On Tuesday, the Tamil Nadu government welcomed the Madras High Court's verdict ordering Sterlite Copper's unit in Thoothukudi district to remain shut. But even as the state government which ordered the closure saw the judgment as a victory, an 815 page order that was released by the bench held the Tamil Nadu pollution control board (TNPCB) responsible for various violations by Sterlite. The court has observed that the TNPCB had failed to discharge its duties at multiple junctures and allowed the copper smelting unit to operate while blatantly flouting environmental norms.
It was the TNPCB which first cut off power supply to the plant on May 24 following which it shut down the smelter citing the Water and Air (prevention and control of pollution) Acts. But this was, as per the court's observations, too little and too late. The bench's study of documents, and arguments put forth by the petitioner and opposing counsel, blew open a series of grave errors in the manner in which TNPCB had monitored the Sterlite Copper plant.
Expanding on how Sterlite Copper had failed to obtain a valid order of consent to operate for 16 years, the court said, "TNPCB did nothing in the matter, though it was well open to the regulator to inspect and ascertain as to whether the petitioner can be permitted to continue to operate the unit. The regulator failed to discharge their duties diligently bearing in mind the purpose for which it was constituted, nothing prevented the regulator from approaching the Court by way of an appropriate application appraising the facts and the need to monitor the petitioner (Sterlite Copper)."
The court, in its order, has repeatedly referred to the TNPCB's inability to produce reliable records based on monitoring air and water pollution in the area. Data from the board's Care Air Centre between 2015 and 2018 for instance, shows that the values have remained static for varying periods of time.
"It is not clear as to why the regulator did not take any stringent action on this aspect of the matter. Had TNPCB noted that the values remained static for several hours, they should have alerted the station or made an inspection to ascertain as to whether the monitors were functioning properly, was there any technical glitch, or was there any other factor which led to such abnormal display," the court stated. "Therefore, to rely upon such data from the AAQ monitoring systems situated within the factory premises and in the near vicinity would be inadvisable and we can also go to the extent of drawing adverse inference against the petitioner," the bench stated.
When it came to raw material used in the smelter, Sterlite in 1995 had claimed that it would be arsenic free copper concentrate. The court however noted this was not accomplished and that the TNPCB failed to even conduct a basic exercise to check the quality of the raw material. The arsenic content released into the environment around the smelter was a subject of debate and protests.
"If the TNPCB had taken up an exercise of verifying the quality of the raw material imported by the petitioner, much of the allegations which have cropped up now, would not have arisen," observed the court. "The quality of the copper concentrate is definitely an issue, which is a matter of concern and we shift the blame to the TNPCB," added the bench.
Infact, TNPCB's failure to monitor hazardous waste led to the conclusion that the environment was affected by the plant. The plant did not have the necessary Hazardous Waste Management (HWM) authorisation for over 10 years.
"It is rather surprising as to how the TNPCB continued to permit the petitioner to operate, handle and dispose of hazardous waste without renewal of the authorization. Thus, we can safely conclude that there is every possibility of these hazardous chemicals being not accounted for, thereby causing hazard to the environment. The person to be blamed is the regulator and the regulator alone, " the court observed.
The order went on the state the board was under-equipped to even deal with industries as big as Sterlite Copper.
"The TNPCB is under-equipped to deal with industries, which are of the magnitude of the petitioner, which carries on multiple processes, and several by-products and wastes are generated in the processes which may require monitoring at different stages, at different locations and at different times. We have also mentioned in our assessment that the data collected from the petitioner are through the monitors established by the TNPCB, which are not analysed," criticised the court.
"Had such an exercise been done, periodical notices would have been issued to the petitioner not only when an incident occurs or is reported. Therefore, the regulator needs to take the blame for not having adequately monitored this aspect of the matter," the bench added.
TNM has reached out to TNPCB chairman AV Venkatachalam for comment.