Some gaps in the Sterlite judgment

M. Ramesh | Updated on: Sep 01, 2020
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Madras HC could have mooted remedial steps for the Thoothukudi copper plant, instead of ruling out its reopening

In May 2018, the Tamil Nadu government ordered the smelter of Sterlite Copper, a unit of Vedanta Industries, closed for polluting. On August 18 this year, the Madras High Court rejected the petition of Sterlite praying for an order for re-opening the plant and upheld the closure.

But does this indisputably connect Sterlite with the pollution? ‘There is pollution, so Sterlite is guilty’ seems to be the logic, even though there are 67 other ‘red’ categories industrial units in the Thoothukudi region and no apportionment study has been made despite being ordered by the National Green Tribunal.

Clearly, for such a drastic move as to shut down a unit that has been set up after due clearance and been contributing to the economy and employment, the ‘factum of pollution’ has to be conclusively fastened on to Sterlite.

Second, even if Sterlite is indeed guilty of polluting, are remedial measures not possible?

Surprisingly, the company has been repeatedly called a ‘chronic defaulter’ even as its compliance with fresh rules has been recorded, and where there is non-compliance, there are fair reasons. For instance, in the ‘renewal of consent’ granted by the Tamil Nadu Pollution Control Board (TNPCB, the main opponent of Sterlite in the case) on September 7, 2017, as many as 32 special conditions were imposed. Sterlite has pleaded that many of these are new conditions and, therefore, should not be grounds for closure.

The judges have rejected this stand, citing non-compliances of the past.

Then, an inspection team of the TNPCB gave a report on February 27, 2018, recommending the renewal of consent to operate after imposing 22 conditions under the Water Act and 18 more under the Air Act. The judges said they “have no hesitation to hold that the report needs to be scrapped” because some of the conditions were the same as before and therefore the inspection report was a “mechanically prepared report”.

The premise seems to be that if a condition is imposed a second time, it means that it was not complied with the first time.

In an earlier round of litigations which went right up to the Supreme Court, the apex court held that a Division Bench of the Madras High Court ought not to have “interfered” with the administrative orders of the TNPCB — unless, of course, corruption is proven. (This was in the context of the TNPCB reducing the green belt from 250 meters to 25 meters on the grounds that that was enough to capture the fugitive emissions.) The present judgment does not seem to have considered the Supreme Court’s directive. It finds fault with the TNPCB for accepting assurances of compliance given by Sterlite. Elsewhere, it says, “The Board has failed to disclose as to how the explanation offered by the petitioner (Sterlite) was acceptable.” And, “the inspecting team cannot extend time for compliance or once again recommend the same conditions.”

Oddly enough, the judgment says in several places that Sterlite operates the plant “based on consent granted by TNPCB and they (Sterlite) shall stand or fall by the assessment of TNPCB.” If that were to be so, then there is no basis for any court case at all.

Factum of pollution

Coming to the core issue of pollution, there are three fundamental issues: air, water, accumulation of copper slag and gypsum. There is some substantiation to establish there is pollution in that Thoothukudi area, but nowhere has it been conclusively proven that Sterlite caused it. This is significant because there are 67 other ‘red category’ industries in the area, including thermal power plants of 5,000 MW capacity (some of them decades old). This, in spite of a directive by the National Green Tribunal that an “apportionment study” ought to be done, to see who pollutes and how much.

On air pollution, the judgment finds that the ‘Ambient Air Quality’ monitors that are connected to the TNPCB’s Care Air Center, are not reliable, mainly because their data have remained static for long periods. So, the judges, after pulling up TNPCB, find that the “monitoring mechanism has not been adequate. And therefore, “we can also go to the extent of drawing adverse inference against the petitioner”. Sterlite is a polluter because the air quality data is not reliable — even though the company pleaded that the monitors get stuck because of the software at the Care Air Center.

On groundwater, adequate data is presented that the quality is not up to the mark. But the evidence to tie it to Sterlite is not sufficient or conclusive. Sterlite has cited several reasons: Excessive pumping of sea water for salt making, findings of a hydro-geology report of the National Geo Physical Research Institute that because of the clayey nature of the soil, contaminants do not flow easily underground, data that the marker pollutants at its plant are within permissible limits, and the TNPCB has not shown data on groundwater quality in upstream areas. All these have been summarily rejected. Maybe Sterlite is wrong, but then what is right?

The judgment notes that the groundwater quality has improved, though not enough, after Sterlite was shuttered — but that is only a basis for suspicion, not proof, because there could be other reasons.

Much is made of the mound of copper slag and how it leaches toxic contaminants into the soil and water. There is elaborate discussion about whether the slag is hazardous or not. Sterlite maintains it is not because copper slag is not included in the list given in the Hazardous Waste Management Rules, but the judges preferred to look at the scientific literature in public domain on whether it is hazardous or not and have cited a few to say it is.

However, a quick Google search by this writer threw up lots of scientific material that hold that copper slag is not hazardous. The US EPA rules, for instance, say it is not hazardous. The debate here is far from settled.

Still, it is a fact that the mound exists when it ought not to. Sterlite’s stand is that it has sold the stuff to a private party which has kept it there, 10 km away from the Sterlite plant. The judgment cites the agreement between Sterlite and the private party and says that Sterlite is still responsible for the slag mound. Again, Sterlite disagrees that the slag obstructs flow of a river.

Assuming that Sterlite is completely wrong here, could the TNPCB not have been asked to remove the slag and slap the bill plus a fine on Sterlite.

The case of gypsum is similar — the stuff seems to be lying in the factory premises in lined ponds, but Sterlite is held to be guilty regardless.

Finally, the silence on remedial measures. The judgment talks of the “supine indifference” of Sterlite to obeying rules. This is hard to see because even if Sterlite were to be a poor corporate citizen, would the Vedanta group try to save a little money by cutting corners and risk closing down the whole operation?

Published on September 01, 2020

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