Supreme Court Deals Double Blow to Vedanta Copper Smelter, Upbraids NGT as Well

The move is a welcome one for the people of Thoothukudi because it forces Vedanta to defend itself against the 2013 and 2018 closure orders in the Madras high court, which is closer home.

The UK-based Vedanta Resources suffered a double setback on February 18, 2019.

First, the Supreme Court set aside the the National Green Tribunal’s (NGT’s) judgement nullifying the orders of the Tamil Nadu Pollution Control Board (TNPCB) and the Government of Tamil Nadu shutting down its controversial Sterlite copper smelter in Thoothukudi.

Second, the same court also revived a 2013 TNPCB order shutting down the Sterlite smelter following a poisonous gas leak, by quashing the NGT order exonerating Sterlite.

In both instances, the apex court ruled that the NGT’s orders were “passed without jurisdiction.” The court also rejected Sterlite’s attempts “to bring the NGT in by backdoor”, holding that the appellate authority of the TNPCB, or the Madras high court, was the appropriate place for an appeal.

The home advantage

Sharply demarcating the NGT’s jurisdiction as one that falls strictly within what is defined in the National Green Tribunal Act, 2010, the Supreme Court ruled that the NGT did not enjoy the powers of judicial review needed to correct government orders. It also ruled that the NGT ought to have been the court of second appeal after exhausting the legally provided remedy of first appeal at the appellate authority.

Vedanta had originally approached the appellate authority challenging the TNPCB’s April 9 order rejecting its application for renewal of consent. However, after the Tamil Nadu government’s May 22 order of permanent closure, the NGT challenged both the April 9 order and the state government’s order in the NGT even before the appellate authority could pass an order on the matter.

“[Such] leapfrog appeals to the NGT would necessarily be without jurisdiction,” the court order read.

The legal basis for the order on maintainability and the limits to the NGT’s jurisdiction are explained well here.

Also read: NGT Committee Finds Sterlite Violated Laws but Pleads for Leniency

As much as the order is a setback for Vedanta, it is also a slap in the face of the NGT. Many of its members have drawn criticism for behaving in an arbitrary and biased manner, particularly in treating citizen complaints against polluters.

The Supreme Court clarified that its order does not deal with the merits of the two cases, and leaves that to the Madras High Court if and when Vedanta chooses to bring up an appeal there.

That is ironic. Vedanta had decided to bypass Tamil Nadu courts in favour of the NGT in distant New Delhi. But it will now have to defend itself in the Madras high court against the closure orders of 2013 and 2018.

For the residents of Thoothukudi, however, this is a welcome move. The high court is closer home, more accessible and less expensive to intervene in.

What next?

Vedanta has two hurdles to cross: the 2013 closure order and the set of orders from 2018 starting with the TNPCB’s April 2018 order rejecting Sterlite’s application for renewal of Consent to operate, culminating in the Government of Tamil Nadu order permanently shutting the smelter down. Both orders will have to be challenged by moving the high court with a batch of writ petitions.

On the morning of March 23, 2013, people from various parts of Thoothukudi town experienced similar symptoms: coughing, burning sensation in eyes, nose and throat, difficulty breathing and a suffocating feeling. These symptoms perfectly match those triggered by exposure to sulphur dioxide.

Copper smelters are a known source of sulphur dioxide. According to the US Government’s Agency for Toxic Substances and Disease Registry, sulphur dioxide severely irritates the eyes, mucous membranes, skin and respiratory tract. Exposure to even low concentrations can aggravate chronic respiratory diseases like asthma.

The circumstantial evidence points convincingly to Sterlite as the source of the toxic gas. Per the prevailing wind direction at the time, Sterlite was the only large emitter of sulphur dioxide located upwind of Thoothukudi – around 6 km northwest of the town’s centre. And winds were blowing from west-northwest to east-southeast at the time.

Together with the wind speed (1.22 km/hour) and the time of onset of symptoms among residents (~7 am), the gas leak would have had to have happened at around 2:30 am.

The needle of suspicion turns more conclusively towards Sterlite when one looks at the emission data from Sterlite’s sulphuric acid plant. On the same day – March 23 – the sulphur dioxide levels in Sterlite’s sulphuric acid plant 1 chimney exceeded the permissible 477 parts per million (ppm). They touched the maximum measurable amount of 1,123 ppm for nearly 3 hours, including between 2:15 am and 2:45 am, according to data recorded at the TNPCB.

The company claims to have been calibrating the pollution monitor at the time of the leak, and that the readings should not be taken as a true representation of the actual emission during operation of the smelter.

The 2018 debacle

Vedanta’s troubles reared their heads once more when, on April 9, 2018, the TNPCB rejected Vedanta’s application for renewal of consent to operate (CTO), citing the unit’s violations of five license conditions. Licenses and CTOs are issued conditionally under the Air and Water Acts, and renewal is subject to compliance with all statutory conditions.

The rejection came at a time of massive unrest among Thoothukudi’s residents on account of pollution from the copper smelter – and plans by Vedanta to double the production at the current site by installing a new smelter. The residents wanted the Government of Tamil Nadu to cancel plans for the new smelter and follow up on the TNPCB’s rejection with an order for total and permanent closure of the factory.

Also read: Meet Tamil Nadu’s Eight-Lane Expressway to Environmental Hell

The residents alleged that the plant was a source of toxic air pollution, and had polluted groundwater and harmed the health of local people and livestock. They pointed out that acting in collusion with the TNPCB, the company had obtained permissions based on fraudulent claims and that the smelter was grossly under-designed on numerous counts.

On 22 May, 2018, thousands of people took to the streets to petition the district collector when the police opened fire, killing 14 people including a young girl.

On May 28, citing its constitutional obligations to protect the environment, the Government of Tamil Nadu directed the TNPCB to “seal the unit and close the plant permanently”.

Evidence of wrongdoing

Evidence of Vedanta’s legal infractions are now available in the public domain. Since April 2018, organisations such as the Anti-Sterlite People’s Movement have pointed out that the company had only 102 hectares of land, versus the 172 hectares it claimed to possess. This meant it did not have adequate land to store solid waste or develop a greenbelt.

Faced with a space crunch, between 2011 and 2013, the company illegally disposed of nearly 30 lakh tonnes of copper slag – a solid waste rich in arsenic, lead and other toxic metals – according to figures submitted by the company to the NGT.

Legally, the company is required to develop a greenbelt 25 metres wide around the factory, covering a total area of 43 hectares, to mitigate air and noise pollution from the smelter. But the greenbelt doesn’t exist, and a committee appointed by the NGT inspected the plant and reported that it resembled a “concrete jungle”.

Smoke stacks, or chimneys of adequate height, are important to effectively disperse air pollutants. As per Government of India regulations, Sterlite’s 1,200-tonne-per-day copper smelter would require stacks 85 metres tall. However, working with a pliant regulator, Sterlite has managed to get by with a 60 metre high stack.

A shorter stack means that on still, cool nights, ground-level pollution could reach dangerous highs.

Further, between 2013 and 2018, the company operated without a valid license to generate and dispose of hazardous wastes. In this time, the company illegally disposed of tens of thousands of tonnes of toxic waste, including arsenic.

The Hazardous Waste Rules mandate a system of paperwork to ensure that toxic wastes are traceable from the point of generation to disposal. However, just in 2016, more than 15,000 tonnes of arsenic-bearing scrubber cake disappeared without a trace or any paperwork.

Evidence of pollution

Vedanta has argued that there is no evidence of pollution. However, the TNPCB has presented monthly monitoring data gathered over 20 years to demonstrate that groundwater quality inside and outside the factory has degraded considerably over the years. Vedanta claims that the pollutants could have come from other industrial sources.

However, that would not explain the contaminants in groundwater inside the factory premises, in piezometric borewells specifically designed to detect migration of pollutants from the factory’s waste dumps.

Countering the allegations of air pollution, Vedanta has said that the continuous ambient air quality monitors it operates do not reveal any pollution.

Also read: Some Questions About Justice Goel’s Tenure at the NGT

However, this author analysed one year’s air quality data (2017-2018) obtained through RTI applications with the TNPCB. None of the air quality monitoring stations maintained by Vedanta comply with the law. In 2005, the TNPCB directed Vedanta to replace all 13 manual air quality monitoring stations with continuous 24-hour air quality monitoring units.

The board also directed Vedanta to report levels of sulphur dioxide, oxides of nitrogen, suspended particulate matter and fluorine.

As of this day, only eight out of 13 air quality monitoring units maintained by Vedanta are continuous monitors. None of the units report fluorine levels – a toxic gas emitted by Vedanta’s phosphoric acid plant. Fluorine damages teeth, bones and the skeletal system, and can deform children’s bones.

The analysis also revealed that the monitors reported unreliable readings for significant periods of time during the year, compromising the integrity of the data.

Strange bedfellows

The current situation is unprecedented, however. In the two controversial and protest-ridden decades of Sterlite’s operation in Thoothukudi, the citizens have never enjoyed the support of the TNPCB or the state government.

In fact, in earlier instances in the high court and Supreme Court, citizen intervenors had to contend with Vedanta’s lawyers, the might of the TNPCB and a state defending the company’s agenda.

So now, citizens are confused. They are faced with the abnormal situation of a state and the TNPCB intent on upholding the law and fighting alongside the public against a polluter.

“We are not used to having the TNPCB on our side or enforcing the law. This is against the order of things as we know it. That is why we keep wondering what the catch is,” Fatima, a local resident and convenor of the Anti-Sterlite People’s Movement, told The Wire. She has been part of the fight against Sterlite since 1995.

“But if their intent is sincere, then we are happy to cooperate and furnish the volumes of evidence we have gathered about Sterlite’s wrong doings,” she said.

Nityanand Jayaraman is a Chennai-based writer and social activist and has been part the campaign against Vedanta’s pollution in Thoothukudi for more than a decade.