The Madras High Court on Tuesday ordered the closure and permanent sealing of Sterlite Copper in Thoothukudi district after listing various environmental violations and failures to obtain permissions from the Tamil Nadu Pollution Control Board (TNPCB). In response to Sterlite Copper's claims that shutting down the plant will lead to a shortage of copper in the country, the court stated that when the economy is pitted against the environment, the environment will reign supreme.
"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," the court stated.
A Special Division Bench of Justice TS Sivagnanam and Justice V Bhavani Subbaroyan pointed out that the unit had operated for 16 years and 92 days without mandatory valid consent from TNPCB, and for 10 years, 2 months and 15 days without valid hazardous waste management authorisation. Taking into account the chain of events that led to the closure of the plant, the Bench noted that Sterlite Copper had been a chronic defaulter, which had taken advantage of the slackness of the TNPCB. Multiple arguments were considered by the court and several violations were listed to justify the closure of the plant.
Amongst the reasons listed by the TNPCB for closure of the plant on May 24, 2018 was failure to remove copper slag stored along the river Uppar and not constructing a physical barrier between the river and the slag. Sterlite argued that the slag has been classified as non-hazardous but the court pointed out that anything in abundance could be dangerous.
"We have noted that laboratory tests and opinions are rendered on idealistic situations and not in cases where several lakh tons of copper slag have been indiscriminately dumped, left to lie open to the fury of nature for nearly a decade. Therefore, there is definitely a scientific uncertainty on the effect of the copper slag," stated the court.
"We have no hesitation to hold that the respondent-State and the Regulator would be well justified in invoking the â€˜Precautionary Principleâ€™ bearing in mind the aspect of sustainable development. In fact, in the 2013 judgment of the Supreme Court, the petitioner has been held to be a polluter, and applying the â€˜Polluter Pays Principleâ€™, a sum of Rs 100 crores was directed to be paid. Therefore, the Doctrine of Sustainable Development, Precautionary Principle and the Polluter Pays Principle needs to be applied to the case on hand. If applied, facts speak for themselves, the petitioner needs to be closed and permanently sealed," noted the Bench.
Chimney height leading to air pollution
Sterlite Copper was accused of operating with chimney stacks far shorter than what was legally required. A low stack does not allow pollutants such as sulphur dioxide to disperse properly. This would then lead to unsafe levels of chemicals in the air, making it harmful for residents.
The court agreed to this allegation and stated that, "As regards the stack height, TNPCB, in no uncertain terms, states that the same is not in accordance with the MoEF (Ministry of Environment and Forests) norms. The MoEF lays down norms and standards by way of notifications and instructions and the PCB, being the delegated authority, is bound to implement the same."
The court also noted that the air quality monitoring systems around the plant cannot be used as a means of deducing pollution as it stood static in large intervals. It further questioned why the TNPCB did not correct this.
Arsenic in groundwater
The bench noted that the National Environmental Engineering Research Institute (NEERI) in 2005, had specifically mentioned that the ground water tested near the plant did not meet the drinking water standard stipulated by the TNPCB. Moreover the presence of arsenic above the stipulated limit and high levels of cadmium, chromium, copper and lead were also found in some drinking water wells.
"It has been clearly pointed out that water in the wells are unfit for drinking. High levels of heavy metals have been found, and the concentration of Total Dissolved Solids (TDS) and sulphates exceeds the limits stipulated by TNPCB. The occurrence of heavy metals in the soil was attributed, fugitive emission and solid waste dumped etc.," the court stated, adding, "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."
The court pointed out at multiple junctures that the TNPCB had failed in its role as a regulator. But this was not reason enough for the plant to function without a license. The court accepted the TNPCB's argument that increase in the levels of TDS, chloride, sulphate and total hardness are all attributable to Sterlite's operation and therefore the order of closure cannot be stated to be on account of speculation.
After analysing the letter submitted by Sterlite Copper for an environmental clearance to the MoEF, the court noted that the petitioner failed to disclose the actual extent of land held by them while applying for grant of clearance for the proposed expansion.
"Furthermore, their application for post facto clearance dated January 2, 2007 itself has to be held to be not maintainable, because the post facto clearance itself sought for an environmental clearance and there can be no such post facto decision being taken in environmental matters," stated the court.
'Knee jerk reaction'
Amongst Sterlite's arguments was that its closure was a knee jerk reaction to protests that marked the 100th day of agitation against the polluting plant. The court however dismissed this claim and stated that since its establishment, the industry was marred with protests.
"We have elaborately noted the factual position and the challenge to the very establishment of the industry commenced in the year 1996, much prior to the industry starting commercial production. Ever since then, apart from local protests and agitations, which were in a small way, much of the time was spent in courts either at the instance of the public interest litigations or at the instance of the petitioner," the order stated. "Therefore, we cannot accept the stand taken by the petitioner that the impugned orders are knee-jerk reactions, especially the order of closure. The public cannot be shut out. Amendment Act 47 of 1981 has emphasised the role of the public and recognised public participation," it added.
In its concluding statement, the court even tackled the petitioner's allegations that the closure of the unit was for political reasons.
"If the petitioner makes a statement that the order of closure is for political consideration, then it needs to be examined as to how the petitioner was able to secure an approval from the state government in 14 days for establishing this hazardous industry in Thoothukudi when they were unable to do so in two other states in India. In fact, the Division Bench while ordering closure had commented upon the fast track procedure," noted the Bench.
The court further noted how Section 144 of the CrPC was brought into force in Thoothukudi district in May to protect the Sterlite Copper unit, when this was usually only used to shield public and public properties.
"This appears to be unprecedented. Therefore, if according to the petitioner, the order of closure is for political consideration, then it goes without saying that the order granting permission to establish the unit twenty years ago is also for political considerations," the court added.