NGT Committee Finds Sterlite Violated Laws but Pleads for Leniency

Even though there is no dispute that an offence has occurred, the committee believes that the violation of the principles of natural justice is sufficient grounds to absolve Sterlite of its crimes.

Contrary to various media reports, the Tarun Agarwal Committee report actually confirms the allegations the Tamil Nadu Pollution Control Board (TNPCB) and public interveners had levelled against Sterlite Copper.

The Wire has obtained a copy of the report. It explicitly finds the company guilty of violating statutory conditions on several counts. These findings don’t only contradict news reports that suggested Sterlite had been given a clean chit. They also differ from the recommendations the committee made in conclusion.

In fact, the committee has agreed with many of the TNPCB’s allegations, including illegal operation by Vedanta, the group that manages Sterlite Copper. However, the committee has asked for leniency when dealing with them. It also says the TNPCB violated the principles of natural justice and calls for reopening the factory.

This is curious. It suggests that even if there is no dispute that an offence has occurred, the committee believes that the violation of the principles of natural justice is sufficient grounds to absolve the accused of the crime!

Further, the violations – under the Air Act, Water Act and Hazardous Waste Rules – contain no caveats for lenient treatment of violators.

The irony deepens when considering the victims’ plight. These victims include the people of Tuticorin affected by the unlicensed and substandard operation of a polluting industry. In this instance, the only parties representing the people of Thoothukudi – the interveners – have been denied an independent legal status by the National Green Tribunal (NGT).

Their request for a copy of the Agarwal Committee’s report was also turned down, and they were directed to assist the state counsel without official access to it.

Rejection of consent to operate

The appeal filed by Vedanta Ltd. assails the TNPCB’s order dated April 9, 2018, rejecting the company’s request for renewal of an operating license under the Air and Water Acts. The latter require the TNPCB to deny a license if the company fails to comply with conditions detailed in the Acts.

The April 9 order is based on five alleged violations of license or consent conditions by the company (quoted verbatim, lightly edited for clarity):

Groundwater analysis report taken from borewells within the unit premises as well as surrounding areas have not been furnished to ascertain the impact on groundwater quality.
The unit has not removed the copper slag dumped/stored along the river Uppar and patta land, thereby obstructing the flow. It has also not constructed any physical barrier between river Uppar and slag land fill area of patta land so as to prevent slag from reaching the river.
Authorisation issued to the unit on July 10, 2008, got expired on July 9, 2013, but the unit continued to generate and dispose hazardous waste without valid authorisation under Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016. The application submitted by the unit was returned for want of additional details and the unit had not resubmitted the same.
As per renewal condition, the unit should have analysed the parameters of heavy metals such as arsenic in the ambient air through the board’s laboratory as done for the other parameters such as NOx, PM 10 and SO2. As the board laboratory does not have this facility, the unit should have engaged the services of MoEF&CC/NABL accredited laboratories and furnished the report to the board. The unit has not complied with the same and as such there is no authenticated reporting on the presence of arsenic in the ambient air.
During the inspection on February 22, 2018, the unit was directed to construct a gypsum pond as per CPCB guidelines. But the unit had not complied till March 31, 2018.
The committee has confirmed that Sterlite committed three of these alleged violations. The committee also found Sterlite had failed to maintain an adequate greenbelt and operated with a lower-than-required chimney stack.

We quote directly from the report to highlight Sterlite’s violations.

Allegation 1: Sterlite failed to submit independent monthly reports to the TNPCB analysing heavy-metal content in water samples.

Para 100 of the committee report: “… responsibility has been given to the TNPCB as well as to appellant to monitor groundwater quality independently. As per condition number 44, the appellant is required to analyse the groundwater quality on their own once a month and furnish the report to the TNPCB periodically. This apparently has not been done by the company.”

Allegation 2: Sterlite failed to remove copper slag from the banks of the Uppar river despite several reminders. As a result, the river’s flow has become obstructed.

Para 117: “In this regard, the committee inspected the spot and found that 3.5 lakh metric tonnes of copper slag has been dumped over the alleged patta land…”

Para 119: “The appellant company could not have sold slag more than what was required to fill up the low-lying area. The quantity sold in excess was wholly inappropriate. The contention of the appellant that it is not their responsibility to remove the copper slag is erroneous. The committee is of the opinion that the retaining wall so constructed was inadequate and in any case copper slag could not have been dumped next to the Uppar river. It is the responsibility of the appellant company to ensure that the copper slag is put to beneficial use and is not dumped haphazardly.”

Para 120: “The filling of low-lying area means that the low-lying area has to be filled upto the ground level. In the instant case, raising the height of the land upto the level of a four-lane highway is not permissible and is not the intention as per the consent orders to fill up the low-lying area. Low-lying area means the area below the ground level…

“The committee finds that the copper slag should not have been dumped next to the river side and therefore, is required to be removed completely. Further, the slag is of fine granular material, finer than sand, and tends to blow into the atmosphere whenever there is a strong wind blowing…

“However, closure of the factory on this ground itself seems to be harsh even though show-cause notices dated March 14, 2017, and dated September 11, 2017 … were issued by the TNPCB.”

Para 124: “The contention of the appellant company, that no permission was required to be taken from the TNPCB for disposal of the copper slag, is patently erroneous. In this regard, the committee finds that the consent order dated October 5, 2012, … specifically stipulates in condition no. 10 that the company would take approval from the concerned agency for disposal of the slag.”

Para 126: “This fact has not been denied by the company and a feeble argument was raised that the copper slag was sold to private parties for land fill, but such claim has not been backed by any evidence. Apparently, the company has dumped the copper slag blatantly in violation of the consent orders.”

Allegation 3: Since the company’s license to handle hazardous wastes expired in 2013, the company was generating and disposing hazardous wastes illegally without proper … authorisation under the Hazardous Waste Rules.

Para 129: “One gets an uncanny feeling that neither the appellant was interested in having the authorisation under the Rules of 2016 nor was the TNPCB keen to either issue the authorisation letter or to reject the application. Further, the committee finds it strange to note that whereas lot of noise has been raised by the TNPCB that the company has continued to dispose of hazardous waste for more than 58 months without taking a valid authorisation under the relevant Rules, … the board continued to give consent to the appellant to operate the unit. In the opinion of the committee, it is not open to the TNPCB to blow hot and cold at the same time…

“The committee is of the opinion that in the current scenario both the appellants and the pollution board are responsible equally for keeping the application pending…

“In this regard, the committee is of the opinion that under the consent orders it is one of the mandatory conditions that the company is required to dispose of the waste as per the Rules of 2016.”

Additional grounds

The public interveners and the TNPCB made several other allegations during the committee’s hearings in Chennai. They included fraudulent claims relating to available land, an inadequate greenbelt and low chimney stacks. While the committee didn’t arrive at conclusions about the available land, it did vis-à-vis the other two complaints.

Allegation 4: Violation of the greenbelt condition

Para 160: “At the time of physical inspection of the unit, the committee noticed that there was hardly any greenery inside the factory premises and that it was a concrete jungle except the area between main gate and the administrative section where a garden with palm trees was developed.

“The company may have developed a green area in its township, but that cannot be included the cover the green belt inside the factory premises. The condition that the company is required to develop 25 m width of green belt around the battery limits of the factory has not been adhered to by the company.”

Allegation 5: Sterlite’s chimney stack is not high enough, leading to ineffective dispersion of air pollutants.

Para 178: “Thus, according to the opinion of the committee based on load-basis standards at 2.0…, the stack height would be 83.51 m. If load-basis standards at 1.0 is applied, then the stack height would be 67.83 m, whereas the present stack is 60.38 m [high], i.e. below prescribed limits.”

Para 179: “The reason for evaluating the height of the stack becomes necessary in light of the continuous complaints being made by the interveners, by the TNPCB and by the residents of Tuticorin, alleging eye irritation, skin disorder, throat suffocation, asthma, etc. If the stack height is increased, SO2 and other gases will get diluted in the atmosphere and will not affect the inhabitants of Tuticorin, nor would such noxious gases affect the livestock.”