M/s Sterlite Industries (India) Ltd. Vs Tamil Nadu Pollution Control Board and Ors

Judicial and Expert Members: Mr. Justice Swatanter Kumar, Dr. D.K. Agrawal, Dr. G.K. Pandey, Dr. R.C.Trivedi.

Keywords: Pollution, Precautionary Principle, Copper, Industry, SO2, Smelting, Calibration checks, Punitive Action, Sterlite Industries.

Application is allowed partly with certain conditions.

Dated: 8th August, 2013

Vide order dated 29th March, 2013, the Tamil Nadu Pollution Control Board (the Respondent Board), in exercise of its powers under Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981, directed closure of M/s. Sterlite Industries (India) Ltd. (appellant-company) with immediate effect. On that very day, it also, by a separate communication, again in exercise of its powers under Section 31-A of the Air Act, directed the Superintending Engineer, Tamil Nadu Electricity Board, Thoothukudi, to disconnect the electricity supply to the appellant company. The correctness and legality of this order have been challenged by the appellant-company, primarily on the ground that it is arbitrary and discriminatory.

The appellant-company is engaged in the manufacture of copper cathodes and copper rods. These are manufactured by a process – smelting copper concentrate – This is the main raw material. In the process there is a certain amount of SO2 that is released. This is usually regulated by an analyser supported by software which has also been recommended by the Respondent-Board as a tamper proof system. It is the case of the Appellant Company that in order to keep a check on the emissions, Calibration checks are undertaken.

The Appellant Company was taking all precautions and directions that were recommended by NEERI (The National Environmental Engineering Research Institute) and therefore according to the appellant-company, its plant was running without any violations and with the approval and sanction of the competent authorities.
On 23rd March, 2013, the appellant was informed that there have been cases of eye irritation and throat suffocation amongst the people of Thoothukudi.

On inspection, the calibration process was again carried out. The observed values during such requested calibration were within the normal range and it was assessed that the analyser was working normally and that the emission levels were within the prescribed norms. In effect, they were given a clean chit by the DEE (District Environmental Engineer).

On 24th of March, 2013 the appellant company got a notice where it was alleged that the appellant-company had contravened the provisions of Section 21 of the Air Act while referring to eye irritation and throat suffocation complaints received from various residents. It was also stated that SO2 trend graph of ambient air quality indicated that the value shot up suddenly from 20 μg/m3 to 62 μg/m3 and that the SO2 emission monitor was not connected with the CARE Air Centre of Respondent Board. They got a show cause notice of 3 days.

In a Special Leave Petition filed in the Supreme Court, after taking into consideration various facets, more importantly the possible pollution resulting from carrying on of its manufacturing activities, while permitting it to carry on its commercial and manufacturing activities, directed the appellant-company to pay a compensation of Rs.100 crores for having polluted the environment in the vicinity of the plant.

The very material finding that has been returned by the Supreme Court in the judgment of 2nd April, 2013 is that subject to deposit of Rs.100 crores, the appellant-company has been permitted to continue its manufacturing activities. This dictum of the Supreme Court would have to be given due weightage by the Tribunal while determining the controversy in the case within the limited jurisdiction carved out by the judgment itself.

The plant of the appellants contributes substantially to the copper production in India and copper is used in defence, electricity, automobile, construction and infrastructure etc. The plant of the appellants has about 1300 employees and it also provides employment to large number of people through contractors.
The Tribunal held that environmental restrictions must operate with all their rigour but no action should be suspicion-based which itself is not well-founded. It was stated that all cases related to environment law are to be decided in accordance of the three principles: Sustainable Development, The Precautionary Principle and The Polluter Pays Principle.

Precautionary principle should be invoked when the reasonable scientific data suggests that without taking appropriate preventive measures there is a plausible indication of some environmental injury or health hazard. The Tribunal, in exercise of its power of merit-review and being an expert body itself has to examine all aspects of such cases whether they are factual, technical or legal. Having comprehensively examined all these three aspects, The Tribunal passed the following order:

(i) The interim order dated 31st May, 2013 permitted the Appellant Company to carry on its activities in accordance with law is made absolute.
(ii) The recommendations and suggestions made in the report of Special Expert Committee constituted by this Tribunal vide its order dated 31st May, 2013 shall be binding upon the appellant-company. It shall ensure compliance of the directions, recommendations and suggestions as spelt out in that report within a time bound manner and expeditiously and in no case later than eight weeks from the date of pronouncement of this judgment.
(iii) The appellant-company, as per the statement made at the Bar, has agreed to comply with all the directions given by the court, without any hesitation and in a time-bound manner.
(iv) The report of the Special Expert Committee shall be deemed to be an integral part of this order and all its conditions, directions, suggestions and recommendations would mutatis mutandi apply to the appellant-company.
(v) The appellant-company shall place its data of stack and ambient air quality in ‘public domain’, i.e. online dissemination of data.
(vi) The application for renewal of or obtaining consent of the appellant-company is presently pending with the Respondent-Board. The Respondent-Board shall consider and pass appropriate orders in relation to the said application in accordance with law, expeditiously.
(vii) The Tribunal directs the Respondent-Board to take due notice of the report submitted by the Special Expert Committee dated 10th July, 2013 while dealing with the consent application of the appellant company.
(viii) The Special Expert Committee constituted vide order dated 31st May, 2013 by the Tribunal shall supervise and oversee the manufacturing process and industrial activity including pollution related issues of the appellant-company and shall submit a report to the Tribunal as well as to the respondent-Board bimonthly (once in two months.

The Tribunal hereby constitutes a Special Committee of the Secretary (Health), Government of Tamil Nadu, Member Secretary-Pollution Control Board, Tamil Nadu, Director General of Health Services of Tamil Nadu, Respondent No.5-Vaiko and two independent experts, one from the field of environment and the other from public health, to be nominated by the MoEF.

This Committee shall conduct a study and place on record the causes for the health hazards that are resulting in and around the industries and the industrial clusters, like SIPCOT. It will give the reasons why the young ladies in those villages in the State of Tamil Nadu are suffering from termination of pregnancies and why the people are suffering from various ailments like throat and eye irritation and suffocation in breathing. This Committee shall further place on record the recommendations for remedying such environmental injury and health hazards. These recommendations shall be placed before the Tribunal within a period of six months from today.

(ix) The report prepared in relation to health hazards by the Committee constituted under this order shall file the same within the stipulated period whereupon this report shall be placed before the appropriate Bench of the Tribunal for such further directions as may be deemed necessary by the Tribunal.

The application is allowed partly in the above terms. The industry would be permitted to carry on its activity subject to the above directions. No orders as to costs.