379.The next aspect is with regard to the removal of “slag” from the category of hazardous waste under the HWM Rules, would it alter its character from being a hazardous substance. The petitioner refers to the report of the National Institute of Oceanography which states that copper slag can be used as reclamation material. The petitioner also refers to the NEERI Report, the stand of the TNPCB stating that it is not hazardous, non-leachable and not affecting the ground water based on the stand taken by the CPCB. There is Page http://www.judis.nic.in 451 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 also reference to certain test reports. Thus, we need to first consider the effect of the note in Schedule I of the HWM Rules, 2016. It has been stated therein that high volume low effect waste such as fly ash, phosphogypsum, red mud, slag from pyrometallurgical operations, etc. are excluded from the category of hazardous waste. Separate guidelines on the management of these waste shall be issued by the CPCB. The argument of the petitioner is that slag having been excluded from the category of hazardous waste, it can no longer be treated as hazardous. The HWM Rules have been framed in exercise of powers under Sections, 6, 8 and 25 of the EP Act. Rule 3(17) defines ‘hazardous waste’ to mean any waste which by reason of characteristics such as physical, chemical, biological, reactive, toxic, flammable, explosive or corrosive causes danger or is likely to cause danger to health or environment whether alone or in contact with other waste or substance and shall include waste specified under column 3 of Schedule I. Assuming for the sake of argument that the petitioner is right, mere exclusion of slag from Schedule I Page http://www.judis.nic.in 452 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 will not take away its character from the definition of hazardous waste under Rule 3(17) unless and until it is established that none of the characteristics mentioned in this Rule stand attracted. Further Section 2(e) under the EP Act defines ‘hazardous substance’ which means any substance by reason of its chemical or physico chemical properties or handling is liable to cause harm to human beings or other living creatures, plants, micro organisms, property or the environment. “Handling” has been defined under Section 2(d) which includes storage, offering for sale, usage, etc. Therefore, the argument that the slag has been removed from the category of hazardous waste in Schedule I can in no manner advance the case of the petitioner. Furthermore, the removal from Schedule I is conditional as it states separate guidelines will be issued by the CPCB. Therefore, any certification by the regulator be it CPCB or TNPCB, it can be construed only for an ideal situation. Indiscriminate dumping of extremely huge quantity of slag for nearly ten years can at no stretch of imagination be condoned by referring the opinions of the regulator Page http://www.judis.nic.in 453 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 or the opinion of certain National Institutes or scientific opinion especially, when there are contra view expressed in various papers which have been published under the auspicious of reputed organisations . All these opinions and materials are rendered on idealistic set ups but cannot cover extraordinary situation like the case on hand. Even “nectar in excessive quantities would turn into “poison”. Therefore, the arguments of the petitioner by making reference to opinion of the regulator or by other third party can in no manner save the situation caused by the petitioner which is unprecedented and definitely not an ideal set up. Therefore, all arguments in this regard stand rejected.
380. In the impugned order dated 09.04.2018, it was pointed out that an authorization under the HWM Rules issued to the petitioner Unit on 10.07.2008 expired on 09.07.2013 and even after expiry, the Unit continued to generate and dispose the hazardous waste without valid authorization under Page http://www.judis.nic.in 454 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the Rules, the application for renewal of the authorization was returned for want of additional details and the petitioner had not resubmitted the same. It is the submission of the learned senior counsel for the petitioner that in terms of Rule 6(1) of the HWM Rules, HW authorization is not a pre-condition for obtaining consent to establish or consent to operate. It is further submitted that when the impugned order dated 09.04.2018 was passed, the application for renewal of the authorization was pending and the petitioner has now filed a writ petition for issuance of a writ of Mandamus to direct the respondent to renew the authorization. Therefore, it is submitted that non-renewal of the HW authorization, cannot be a reason for refusing to renew the consent to operate.
381.The learned senior counsel referred to the relevant dates to show as to when the application was submitted for renewal and what are the compliances effected by the petitioner, etc. with a view to substantiate their Page http://www.judis.nic.in 455 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 contention that non-renewal of HW authorization cannot be a ground to refuse to renew the consent to operate. The learned senior counsel referred to inspection report of the TNPCB for consideration of the renewal of the HW authorization and the report of the inspection dated 28.02.2018 and submitted that the renewal of the authorization was recommended subject to sixteen conditions. Therefore, it is submitted that the reason assigned in paragraph 3 of the impugned order dated 09.04.2018 is wrong. To examine the correctness of the contentions put forth, we need to have a broad over view of the HWM Rules. The 2016 Rules superseded the 2008 Rules and the authorization initially granted to the petitioner on 10.07.2008 was under the earlier Rules. Admittedly, the authorization expired on 09.07.2013. The petitioner’s case is that on 25.06.2013, well before the expiry of the authorization the petitioner had filed an application for renewal on 25.06.2013 and on the same day, the annual return in Form 4 was submitted to the TNPCB. Between November 2013 and May 2014, the petitioner is stated to have sent reminder letters Page http://www.judis.nic.in 456 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 seeking renewal. On 28.05.2014, the renewal application was resubmitted with additional details as per the ISO auditors’ observations. The petitioner would state that from June 2014, they have been periodically sending reminder letters to the TNPCB for renewal of the authorization, simultaneously they were submitting their monthly returns. On 05.07.2016, the petitioner submitted an authorization renewal application through the on-line portal to the TNPCB as per the 2008 Rules. On 01.09.2016, the TNPCB has informed the petitioner that there is some issue in editing the renewal application filed under the 2008 Rules and it may take some time to renew the same and returned the application and after the industry requests for deletion of the old application, the same will be deleted and the industry to apply under the 2016 Rules. It appears that the said direction was complied with by the petitioner and fresh application was submitted under the 2016 Rules thereafter. The TNPCB rejected the application on 27.08.2017 and 24.11.2017 for not uploading the agreements with the authorized recyclers for handling hazardous Page http://www.judis.nic.in 457 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 waste and renewal hazardous waste authorization waste stream and quantity is not tallying with old authorization. The petitioner submitted a representation on 18.12.2017 followed by resubmitting the renewal application on 20.12.2017. On 25.01.2018 additional particulars were called for and according to the petitioner, the application was resubmitted on 08.02.2018. The TNPCB by order dated 16.04.2018 rejected the application on several grounds. On 17.04.2018, the application was resubmitted which was again rejected on 05.06.2018 on several grounds. On 18.07.2018, the application was resubmitted which was rejected on 26.09.2018 and once again the petitioner is stated to have resubmitted its application on 22.12.2018. Therefore, the petitioner would contend that when the impugned order refusing to renew the consent to operate dated 09.04.2018 was passed, the application for renewal of authorization was pending.
382.The question would be as to whether the authorization under the Rules is a formality and can it have any impact on the petitioner to continue its Page http://www.judis.nic.in 458 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 production activity though obtaining an authorization may not a condition precedent to obtain consent to operate. Rule 3(3) of the 2016 Rules defines ‘authorization’ to mean permission for generation, handling, collection, etc., of hazardous waste granted under Rule 6(2). Rule 3(10) defines ‘disposal’ to mean any operation which does not lead to reuse, recycling, recovery, etc. and disposal in secured land fill. As seen earlier, Rule 3(17) defines ‘hazardous waste’ which includes waste in column No.3 of Schedule I to the Rules apart from other things. Rule 4 cast a responsibility on the petitioner for management of hazardous and other waste. The petitioner is bound to follow the steps of prevention, minimization, reuse, recycling, recovery, utilization including co-processing and safe disposal. Rule 4(2) mandates the petitioner to be responsible for safe and environmentally sound management of hazardous and other waste. Rule 5 deals with the responsibility of the State Government for environmentally sound management of hazardous and other waste., Sub-rules provide for what are the infrastructure facilities which have Page http://www.judis.nic.in 459 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 to be provided by the Industries Department of the State, the steps to be taken by the Labour Department of the State and overall responsibility of the State to prepare integrated plant for effective implementation of the provisions of the Rules and submit the annual return to MoEF. Rule 6 deals with grant of authorization for managing hazardous and other waste. In terms of Sub-rule (1) of Rule 6, every occupier of facility who is engaged in handling, generating, etc. of hazardous waste and other waste like the petitioner shall be required to make an application in Form 1 to the TNPCB and obtain authorization within a period of 60 days from the date of publication of the Rules, along with the application the petitioner has to enclose the consent to establish, consent to operate issued by the TNPCB and in case of renewal of authorization, the procedure to be followed stipulated is under Rule 6(1)(c). In terms of Rule 6(2), the TNPCB is required to consider the application after making such enquiry and on being satisfied that the applicant possess appropriate facility, after ensuring technical capabilities and equipments, Page http://www.judis.nic.in 460 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 complying with standard operating procedure or guidelines specified by CPCB from time to time and through site inspection, grant within a period of 120 days, authorization in Form 2 which shall be valid for a period of five years subject to the conditions laid therein. Proviso to Rule 6(2) deals with renewal of authorization and there is a duty on TNPCB to satisfy itself that there has been no violation of the conditions specified in the earlier authorization and after recording the same in the inspection report to proceed to grant renewal. Sub-rule (3) of Rule 6 mandates that the authorization granted by TNPCB under sub-rule (2) shall be accompanied by a copy of field inspection report signed by the Board indicating that adequate facilities are in place. Sub-rule (4) of Rule 6 gives power to the TNPCB to refuse authorization after giving reasonable opportunity of being heard to the applicant; Sub-rule (5) speaks about the annual returns; Sub-rule (6) about the register to be maintained by the TNPCB, the actual user is required to maintain a pass book issued by the TNPCB as mandated under Rule 6(7) and in terms of sub-rule (8), the handing Page http://www.judis.nic.in 461 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 over of the waste shall be only after making entry in the pass book of the actual user. Rule 7 gives power to suspend or cancel authorization; Rule 8 deals with storage of hazardous and other waste; Rule 9 regarding the utilization of hazardous and other waste and Rule 10 speaks about the standard operating procedure or guidelines for actual users. Rule 16 deals with treatment, storage and disposal facility for hazardous and other waste. In terms of sub-(1) of Rule 16, it is a joint responsibility of the State Government, the occupier, operator of the facility or in association of occupier who will be jointly or severally responsible for identification of the sites for establishing facility for treatment, storage and disposal of hazardous and other waste in the State. Rule 19 deals with the manifest system which is a movement document for hazardous and other waste to be used within the Country. Thus the HWM Rules imposes an obligation not only on the petitioner but more onerous obligation on TNPCB and State Government. The petitioner cannot take umbrage by contending that their application for Page http://www.judis.nic.in 462 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 renewal was kept pending by the authorities and in spite of reminders, no orders were passed. Yet another submission was made that there are seven other red category industries in the same industrial complex who do not have any authorization.
383.The settled legal principle is that there cannot be any equality in an illegality. The fact that authorization was not renewed is a very serious matter. Unfortunately, neither the officials of the TNPCB nor the State Government took note of it. As a result of which, the petitioner continued to handle and dispose of hazardous and other waste as per their whims and fancies. According to them, they have done the disposal strictly in accordance with the Rules. The question would be as to who will certify for the same. The petitioner claims that they have been filing periodic statutory returns in Form 3. The dates of submission have been given. It is not clear as to what TNPCB did with those returns. The Court can safely conclude that Page http://www.judis.nic.in 463 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 considering the large number of red category industries in the State, there is every likelihood that the returns are not processed or processed belatedly. We are justified in coming to such conclusion, as there was nothing placed on record by TNPCB to show that returns submitted by the petitioner were verified for its correctness. In all probabilities, the returns if submitted in physical form will be filed in physical form. If it is submitted online, probably it is downloaded and filed. There appears to be no analysis of these returns, no examination as to whether the petitioner complied with the condition. Thus slackness on the part of the officials of the TNPCB who are in-charge of ensuring compliance of HWM Rules have failed to discharge their duty. The question is whether the magnitude of the petitioner made them to do so. For the first time, the TNPCB woke from deep slumber when the application was rejected on 27.08.2017 and subsequently on 24.11.2017. From the details placed by the petitioner in their typed set of document Volume 2C, we find that this is the first time there was a rejection by the TNPCB. This was Page http://www.judis.nic.in 464 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 followed by calling for additional particulars on 25.01.2018 followed by rejection dated 16.04.2018, 05.06.2018 and 26.09.2018. It is not clear as to whether the Department which takes care of implementation of HWM Rules is independent of the department of TNPCB which deals with grant of consent and renewal of consent to operate. Even assuming there are two Departments, they are bound to act in coordination. Thus, considering the scheme of the Rules, the purpose for which it was framed under the EP Act, obtaining authorization under the Rules is not a formality but it is a mandatory requirement as could be seen from the plain language of Rule 6(1). Thus, if the application submitted by the petitioner for renewal of authorization has not been granted, it is deemed that the application has been rejected because the Rule does not contemplate a deemed renewal. This is amply clear from the procedure stipulated under Rule 6(2) and (3). An inspection is a pre-requisite for grant of authorization and a copy of the inspection report has to be appended to the authorization. Therefore, the argument of the petitioner that Page http://www.judis.nic.in 465 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 their application was pending could be taken as a defence is a wrong understanding of the legal position. TNPCB is also to be blamed because they were probably under the impression that it is something like a trade license issued by the municipality forgetting the sensitivity and seriousness of issuance of such license. The renewal application submitted by the petitioner under the 2008 Rules was kept pending and as long as the authorities did not initiate any action against the petitioner, they were least concerned and are stated to have been submitting their returns as if dropping it in a post box. In 2016, it appears that the TNPCB wanted the petitioner to withdraw the 2008 application and resubmit an online application under the 2016 Rules. We have noted the dates on which the petitioner had submitted their applications for renewal of the authorisation. The respondent Board has furnished the online status of the petitioner’s applications for renewal and as to why the application was returned from time to time. Some of the observations made during scrutiny are very relevant viz., on 27.08.2017 while returning the application, Page http://www.judis.nic.in 466 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the petitioner was directed to furnish the agreement made with authorised recycler for handling hazardous waste for waste category numbers 3.1, 5.1, 5.2, 7.4, 7.5 and 33.1; secondly, it was pointed out that the waste stream and quantity for which authorisation was obtained on 10.07.2008 is not tally with the present allegation. The petitioner had resubmitted the application and on 03.11.2017, the same was returned calling for additional particulars/clarifications viz., that the petitioner should clarify the details of hazardous waste mentioned in serial no.9 (category no.5.1), serial no.20 (category no.5.1), serial no.12 (category no.17.1), serial no.32 (category no.17.1) and serial no.15 (category no.33.1) and expired chemicals. From the “note of history”, it is seen that for the very same reason, the application stood returned several times. The application was returned on 07.03.2018 calling for particulars among other things with regard to use of spent oil for authorised recycler for recycling and for reuse in smelting operations. The petitioner was directed to specifically mention the process where it is recycled etc. Page http://www.judis.nic.in 467 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
384.On 17.03.2018, an elaborate remark was made by the Environmental Engineer wherein among other things, the petitioner was directed to clarify the reasons for disposing part of the wastes to on site landfill instead of disposing to recyclers. The petitioner was directed to disclose the capacity of the active landfill and its adequacy etc. Thus, the application submitted by the petitioner for renewal of its authorisation was considered by the authority though belatedly, with due application of mind and every time the application was returned, reasons have been set out as to why the application is returned and on each such return, the petitioner appears to have furnished certain information which was either inadequate or further information was required to be furnished upon disclosure of the information called for. Therefore, the petitioner cannot take advantage of the fact that their application for renewal of authorisation was pending and therefore, they were justified in continuing with their manufacturing process. Page http://www.judis.nic.in 468 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
385.The question is whether the petitioner could have been permitted to handle and dispose of hazardous and other waste after the expiry of the authorization on 09.07.2013 without being monitored. The answer to this question should be a definite ‘No’. The petitioner would state that now they have filed a writ of Mandamus to renew the authorization. It is not clear as to why they did not resort to the same procedure in the year 2013, probably circumstances suited them. The petitioner may be partially right that adverse inferences cannot be drawn against them because they have been filed their returns and periodically addressing the authorities requesting them to renew the authorization. Unfortunately, the authorization is not a license in the normal sense. As pointed out earlier, the petitioner has no fundamental right to establish and operate a polluting industry. The very establishment is based on a consent granted by the TNPCB subject to condition. Even much prior to that, environmental clearance was required to be granted. Therefore, the petitioner cannot state that as long as their application for renewal of Page http://www.judis.nic.in 469 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 authorization was pending, they can continue to handle and dispose of hazardous and other waste. In fact, stringent action has to be initiated against the officials of the TNPCB who were in-charge at the relevant point of time equally the superior officers and others at the helm of affairs of the Board. All of them were silent spectators to the illegality. We are not concerned about other industries which appear to be in a similar state. It is not clear as to why the State Government has abdicated its statutory responsibility cast under the Rules. The matter is a very serious issue and the petitioner cannot escape by contending that non-renewal of authorization can have no impact on the consent to operate. The basic fallacy in such argument is because if an industry operates and produces the final product and in that process generates waste which are of various categories and so far as the petitioner is concerned, substantial waste generated are hazardous. Therefore, proper handling and disposal of the hazardous waste is paramount. Thus, if the authorization has not been granted for handling and disposal of the hazardous and other waste, Page http://www.judis.nic.in 470 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 then it goes without saying that consent to operate should cease. Or else a polluting industry based upon the consent to operate will continue to operate, generate hazardous waste, handle and dispose of them without authorization under the HWM Rules which would mean that handling and disposal goes unmonitored. This position if allowed would be a death knell. The order passed by the TNPCB refusing to renew the consent to operate on the ground that the HW authorization was not in force is valid. It is true that the TNPCB did not take any action but that cannot be a license to the petitioner to pollute. Therefore, the said ground on which consent to operate was rejected is held valid and accordingly sustained.
386.In the impugned order dated 09.04.2018, two other grounds have been mentioned, viz., the ground water analysis report taken from the bore wells within the Unit premises as well as surrounding areas have not been furnished to ascertain the impact on ground water quality. It is further stated Page http://www.judis.nic.in 471 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 that as per the renewal condition the petitioner should have analysed the parameters of heavy metals such as arsenic in the ambient air through Board’s laboratory as was done for other parameters such as NOx, PM10 and SO2. It is further stated that as the Board’s laboratory does not have this facility, the petitioner should have engaged the services of MoEF and CC/NABL accredited laboratories and furnished report to the Board. The petitioner was informed that they have not complied with the same and as such there is no authenticated reporting on the presence of the arsenic in the ambient air. The other ground on which renewal was rejected was that during inspection on 22.02.2018, the petitioner had been directed to construct a gypsum pond as per CPCB guidelines and they have not complied with the same till 31.03.2018.
387. First, let us take up the issue relating to ground water analysis. The argument on behalf of the petitioner is that for the first time in April 2018 an allegation is made with regard to the ground water pollution and there was Page http://www.judis.nic.in 472 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 no such allegation earlier. It is submitted that there is no material to say that the ground water quality had worsened and there is no material to say that the petitioner is the cause for any ground water pollution. There are 67 other industries in the industrial complex and in spite of direction issued by the NGT no source apportionment study was done by the TNPCB and therefore to state that to be a reason for rejection of the renewal of consent to operate is not sustainable. The submission of the learned senior counsel was that this issue is being raised for the first time, it has become necessary to counter the allegations raised by the TNPCB in their counter affidavit because they are all new ground and in the first place, it should not be permitted to be canvassed.
388.According to the TNPCB, the order of consent mandates that the petitioner should obtain sample of emission and get them analysed by the TNPCB laboratory every month for the parameters indicated and furnish th report to the Board by the 10 of the succeeding month. Further the orders of Page http://www.judis.nic.in 473 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 consent stated that the same will be revoked in case the ground water in the vicinity is affected due to seepage of effluent from storage sump. Further the renewal of consent is not just contingent on furnishing of ground water reports but also ensuring that there is full compliance with ground water norms and no pollution has occurred. The respondent stated that the petitioner has not produced data to substantiate the fact nor made any averment that it has not caused ground water pollution.
389.The respondent would further contend that by not providing reports, the petitioner attempted to conceal the pollution caused by them as they have caused ground water pollution. The argument of the learned senior counsel for the petitioner is that the same is a new ground and the petitioner cannot be called upon to prove the negative. However, the respondent referred to the annexures to the counter affidavit as to how the TDS levels have been computed. The TNPCB would further contend that the consent conditions are Page http://www.judis.nic.in 474 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 not merely technical but constitute essential aspect of environmental governance and superintendence – namely of constant self monitoring by the polluter itself (petitioner). It is further stated that the TNPCB has independently commissioned the collection of samples and testing at the cost of the petitioner. However, this is in addition to and not substitute of the consent condition. The TNPCB further submits that the reports show that water quality in and around the petitioner’s Unit has demonstrably worsened over time with TDS and heavy metal having increased manifold since 1996 and have reduced after the petitioner has remained shut down for over an year.
390.It is submitted that the report of analysis of monitoring wells taken from nearby villages during November 2017 to April 2018 shows high concentration of TDS, chlorides, sulphates, calcium, iron apart from total hardness. Further, it is submitted that the gypsum pond situated in an area of about 40 acres within the petitioner’s premises which stores 4 lakh tonnes of Page http://www.judis.nic.in 475 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 dead stock of gypsum and generally about 1 lakh tonnes per month of gypsum is generated and only some quantity is disposed. The gypsum is stored in the ponds in heaps to height of 15 to 20 feet and because of the excess height over the side walls they overflow and leachate due to storm water which may flow to adjacent areas and whenever wide spread rain occurs, the leachate may reach the surrounding areas and cause ground water pollution. It is further stated that though the petitioner claims to be a zero liquid discharge unit, the ground water contamination from the industry is due to heavy volume of gypsum, copper slag dumped in the open and from the secured land fill where the hazardous waste are disposed. The ground water samples collected from the monitoring wells around the gypsum pond indicate the increasing trend of ground water becoming highly toxic. The report of analysis of the monitoring well located around the gypsum pond during 2015-2018 conclusively demonstrate that the desirable/permissible limits were breached continuously. Page http://www.judis.nic.in 476 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
391.It is further submitted that the Unit has provided five SLF, out of which four have been capped and the fifth is under operation. It would be relevant to note that a quantity of 7,17,032 DMT (Dry Metric Ton) of hazardous waste is lying dumped in the SLF. The analysis of water samples collected from monitoring wells located around SLF from 2015 to 2018 shows the value exceeds at most instances. The report of analysis of water samples collected from the monitoring wells around the slag yard from 2015 to 2018 shows that the parameters have exceeded multiple times. The leachate from copper slag open storage also contribute the increase in fluoride level and TDS in the ground water in surrounding villages. The above is the stand taken by the TNPCB. The petitioner’s response is on the following lines. Firstly, this was never a ground raised earlier and for the first time, such allegation is made. Secondly, the petitioner cannot be held responsible as it is a ZLD Unit. Assuming the ground water standards have fallen, the petitioner cannot be penalized because no source apportionment study was made though there was Page http://www.judis.nic.in 477 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 a direction to the said effect by the NGT. The petitioner has referred to the various reports and information secured under the Right to Information Act to contend that the samples are within the permissible limits.
392.Further, it is contended that even before the Hon’ble Supreme Court in the year 2013 the same levels were shown, however, the petitioner was permitted to reopen. In our considered view that can hardly be a test to examine the correctness of the stand taken with regard to the ground water sample. Fall in ground water standards is a slow process especially when it is stated to have been caused on account of leaching. Therefore, due credence should be given to the report of analysis of water samples drawn from the monitoring wells. The petitioner cannot and should not cast a shadow of suspicion on all tests being undertaken by the Board. As pointed out earlier, the onus is on the petitioner to show that they have not contributed to the ground water deterioration for which they will have to substantiate with the Page http://www.judis.nic.in 478 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 steps taken by them and they cannot state that they have been called upon to prove the negative. This is so because the petitioner had no right to establish a polluting industry, but for the order of consent granted with conditions, the petitioner could not have establish the industry. Therefore, it is for the petitioner to establish that they have not contributed to the fall in ground water standards in the villages surrounding the petitioner Unit.
393.The petitioner referred to the hydro-geological study conducted during 2006-2007 by the National Geophysical Research Institute, wherein while drawing the conclusion with regard to the ground water modelling with respect to Thoothukudi, it was stated that the combination of factors such as industrial plant area having thick cover of clay soil and calcretic clay formation and low velocity of ground water flow indicates there is a remote chance of contaminations of ground water source sin the downstream through movement of ground water. The possible mechanism of contamination of Page http://www.judis.nic.in 479 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 ground water in the downstream area of the complex may be due to seepage of domestic effluents discharged through surface stream. By referring to the analysis report by TNPCB, it is submitted that the marker pollutants of the petitioner are within the permissible limit. The reasons for higher TDS and other metal contents in the ground water as submitted by the TNPCB before the NGT in Appeal No.87/2018 was referred to and it is submitted that the TNPCB pointed out TDS variation in the upstream and downstream of the petitioner industry without considering the hydro-geology of the study area; TNPCB has been collecting this base line ground water analysis since 1996 even before the commencement of the petitioner's operation which has not been furnished as statistical trend for better comparison of ground water quality in upstream and downstream villages; gypsum is stored in a lined pond, TNPCB failed to compare its ground water analysis report with TNPCB base line report around gypsum pond in comparison with prevalent hydro- geology; SLF is constructed as per CPCB guidelines and the leachate is Page http://www.judis.nic.in 480 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 recycled back to TPP for treatment, the ground water analysis report around SLF was not compared with TNPCB base line analysis report in comparison with prevalent hydro-geology; TNPCB is relying upon preponderance of probability rather than scientific hydro geology study; TNPCB base line analysis in and around sterlite copper revealed high levels of sulphate, calcium, hardness and fluoride level. Similarly, TCS base line ground water analysis in 1994 reported high fluoride content, i.e. 1.4 to 7 mg/l; gypsum is insoluble in water, hence calcium and sulphate increase is attributed to sea water intrusion and due to land extent of salt pans, TCS base line fluoride in the region is between 1.4 and 7 mg/l; TNPCB analysis report revealed that stream of sterlite has reported presence of lead and TNPCB has conveniently omitted the same for their interpretation; TNPCB has the facility to analyse arsenic in the ground water and the same procedure is adopted for analysing arsenic in ambient air and the same shall be clarified by CPCB; the concentration of various chemical constituents in ground water depends on the Page http://www.judis.nic.in 481 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 solubility of minerals present, residing time and the movement of dissolved carbon dioxide; in some coastal areas, intensive pumping of sea water for salt production has caused salt water intrusion into ground water and in most of the salt pan at Thoothukudi, ground water is pumped and processed in the salt pan for salt manufacturing. Therefore, the petitioner would contend that the reasons given by TNPCB for rejecting the renewal of consent is untenable. The learned senior counsel made elaborate reference to the flow charts to demonstrate the analysis reports prepared by TNPCB in various areas in and around the petitioner's Unit and submitted that the petitioner is not the reason for increase in the TDS levels. The TDS level in the State of Tamil Nadu were also referred to, to show that the TDS in Thoothukudi was always high.
394.The learned Senior Counsel drew support from the report submitted by two Scientists of the Central Ground Water Board, South Eastern Coastal Region, Chennai in July 2018, i.e. after the petitioner Unit was sealed. We have elaborately discussed about this report and we have given our Page http://www.judis.nic.in 482 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 reasons as to why the report is to be scrapped. Therefore the petitioner cannot rely upon the said report. The learned senior counsel referred to the report prepared by the Chennai testing laboratory on the ground water quality at Thoothukudi to demonstrate that leaching of secondary salts and anthropogenic impact fertilizer used for agricultural activities apart from sea water intrusion. In response to the document produced by TNPCB, the petitioner referred to the sea water composition in which calcium sulphate is 12600 ppm and the TDS is 350000 ppm and since there are as many as seven salts in the sea water, it accounts for total dissolve solids of sea water and nearby ground water resources. Further, reference was made to the background document for development of WHO guidelines for drinking water and it was explained that TDS is the term used to describe the inorganic salts and small amounts of organic matter present in solution in water. The principal constituents are usually are calcium, magnesium, sodium, potassium cations and carbonate, hydrocarbonate, chloride, sulphate and nitrate. After Page http://www.judis.nic.in 483 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 referring to various details of the phase equilibrium studies, it is stated that solubility of sodium chloride [salt] is higher when compared to that of gypsum. The sea water TDS contains large amount of soluble calcium and sulphate as compared to soluble calcium and sulphate present in phospogypsum generated from the petitioner's Unit. Therefore, the petitioner would state that the high TDS levels are not attributable to them but to the sea water intrusion. The petitioner blames TNPCB in attempting to selectively submit the data, thus preventing this Court from making a value decision. After referring to the ground water analysis report of the TNPCB, it is submitted that all the levels are below detectable limit and in particular, arsenic has not been detected at any of the Village bore wells in upstream or in the piezometric well location and downstream villages for over 22 years. With regard to the petitioner's marker pollutant fluoride, it is submitted that as per NGRI report, the entire region is likely to show that higher levels of chloride, sulphate and TDS and the fluoride presence is a direct linkage and the same is Page http://www.judis.nic.in 484 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 seen in the present case irrespective of that upstream villages or downstream villages when compared to piezometers of sterlite copper. With regard to the marker pollutant zinc, it is submitted that all samples taken are well below the prescribed standards. The higher TDS level is attributable to the intrusion of sea water. With regard to the chloride, once again the petitioner refers to NGRI report which states that the entire region is likely to show higher level, as also in the case of sulphate and total hardness. Thus, it is the submission of the petitioner that the TNPCB is deliberately making attempts to forego compliance, which were accepted by their Joint Chief Environmental Engineer through inspection. The respondent TNPCB suppresses the material before us to show that the quantity of ground water collected from eight locations in and around the petitioner, namely, Meelavittan, Silverpuram, Pandarampatti, Madathur [entrance], Madathur [opposite temple], South Veerapandiyapuram Kayaloorani and A.Kumarareddiarpuram shows very high values of TDS, chloride, sulphate and total hardness on account of operation of the petitioner. Page http://www.judis.nic.in 485 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
395.The ground water analysis has been undertaken by the TNPCB after the closure up to February 2019. The data collected has been furnished in a tabulated form and it has been compared with the water quality data before the order of closure from which, it is seen that the TDS is gradually getting reduced almost in all Villages but still it does not satisfy the drinking water standards. Chloride is gradually getting reduced in Meelavittan and Silverpuram Village but still it does not satisfy the drinking water standards. Similarly, sulphate and total hardness are also getting gradually reduced but yet to meet the drinking water standards. By way of illustration, we refer to the chart showing the comparison of year wise maximum value of parameters with base line data during 1994 and the NEERI report of 2011. The standard is 500-200 mg/l. The base line data collected in 1994 is 3120. In 2011 as per NEERI report, it was 3212 and thereafter it has gradually increased every year from 2012 onwards i.e. 8664, 7104, 9785, 10064, 15004, 13732, 14729, 15636, 10835 and stood reduced from November 2018 to 8508, 7800, 7552 Page http://www.judis.nic.in 486 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 and 5740 in February 2019. The petitioner wants us to discredit this data which we declined to do. The facts and figures placed before us has shown that there has been substantial increase in TDS levels and other chemical levels and the finger points to the petitioner and we are convinced to say so based on the data and the attempt of the petitioner to pick holes in the reports of the TNPCB cannot be accepted. The petitioner needs to be reminded that they operate based on consent granted by the TNPCB and they shall stand or fall by the assessment of TNPCB. To our surprise, the petitioner did not contest any of these issues earlier when matters cropped up and probably the petitioner was able to manage things. We have also perused the graphs showing the ROA of the monitoring wells located in the eight villages mentioned above. In the graphs, the base line data as of 1994, drinking water standards [permissible limit], drinking water standards [desirable limit] and year wise maximum value has been furnished and we find that the water quality does not meet the drinking water standards. The TNPCB has also Page http://www.judis.nic.in 487 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 furnished the chart mentioning comparison of year wise maximum value of parameters with base line data collected during 1994 and NEERI reports of 1998, 1999, 2005 and 2011. The report is a clear indicator to show that there has been steady and steep increase in TDS, chloride, sulphate and total hardness and there is a decline in the levels after closure of the petitioner. The petitioner's contention is that no arsenic has been detected from the piezometric wells and certain data was referred to support such submission. Schedule II of the HW Rules prescribes the concentration limit of arsenic at 50 mg/kg. The soil samples were collected in five places during October 2018 and has been analysed by M/s.SGS Limited, an NABL accredited lab, and we find that the arsenic level has exceeded the permissible limit in all the five places and the highest being near the copper slag in the patta land opposite to BPCL Petrol Bunk where the arsenic level is 771.4 mg/kg as compared to the prescribed limit of 50mg/kg. Further the report states that the slag samples collected in twelve locations contain arsenic in the range of 135 mg/kg to Page http://www.judis.nic.in 488 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 369.3 mg/kg and it also contains lead in the range of 421.7 mg/kg to 881.7 mg/kg. With regard to the gypsum, the report states that though the industry has provided ZLD, it had stored heaps of gypsum in the gypsum pond in an area about 40 acres and about 4 lakh tonnes of gypsum is stored in the gypsum pond and generally about 1 lakh tonne of gypsum is generated every month and it is stored in the pond above ground with a height of 15 to 20 feet and the heaps are above the side walls and due to excess height over the side wall, the leachate due to storm water may flow to the adjacent areas. The leachate water has been analysed to have high PH in the range of 2, which is acidic in nature. The ground water has been analysed and reported that all the parameters analysed in the ground water around the gypsum pond exceed the drinking water standards and the increase has been due to the leachate from the area reaching the ground. The TNPCB has furnished colour photographs of the gypsum pond and one gets an impression as if it is an area which has had heavy snow fall but it was explained to us that it is not snow but it is Page http://www.judis.nic.in 489 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 gypsum. The petitioner would want us to reject the report of M/s.SGS Limited because it is based on total constituent analysis and not TCLP extract. We cannot permit the petitioner to raise such a stand because the credibility of the agency which did the study cannot be easily disputed because it is an accredited laboratory. The fact remains that there is sufficient material to show that the ground water pollution is on account of the petitioner's operation. Therefore, we are not inclined to accept the submission of the petitioner that the respondent Board is attempting to selectively submit the data. The petitioner also would state that no show cause notice was issued to the petitioner by the Board for the allegation now being brought before the Court. We expressed our displeasure with regard to the manner in which the officials of the TNPCB had functioning earlier and also given reasons as to what would have been the reason for the same and also noted the fact that the infrastructure with TNPCB was thoroughly inadequate considering the magnitude of the petitioner. We are inclined to accept the stand taken by the Page http://www.judis.nic.in 490 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 TNPCB to hold that the increase in the levels of TDS, chloride, sulphate and total hardness are all attributable to the petitioner's operation and therefore the order of closure cannot be stated to be on account of speculation.
396.It is reiterated by the learned Senior Counsel for the petitioner that three questions to be answered by the respondents to justify the closure of the industry, they being, (i) has the petitioner industry caused pollution? (ii) is the petitioner industry in a continuous sense causing pollution? and (iii) is the alleged pollution cannot be remedied? Emphasising the submissions made earlier that there is no allegation that the petitioner has been causing pollution or continuing to cause pollution, it was submitted, assuming that there is an allegation of pollution, the theory of sustainable development having undergone a change, the respondents are bound to examine as to whether, remedial measures can be adopted. The reason for closure of the petitioner was not on the ground that they caused pollution or continuing to cause Page http://www.judis.nic.in 491 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 pollution or the alleged situation was not remediable, but it is on account of public reaction. It is further submitted that an order of closure cannot be passed on the ground that the petitioner may cause pollution and that appears to be the stand of TNPCB in their counter affidavit.
397.The learned Senior Counsel elaborately referred to the counter affidavit filed by TNPCB and submitted that there is no material to state that the ground water quality had worsened on account of the petitioner, more importantly, as there are 67 other industries in the industrial complex and no source apportionment study was done. It is further submitted that the Hon’ble Supreme Court had recorded that the petitioner had complied with thirty directions and this finding of fact cannot be revisited, the comments and observations, which have been referred to in the counter affidavit, are of the year 2013 and these matters were considered and the Supreme Court had passed final orders permitting the petitioner to reopen. Therefore, it is Page http://www.judis.nic.in 492 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 submitted that substantial portion of the counter affidavit of TNPCB has to be rejected as worthless. After referring to various paragraphs in the counter affidavit, more particularly, from paragraphs 29 to 40, it is submitted that for the first time when renewal of consent to operate was granted on 07.09.2017, a direction was issued to remove the slag. The correspondence between the petitioner and the Board will clearly show that the petitioner is not shifting the blame on the purchaser/land owner, but as a responsible corporate, they took immediate action.
398.It is submitted that in page 37 of the counter affidavit filed by TNPCB, a tabulated statement has been furnished, substantial portion thereof is factually incorrect. In sub-para (vii) at page 38 of the counter affidavit, details pertaining to the last application prior to closure under the HWM Rules have been referred to without referring to the internal correspondence and it is wrong to contend that the petitioner is wilfully refusing to give complete Page http://www.judis.nic.in 493 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 details. In page 42 of the counter affidavit, the Board states that there is significant chance of pollution to the ground water through sulphates, phosphates, chlorides, fluorides, if the phosphogypsum is not properly managed.
399.It has been further stated that the fluoride and TDS levels around gypsum pond were found to be elevated during the operation of the plant and also in the month of May, 2018, but gypsum was still stored in the pond. This averment has been made without furnishing the baseline figures, the parameters which existed prior to 1996, that is, prior to the petitioner industry coming into being and if the baseline figures had been taken note of, it would be clear that the petitioner is not the cause. It is submitted that once again in paragraph 60 of the counter affidavit, the respondent has referred to various reports of the Committee, which are all prior to 2013, and the same cannot be referred to, as after the decision of the Hon’ble Supreme Court, all Page http://www.judis.nic.in 494 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 issues are done and dusted. Further, it is submitted that as per the report of NEERI of 2011, there is no charge against the petitioner of increase in level of their marker pollutants and in this regard, referred to paragraph 8.7 of the report at page 53.
400.With regard to TDS level, after referring to the Ground Water Year Book of Tamil Nadu and Union Territory of Puducherry, it is submitted that the TDS level in the State of Tamil Nadu is high and in Thoothukudi also, the TDS level is high and within Thoothukudi District, the TDS level in the SIPCOT industrial complex is the lowest. It was pointed out that the solubility of sodium chloride (salt) is higher when compared to that of gypsum. The seawater TDS contains much amount of soluble calcium and sulphate as compared to the soluble calcium and sulphate present in phosphogypsum generated from the petitioner unit. The unit has constructed Secured Land Fill (SLF) as per CPCB guidelines as approved by TNPCB, the leachate from the Page http://www.judis.nic.in 495 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 SLF is collected in leachate sump and pumped for further treatment in the ETP and RO plant. Thus, it is submitted that in coastal areas, seawater intrusion due to low hydrostatic aquifer results in higher TDS.
401.Reliance was placed on a report on Short Term Investigation of Ground Water Quality in and around SIPCOT industrial complex conducted by two Scientists under the aegis of the Central Ground Water Board South Eastern Coastal Region, Chennai. The respondents, State and the Board have serious objections to the said report. We shall deal with this aspect a little later.
402.In the earlier part of this order, we considered as to whether, the petitioner can contend that the events which took place prior to 2013 cannot be looked into, in the light of the decision of the Hon’ble Supreme Court. We did not agree with such submissions and apart from reasons assigned by us earlier, Page http://www.judis.nic.in 496 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 it is to be noted that the conditions imposed in the order of consent is a continuing condition. According to the petitioner, the conditions if not mentioned in the latest order, but was a condition in the previous order, would be deemed to be compliance of such condition. In other words, the petitioner would contend that if a condition had been imposed in the order of consent, and in the order of renewal of consent such condition has not been mentioned, it is deemed that the petitioner has satisfied such condition.
403.The above contention is a thorough misreading of the object of imposing conditions while granting orders of consent to establish or consent to operate. The conditions continue to exist and are to be considered cumulatively, as but for the order of consent, the petitioner could not have established the industry. If at the inception, conditions had been imposed to enable the petitioner to operate, it goes without saying that till the petitioner is permitted to operate by renewal of consent subsequently, the conditions, Page http://www.judis.nic.in 497 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 which were imposed at first instance, must continue to hold the field and require scrupulous compliance. Therefore, to state that each order of renewal of consent is in effect, a separate order by itself without reference to the earlier order, is a wrong understanding of the scope of an order of consent.
404.If the argument of the petitioner is to be accepted, then the conditions imposed for establishment or for operation would become meaningless. This is precisely the reason as to why the application for renewal of consent was rejected, viz., on the ground that five conditions imposed earlier were not complied with. The condition imposed on the petitioner while granting consent to establish and subsequently consent to operate is a “permanent baggage” which the petitioner has to carry right through the journey of its existence. At any point of time, the Board is entitled to examine as to full and effective compliance of all those conditions. At this juncture, we wish to reiterate that the conditions imposed while granting an Page http://www.judis.nic.in 498 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 order of consent have to be complied with individually and cumulatively. No Court or Tribunal can modify or relax the rigour of any such condition imposed in the order of consent. The petitioner cannot challenge conditions imposed in the consent orders and all conditions are non-negotiable.
405.The respondent Board has contended that despite fine of Rs.100 Crores having been imposed on the petitioner, it has no deterrent effect on it and they refused to change their practices. Even after the decision of the Hon’ble Supreme Court, there have been instances which are matters of concern. On 23.03.2013, several complaints were received from the public complaining about throat irritation, breathing problem, severe cough, nausea etc., due to emission from the petitioner’s unit. On inspection by the Board, show cause notice was issued, as the SO2 emission suddenly short up from 20 ug/m3 to 62 ug/m3 at about 06.00 am, the air pollution control measure was not operated and the emission monitor was not connected to the Care Air Page http://www.judis.nic.in 499 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Centre of TNPCB, Chennai. The SO2 which was discharged at 2947.03 ug/m3 was substantially higher than the prescribed standard of 1250 ug/m3. The show cause notice dated 24.03.2013 referred to an inspection by the officials of the Board conducted on 23.03.2013 in which, a stand taken by the petitioner was noted stating that on 21.03.2013, around 03.20 am, the smelter was shut down to attend a puncture in furnace roof cooling jacket tube and the smelter was again put into service from 23.03.2013 at 03.30 am.
406.Further, the petitioner stated that sulphuric acid plant bed was maintained at required temperature using furnace oil and the emission was routed through tail gas scrubber and at around 04.00 am, copper concentrate at the rate of 26.77 tonnes/hour was fed as a trial for few months, noting that the value suddenly short up from 20 ug/m3 to 62 ug/m3 at around 06.00 am and the value was reduced to 10 ug/m3 around 6.35 am and at that time, wind direction was from North-west to South-east, that is, towards Thoothukudi Page http://www.judis.nic.in 500 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 town with a wind speed of at 224 km/hour. Noting that the online monitoring data was not connected, the SO2 emission monitor was not connected, it was stated that the air pollution control measures were not properly operated and thereby, the petitioner violated the conditions issued to them under Section 21 of the Act and they are liable for being punished under Section 37 read with Section 31A of the Act. The petitioner was granted three days’ time to submit their reply. In their reply dated 27.03.2013, the petitioner stated that during the period of calibration between 09.00 am to 11.15 am on 23.03.2013, the SO2 emission monitor has recorded the values in the range of 401 PPM to 1123 PPM, which is similar to the values experienced between 02.00 am to 02.45 am on 23.03.2013, the calibration period which confirms that the effluents are only calibre gas value fed to the analyser and not the actual emission value. The TNPCB was not satisfied with the reply and by order dated 29.03.2013, the plant was closed.
Page http://www.judis.nic.in 501 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
407.It was stated in the order that the petitioner did not give any prior intimation about this shut down and start up of the smelter, they did not report to the Care Air Centre about calibration of the analyser in the maintenance mode. It was mentioned that there are clear logged on-line details monitoring data registry at the Care Air Centre confirming the exceedance of emission standards of SO2 from SAP-I. It was further stated that the Ambient Air Concentration in the area should have been in the order of at least 5 PPM, which is equivalent to 13000 ug/m3 to cause the symptoms experienced which is well about the stipulated National Ambient Air Quality limit of 80 ug/m3.
408.The Board drew such inference, as there was no ambient air quality monitoring station in the complainant area. The AAQ Monitor available in the factory is stated to have not recorded higher values, but this was not relevant because, the monitor in the factory is not in the line of stock Page http://www.judis.nic.in 502 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 emission. Eye irritation and throat suffocation were experienced by the public about 5 kms away from the plant and the Board concluded that the AAQ thresholds were definitely breeched. The chronic health concerns due to SO 2 exposures were also taken note of, people with asthma would experience greater breathing difficulty and the healthy adults will also experience bronchospasm and the children will receive a larger doze, as they have larger lung services area to body weight ratio. The petitioner, thus, had operated the plant without observing due precautions leading to dangerly highlights in level of SO2 emission. The respondent Board rejected the explanation given by the petitioner that there was a calibration exercise and in this regard, referred to an e-mail sent by the Care Air Monitoring Centre regarding the exceedance of stack parameters in SAP-I. Though the mail was sent on 23.03.2013 at 08.33 pm, the petitioner did not respond, nor gave any explanation and only on 27/28.03.2013, an explanation was given stating that there was a calibration exercise.
Page http://www.judis.nic.in 503 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
409.Further, it has been pointed out by the respondent Board in their counter affidavit that on 84 other occasions between October, 2012 till the closure in 2013, the emission exceeded the prescribed standards and this can hardly be due to calibration exercise. The petitioner challenged the said order before the NGT and an order of stay was granted and subsequently, the appeal was allowed setting aside the order of closure, which order of the NGT has been set aside by the Hon’ble Supreme Court with direction to file writ petitions before this Court. On account of the order of stay granted by NGT, the respondent Board could not shut down the petitioner’s plant.
410.It may be true that the Tribunal had granted an order of stay of the order of the Board directing shut down of the plant. Order of stay by the Tribunal cannot be equated to a consent to operate. This, in the opinion of this Court, is so because the petitioner is a polluting industry and without an order of consent, they could have neither established, nor operated the unit. Page http://www.judis.nic.in 504 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Therefore, even though the Tribunal had granted an order of stay of the shutdown, it goes without saying that unless and until the petitioner satisfies the parameters and obtains consent to operate, they cannot commence production. In other words, an order of stay by the Tribunal cannot be a substitute to an order of consent issued by the regulator. Unfortunately, the respondent Board missed this vital point and probably due to fear of being dragged to other judicial forum, they remained a silent spectator. This conduct of the respondent Board is nothing new, as we have seen earlier that though the HW authorisation had expired and had not been renewed, the respondent took no action to direct the petitioner to cease operations. Thus, the respondent Board clearly misunderstood the scope of the order of stay granted by the Tribunal.
411.During March, 2017, TNPCB conducted an inspection pursuant to which, show cause notice dated 14.03.2017 was issued stating that the Page http://www.judis.nic.in 505 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 clarifiers were found in choked condition, there was a pin whole leakage in pipe carrying treated effluent, there was overflow of treated effluent during inspection, treatment units were not in operation for days altogether and 3.52 lack metric tone of copper slag was found dumped along the river Uppar. Further, taking note of the particulars furnished to the Central Excise Department, the Board stated that the petitioner has indulged in excess production than the consented quantity of 870 tonnes/day without permission/consent. In the ETP-I, the reaction tank, flocculation, air accent tank, secondary clarifiers were not in operation. Thus, the petitioner was directed to show cause as to why action should not be initiated for violation of the consent conditions. A separate show cause notice dated 14.03.2017, was issued under the Air Act for dust emission from the copper revert screening section, dust/smoke/fumes emission from the converter room section without going to the scrubber, dust emanated and spreading from rock phosphate unload, dust found deposited on trees and plants on the Southern side of the Page http://www.judis.nic.in 506 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 area, fugitive dust spreading from gypsum storage area, rock phosphate handling area and from the roads near sulphuric acid plant area and nose irritation was observed near FDGS area which is due to the spreading of SO2 gas escaped from the scrubber.
412.The petitioner submitted their reply dated 23.03.2017 which appears to be a reply only for the show cause notice issued under the Water Act. Thereafter, the respondent Board issued order dated 07.09.2017 granting renewal of consent to operate. In the said renewal of consent order dated 07.09.2017, there are only two proceedings which have been referred to and one is the Board proceedings dated 13.04.2016, which is the earlier order of renewal of consent valid up to 31.03.2017. The second proceeding is an inspection report of the Joint Chief Environmental Engineer, Madurai, dated 06.09.2017. There is no reference to the show cause notice dated 14.03.2017, nor nothing has been placed before us by the Board to show that the reply Page http://www.judis.nic.in 507 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 given by the petitioner dated 23.03.2017 to the show cause notice issued under the Water Act dated 14.03.2017 was examined for its correctness and as to how the Board was satisfied that no action need be initiated against the petitioner.
413.In paragraph 37 of the counter affidavit, sworn to by the Principal Secretary of TNPCB, an averment has been made stating that the show cause notice was replied by the petitioner and was subsequently closed on the assurance that all issues were being addressed. To say the least, it is an irresponsible statement made by a regulator. A show cause notice proposing stringent action for violating Section 25 of the Water Act and Section 24 of the Air Act warranting punishment under Section 44 read with Section 45A of the Water Act and Section 37 of the Air Act should be taken to a logical end. The respondent Board, as a regulator, cannot go by assurances given by the petitioner. The averment in paragraph 37 of the counter affidavit clearly Page http://www.judis.nic.in 508 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 shows as to how the Board has been functioning all these years. This one statement would be sufficient to draw adverse inference against the respondent Board. It is not clear as to what assurance was given by the petitioner and we find no justification for the Principal Secretary to now state in the counter affidavit that the assurance proved to be a pipe dream, as issues continue to prevail right up to closure. These facts would be sufficient to take disciplinary action against the officials of the Board and simultaneously prosecute them for endangering the lives of the public.
414.We are thoroughly dis-satisfied with the manner in which the Board had dealt with the show cause notices dated 14.03.2017. As mentioned earlier, there were two show cause notices dated 14.03.2017. In the typed set of papers, the petitioner has enclosed reply for one of the show cause notices under the Water Act. The Board has failed to disclose as to how the explanation offered by the petitioner was acceptable. Assuming the petitioner Page http://www.judis.nic.in 509 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 had given an explanation, which was found to be satisfactory by the Board, then it should have been followed by an order with conditions. Nothing appears to have been done, but order of consent is issued on 07.09.2014, which is a standard format with no reference to any of the earlier show cause notices issued to the petitioner. Thus, we can safely conclude that the officials of the Board were reckless in their attitude.
415.In the renewal of consent dated 07.09.2017, which was valid till 31.03.2018, in addition to the terms and conditions incorporated under the special and general conditions stipulated in the consent order issued earlier, 32 special conditions were imposed. Condition No.11 therein states that the unit shall have storage of solid waste of slag within the stipulated 10 hectares of land with a restricted stacking height of 12 meters throughout storage area for adherence with the safe load bearing capacity of 25 mt/sm. The unit was directed to maintain the generation and disposal ratio as 1:1 in respect of Page http://www.judis.nic.in 510 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 gypsum and copper slag and at any point of time, the available stock over the dead log in the yard shall not be more than the 15 days generation. Condition No.23 states that the renewal of consent is subject to the outcome of Special Leave to Appeal (C) Nos.28116 – 28123 of 2010 pending before the Hon’ble Supreme Court. The petitioner was directed to remove the heaped and dumped copper slag on the banks of river Uppar and patta land in Pudukottai Village.
416.The unit has to take action to construct physical barrier between river Uppar and slag land fill area of patta land so as to prevent slag from reaching river Uppar. The unit was directed to restrict the production within consented quantity and not to go for any excess production without obtaining consent to operate from the Board. The unit was directed to continue to provide protected water supply to Meelaittan Village as part of corporate social responsibility. The renewal of consent order dated 07.09.2017 under Page http://www.judis.nic.in 511 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the Air Act while reiterating the conditions imposed in the consent order issued earlier, imposed 18 additional conditions. Condition No.12 therein states that the unit shall ensure the CAAQMS provided for the parameters of Nox, PM10, PM2.5 are connected with Care Air Centre of TNPCB, Chennai and provide proper data at all times. By proceedings dated 11.09.2017, further directions were issued under Section 33A of the Water Act and Section 31A of the Air Act. These directions were pursuant to the inspections conducted on 25.07.2017 and 05.08.2017. One among the directions was to provide separate flow meter at inlet and outlet of each ETP. The unit has to remove the heaped and dumped copper slag on the banks of river Uppar and patta land in Pudukottai Vilalge. The need for construction of physical barrier between the river and the patta land was again reiterated. These directions were to be complied with by the petitioner before 31.12.2017.
417.The above facts will clearly disclose that the conditions imposed remained on paper. No effective action was taken by TNPCB though Page http://www.judis.nic.in 512 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 while issuing directions, it was mentioned that failure to comply will lead to issue of further directions for closure and stoppage of power supply. On 31.01.2018, the petitioner applied for renewal of consents to operate for a period of 5 years from 01.04.2018 to 31.03.2023 through online portal. Along with the physical application, the petitioner enclosed a tabulated statement which according to them was the compliance status of consent conditions. The application was examined by the Board and it is stated that physical verification was carried out in the presence of the representative of the petitioner, Thiru C.Subbiah, AGM. However, the petitioner would contend that there was no such representative and in this regard, referred to a copy of the report dated 27.02.2018 to state that one of the copies does not mention the name of the representative while the other shows the name of Thiru.C.Subbiah, AGM.
418.The fact remains that an inspection was conducted by the Board to satisfy itself as to whether the stand taken by the petitioner was correct. Page http://www.judis.nic.in 513 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Under the column “actions to be taken by the petitioner”, the inspection report stated that they have to construct a gypsum pond as per the guidelines of CPCB, they have to provide physical barrier where the copper slag is stored in patta land near river Uppar. The petitioner has to improve the road sweeping operations with machines so as to avoid fugitive dust emission. The unit has to arrange additional land for the future hazardous waste landfill and the unit has to ensure that no trade effluent/sewage from the premises nearer to the hazardous waste storage area, if any, is discharged on land or water sources directly or indirectly. In the recommendations, it has been stated that the renewal of consent to operate may be considered taking into consideration 22 conditions under the Water Act and 18 conditions under the Air Act.
419.To be noted that the conditions which were recommended in the inspection report are, in fact the conditions which were imposed while granting renewal of consent vide order dated 07.09.2017. Thus, we can safely Page http://www.judis.nic.in 514 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 hold that the inspection report has been mechanically prepared and as has been the practice, the same conditions are being continuously imposed at the time of every renewal in addition to conditions being imposed whenever inspection is conducted. Therefore, we have no hesitation to hold that the inspection report needs to be scrapped. The purpose of conducting an inspection is to ensure that the unit faithfully complies with the conditions imposed in the earlier consent order and special conditions which were imposed from time to time. Without verifying and putting stringent conditions on the petitioner stating that unless and until all the earlier conditions were complied with they cannot operate, the Board has mechanically considered the application and recommended for renewal of consent reiterating the earlier conditions and the special conditions, which were being imposed on the petitioner from 2017 and even earlier. Thus, it is evidently clear that there has been supine indifference on the part of the petitioner in compliance with the conditions. The so-called compliance report has not been examined for its Page http://www.judis.nic.in 515 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 correctness by the Board in its entirety. Had a genuine and concerted effort taken by the inspecting team, the report would have been fully against the petitioner.
420.The first and foremost duty cast on the inspecting team is to go back to the conditions and special conditions which have been imposed on the petitioner from 2013 and even if one of the conditions has not been complied with, the question of recommending for renewal of consent does not arise. As pointed out earlier, the conditions imposed on the petitioner are to be complied with individually and cumulatively. The conditions are non-negotiable. The inspecting team cannot extend time for compliance or once again recommend the same conditions which were not complied with by the petitioner for several years.
421.By way of illustration, if we see the conditions which were imposed from 2013, all of them directed the petitioner to construct the Page http://www.judis.nic.in 516 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 physical barrier to prevent the huge stock of slag dumped in private patta land, to prevent it from obstructing the flow of the river. This will clearly illustrate that the petitioner did nothing about it. Though a plea is raised before us saying that the responsibility rests with the owner, such a plea is not tenable, as is evident from the conditions imposed in the memorandum of understanding between the petitioner and the purchaser. That apart, the memorandum of understanding shows about 1.5 lakh metric tonnes of slag to have been sold whereas, the slag which is lying dumped is about 3.52 lack metric tonnes along the river Uppar. This will clearly demonstrate that the purchaser is not a genuine purchaser, who is alleged to have purchased the slags for land filling, probably, a name lender. When the District Administration woke up from their deep slumber and issued notice to the land owner, he raised a frivolous plea with regard to the extent of the property, etc., he wanted a survey to be conducted which had been conducted and it was confirmed that the slag was dumped in the patta land. Thus, the non- Page http://www.judis.nic.in 517 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 compliance of this condition is fatal to the petitioner. We say so because, the opinion of CPCB/TNPCB that slag is non-hazardous, non-leachable can be safely used for varied purposes are all based on data which is collected on an idealistic situation. Neither the CPCB, nor TNPCB can take a stand before us that 3.52 lakh metric tonnes of slag heaped in a place left to the fury of nature for several years can have no impact on the environment. Technical report says that dumping in abundance is hazardous. Therefore, the petitioner cannot wriggle out by stating that TNPCB and CPCB had approved the usage of slag for varied purposes and therefore, it has to be treated as non-hazardous.
422. According to the petitioner, slag is non-hazardous waste, such submission also to be rejected. Assuming such submission to be right, such huge quantity of slag dumped in a particular area and left to lie there for several years would undoubtedly be a hazardous substance as defined under the EP Act. On 18.05.2018 and 19.05.2018, inspection was conducted in Page http://www.judis.nic.in 518 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 which, it was found that the petitioner was carrying out activities to resume its production and operation without having any consent and having undertook not to do so. The petitioner would state that they were entitled to have ingress and egress into the factory at that relevant point of time and the allegation that they were about to resume production is false.
423.We do not propose to disbelieve the stand taken by the regulator, as such stand has been made with some sense of responsibility, though such responsibility was not shown by the officials of the Board earlier. Thus, the stand taken by the Board should be given due credence and no doubt can be raised on the same and it has to be held that the petitioner was undertaking activities to resume production more so when the petitioner has not made any allegation of mala fide against any particular officer(s) of TNPCB or the District Administration. This has led to the order of closure dated 23.05.2018 followed by the decision of the Government endorsing the Page http://www.judis.nic.in 519 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 order of closure passed by the TNPCB and directing sealing the unit and closing the plant permanently.
424.With regard to the ground water analyse reports, the conditions imposed in the consent order mandate the petitioner to get the samples of emission collected and analysed by the TNPCB Laboratory every month and furnish report to the Board by 10th of the succeeding month. Right from the inception, that is, from 1996, the petitioner was clearly informed that the consent will be revoked, if there is any pollution to the ground water on account of seepage. The Board has taken a specific stand that the petitioner has not produced data to show that they have not caused ground water pollution. The petitioner is bound by the condition to do so and it is incorrect to state that the petitioner is being called upon to prove the negative. The updated ground water monitoring report submitted after the closure order dated 23.05.2018 shows that ground water was analysed continuously even Page http://www.judis.nic.in 520 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 after closure of the unit and compared with year wise maximum value of parameters with baseline collected during 1994 and up to February, 2019. The data, which has been filed as an annexure to the counter affidavit of the Board shows that even after closure, the TDS level does not satisfy drinking water standards. Though the chloride levels are getting reduced in Meelavittan and Silverpuram Villages, it is yet to satisfy the drinking water standards. Same is the position with regard to the sulphates and total hardness.
425.The petitioner seeks to discredit the testing done by the Board stating that the procedure is incorrect and drinking water standards should not be adopted. Such a plea cannot be raised by the petitioner, as even in the rapid EIA, those were the standards which were adopted and therefore, the petitioner is estopped from raising such a contention. In any event, when water samples are drawn from borewells and public wells, obviously the standard which has to be fulfilled is drinking water standards and not any other standard. Page http://www.judis.nic.in 521 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Interestingly, the reports submitted by NEERI show that the petitioner had not complied with the conditions imposed in the orders of consent. NEERI had submitted reports in 1998, 1999, 2005, 2011, 2013 and 2018. In 2005, there is a report of the Supreme Court appointed Monitoring Committee on hazardous waste and in 2012, there is a joint inspection report of TNPCB and CPCB pursuant to directions of the Hon’ble Supreme Court. Each of these reports, if carefully seen, would clearly show that there has been non-compliance of conditions. In fact, the Hon’ble Supreme Court in the 2013 judgment, took note of the report of NEERI of 2005, recorded that the petitioner has caused pollution and the report did show that the emission and effluent discharge affected the environment. However, the Hon’ble Supreme Court pointed out that the report does not warrant a conclusion that the petitioner could not possibly take remedial steps. Therefore, the petitioner never stood exonerated by the Hon’ble Supreme Court as mentioned earlier, gave liberty to the Board to issue directions to the petitioner including direction for closure of the plant. Page http://www.judis.nic.in 522 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
426.The direction contained in paragraph 50 of the judgment has to be read in conjunction with the observations made by the Hon’ble Supreme Court in the various other paragraphs, where there is a categorical finding of pollution affecting the environment. The Monitoring Committee appointed by Hon’ble Supreme Court to inspect all units in the country generating hazardous wastes reported that there is a mountain of arsenic bearing slag as also phosphogypsum. Phosphogypsum if not contained properly, occasionally becomes airborne and may cause severe respiratory disease. The Committee was concerned with the issue relating to the disposal of arsenic containing slag, which was found dumped in the factory premises in the range of several thousands of tonnes. Further, the Committee also found that the petitioner industry is emitting SO2 far in excess of the permissible standard. The existing waste management practices of the petitioner are not in compliance with the environmental standards and the solid hazardous waste generated also required to be properly managed particularly, in terms of available space and Page http://www.judis.nic.in 523 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 infrastructure, and it would be inadvisable to consider the petitioner’s application for expansion. In March, 2005, there was an environmental audit of the petitioner, which was conducted by NEERI on the directions of TNPCB. This report also shows that the ground water samples did not meet the drinking water standards. The report of NEERI of 2011 also notes fugitive emission on account of raw material storage and handling of gypsum.
427.It may be true that when an inspecting agency submits a report, it would definitely report compliance effected by the petitioner. At the same time, it will also point out the deficiencies. What we are concerned now is not with that portion of the reports which were found to be favourable to the petitioner, but that portion of the report which found fault with the petitioner. It may be true that in certain reports, there would be recommendations in favour of the petitioner. Any such recommendation would not bind the regulator, nor this Court.
Page http://www.judis.nic.in 524 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
428.In the preceding paragraphs, the Court took serious note of the inaction on the part of the TNPCB to act in the manner they were required to act. Thus, the Court would be well justified in assessing the conduct of the petitioner cumulatively, consider the various reports which clearly hold that the petitioner was not fully compliant. If such be the factual position, the TNPCB or the State cannot be found fault for taking a precautionary decision. In fact, the decision, in our understanding is not precautionary, but a decision taken belatedly after the damage was done and it is rather doubtful as to whether the damage caused to the environment by the petitioner’s continued operation violating the conditions of consent is remediable. The compensation of Rs.100 Crores paid by the petitioner cannot erase all defaults committed by the petitioner from the time it commenced production. The petitioner was granted consent to establish on 22.05.1995 and on 14.10.1996, the petitioner was granted approval to commence production of 391 tonnes of copper per day. In November, 1996, writ petitions were filed before this Court. Page http://www.judis.nic.in 525 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Eversince then, the public interest litigants, individuals and others have been relentlessly pursuing the case.
429.To be noted that the writ petitions were filed before this Court in November, 1996 even prior to the petitioner commencing production on 01.01.1997. Within six months of commencing production, the petitioner was visited with an order of closure dated 06.07.1997. A committee was appointed to investigate the gas leakage. Within a month, the petitioner was permitted to reopen, that is, in August, 1997. In August, 1998, the Division Bench directed NEERI to submit a report. The findings were clearly against the petitioner and this report was objected by the petitioner, and also the Government of Tamil Nadu and Government of India. Based on the report, the Division Bench directed closure in November, 1998. This order was revoked in December, 1998 permitting reopening on experimental basis for a period of about two months till February, 1999. Though the report ultimately recommends that the Page http://www.judis.nic.in 526 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner be allowed to continue its operations, it was based on an undertaking given by the petitioner that comprehensive EIRA shall be conducted which addresses all environmental issues. The report states, the analysis of water samples from all nine bore wells and one dug well reveal that the water is not portable, as TDS, As, Al, total hardness, sulphates, Se, Pb, Cd and Mg levels exceed those stipulated in the drinking water standards issued by the BLS.
430.Further, it was stated that it is mandatory for the petitioner to conduct tracer studies as part of comprehensive EIRA study. Therefore, the ground water pollution is not a new issue, but was confirmed even as early as in the year 1999, hardly within two years of the petitioner commencing production. In 2004, the petitioner obtained No Objection Certificate from the Government of Tamil Nadu for increase of its production capacity from 391 TPD to 900 TPD. While the application was pending, the Supreme Court Monitoring Committee visited all red category industries in India including the Page http://www.judis.nic.in 527 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner’s unit and submitted a report on 21.09.2004. The petitioner had mentioned about the findings of the Monitoring Committee and it is pertinent to reiterate that the Committee specifically stated that environmental clearance for the proposed expansion should not be granted by MoEF. However, on the very next date, i.e., on 22.09.2004, environmental clearance was granted by MoEF. This followed with a consent to operate for the increased capacity in April, 2005. However, the expansion took place even before grant of environmental clearance. Immediately thereafter, in September, 2005, the petitioner applied for further increase in production capacity from 900 TPD to 1200 TPD by a process of de-bottle necking.
431.The stand taken by the petitioner as well as by the regulator and MoEF is that separate environmental clearance is not required for increase of production capacity by process of de-bottle necking. However our attention was not drawn to any such statutory Notification. TNPCB granted consent to Page http://www.judis.nic.in 528 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 operate to the de-bottle necking increased capacity on 15.11.2006. In industrial parlance, the petitioner as well as the regulator may assess the process of de-bottle necking to be a scientific process by which, the equipments are put to optimum use and production is increased. However, as a Court examining an environmental matter, is not fully convinced as to why there is no requirement for an environmental clearance before grant of permission to increase the production capacity for a hazardous and inherently dangerous industry. This is so because by increase of production, there is undoubtedly going to be increase in the generation of hazardous and other wastes, which has an impact on environment. Therefore, it is high time, the MoEF initiate a thought process on these lines because, the correct test would be what is the ultimate quantity of material produced by the industry. Interestingly, on 09.08.2007, ex post facto clearance was granted under the EIA notification, 2006 by ratifying the EC obtained for de-bottlenecking. Diluting the requirement of prior EC would be a death knell. Page http://www.judis.nic.in 529 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
432.Environmental Clearance was granted for further expansion from 1200 TPD to 2400 TPD without any public hearing and in 2010, the Division Bench allowed the writ petitions and directed closure of the petitioner by order dated 28.09.2010, which order was stayed by the Hon’ble Supreme Court on 01.10.2010. The chain of events will clearly reveal that the petitioner has been a chronic defaulter, taking advantage of the slackness on the part of the regulator they have been carrying thus far.
433.The learned Senior Counsel for the petitioner placed reliance on a report prepared by Central Ground Water Board, South Eastern Coastal Region (SECR), Chennai in July, 2018, that is, after the order of closure. It is submitted that the State Government challenged the said report by filing a writ petition before this Court and the same was dismissed. The report was extensively referred to by the learned Senior Counsel to substantiate the submission that the petitioner is not the cause of the pollution indicated. Page http://www.judis.nic.in 530 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
434.Before we go into the veracity of the report, two important facts have to be noted. The report states that it is a report on short term investigation of ground water quality in and around SIPCOT industrial area. In the executive summary of the report, it has been stated that in accordance with the direction of the Regional Director of South Eastern Coastal Region, Chennai, a hydro-chemical study was carried out to assess ground water quality in and around SIPCOT industrial area, Thoothukudi, wherein the petitioner is one of the industries.
435.Firstly, it is not clear as to the jurisdiction of the Regional Director, SECR, Chennai, to direct for a hydro-chemical study to be conducted in an industrial complex and areas adjoining to it without the express written consent of the concerned authorities. Secondly, the timing of the report in July, 2018 is very crucial because by then, the petitioner had been closed down. In paragraph 2.2 of the report, it is stated that the investigation team Page http://www.judis.nic.in 531 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 could not enter into the premises of the petitioner for collection of samples from inside and outside of the industry because District Authorities have sealed the petitioner’s plant following Government orders to close down the plant permanently. Thus, the inspecting team and the Regional Director, SECR was fully aware of the Government order which was in vogue, sealing and permanently closing down the plant. In such situation, we find that the intention of the Regional Director to have directed a study to be conducted appears to be with certain ulterior motive. However, since the said authority is not a party to the litigation, the Court would not be justified in making any observations adverse to a person, who is not heard.
436.Considering the complexity of the situation, the fall out of the order of closure and the challenge made by the petitioner to the orders of closure, it did not augur well on the part of a Central Government Organisation to embark upon a study with regard to the ground water quality Page http://www.judis.nic.in 532 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 in the area without obtaining permission from the State Government, without notifying the TNPCB or the District Administration. The study undertaken was not a general study, but with specific reference to the petitioner. This is clear from reading the executive summary of the report. Considering all these facts, we are of the definite view that the said report of July, 2018 submitted by two scientists directed to investigate ground water quality by the Regional Director, SECR of Central Ground Water Board deserves to be scrapped and consequently, the petitioner can make no reference to the said report.
437.An argument was placed stating that the Government was unsuccessful in setting aside the report, as the writ petition filed by them was dismissed. The copy of the order was not placed for our consideration.
438.Be that as it may, the report having been relied on before us, we are entitled to consider the effect of the report and dismissal of a writ petition Page http://www.judis.nic.in 533 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 filed by the Government challenging the report is not an embargo for this Court to consider the sanctity and validity of the report. In fact, the Government had issued a press release on 08.09.2018, stating that the direction to conduct an assessment of the quality of ground water in the area lacked bona fide and it is inappropriate at the given time. After referring to the fact that the investigating team could not enter into the factory premises and noting that in the last line of the report, it has been indicated that the petitioner is not the only cause for the pollution was held to be totally unwarranted conclusion, absolutely vague and not supported by empirical data. Further, the report does not appear to be made on any scientific basis and it is not known as to how the two scientists who had submitted the report have made such a vague and unsubstantiated statement in the report. Therefore, it was stated that the State of Tamil Nadu strongly feels that the report is motivated and has been prepared only to prejudice the Government of Tamil Nadu and TNPCB, as cases are pending in various judicial forum. Page http://www.judis.nic.in 534 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
439.Further, it was mentioned the law and order situation in an around Thoothukudi has returned to normalcy and such an unscientific report is likely to aggravate the law and order situation and therefore, the Government rejected the report and requested the Central Government Organisation to immediately withdraw the entire report, as the competent statutory authority of the State Government has already conducted a detailed analysis on which a decision has been taken by the Government and the matter is sub judice.
440.Nothing has been placed before us to show that the Department of the Central Government had issued any rebuttal to the said press release meaning thereby they themselves do not stand by their own report. This is one more reason to discard the said report of July, 2018.
441.Elaborate reference was made to the report of NEERI of May, 2011, which was submitted to the Hon’ble Supreme Court. In the judgment of Page http://www.judis.nic.in 535 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the Hon’ble Supreme Court in paragraph 42, the report of NEERI of 2005 was extracted, which showed that on account of the petitioner’s operations, environment stood affected. On 22.02.2011, the Hon’ble Supreme Court directed joint inspection by NEERI, CPCB and TNPCB. This report was submitted before the Hon’ble Supreme Court and the TNPCB was directed to file a synopsis specifying the deficiencies, with reference to the NEERI report and suggesting control measures that should be taken by the petitioner so that the Court can consider the directions to be issued for remedial measures, which can be monitored by the TNPCB. TNPCB appears to have not placed on record as to the past conduct of the petitioner which travelled up to an order of closure. It is also not clear as to whether the TNPCB rightly understood the scope and effect of the conditions imposed in a consent order.
442.We have held that the consent conditions which are imposed at the time of establishment and at the time of commencement of operations shall continue to enure and that is precisely the reason, when renewal of consent is Page http://www.judis.nic.in 536 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 granted, it is mentioned that not only the conditions imposed in the renewal order should be complied with, but also the general and special conditions imposed in the earlier consent order. Thus, the aspects of environmental pollution which were subject matter of consideration after the report of NEERI of 2005 cannot be put in a water tight compartment. There are various activities done by the petitioner in its manufacturing process and different kinds of wastes are generated and it is not a simple operation whereby, the conditions can be very specific. This is more so because, the petitioner deals with hazardous substances and it is a chemical industry and each activity has a reaction. Therefore, it would be incorrect on the part of the petitioner to contend that 30 conditions were imposed by the TNPCB and all thirty has been complied with and the Hon’ble Supreme Court was satisfied and everything has been done and dusted. This contention of the petitioner is a thorough misreading of the scope of the conditions imposed in the order of consent.
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443.Further, any test report can be a reflection of the state of affairs at a given point of time. There is no guarantee that situation will not worsen after a report. In all probabilities for pollution to set in, it may take time and nature by itself is very tolerant and will not explode spontaneously except when incidents like leakage of gas or fire or any other industrial calamity arise. Ground water pollution, air pollution and other forms of pollution are gradual. The effect of the pollution caused by the petitioner since 1997 is seen today in the soil of Thoothukudi and therefore, the petitioner cannot hinge on to certain observations made in the report of NEERI of May, 2011. Added to it, the petitioner has been permitted to draw water from River Thamirabarani. How much water has been drawn has not been furnished. On the one hand, the petitioner have been drawing river water for its activities and on the other, polluting the ground water. TNPCB/State Government did not state that the petitioner has been permitted to draw water from the river and the fact came to Page http://www.judis.nic.in 538 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 light when the petitioner stated that they are contemplating of establishing a de-salination plant to avoid drawing of water from the River.
444.The Court also considered as to what had happened after 2013 till the date of closure and has recorded in the preceding paragraphs as to how there has been environmental degradation on account of the petitioner’s operations. One more aspect, which we had noted was that the Hon’ble Supreme Court interfered with the judgment of the Division Bench of this Court primarily for the reason that the Court exceeded its jurisdiction while exercising power of judicial review. After rendering such a finding, the Hon’ble Supreme Court found that the petitioner had caused extensive environmental pollution, however, thought fit to grant one more opportunity to the petitioner because in the assessment of the Hon’ble Supreme Court, the situation was a remediable, that apart, owing to efflux of time between 2005 and 2011. The Hon’ble Supreme Court directed a joint inspection to be done Page http://www.judis.nic.in 539 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 and issued directions to the TNPCB to point out the deficiencies. After issuing such directions and recording the conclusion of the joint inspection report by the regulator stating that 29 of the 30 directions have been complied with and only one more direction has to be complied with which was also removed when the judgment was pronounced. Accordingly, the order of closure passed by the Division Bench was set aside. Yet the Hon’ble Supreme Court held that the judgment will not stand in the way of the TNPCB issuing directions to the petitioner including direction for closure of the plant. This observation would not have been necessary, if the Hon’ble Supreme Court had been satisfied that “all is well” with the petitioner. It did not find the explanation of the petitioner to be satisfactory. Fine of Rs.100 Crores was imposed and payment of the said fine to not to be considered as exonerating the petitioner of the damage done. This is clear from the observations made by the Hon’ble Supreme Court in paragraph 50 of the judgment giving liberty to TNPCB to close down the industry. Therefore, selective reading of the Page http://www.judis.nic.in 540 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 report of NEERI of 2011 and contending that the same was accepted by the Hon’ble Supreme Court and nothing further can be done on those issues, is an argument which cannot be accepted.
445.In the impugned order dated 09.04.2018, while refusing to renew the consent to operate, it had been stated that the petitioner has not complied with five of the conditions imposed in the previous renewal of consent order. An argument was advanced on behalf of the petitioner that the Court needs to confine itself to see as to whether the five conditions which are stated to have not been complied with are true and if one or more is true whether, it should ultimately result in an order of closure/permanent closure. In other words, it was contended that if an order of consent contains thirty conditions, and while renewing the said order, another set of twenty conditions are imposed, it is deemed that the petitioner has complied with all the thirty conditions originally imposed.
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446.We did not agree with the said submission by mentioning that every order of renewal of consent to operate refers to the earlier conditions, which have been imposed either general or special condition and each such renewal order contains fresh conditions. We noted with disapproval the manner in which, TNPCB mechanically reiterated the very same conditions while granting renewal without taking action on the petitioner for non compliance. We have also held that the conditions imposed in the order granting consent to establish and subsequently consent to operate and renewal of consents have to be individually and cumulatively complied with and it is a continuing action as long as the petitioner is permitted to operate.
447.We now consider as to whether the green belt requirement has been complied with by the petitioner. The TNPCB contends that they have not complied with. The public interest litigants, who were impleaded, also Page http://www.judis.nic.in 542 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 state that the green belt requirement has not been complied with. The petitioner’s contention is that the same has been complied with and precisely for such reason, there is no such condition was imposed while granting renewal orders and this issue was noted by the Hon'ble Supreme Court in the 2013 judgment and the matter cannot be reopened.
448.We had seen that the original extent of green belt, which had to be provided as per the orders of TNPCB, is 250m as against the recommendation of MoEF of 500m. However, TNPCB reduced it to 25m. In paragraph 39.2 of the 2013 judgment, the Hon'ble Supreme Court pointed out that the Division Bench of this Court has not recorded any finding that there has been any breach of the mandatory provisions of the Air Act or the Rules by the TNPCB by reducing the green belt to 25m, further, the High Court has not recorded any finding that, by reducing the width of the green belt around the battery limit of the industry of the petitioner from 250m to 25m, it will not Page http://www.judis.nic.in 543 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 be possible to mitigate the effects of the fugitive emissions as per the plan and it is for the TNPCB to take decision; that the petitioner's plant was within a pre-existing industrial estate, the petitioner could have been singled out to require such huge green belt.
th
449.Ms.R.Vaigai, learned Senior Counsel appearing for the 9 respondent is right in her submission that the Hon'ble Supreme Court while considering the arguments with regard to the reduction of the green belt requirement from 250m to 25m, left it to the decision of the TNPCB more particularly, because no material was placed by TNPCB that, by reduction of the extent of green belt, it will not mitigate the fugitive emission from the plant. Thus, in our considered view, the regulator, TNPCB failed to place material before the Hon'ble Supreme Court. This is so because, it is the TNPCB which initially prescribed 250m and on representation from the petitioner, reduced it to 25m and it would be an uphill task for them to justify Page http://www.judis.nic.in 544 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 their action and there may be several pit falls in the bureaucratic ladder, if any such attempt was made by TNPCB. However, in the counter affidavit filed by the TNPCB before this Court, they state that the 2011 report of NEERI states that the area of plantation within the industry is estimated as 13.1 Ha as against the total area of 102.5 Ha. However, based on plantation assessment, the area of green belt developed and under-development was only 12.39 Ha and 0.71 Ha respectively, thus, making the area under green belt coverage as only 10.8% including the area under-development. Further, the report states that in some places, the area of the green belt is less than 25m and more than 10m and in some areas, it is less than 10m . Further, in the periphery near the rock phosphate storage area, gypsum storage area, rain water harvesting pond and near secured land fill area, there is literally no green belt available even till date. Further, it has been stated that the situation remains the same even now and the petitioner remains non-complaint with the consent conditions. Page http://www.judis.nic.in 545 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
450.By order dated 22.05.1995, consent to establish was granted under the Air Act with a specific condition that the petitioner shall have adequate space for development of green belt for a width of 25m or width contemplated under Environmental Management Plan, whichever is greater around the battery limit of the industry. In the order dated 14.10.1996 granting consent to operate under the Air Act, the petitioner was directed to plant minimum of three varieties of trees at the density of not less than 1000 trees per acre of land and the plantation is stipulated over and above the bulk plantation of trees in that area and maintain them. In the order dated 14.10.1996 while granting consent to operate under the Water Act, some conditions were imposed as special conditions. These conditions were once again mentioned in the order dated 19.04.2005 granting consent to operate under the Air Act. While issuing the consent to operate order dated 19.04.2005 under Water Act, the petitioner was directed to develop green belt of adequate width and density for a minimum width of 25m, which is Page http://www.judis.nic.in 546 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 reiterating the condition imposed while granting consent to establish vide order dated 22.05.1995. In addition to the same, it was stipulated that minimum of 25% of the area shall be developed as green belt with local species in consultation with the District Forest Officer. In 2012, while granting consent to operate, vide order dated 05.10.2012, it was specifically mentioned that the unit shall maintain green belt in the earmarked 26 hectares of land within the industry premises to a width of 25m and covering the areas of smelter plant, salt yard, gypsum pond and secured land fill with native species and suitable species in new areas to act barrier for controlling secondary fugitive emission. Further condition was imposed that the petitioner shall maintain the green belt to an extent of 25% of the total area as given by the petitioner under the documents furnished for obtaining consent to establish for the expansion from 900 TPD to 1200 TPD. In the consent to establish order dated 15.11.2006, the condition to plant 1000 trees per acre, as mentioned in the 1996 order, was reiterated. Thus, a perusal of all these orders Page http://www.judis.nic.in 547 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 would clearly reveal that the petitioner was non-complaint of the condition regarding maintenance of adequate width of green belt. Had the petitioner complied with the condition imposed in the consent to establish order dated 22.05.1995 and consent to operate order dated 14.10.1996, the question of reiterating the same in the subsequent orders would not have arisen. Mere non-mentioning of the same at the present circumstances cannot be taken as if the petitioner has complied with the condition. The condition regarding green belt area is of utmost importance and cannot be brushed aside because, it allows toxic dust and fugitive emission to spread in the area.
451.The petitioner would contend firstly by stating that this is a new allegation brought-forth by TNPCB likely at the behest of the private respondents and the matter was raised before the Hon'ble Supreme Court and NEERI was directed to make an independent assessment after which, 30 recommendations have been given and with regard to the green belt, it was Page http://www.judis.nic.in 548 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 stated that the unit was earmarked and developed 26 hectares of land within the industry premises to the width of 25m as green belt. The petitioner would state that they have developed an additional green belt of 15.86 hectares of 25m width within the industry premises, which was verified by NEERI in 2012. Further, as per the condition imposed by TNPCB on 02.03.2012, the petitioner has developed additional green belt to an extent of 12.5 hectares, which has been verified by the Joint Inspection Team during September, 2012. Further, the condition, which was imposed while granting consent to establish for expansion of 900 TPD to 1200 TPD, has also been complied with. Ultimately, the petitioner would contend that the Hon'ble Supreme Court in its final judgment dated 02.04.2013 has held that the green belt of the petitioner unit to be adequate and it attained finality.
452.If the contention raised by the petitioner is to be accepted and there has been prompt compliance of the condition imposed in the consent to Page http://www.judis.nic.in 549 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 establish order dated 22.05.1995, in all probabilities, no further conditions would have been imposed. The fact remains till 2011, the petitioner did not have adequate green belt area and they were deficient. When they were faced with orders of closure and they were operating on order of stay, on inspection being done, time appears to have been granted to develop green belt area. Therefore, from the materials, which have been placed before this Court, what is evident is, from 1995 to 2011, the petitioner did not comply with the condition fully and faithfully. When inspection was conducted, inadequacy was pointed out, which according to the petitioner has been complied with.
453.The regulator, TNPCB states on oath that the petitioner is non- complaint of the said condition even as on date. Development of a green belt is not the only requirement, but what is required is maintenance and upkeep of the green belt. Had there been adequate maintenance and upkeep, there could have been no necessity for the TNPCB to issue direction in the year 2006 and Page http://www.judis.nic.in 550 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 2012 to plant 1000 trees per acre of land. These conditions will go to show that such dense green belt was required around the battery limit of the unit and the requirement will not be taken to have been complied, if green cover is established in selected spots and spaces in the premises of the petitioner. This is precisely so because, while granting consent to establish the condition was that the petitioner shall have adequate space for development of green belt for a minimum width of 25m or width contemplated under the Environmental Management Plan, whichever is greater around the battery limit of the industry. Therefore, development of green belt in the adjoining township can be of little avail. The petitioner has been reiterating in all its pleadings and written arguments as well as in the oral submission of the learned Senior Counsel that the issue has been heard and stood settled after the 2013 judgment of the Hon'ble Supreme Court.
454.We have pointed out that the fact situation is otherwise and the condition being a continuing condition, mere non-mentioning of the said Page http://www.judis.nic.in 551 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 requirement in the subsequent orders of renewal of consent to operate will not obliterate the requirement, nor it can be taken that the petitioner has deemed to have complied with the requirement. The petitioner cannot contend that a new argument is put forth. The entire issue as to whether the petitioner industry should be permitted to continue or not is writ large before this Court by way of writ petitions filing under two categories. One set of cases challenging the Government Order to close and permanently seal the petitioner. The other set of writ petitions is in effect appeals against the decision of the regulator. Therefore, as an appellate authority, this Court is not denuded of jurisdiction to cumulatively examine the compliance status of the petitioner. Merely because the regulator, viz., the original authority did not mention, the same cannot be a ground to restrict the powers of appellate authority in looking into issues which are essential, which might have lost sight of by the original authority.
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455.The European Court of Human Rights while considering the application filed against the Russian Federation filed by a Russian national alleging that the operation of a steel plant is in close proximity to her home endangered her health and well being. The background facts being, the steel plant was established about 300 kms North-East of Moscow. The applicant moved to a flat approximately 450m from the steel plant. The flat was provided by the plant to the applicant's husband under tenancy agreement. The plant was the largest iron smelter in Russia and employed about 60,000 people. In order to delimit the area in which the pollution caused by steel production might be excessive, the authorities established a buffer zone around the premises called the “sanitary security zone” (akin to green belt). This zone was first delimited in 1965, it covered a 5,000m wide area around the site of the plant. However, many people still lived within the plant's sanitary security zone. The applicant with her family and other residents of the flats brought a Court action seeking re-settlement outside the zone, they claimed that the Page http://www.judis.nic.in 553 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 concentration of toxic elements and the noise levels in the sanitary security zone exceeded the maximum permissible limits by Russian Legislation. The applicant contended that the emission levels of 13 hazardous substances, such as nitrogen dioxide, hydrogen sulphide, sulphur dioxide, ammonia etc., were monitored by the authorities and the data collected by the State Monitoring Authorities were not publicly available. The applicant claimed that the concentration of toxic substances in the air near her home constantly exceeded and continues to exceed the safe level established by the relevant legislation.
456.The Government submitted a report stating that pollution in the vicinity of the applicant's home was not necessarily higher than in other districts of the town and gave certain facts and figures to support their claim. They also contended that over a period of time, that is, from 1999 to 2003, certain improvement in the quality of air was registered under the steel's plant “pollution plume” in the residential area of the town. Page http://www.judis.nic.in 554 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
457.The Court while dealing with the sanitary security zone, noted that the legislature placed a mandatory duty for every polluting undertaking to create sanitary security zone around its premises – a buffer area separating sources of pollution from the residential area of the city. Under the sanitary regulation of the said country, the sanitary security zone around the steel plant of such magnitude was 2000m. It was pointed out that the existence of a sanitary security zone is a condition sine qua non for the operation of an environmentally hazardous undertaking otherwise, it must be closed down or significantly re-structured. It was further pointed out that the main purpose of the sanitary security zone is to separate residential areas from the sources of pollution and thus to minimise the negative effects thereof on the neighbouring population. It was further pointed out that it would only be possible for the steel plant to operate in conformity with the domestic environmental standards, if the sanitary security zone continued to exist and served its purpose.
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458.The Government submitted that the pollution levels attributable to metalargical industry were the same are not higher in the other districts than those registered near the applicant's home. While considering the said argument, the Court pointed out that it proves that the steel plant has failed to comply with the domestic environmental norms and suggests that a wider sanitary security zone should perhaps have been required. The Court found that the State had authorised the operation of a polluting plant in the middle of a densely populated town. Since the toxic emission from the plant exceeded the safe limits established by the domestic legislation and might endanger the health of those living nearby, the State established through legislation that a set-in area around the plant should be free of any dwelling. However, these legislative measures were not implemented in practice. Further, it was pointed out that although the polluting plant operated in breach of environmental standards, there is no indication that the State designed or applied effective Page http://www.judis.nic.in 556 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 measures, which would take into account thes interest of the local population, affected by pollution, which would be capable of reducing the industrial pollution to acceptable level. Accordingly, it held that the respondent-State has failed to strike a fair balance between the interest of the community and the applicant's effective enjoyment of her right to respect for her home and her private life and accordingly, Article 8 (pari materia to Article 21 of the Constitution of India) of the convention was violated. This decision clearly demonstrates as to the need to maintain a sanitary security zone, which is known as the green belt area as per the CPCB norms.
459.We remind ourselves that we are examining an environmental matter and the confines of an appellate authority or an appellate court, which are normally defined, cannot be superimposed in the exercises of the appellate power of this Court in an environmental matter. Therefore, the theory of res judicata or constructive res judicata are all theories, which should be held to Page http://www.judis.nic.in 557 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 be alien to the facts of the present case, not only because it is an environmental matter, but it is a case where consent conditions hold the field as long as the petitioner is in existence.
460.Thus, we have no hesitation to hold that there has been no faithful compliance of the green belt requirements and attempting to foreclose any discussion on the topic by referring to the 2013 judgment of the Hon'ble Supreme Court is an argument, which is not acceptable and the regulator, being clear in its mind, at last, has been able to point out that the petitioner remains non-complaint even as on date. Development of a green cover in an adjoining township cannot enure to the advantage of the petitioner. The petitioner has conveniently brushed aside the crucial aspect of the condition, viz., the green belt should be along the battery limits of the industry, which would mean that the petitioner industry should be situated in the midst of a mini forest. This is so because if the required width of 25m had been Page http://www.judis.nic.in 558 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 maintained along the battery limit of the entire unit with 1000 trees per acre, it will definitely have the appearance of a forest cover.