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

Facts of the case:

• The appellant company was directed to be shut down with immediate effect by the respondent Tamil Nadu Pollution Control Board vide an order dated 29th March 2013
• The respondent Board and Tribunal did so in the exercise of its powers under Section 21 and 31A of the Air (Prevention and Control of Pollution) Act, 1981, and Section 19 (4) (e) of the National Green Tribunal Act, 2010
• The respondent Board directed the Superintending Engineer of the Tamil Nadu Electricity Board to discontinue the supply of electricity to the appellant company.
• The appellant company manufactures copper cathodes and rods which uses copper smelting concentrates for the same purpose. In the manufacturing process certain amount of Sulphur Dioxide (a colourless pungent toxic gas) is released.
• The process is in general regulated by using an Analyser supported by software which the respondent Board had recommended as tamper proof system[1]. For checking and regulating the emissions of the gas Sulphur Dioxide, calibration checks are performed.
• The reason for such an order was that there have been cases of eye irritation and throat suffocation amongst the people of Tuticorin (around where the plant of the appellant company is located) and such symptoms are the results of the inhalation of the toxic gas Sulphur Dioxide.
• On 24th March 2013, the appellant company had received a notice which stated that they had contravened the provisions of Section 21 of the Air (Prevention and Control of Pollution) Act, 1981.
• The appellant company challenged the correctness and legality of the order on the grounds that it is arbitrary and discriminatory.
• It was also stated by the respondent Board that the Sulphur Dioxide trend graph of ambient air quality indicated that the emission of the gas had suddenly risen from 20 μg/m3 to 62 μg/m3[2] and that the Sulphur Dioxide monitor was not connected with CARE[3] Air Centre of respondent Board.
• Calibration[4] process was carried out within the normal range and the results of the calibration process was that the analyser had being working as usual and emission levels are controlled and were within the limitations and norms as prescribed.
• The appellant company had argued that it had taken all the necessary precautions as mandated by the National Environmental Engineering Research Institute (NEERI) and according to them they have not violated any rules. [5]

Appellant: M/s Sterlite Industries (India) Ltd.
Respondent: Tamil Nadu Pollution Control Board and others
Appeal: Appeal No. 57 of 2013
Citation: M. A. No. 78 of 2013 (SZ)
Chairperson and Expert Members:

• Mr. Justice Swatanter Kumar (Chairperson
• Dr. D. K. Agarwal (Expert Member)
• Dr. G.K. Pandey (Expert Member)
• Dr. R.C. Trivedi (Expert Member)

Date of Judgment: 8th August 2013
Environmental Laws:

1. Section 21 of the Air (Prevention and Control of Pollution) Act, 1981
2. Section 31A of the Air (Prevention and Control of Pollution) Act, 1981
3. Section 19 (4) (e) of the National Green Tribunal Act, 2010

Environmental Principles

1. Precautionary Principle
2. Polluter Pays Principle
3. Sustainable Development

Main Issue:

1. Whether the appellant company has concealed the facts and contravened the provisions of Section 21 and 31A of the Air (Prevention and Control of Pollution) Act, 1981 and Section 19 (4) (e) of the National Green Tribunal Act, 2010 by not taking proper care and required measures as prescribed?

Judgment Analysis:

1. A Special Leave Petition[6] was filed in the Supreme Court after considering various dimensions and aspects of the case, and the most important being the pollution that had been the result of the manufacture of copper cathodes and rods and contravention of the provisions of the Air Act, the appellant company was directed to pay a compensation of INR 100 Crores for polluting the environment in the vicinity of the plant.
2. The Tribunal held all decisions related to environment law should be decided in accordance with the three most important principles the Precautionary Principle, Polluter Pays Principle and Sustainable Development.
3. The precautionary principle should be entreated when the reasonable scientific data suggests[7] that appropriate preventive measures must be take and failure to take such measures might cause environmental loss and health hazards.
4. The Tribunal in exercise of its powers under Section 19 (4) (e) of the National Green Tribunal Act, 2010 examined all the aspects relevant for the case which included examining the factual, technical, and legal matters. After examining these three aspects the Tribunal passed and order which included the following:
   
   • The appellant company can resume its activities in accordance with the law and that is made absolute
   • The Tribunal established a Special Expert Committee and the committee had made recommendations and suggestions which shall be binding on the appellant company and ensure compliance of those directions in a time bound manner which shall not be later than 8 weeks from the date of the judgment.
   • The appellant company must disseminate all the information and data in its public domain regarding the data of stack and ambient air quality without concealment of the true facts.
   • The Tribunal had directed the respondent Board to take due noticer of the report submitted by the Special Expert Committee dated 10th July 2013 which includes information regarding the consent application of the appellant company.
   • The Special Expert Committee is directed to supervise and oversee the manufacturing process and other relevant industrial activities which includes issues relating to pollution as well of the appellant company and submit the required report to the Tribunal and to the respondent Board once in two months.

Special Expert Committee Members:
The members are nominated by the Ministry of Environment, Forest, and Climate Change [8]:

1. Secretary of Health Ministry Government of Tamil Nadu
2. Member-Secretary of the Tamil Nadu Pollution Control Board
3. Director General of Health Services of Tamil Nadu
4. Respondent No. 5 Mr. Vaiko (General Secretary of MDMK[9])
5. 2 Independent Experts
   
   1. 1 from field of environment
   2. 1 from the field of public health

Environmental Laws applied in the case:
Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 – Restrictions on use of certain industrial plants. [10]

Sub-section (1) says that no person can establish or operate any industrial plant in an air pollution control area without the prior consent of the State Pollution Control Board.

Any industrial plant which is already established in any air pollution control area before the commencement of the Section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987 shall continue for 3 months and must make an application for obtaining consent within said period.

Sub-section (2) says that application for consent of the Board and fees for the same must be made in the format as prescribed which must contain all the particulars of the industrial plants and other relevant information.

If before declaring the area as an air pollution control area, an industry established and operating then such person should make an application within 3 months from the date of declaration and can operate until consent is refused and/or continue to operate after consent is granted.

Sub-section (3) says that State Board can make enquiries for the purpose of application for consent referred to in sub-section (1).

Sub-section (4) says that State Board can either accept or refuse to accept the applications submitted within 4 months of such submission by making an order in writing.

The State Board can also cancel to consent granted before its expiry period for which it is granted or refuse further consent if the conditions subject to which such consent was granted are not fulfilled. Before cancellation of such consent, a reasonable opportunity of being heard must be given to the persons concerned.

Sub-section (5) of the act says that to those industries for whom consent is granted should comply to the following conditions:

1. Control equipment(s) must comply with the specifications given by the State Board and requires approval before installation and operation.
2. Existing control equipment can be altered or modified only as per the directions issued by the State Board.
3. The control equipment(s) should be kept in good running condition all the time.
4. Chimney as per State Board’s direction shall be erected or re-erected in the plant premises.
5. State Board can also specify other conditions as per requirements.
6. The conditions referred above must comply within the time frame as specified by the State Board.

In case an industrial plant is operating in an air pollution control area immediately before the date of declaration of such area as air pollution control area, the period specified cannot be less than six months.

It is further stated that:

1. After installation of control equipment with specifications under clause (i), or
2. After the alteration or replacement of any control equipment in accordance with the directions under clause (ii), or
3. After the erection or re-erection of any chimney under clause (iv),

no control equipment or chimney can be altered/replaced/erected/re-erected or otherwise, without the prior permission and approval of the State Board.

Sub-section (6) says that if the State Board thinks fit that due to any technological improvement some variation is required the State Board shall after giving consent, grant an opportunity to be heard, vary such conditions and such person must comply with the conditions so varied.

Sub-section (7) says that if a person to whom consent is granted by the State Board under sub-section (4) transfers his interest in the industry to another person, such other person must comply with the conditions of the State Board as if it was originally granted to him.

Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 – Power to give directions. [11]

Central Government has the power to give directions to the Board to issue directions in writing in the exercise of its powers and functions to any person, officer, or authority and such person, officer, or authority must comply with those directions issued by the Board.

Explanation – power to issue directions includes power to direct:

1. The closure, prohibition, or regulation of any industry, operation, or process, or
2. The stoppage, or regulation of supply of electricity, water, or any other service.

Section 19 (4) (e) of the National Green Tribunal Act, 2010 [12]
Sub-section (4) clause (e) says that the Tribunal for the purposing of discharging its functions can issue commissions foe the examination of witnesses or documents.

Environmental Principles applied in the case:
Precautionary Principle:
Precautionary Principle talks about the adoption of precautionary approaches when there is a lack of scientific evidence regarding any threat to the environment, and human health is not certain, and the risks are quite high.

Polluter Pays Principle
The polluter pays principle says that the one who pollutes the environment should be the one bearing the costs of pollution with due regard to the public interest.

Sustainable Development
The Brundtland Commission’s report defines sustainable development as:
Sustainable development is the development that meets the needs of the present without compromising the ability of future generations to meet their own needs. [13]

Conclusion:
M/s Sterlite Industries (India) Ltd. was held liable to pay INR 100 Crores as compensation for the contravention of provisions of Air Act and National Green Tribunal Act by causing environmental pollution in the vicinity of the Tuticorin plant in Tamil Nadu. [14]

The plant could resume operations as per the judgment on 8th August 2013. But unfortunately, the Industries had again contravened few more provisions of environmental laws and the plant is completely shut down as per the judgement on 27th March 2018.

End-Notes:

1. Tamper proofing, conceptually, is a methodology used to hinder, deter, or detect unauthorised access to a device or circumvention of a security system
2. Concentration of air pollutant in the atmosphere.
3. To monitor both source emissions and ambient air quality on a real time basis, TNPCB has established a Centre for Accessing Real Time Air (Quality) Information Report (CARE AIR) at the Head office of the Board.
4. A system that uses a standard scale of readings to corelate the readings with a standard to check and ensure accuracy.
5. http://www.indiaenvironmentportal.org.in/files/Sterlite%20Industries%20NGT%20Aug%202013.pdf
6. Special permission to be heard in the Supreme Court by the aggrieved party against the judgment given by the Supreme Court and sometimes Tribunal. Article 136 of the Constitution regulates the same
7. Increase in the concentration of Sulphur Dioxide in the atmosphere from 20 μg/m3 to 62 μg/m3
8. The ministry (MoEFCC) is responsible for planning, promoting, coordinating, and overseeing the implementation of environmental and forestry programmes in the country.
9. Marumalarchi Dravida Munnetra Kazhagam
10. https://legislative.gov.in/sites/default/files/A1981-14.pdf
11. https://legislative.gov.in/sites/default/files/A1981-14.pdf
12. https://www.advocatekhoj.com/library/bareacts/nationalgreen/19.php?Title=National%20Green%20Tribunal%20Act,%202010&STitle=Procedure%20and%20powers%20of%20Tribunal
13. https://medium.com/the-shadow/environmental-protection-in-india-a-brief-sketch-85eb45d32f10
14. https://www.wwfindia.org/about_wwf/enablers/cel/national_green_tribunal/case_summaries/?9823/Ms-Sterlite-Industries-India-Ltd-Vs-Tamil-Nadu-Pollution-Control-Board-and-Ors
    
    Award Winning Article Is Written By: Ms.Sandhya Prabhakaran
    

    Authentication No: JU115962939142-8-0621