Sterlite – here’s the proof: Why construction at the proposed copper smelter is illegal

Sterlite’s proposed factory site falls foul of the law on at least two counts. And there are days old documents to prove this.
Sterlite – here’s the proof: Why construction at the proposed copper smelter is illegal
Sterlite – here’s the proof: Why construction at the proposed copper smelter is illegal

A document hot from the oven – less than a day old – proves that the new 1200 tonne per day copper smelter that is being built by Sterlite in Thoothukudi is illegal. The new document, a showcause notice issued by the Tamil Nadu Pollution Control Board to SIPCOT, exposes the fraudulent nature of the clearances and licenses that Sterlite has from the Union Ministry of Environment & Forests (MoEF) and the Tamil Nadu Pollution Control Board (TNPCB).

The evidence on how Sterlite's proposed factory site falls foul of the law is documented below.

Fraudulent Licenses

It is not enough to have a license. The license has to be lawfully obtained. Anybody who has been to a license issuing authority in India knows that there are many ways to obtain a license. In Sterlite's case – i.e. the case of a new copper smelter which is categorised as a Hazardous Red category large industry – an environment clearance (EC) is required from the MoEF, and a Consent to Establish or license to construct from the TNPCB.

The EC is supposed to be granted under the Environment Impact Assessment (EIA) Notification, 2006, after considering comments received during a public consultation organised specifically about the project. Sterlite received its EC on 01.01.2009.

However, no public hearing was held for the project.

Sterlite knew that its unpopularity in Thoothukudi would prompt local people to turn up in large numbers and prevail against the project if a public hearing were ever held.

So to avoid a public hearing, Sterlite lied and got the MoEF, SIPCOT and TNPCB to support its lie. The EIA Notification exempts projects coming up within notified Industrial Estates or parks from having to go through a public consultation. SIPCOT has only one notified Industrial Estate in Thoothukudi, namely the SIPCOT Industrial Complex which was set up in 1985 over 1038 acres.

Sterlite claimed that its new project site fell within the existing notified SIPCOT Industrial Complex. In fact, it does this even in its most recent application to the MoEF dated 14.2.2018 seeking fresh environmental clearance, as the 2009 EC is set to expire in December 2018.

Sterlite's project site is not located inside the notified Industrial Estate. It is located on 324 acres of land acquired as part of SIPCOT's Phase II plans involving the acquisition of 1616 ha of land as per a G.O. No 233 (Industries) of 1996.

The land that Sterlite is currently building on is not within any notified or approved Industrial Estate. It was only in 2014 that SIPCOT applied for permission to develop the 1616 acres as a Tuticorin Industrial Park.

Nowhere in its application did SIPCOT reveal that Sterlite had already been allotted land for a copper smelter within the proposed park. Doing that would have exposed as a lie Sterlite's claim about the proposed location of the new smelter.

The lie most likely harmed the case filed by Thoothukudi resident V Pushparayan challenging Sterlite's EC on grounds that Sterlite had availed the public hearing exemption misrepresenting facts about the location of its proposed smelter. Pushparayan's petition was dismissed in April 2016 after SIPCOT, MoEF and TNPCB repeated Sterlite's false claim.

In its order dismissing the petition, the Madras High Court said: “In view of the consistent stand taken by all the respondents including the 5th Respondent SIPCOT that the 4th Respondent [Sterlite] is situated within the SIPCOT complex, we have no difficulty in holding that exemption from public consultation would certainly apply.”

A report released on March 28, 2018 by the Chennai Solidarity Group and written by this author documented the illegality, and visually demonstrated how the proposed factory site fell outside the existing SIPCOT Industrial Complex.

Read the full report here.

On April 2, 2018, a day before this report was written, TNPCB issued a notice to the SIPCOT Project Officer, Thoothukudi, threatening prosecution under Air and Water Act for the unlicensed work inside the site earmarked for the Tuticorin Industrial Park (TIP), also known as SIPCOT Industrial Park Phase II. TIP has not yet obtained EC, leave alone a license from the TNPCB, and Sterlite's work inside the area earmarked for the park is also illegal.

The two separate showcause notices are issued under Air (Prevention and Control of) Pollution Act, 1981, as amended upto 1988 and Water (Prevention and Control of) Pollution Act, 1974, as amended upto 1988. It gives them 15 days to respond.

Under both acts, the company has been asked to explain why prosecution proceedings must not be initiated against it for commencing unlicensed work in the SIPCOT Industrial Park, Phase II. SIPCOT is warned that such unlicensed work is a prosecutable offence, under Section 44 and 45(A) of Water Act with prison sentence ranging from 1.5 years to 6 years, and under Section 21 and 37 for 1.5 years to 6 years.

At the time of writing, TNPCB had not yet taken the chief offender – namely Sterlite – to task.

Masterplanning a disaster

Town and Country Planning regulations require hazardous industries to be located only within areas designated as “Special and Hazardous Industries” in the land-use plan adopted by local planning authorities.

However, the plot for the proposed Sterlite copper smelter complex is coming up in an area designated as “Dry Agriculture” in the existing approved Village Area Masterplan for Thoothukudi district. In fact, the the plot is located in close proximity to residential areas shown in the Masterplan.

The 1984 Bhopal Gas leak disaster taught us the dangers of locating a hazardous industry next to a residential area; this is not permitted under town planning regulations. Reclassification of a “Dry Agriculture” zone to a “Special and Hazardous Industry” zone involves a long process to ensure adequate setbacks from vulnerable locations (like residential areas), and public consultation. So rather than undertake that cumbersome process, the District Administration – which is the authority to enforce the masterplan – seems content to expose the local communities to the risks of living next to a dangerous facility.

Nityanand is a Chennai-based writer and social activist who has been associated with the campaign against Sterlite's pollution for more than 15 years.

Views expressed are the author’s own.

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