On April 9, 2018, the Tamil Nadu Pollution Control Board issued an order rejecting Sterlite's application to renew the license to operate its copper smelter in Thoothukudi. On May 23, it followed up with a closure order directing disconnection of electricity. On May 28, a Government Order endorsed the closure and sealing of the plant altogether. All three orders were knee jerk responses to political pressure arising out of public protests in the first instance, and the civilian deaths at the hands of Tamil Nadu police in the second and third.
This is the first time the TNPCB has responded positively to public concern and pressure. That is welcome. However, the quality of TNPCB's response is insincere. The fact that it took 200,000 people on the streets and 13 lives to get the Board to respond to a long-standing demand exposes how hard it is to get it to do its job.
After dragging its feet, ignoring protestors and making feeble excuses to avoid shutting Sterlite down, the Government of Tamil Nadu has belatedly stated its intent to shut the company down. It has pointed to TNPCB's order of May 23, 2018 directing the disconnection of Sterlite's electricity as proof of its commitment.
But a reading of the two orders – the one rejecting license renewal and the other disconnecting electricity – conveys that the Government is either being led up the garden path by TNPCB or is trying to make a big fool of Thoothukudi residents.
Both orders are pathetically weak, poorly argued, legally fraught and fail to highlight the gross illegalities in Sterlite's operations. TNPCB's act of underplaying Sterlite's illegality is akin to the police registering a weak FIR or filing a inherently flawed charge sheet in a criminal case. It allows the accused to seek and obtain relief on appeal. TNPCB's current orders cannot be sustained on legal appeal.
TNPCB has chosen to leave aside significant and substantial violations and issues of fraud. That is because Board officials, including the entire technocracy and bureaucracy, are party to exempting Sterlite from the laws of the land.
If one were to take a charitable view of the matter, one could say that the Government of Tamil Nadu has been and is being misled by the TNPCB. If the Government wishes to underscore the sincerity of its announcement to shut Sterlite down, it first has to shut itself of TNPCB's advice.
TNPCB's order rejecting the license renewal states the following reasons:
Sterlite's failure to submit air and water pollution monitoring data; the lack of hazardous waste authorisation; the failure to remove industrial waste dumped on a river bank, and the failure to re-design its gypsum storage facility.
All these are easily remedied. However, even if they are, that will not take care of certain inherent illegalities, non-compliances and intentional under-design that prevent the factory from operating lawfully or without causing harm to the public.
It is not too late for the Government of Tamil Nadu to repair its image and the situation. For that, it needs to ensure that those in TNPCB who are responsible for this sorry situation are punished, and that TNPCB is directed to submit a revised order incorporating the following substantial violations.
1. Masterplan Violation
Complaints from local residents about air and water pollution have to be seen in light of the fact that the Sterlite factory – an ultra Red, Large Hazardous unit – is located in violation of the Thoothukudi masterplan and the Town and Country Planning Act in close proximity to densely populated residential areas. According to prevailing Town and Country Planning Rules, hazardous industries can only be located in areas specially designated as “Special Industries and Hazardous Use” Zones.
The lands that Sterlite is located on are not designated for Hazardous Industries. Sterlite's location is in violation of the Approved Masterplan of Thoothukudi.
2. Land Fraud
On November 2, 2006, TNPCB issued Consent to Establish under Air and Water Acts for Sterlite to expand from 900 tonnes/day (tpd) of copper production to 1200 tpd based on the company's representation that it has adequate land to accommodate the environmental protection infrastructure for expansion. The company had fraudulently claimed that it already had 102.5 hectares (ha) of land, and would get an additional 69 ha to accommodate the pollution control measures such as an additional 1.5 ha for air pollution control and ETP; additional 65 ha for solid waste storage; additional 17 ha for greenbelt.
The Environment Clearance issued by Ministry of Environment & Forests on 09.08.2007 states that: “Total project area is 172.17 ha and no additional land will be required for the expansion project.”
The company does not have 172.17 ha. Sterlite Copper smelter Phase I is located on 102.5 ha. In other words, the company has compromised on the environmental protection infrastructure and established a factory that requires at least 172.17 ha in a much smaller land area.
3. No Greenbelt
Properly designed greenbelts – of scientifically determined width, with appropriate species of varying heights and foliage types -- can be effective in attenuating ground level pollution, and protecting nearby communities. Greenbelts are to be designed as per guidelines prescribed by the Central Pollution Control Board.
Additionally, the Environmental Guidelines for Industries, issued by the Ministry of Environment and Forests states under Siting Criteria as follows:
Land acquired shall be sufficiently large to provide space for appropriate treatment of waste water still left for treatment after maximum possible reuse and recycle. The green belt shall be 1/2 km wide around the battery limit of the industry. For industry having odour problem it shall be a kilometer wide.
The green belt between two adjoining large scale industries shall be one kilometer.
In Sterlite's case, TNPCB arbitrarily prescribed a minimum greenbelt width of 25 metres around the factory perimeter in 1995. Today, 23 years later, Sterlite's production has expanded tenfold. The greenbelt requirement has remained unchanged, and even that woefully inadequate 25 metre condition remains to be complied with till date.
4. Health Monitoring
The people of Thoothukudi have been complaining of health effects, respiratory distress, cancers, erratic menstrual cycles, weak bones and body ache.
Through various license conditions and directions issued under the Air Act, the unit was required to carry out health monitoring of the people living in the nearby villages at least once every six months. The company has failed to conduct the legally required health monitoring, and refused to gather data on the health effects of its operations. Instead, it is using this absence of data as evidence of absence of health effects.
5. Chimney Stacks of Inadequate Height
Chimney stacks are a key feature designed to mitigate air pollution. Under-designed stacks impede effective dispersion of air pollutants like Sulphur Dioxide. This will lead to an increase ground level concentration of the pollutants in areas in the vicinity.
The minimum height of chimney stacks for copper smelters are prescribed in law by a formula. In 1996, the factory – with production capacity of 40,000 tpd – was required to have a smelter stack of minimum 70 metres height. But TNPCB permitted it to operate with a 60 metre stack.
Between 1996 and 2006, production capacity increased ten-fold – from 40,000 tpd to 400,000 tpd. However, the chimney stack attached to the smelter has remained at 60 metres against a legally required minimum of 123 metres.
6. TNPCB data confirms water pollution
On March 28, 2018, TNPCB took 15 groundwater samples – 7 from inside the factory; 8 from outside the factory. All 15 samples were heavily contaminated. Groundwater from villages around the factory – including Pandarampatti, Kumareddiapuram, Therku Veerapandiapuram, Silverpuram and Meelavittan – had dangerously high levels of lead.
Lead affects the brain development of children, and is known to harm the Central Nervous System and kidneys.
Sterlite has also submitted TNPCB's own groundwater monitoring data for 2016 and 2017 to defend itself in the Appellate Authority where the company's appeal of TNPCB's rejection of license renewal is being heard. The submitted data presents the “maximum” levels of various parameters found each year in the ground water from 16 locations inside and outside the factory. This data too confirms contamination of groundwater with chemicals such as sulphates, calcium, fluoride and iron.
Levels of Total Dissolved Solids are in violation of acceptable standards in all 32 results; 31 results are in violation of permissible levels.
Sulphate levels are in violation of acceptable standards in all 32 results; 30 results are in violation of the more relaxed permissible levels.
Fluoride levels are in violation of acceptable standards in 30 results; 6 results are above the permissible levels.
Calcium levels are in violation of acceptable standards in all 32 results; 31 results are above the permissible levels.
Magnesium levels are in violation of acceptable standards in all 32 results; 31 results are above the permissible levels.
Iron levels are in violation of acceptable and permissible standards in 28 out of 32 results. Only four results were within acceptable levels.
[Note: Permissible levels are levels beyond which harm to health is known occur. Acceptable levels are levels below which harm to health is not known to occur.]
Holding Sterlite accountable is the easier job. The real challenge is to repair and reform the Tamil Nadu Pollution Control Board which is responsible for the environmental nightmares not just in Thoothukudi, but also in Mettur, Ennore, Kodaikanal, Cuddalore and Cauvery Delta. That is not possible unless we reclaim our democracy from the hands of the corporate sector.
Nityanand is a Chennai-based writer and social activist who has been part of the campaign to shut-down Sterlite since 2003. Views expressed are his own.