits.

The Supreme Court directed the Union government to file "an affidavit within eight weeks and in the affidavit also state the reasons as to why Government of India having once notified the area as a national park, then permitted mining activity to be carried out notwithstanding".

An additional affidavit, filed on July 26 by S.C. Sharma, Additional Director-General of Forests (Wildlife), MoEF, said that the MoEF opposed the Karnataka government's decision to leave 3,703.55 ha out of the KNP. It stated that "after careful consideration of the entire issue including ecological importance of the Kudremukh ranges, effect of mining on flora and fauna, area already broken up by KIOCL, alternatives available, etc, the Ministry (was) of the view that it is not desirable to permanently allow mining operations to continue in (Kudremukh) especially in the unbroken area." Further, it stated that "no approval under the Forest (Conservation) Act, 1980 would be accorded to KIOCL for undertaking mining operations in any unbroken areas".

With regard to the areas already being mined, the affidavit stated that in view of KIOCL's heavy investment in the area, the employment prospects of a large number of persons and export commitments, the MoEF "was considering to allow KIOCL to continue mining operations over the already broken up forest area" for up to five years.

After hearing the submissions of Sharma and the amicus curiae on July 27, the Supreme Court gave three weeks to counsel for the State of Karnataka and KIOCL. It ruled that Karnataka government should consider afresh the notification excluding forest areas from the KNP. While Sharma's affidavit has made KIOCL officials nervous, environmentalists are elated by the latest stand of the MoEF.

According to informed sources, the stand of the State government will be that:

a. The non-mined forest areas (2,251 ha), which have been leased to KIOCL, should be designated as a buffer zone for the KNP, where human habitation and grazing of cattle would be allowed;

b. Subject to the capacity of the Lakya dam to take waste tailings, KIOCL should be allowed to mine for seven more years. There should not be any immediate stoppage of work because it will cause problems; for instance, the problem of maintaining the mining faces and the Lakya dam, which might come crashing down the valleys below; and

c. Round-the-season studies will be undertaken by a committee comprising representatives of KIOCL, environmentalists, Forest Department officials, hydrological experts, conservation scientists, and so on.

Reacting to the MoEF affidavit, Karnataka Forest Department officials said that it was time the Union Ministry stopped adopting a holier-than-thou attitude. According to them, in July 2000, when KIOCL's temporary lease expired, the MoEF sought the State government's view as to whether mining should continue and said that if the State government was for the continuation of mining it would be better to leave out of the KNP the area in which KIOCL operated since mining was not expected to take place in a national park. "Today they are not only pretending that they knew nothing but are also trying to be the only ones concerned about the forests and the KNP. And we are depicted as the villainous lot," they said.

The Forest Department has also not applied rules consistently. For example, in 1994-96 KIOCL was given a licence for prospecting in the Nellibeedu hill, which is estimated to have around 54 million tonnes of ore. Officials of KIOCL themselves wonder under what clause the Department gave them a prospecting licence. Under the Forest (Conservation) Act, prospecting cannot be done in a reserved forest. Environmentalists have accused KIOCL of damaging forests on the Nellibeedu hills by constructing roads and drilling borewells.

According to an official in the State Forest Department, the Government of India has to choose between bad development and good environment. The official explained: "KIOCL is a public sector profit-making company which provides employment. And the mines have proximity to the Mangalore port. But what about the environment and forest laws? Should mining be allowed inside a national park? If so, then let the government say so or exempt KIOCL from the laws."

According to the official, the bottomline is that the mines have to be moved out, for two simple reasons. "First, as per the Forest (Conservation) Act, 1980, mining can be allowed in a reserve forest subject to the prior approval of the MoEF and the State Forest Department (forest is a subject in the Concurrent List). Generally, the MoEF has not renewed mining leases in the Western Ghats. Now that the MoEF has in its July 27 affidavit asked the Karnataka government to reconsider its decision to leave out the forests where KIOCL is operating, from the KNP (and designating it as part of KNP), it will be difficult for the MoEF to grant permission."

The official said that the ball is now in the court of the two governments. "Permission for mining cannot be accorded in a national park. Secondly, KIOCL has made no efforts all these years to offer to the Forest Department as per the above Act, land/money in compensation for compulsory forestation in lieu of the area that it has been mining on."

The company does not see it that way. Its officials and workers are united in their opposition to the environmentalists' claims and demands. Closure of the mines would mean hardship for a vast majority of workers, and alternative plans like moving the mining operations to Sandur (in Bellary district, Karnataka) or Ongole (Andhra Pradesh) do not appear to be practical. While a section of the workforce can be accommodated in Mangalore, a question mark hangs over the rest. Knowledgeable sources pointed out that KIOCL, which has a Plan outlay of Rs.1,200 crores, will need Rs.3,000 crores to shift its operations to another area.

The employees of KIOCL are an agitated lot. Appeals have been sent to the Prime Minister and some of his Cabinet colleagues. They have also submitted a memorandum to State Chief Minister S.M. Krishna, who they claimed had assured them that their interests would be protected. The workers say that with nearly 75 per cent of them being above the age of 45 years, it would be difficult to acquire new skills.

Said B.M. Narayanappa, organising secretary, Kudremukh Shrama Shakti Sangatan, one of the three trade unions and currently the recognised one: "We want the government to give us a 20-year lease. If our appeals fail we will undertake hunger strikes along with our family members." Only 95 employees have availed themselves of the voluntary retirement package offered by the management in March and June 2000.

Environmentalists are not perturbed by the extension of mining permission for three more months. Although they would like to see mining to "stop tomorrow", they appear to be practical enough to suggest a five-year time-frame for the closure of operations.

Although KIOCL management has publicly stated that it would like to continue its operations for 20 more years, company officials privately admit that they would be just as happy if the company is allowed to function until the present ore body is mined, that is, for six or seven years.