461.With regard to the reduction of the green belt requirement from 250m to 25m, though the issue was raised earlier, the Hon'ble Supreme Court declined to interfere on the said aspect primarily for two reasons. Firstly, there was no material placed that, by reduction of the width, it will fail to mitigate fugitive emission. Secondly, this matter was to be decided by TNPCB and when the petitioner is situated in an industrial complex, they cannot be discriminated.
462.Before us, TNPCB has not placed any material to justify their action in reducing the width from 250m to 25m. In the counter affidavit filed by TNPCB, it has been stated that there are 60 industries in the industrial complex out of which, 51 are functioning and 33 of those units do not generate Page http://www.judis.nic.in 559 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 any trade effluent. Out of the remaining 18 units, 4 are petitioner's units and out of the remaining 14, 2 units discharge effluents into a solar evaporation plant and therefore, in the opinion of TNPCB, there is no possible seepage into the ground or ambient area. The remaining 12 units include other food units, titanium factory and thermal power plant and the petitioner's four units are the only one which emit substantial amount of SO2. Further, it has been stated that there is no other industry which emits toxic gases at dangerous levels in the industrial complex and other industries such as refined edible oil plant, see food processing plant, cold storage units, ice plant industries do not emit SO2. The other polluting industry in the area is M/sVV Titanium private limited, which extracts titanium from limanite ore using sulphuric acid, it is stated by TNPCB that there is no emission of toxic gases from the said industry. Further, it is stated that other industries in the area are medium and small scale industries, where the emission of SO2 is extremely negligible. Page http://www.judis.nic.in 560 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
463.Considering these factors, in our considered view, the petitioner has not been discriminated, as they appear to be the biggest in the industrial complex not only because of the number of units they have and area occupied, volume of production, but more importantly, the quantity of emission either it be by way of discharge into the secured land fill or into the treatment plant or disposed to the recycler or let out into the air through the stacks. Therefore, if the TNPCB had genuinely acted in public interest, they would have rolled back the order reducing the green belt requirement to 25m and should have imposed a condition that the increased production capacity should be rolled back or the petitioner should have been directed to cease operation till completion of the requirement. The green belt requirement ought to have been increased while considering the application for enhancement in production capacity.
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464.Thus, for all the above reasons, we hold that the petitioner has not complied with the green belt requirement, which is also a good and sufficient reason to not permit the petitioner to continue any further.
465.In a research paper published in the International Journal of Applied Environmental Sciences Volume XIV, Number 5 (2019) on the topic Green belt requirement for New and Expansion Projects for obtaining EC in India, the importance of development of a green belt has been brought out. So far as metalargical industries and other chemical industries are concerned, it is pointed out that the action plan for the green belt development plan is 33% of area, that is, land with not less than 1500 trees per hectare and the green belt shall be around the project boundary.
466.With regard to the conditions relating to green belt given in the EC issued by the statutory authorities, it is stated that for hazardous wastes Page http://www.judis.nic.in 562 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 treatment storage and disposal facility, the project proponent shall develop green belt with native species at least 10 meter thick green belt in the periphery of hazardous wastes facility, green belt shall cover 33% of the total area. After discussing about the various types of the native species, which should be grown, the paper concludes by stating that development of green belt consisting of three tier along the periphery of the project with native species is most important guideline for any type of industry. The green belt minimises the build-up of pollution level in urban/industrial area by acting as pollution sinks, it will absorb pollutants released from the industrial activity into the atmosphere and helps in effective pollution control. The main advantages of green belt in and around the industry are to control air and noise pollution, trees help in trapping particulate mater, removing carbon dioxide and other pollutants from air and by releasing oxygen thereby, improving the air quality. Green belt reduces the intensity of sound by deflect, refract or by absorb sound and it will function as barrier between industry and waiver roof. Page http://www.judis.nic.in 563 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Green belt also helps in soil erosion control through improvement of soil quality and binding soil particles, it also contains water run off and improves ground water infiltration and improves ground water recharge capacity.
467.In India, we do not have a green belt policy or a specific regulation stipulating the norms for green belt, as is available in other countries. However, based on directions issued by the MoEF/CPCB/TNPCB/other authorities, certain guidelines have been laid down. The above decision and the opinion of scientific experts have been referred to, to stress the need of development of an adequate green belt. It may be true that the green belt, which was initially prescribed as 250m, was reduced by TNPCB to 25m. However, when the petitioner was permitted to expand and increase production by the process of de-bottlenecking, the green belt requirement was not increased. The petitioner's argument is that a fresh environmental clearance is not required while increasing production capacity Page http://www.judis.nic.in 564 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 by the process of de-bottlenecking. We have expressed our reservation on the said contention.
468.The fact remains that upon increase in production, the waste generated in all categories correspondingly increases. Consequence thereof is increase in pollution level. Therefore, it goes without saying that if there is an increase in production, which is approved by the regulator, the conditions, which were stipulated at the time of grant of the consent to operate at the first instant should be reviewed, more particularly, with regard to the green belt requirement. Unfortunately, the official respondents did nothing in this regard.
469.In the guidelines published by the CPCB for development of green belt, the extracts of which were referred to by the learned Senior Counsel for the ninth respondent, it is pointed out that an important aspect of Page http://www.judis.nic.in 565 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 green belt, which is overlooked, is that the plants constituting green belts are living organisms, with limits to its tolerance towards air pollutants. As a result, crossing the threshold limits in terms of pollution load would lead to injury to plants causing death of tissues and reducing their absorption potentials. Sink efficiency of unhealthy and death tissue and lives is known to be extremely low, thus defeating the very purpose of green belt. It is stated that a green belt is effective as pollution sinks only within the tolerance limits of constituent plants.
470.It was further pointed out that though several oxides of sulphur may be the result of the industrial process, SO2 is considered to be the most important one. The SO2 enters plants mainly through the stomatal aperture and more than 95% of the pollutant enters a plant through the route of gaseous exchange. Chemical reactions leading to leaf injury or absorption of sulphur from SO2 into the metabolic stream have been described. The adverse effect Page http://www.judis.nic.in 566 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of SO2 on chlorophyll pigment leads to reduced productivity. The guidelines also refer to the other pollutants like nitres oxide, carbon dioxide, hydro carbons, other mixtures of pollutants, etc. The guidelines also give a development model by way of a formula. The effectiveness of a green belt is also ascertained mathematically and the procedure is also given in the guidelines. Therefore, the importance of establishing a green belt, developing it as per the norms, maintaining the same, and endeavouring to increase the green cover is a continuous obligation on a polluter.
471.On two occasions, TNPCB has permitted increase of production capacity. However, there was no thought process to correspondingly increase the other requirements one such being, the green belt requirement. Therefore, the argument made on behalf of the petitioner that non-mentioning about the green belt requirement in renewal of consent order is to be taken as deemed to have been complied with is a thorough misreading Page http://www.judis.nic.in 567 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of the condition of consent, forgetting that such condition is a continuing condition and regular maintenance upkeep and replacement of the trees is essential. The endeavour should be to surpass the minimum requirement as stipulated in the guidelines. The attitude of the petitioner in this regard is unbecoming of a corporate Mayor.
472.The respondents had contended that the petitioner had misrepresented the extent of land held by them, consequently, the MoEF could not have granted permission to the petitioner for the expanded capacity. Another contention advanced by the ninth respondent is that the petitioner is a large red category hazardous industry and can only be located in an area classified as “special industrial and hazardous use zone”. However, they are located in a land partly classified as “general industrial use zone” and “agricultural use zone” under the Master Plan of Thoothukudi and is located in close proximity to residential areas and densely populated areas. Page http://www.judis.nic.in 568 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
473.The first and foremost objection raised by the learned Senior Counsel for the petitioner is that these grounds do not form part of the pleadings and they are not the grounds on which the impugned orders were passed and consequently, raised objection for the respondents to canvass such points.
474.To be noted that the order refusing to renew the consent to operate though cites five reasons, the said order cannot be read in disjunction, as we have held that condition imposed while granting or renewing consent to operate continue to exist and the orders are clear to the said effect, as they mention about the previous general and special conditions. Further, the impugned Government Order while endorsing the decision of TNPCB has directed permanent closure of the petitioner in public interest. Therefore, the first question, which would fall for consideration is whether the respondents Page http://www.judis.nic.in 569 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 can support the impugned orders on grounds which are not specified in the impugned order. The Hon'ble Supreme Court in Mohinder Singh Gill, held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In Commissioner of Police, Bombay vs. Gordhandas Bhanji [AIR 1952 SC 16], the Court held that public order, publicly made, in exercise of a statutory authority cannot be construed in the light of explanation subsequently given by the officer making the order of what he meant or of what was in his mind or what he intended to do. In All India Railway Recruitment Board, the Hon'ble Supreme Court rendered the judgment in Mohinder Singh Gill inapplicable where larger public interest is involved. It was pointed out that the decision- maker can always rely upon subsequent material to support the decision already taken when larger public interest is involved. The Court referred to the decision in the case of Madhyamic Shiksha Mandal, M.P. vs. Abhilash Page http://www.judis.nic.in 570 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Shiksha Prasar Samiti [(1998) 9 SCC 236] wherein, it was held that there was no irregularity in placing reliance on a subsequent report to sustain the cancellation of the examination conducted, where there were serious allegations of mass copying. Accordingly, it was held that the principle laid down in Mohinder Singh Gill is not applicable where larger public interest is involved and in such situation, additional grounds can be looked into to examine the validity of an order. To the said effect, also is the judgment in PRP Exports.
475.The thin line of difference in the case on hand is as to the material which was placed before this Court in the course of argument and certain material by way of affidavits. To be noted that the Hon'ble Supreme Court while setting aside the order of the NGT, had restored the position of the petitioner to the status during 2013. The various orders, resulting in closure of the industry, were restored and the petitioner given liberty to challenge those Page http://www.judis.nic.in 571 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 order by way of writ petition before this Court even in respect of orders where statute provides for an appellate remedy. Therefore, the principle, laid down in K.Shyam Kumar, if applied to the case on hand, the only plausible conclusion and in fact, the correct conclusion that can be arrived at, is to the effect that the Court can look into all facts cumulatively, as it is called upon to decide not only the validity of the orders passed by the regulator, but as well as the order passed by the Government permanently closing down the petitioner. Therefore, the Court is empowered to examine the contention placed by the respondent with regard to the extent of land held by the petitioner and whether they are entitled to site their industry in the land in question.
476.The learned Senior Counsel appearing for the petitioner referred to the decision in the case of 63 Moons Technologies Limited wherein, the Court, after taking note of the decisions in the case of Mohindar Singh Gill, Page http://www.judis.nic.in 572 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 K.Shyam Kumar and Madhyamic Shiksha Mandal on facts, found that there is no material subsequent to the passing of the final order of the Central Government in the said case that have impacted the public interest, which needs to be looked at. The facts of the present case are in a different setting and in our considered view, 63 Moons Technologies Private Ltd., does not render any assistance to the case of the petitioner.
477.The respondents contended that the petitioner had misrepresented that they had total land area of 172.17 Ha when, in fact, they had only 102.68 Ha. In this regard, the respondents had referred to the inspection report of TNPCB dated 11.11.2006, which mentions the land area as 102.68 Ha whereas, in the environmental clearance dated 09.08.2007, the extent of land is shown as 172.17 Ha and therefore, the respondent would state, the land area shown while applying for consent to operate the expanded capacity varies with the areas mentioned in the environmental clearance dated Page http://www.judis.nic.in 573 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 29.08.2007. The petitioner accepts that they had a total extent of 102.68 Ha, and an additional extent of 36.17 Ha was given on lease by SIPCOT on 16.02.2009. During January, 2007 when the petitioner applied for ratification of EC, a query was raised with regard to the extent of land in possession of the petitioner and the petitioner is stated to have clarified that they are in possession of 102.31 Ha. In this regard, the learned Senior Counsel referred to the letter of the petitioner to the MoEF. It is further stated that even in July, 2006, the petitioner had applied for further expansion of 57.08 Ha and in August, 2008, had applied for 42.34 Ha. Further, the petitioner would state that in October, 2009, lease deed was executed for an extent of 93.37 Ha. On 25.06.2012, the petitioner clarified to MoEF that it had only 102.31 Ha and the remaining land is under the process of acquisition and that this position has not been reflected correctly in the EC. It is further stated that in the report of MoEF dated 12.07.2012, the extent mentioned is 172.17 Ha as well as in the report of the Joint Committee of CPCB and TNPCB appointed by the Hon'ble Page http://www.judis.nic.in 574 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Supreme Court. The MoEF by notification dated 16.01.2007, while on the subject of expansion by de-bottlenecking, called for additional information/clarification, which was required during the course of preliminary examination of the proposal for expansion. It was mentioned that the total project area has been mentioned by the petitioner as 86.01, but the existing plant is located in 95.51 Ha as per the records available in the Ministry; the total project area is mentioned as 172.17 Ha and in questionnaire at serial number (xv), and 198 acres in the project report. The petitioner was directed to submit actual figure, as there were discrepancies. While responding to the query, by reply dated 19.01.2007, the petitioner states that the total area of the project is 172.17 Ha in which, 95.51 Ha was existing land under Pre-LTPA scenario; in December, 2009, additional 6.8 Ha have been procured through SIPCOT, hence, 102.31 Ha (95.51 Ha + 6.8 Ha) is existing area in hand and currently, 69.86 Ha are in acquisition process and payment already made to SIPCOT. The additional land is for utilization of future greenery Page http://www.judis.nic.in 575 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 development, solid waste storage and for other future proposal. The breakup details of the land usage to an extent of 86.01 Ha out of 102.31 Ha were also furnished. Further, the petitioner states that they have enhanced their production activity from 900 MTPD to 1200 MTPD from third week of November, 2006. The above is the explanation offered by the petitioner with regard to the land holding and they would state that there is no misrepresentation.
478.On a perusal of the reply given by the petitioner dated 19.01.2007, we find it to be not a direct answer to the query raised by the MoEF. As mentioned, MoEF by letter dated 16.08.2007 pointed out that there is discrepancy in the total project area and they have mentioned the discrepancy as 86.01 Ha, 95.51 Ha, 172.17 Ha and 190 Ha. The simple question raised by MoEF to the petitioner was to give the actual extent. Page http://www.judis.nic.in 576 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
479.The response given by the petitioner dated 19.01.2007, would clearly show that it is not a direct answer to the simple query. Once again the petitioner maintains that the total area of the project is 172.17 Ha without plainly disclosing that the extent of land held by them is only 102.31 Ha and they are not in possession of 172.17 Ha. At this juncture, we need to note that when the Committee appointed by the Hon'ble Supreme Court to examine and submit report in respect of all red category industries, the Committee clearly recommended that the petitioner's application for expansion may not be considered for the reason that the existing waste management practices of the petitioner are not in compliance with the environmental standards and the solid hazardous wastes generated also required to be properly managed, particularly in terms of available space and infrastructure, which would be inadvisable to consider expansion of the unit at that stage. The MoEF while granting environmental clearance dated 22.09.2004, for the expanded capacity from 300 TPD to 900 TPD, noted the total area of the project as 95.51 Ha, out of Page http://www.judis.nic.in 577 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 which 30.65 Ha was earmarked for the proposed expansion. On 09.09.2005, the petitioner submitted an application to TNPCB for grant of consent to establish the expanded production capacity for Smelter Plant No.I from 900 TPD to 1200 TPD stating that the total extent of land required after the de- bottlenecking is 172.17 Ha. Based on this application, TNPCB granted consent to establish. The petitioner filed an application on 02.01.2007 seeking post facto environmental clearance for the expanded capacity, that is, from 900 TPD to 1200 TPD and while seeking for such clearance on 09.08.2007, the total project area is mentioned as 172.17 Ha and the green belt of 43 Ha to be developed from the total extent of 172.17 Ha. M/s.Vimta Labs prepared the rapid EIA for the expansion from 900 TPD to 1200 TPD wherein the extent of land is mentioned as 172.17 Ha. When the MoEF granted EC for Smelter Plant No.II on 01.01.2009, the extent of land acquired by the petitioner is stated as 92.5 Ha. In April-May, 2009, TNPCB inspected Smelter Plant No.I and in their report dated 05.05.2009, the total extent of land occupied by the Page http://www.judis.nic.in 578 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner is mentioned as 172.17 Ha. The same extent also finds place in the monitoring report dated 12.07.2012 submitted to the MoEF. When TNPCB granted renewal of consent on 12.07.2012, the extent is mentioned as 172.17 Ha while mentioning about the green belt. While on this issue, it is interesting to note that in the inspection report of the TNPCB of the inspection conducted on 11.11.2006, the land use classification has been mentioned as “general industrial”. Considering all these facts, we have no hesitation to hold that the petitioner had not disclosed the actual extent of land held by them.
480.The learned Senior Counsel appearing for the ninth respondent would submit that the petitioner had played fraud on the Central Government while obtaining environmental clearance. The petitioner seeks to steer themselves clear of the said allegation by referring to their letter dated 19.01.2007.
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481.We have carefully analysed the said letter and we have found it to be not a direct answer to the query raised by MoEF. The fact remains that the petitioner did not hold an extent of 172.17 Ha on the date when environmental clearance was granted, the order granting environmental clearance dated 09.08.2007 mentions total project area as 172.17 Ha, but for the petitioner furnishing this extent to the MoEF, the same would not have been mentioned in the order granting environmental clearance. Therefore, the petitioner failed to disclose the actual extent held by them while they applied for environmental clearance. Furthermore, their application for post facto clearance dated 02.01.2007 itself has to be held to be not maintainable, because the post facto clearance itself sought for is environmental clearance and there can be no such post facto decision being taken in environmental matters. In this regard, it would be beneficial to refer to the recent decision of the Hon'ble Supreme Court in the case of Hanuman Laxman Aroskar. Page http://www.judis.nic.in 580 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Accordingly, we hold that the petitioner failed to disclose the actual extent held by them while applying for grant of clearance for the proposed expansion.
482.The next question would be as to what would be the impact of the failure to disclose the actual extent of land held by the petitioner. In our considered view, this would have far reaching consequences because increased production would mean increased generation of waste, which obviously would require larger extent of land and this would have a chain reaction leading to various other issues some of which are beyond comprehension. Thus, when the petitioner did not have 172.17 Ha for Smelter Plant No.I, the question of granting environmental clearance for the proposed expansion would not arise. This failure to disclose the correct details has led to an order being passed by the MoEF granting environmental clearance on the ground that the petitioner possessed 172.17 Ha. Thus, if the factual position is otherwise, the environmental clearance itself should be construed to be non-est. Page http://www.judis.nic.in 581 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
483.The TNPCB contended that in addition to the grounds of closure, there are several other violations/non-compliances/instances, where pollution has occurred and caused irrevocable harm to the ecology of Thoothukudi. One such contention is with regard to the cause of pollution due to low stack height. We have seen the definition of “chimney”which in technical parlance is known as the “stack”. MoEF prescribed rules on the emission standards for sulphuric acid plants, vide notification in GSR 344(E), 3 dated 07.05.2008, wherein the concentration limit of 1250 mg/Nm was prescribed for emission through the stack in the existing sulphuric acid plants, having capacity more than 300 TPD and in emission load based standards of 2.0 kg of SO2 per ton of sulphuric acid produced.
484.It is further submitted that the height of the stack emitting SO2 or acid mist was fixed to be a minimum of 30m or as per the formula Page http://www.judis.nic.in 582 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 0.3 H=14(Q) (whichever is more), where “H is the height of the stack in metre” and “Q is the maximum quantity of SO2” expected to be emitted through the stack at 110% rated capacity of the plants and calculated as per the norms of gaseous emission. The plants having more than one stream or unit of sulphuric acid at one location, the combined capacity of all the streams or units was to be taken into consideration for determining the stack height and applicability of emission standards.
485.Insofar as the plants having separate stack for gaseous emission for the scrubbing unit are concerned, the height of the sulphuric acid stack was to be equal to the main stack. By applying the MoEF norms, considering emission load based standards of 2.0 kg of SO2 per ton of sulphuric acid produced (4200 TPD of sulphuric acid and 110% is 4620 TPD); Q=4620x2/24 0.3 0.3 kgs/hr=385 kgs/hr; stack height H=14(Q) =14(385) = 14x5.965 – H=83.51m. If it is taken as one kg of SO2 per ton of acid produced, the Page http://www.judis.nic.in 583 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 calculation would be Q=4620x1/24 kgs/hr = 192.5 kgs/hr; stack height 0.3 0.3 H=14(Q) = 14(192.5) = 14(4.845) – H=67.83m.
486.The petitioner has provided twin stack of height 60.38m each instead of single stack of height 84.0m. By providing twin stack, there is no change in the quantum of SO2 emission. Instead of emitting this quantum of SO2 (385 kgs/hr) through 84m height stack, it is emitting through 60.38m height stack, as a result, the ground level concentration of SO2 would be higher than the norms. It is further submitted that the consents, which were granted to the petitioner, were subject to the Act, Rules and the Notifications, and the MoEF having stipulated the stack height, the petitioner was bound to comply with the same and failure to do so would be violation of a consent condition.
487.Further, it is submitted that the copper smelters in various countries have higher stack heights than the petitioner, though their production Page http://www.judis.nic.in 584 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 capacity is substantially less compared to the consented quantity of the petitioner. Thus, the sum and substance of the objection raised by TNPCB is that the petitioner has provided twin stack of height 60.38m, each, instead of a single stack of height of 84.0m. Their further submission is, by providing twin stack, there is no alteration in the quantum of SO2 emission, but due to the lower height of the stack, the ground level concentration of SO2 would be higher than the prescribed norms.
488.The petitioner, while responding to the said contention, would state that the issue regarding stack height was raised for the first time before the NGT in 2018 by an intervenor, and it is only thereafter, the respondent- Board has sought to adopt the same. Further, it is contended that the said ground being, not one of the grounds to refuse to renew the consent to operate, the same cannot be permitted to be raised at this stage, more so when, the respondent-Board had prescribed the same and they cannot now seek to raise Page http://www.judis.nic.in 585 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 an objection. Without prejudice to the said submission, the petitioner would contend that the petitioner has SO2 scrubbers/Flue Gas De-sulphurisation System (FGDS) since 2003 and 2012.
489.Further, it is contended that the Board has assumed only the Sulphuric Acid Plant (SAP) system, and has ignored the petitioner's Tail Gas Scrubber (TGS) system attached to the SAP, which works all 24 hours unlike many sulphuric acid plants, which run their TGS only during the plant start up condition. Therefore, the petitioner would contend that the emission in kg/hr is very negligible in the case of the petitioner. That the petitioner has been imposed special and more stringent conditions of emission norm of 1 kg/ton of sulphuric acid and this has been achieved by the petitioner because of the superior technology adopted by them. That the respondent-Board is wrong in assuming that there is no change in the quantum of SO2 by providing twin stack.
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490.In the rejoinder to the counter affidavit filed by TNPCB, the petitioner would contend that the TNPCB revised the standards and imposed a specific condition of SO2 emission of 1 kg/ton of acid in the year 2005, when the production capacity was permitted to be increased to 900 TPD. In the rejoinder affidavit, a pictorial representation has been made to explain the actual condition of the petitioner's unit, the calculation adopted by the petitioner has been given, and it is stated that they have calculated the stack height using the formulae adopted for power plant stacks.
491.Referring to the report of Vimta Labs of 2007, it is stated that 3 the ground level concentration has never exceeded 45.1 ug/m and the data monitored by the TNPCB and the petitioner's manual/continuous on-line 3 monitors have never exceeded 60 ug/m . Therefore, the petitioner would contend that they complied with the stack height prescribed as per the MoEF Page http://www.judis.nic.in 587 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 standards as well as the consent orders issued by the respondent-Board from time to time, and there is no non-compliance of the consent conditions. The petitioner has referred to the consent to operate orders dated 14.10.1996, 19.04.2005 and 15.11.2006 to support its stand that the height of the stack is mentioned as 60m and there is no violation of consent condition.
th
492.The 9 respondent has referred to an opinion of a retired Professor of the Indian Institute of Technology to show as to the actual stack height requirement. Reference was also made to the annual wind rose prepared by Vimta Labs and other materials and opinion of experts to substantiate their contention that on account of inadequate height of stack, not in accordance with the stipulation of MoEF, there is high ground level concentration of SO2 and this is in violation of the notification of the Central Government, this would also be one of the grounds to shut down the petitioner.
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493.We deal with the preliminary objection raised by the petitioner at the first instance. Though it may be true that in the impugned order refusing to renew the consent to operate, inadequate stack height is not one of the grounds mentioned therein , the petitioner would admit that this issue was raised by the respondent-Board in 2018 before the NGT. The petitioner would state that it is the intervenor, who raised the point, and thereafter, the TNPCB took up the issue. This can hardly be a reason for this Court to refuse to test the correctness of the submission regarding inadequate stack height. This is so because, as a regulator, TNPCB is entitled to impose conditions. We have held these conditions to be binding, non-negotiable and cannot be questioned by the petitioner. Therefore, if the regulator states that there is an inadequacy on the part of the petitioner, the source from which, the regulator got- inspiration to say so is irrelevant, as the factum whether there is inadequacy or not, is the only issue.
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494.As regards the stack height, TNPCB, in no uncertain terms, states that the same is not in accordance with the MoEF norms. The MoEF lays down norms and standards by way of notifications and instructions and the Pollution Control Board, being the delegated authority, is bound to implement the same. Therefore, the petitioner would be wrong in stating that the State-regulator does not have power to alter the norms fixed by MoEF especially when such alteration would be for setting higher standards,and not by lowering the standards prescribed by MoEF.
495.While going through the rejoinder filed by the petitioner to the counter affidavit of the second respondent, we find that for arriving at stack height, the petitioner calculated the same using the formulae adopted for power plant stacks. The order of MoEF dated 16.01.1995, while granting environmental clearance to the petitioner had imposed conditions that at no Page http://www.judis.nic.in 590 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 time, the emission level should go beyond the stipulated standards; adequate number of ambient air quality monitoring stations should be set up in the downwind direction as well as where maximum ground level concentrations are anticipated specially, covering human settlements for estimation of particulates, fluoride dust, SO2 etc., in consultation with the State Pollution Control Board; and there should be no change in the stack design without prior approval from the State Pollution Control Board and the Ministry (MoEF). If such is the condition imposed on the petitioner, the question would be whether, the petitioner could have calculated the stack height based on the formulae adopted for power plant stacks.
496.It is the submission of the petitioner that the actual conversion efficiency of the petitioner is in the order of 99.92% levels, which is considered as best in the world and this is achieved by using high efficiency catalysts, which are caesium promoted catalysts that yield better conversion Page http://www.judis.nic.in 591 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 efficiency. While on this issue, we are not called upon to decide as to the efficiency or efficacy of the pollution control measures installed by the petitioner in the stack or in the TGS. The issue is with regard to stack height. The petitioner contends that they had adopted an advanced technology even as early as in the year 2003 or 2012, when there was no such thought process by MoEF. Nevertheless, if a regulation has been put in place or an instruction or order has been given by the Ministry, it binds the industry. If according to the notification, the stack height has to be more than 80m, a single stack, the petitioner cannot state that they have provided two stacks of more than 60m height each, and this was what the regulator had stated in the consent orders and there is no violation of the conditions. The consent orders have mentioned about the existing facility in the petitioner's plant and TNPCB, unfortunately, did not take up this issue earlier, than 2018. However, if there has been a violation of a notification or instruction issued by MoEF, which binds not only the State-regulator, but also the industry, any order passed by the State- Page http://www.judis.nic.in 592 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 regulator in derogation or in ignorance of a notification cannot be taken to be an estoppel for the regulator to enforce the condition at a later point of time.
497.The former Professor of the Department of Chemical Engineering, IIT, Madras, has given his opinion wherein, he states that the height of the stack emitting SO2 or acid mist shall be of minimum 30m or as 0.3 per the formulae H=14(Q) , whichever is more, and by adopting this formulae and taking note of the total capacity of the petitioner with 2 kg/ton acid produced, the stack height would be 83.5m and if emission factor of 1 kg/ton was to be considered for stack height design, it would be 67.8m. The expert concludes by stating that the sulphuric acid plant's stack height of 60m is not in consonance with the CPCB Rules, nor it is adequate if the lower emission rates of 1 kg/ton is considered. Further, the stack height will be inadequate for effective dispersion of SO2 pollutants and it has to be verified, if this will attribute to excessive ground level concentration of SO2 in ambient air under Page http://www.judis.nic.in 593 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 neutral or adversal meteorological conditions. Further, the stack height for furnace at 4 kg/ton acid produced would be 102.8m and height as per 1 kg/ton emission rate would be 67.8m. Thus, the finding is, the furnace stack height is only 60m as against 102.8m as per the CBCB norms and this will contribute to excessive ground level concentration of SO2 in ambient air. Thus, viewed from any angle, what is abundantly clear is that, there is non-compliance of the stack height norm stipulated by the CPCB.
498.The explanation offered by the petitioner that they are adopting the norms for power plants may not assist the petitioner's case, as they have had no special exemption from the CPCB norms. That apart, assuming TNPCB had failed in its duty in enforcing the norms stipulated by the MoEF/CPCB, that may not be a licence to the petitioner to contend that they satisfied the requirements. It is not clear as to why the TNPCB did not take note of this issue earlier and did so only in the year 2018. Page http://www.judis.nic.in 594 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
499.Be that as it may, if according to the petitioner they have adopted a state of art technology as early as in the year 2003/2012, when the Government of India did not even think about it, they should have been vigilant enough to get the same as a condition and it will be too late for the petitioner to state that the efficiency level of their equipment is far better than what is in place in other power plants and they have calculated the stack height based upon the formulae for power plants. If the MoEF has issued a statutory notification prescribing a particular method for a sulphuric acid plant, the petitioner is bound to comply with the conditions therein scrupulously and if the statutory notification prescribes a thing to be done in a particular manner, it cannot be done in any other manner. Conspicuously, the rejoinder affidavit nowhere disputes the method of calculation, which has been adopted by TNPCB in their counter affidavit stating that the requirement is more than 80m, but the petitioner seeks to justify their action about the existence of two stacks with a height of little over 60m and it would satisfy the requirement. Page http://www.judis.nic.in 595 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
500.It is common knowledge that a chimney/stack, the higher it is the ground level dispersion/concentration will be less or in more simpler terms, the emission, which is made through the chimney/stack, disperses at a higher height thereby travelling longer distances resultantly, reducing ground level concentration. The lower the stack, the higher the dispersion within a lesser radius leading to more ground level concentration. Therefore, on the given facts and circumstances, we uphold the objections raised by TNPCB and hold that the petitioner's plant does not have the adequate stack height calculated based on the norms fixed by MoEF/CPCB. Consequently, it has to be held to be a violation, which is deemed to be a violation of the environmental clearance and the consent to establish/operate.
501.TNPCB, in its counter affidavit, has stated that the raw material, copper concentrate, which is transported from the Thoothukudi Port to the Page http://www.judis.nic.in 596 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner's factory is being done in open trucks causing great air pollution. It is submitted that this is being done by the petitioner despite consent condition to effect transportation through closed trucks. The petitioner, while denying the said allegation, would contend that the copper concentrates are transported in trucks covered by tarpaulin sheets which are tide to the sides of the trucks. It is further stated that the distance between the Thoothukudi Port and the petitioner's factory is 18 kms and no complaint has been raised by TNPCB in this regard, nor any show cause notice was issued. It is further submitted that all the trucks are monitored by the petitioner through Radio-Frequency Identification (RFID) and Global Positioning System (GPS). The remnants are vacuum cleaned and the petitioner has proposed to purchase trucks with automatic top cover and few of these trucks have been purchased. The petitioner has filed a photograph showing the mobile hopper arrangement at the Thoothukudi Port to handle copper concentrate and the covering of the trucks with tarpaulin in the port complex. The petitioner does not deny the Page http://www.judis.nic.in 597 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 fact that condition was imposed that the raw material, copper concentrate should be transported in closed trucks.
502.We would be well justified in presuming that the word “closed trucks” would mean and should mean an arrangement, which ensures that the cargo is in complete closed condition. Bulk of the copper concentrate is transported in hired vehicles and it is stated that the copper concentrate is covered with tarpaulin sheets and tied to the sides and since the copper concentrate is of very high value, it would not be in the interest of the petitioner to carry the same in open lorries, as any loss of copper concentrate amounts to monitory loss for the company.
503.Firstly, we wish to point out that concerns about pollution are to be definitely placed in a higher pedestal, then monetary conditions that the petitioner may face. It is common knowledge that municipal garbage, which Page http://www.judis.nic.in 598 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 is generated, is being transported in tipper lorries, which are mandated to be covered with thick tarpaulin or plastic sheets, so that when the garbage is transported from the Metropolitan City to the dump yard, there should be no littering en-route. However, the fact remains that in major cities including the city of Chennai, majority of the trucks, which transport the garbage, are done in open and there is no cover and even if there is a cover, it is not properly secured. The photograph in page number 207 of Volume VII of the petitioner's paper book shows a young man standing inside an empty lorry with a green tarpaulin sheet lying folded on one side of the lorry. This photograph does not convince us to hold that the petitioner has been transporting the raw material in a safe and secure manner without any spillage along the 18 km route.
504.It is true that TNPCB has used the word “closed trucks”, but it has not specified as to what is the methodology to be adopted. In fact, from Page http://www.judis.nic.in 599 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the reply given by the petitioner, we find that they have rightly understood as to what to mean a “closed truck” and that is why they had proposed to purchase trucks with automatic top cover and also stated to have purchased a few trucks with such facility. The object of imposing a condition to transport the raw material by a closed truck is to avoid spillage en-route and the distance is 18 kms from the Thoothukudi Port. Therefore, spillage is bound to occur and when transported at reasonable speed, the fly-off cannot be obviously averted and a tarpaulin cover tied with streams of rope can hardly prevent spillage especially when, the wind speed is more and the situation will be aggravated, when the trucks are also driving in a speed of more than 60 kmph. The petitioner would state that the remnants are vacuum cleaned. We presume that this process is adopted in the port premises and not en-route. If the remnants are removed by vacuum cleaning en-route, it would go to show that the raw material has not been transported as directed by TNPCB. The Madras Port had been handling coal imported from various countries and the vessels Page http://www.judis.nic.in 600 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 are berthed at the Madras Port. The coal was transported in tipper trucks and we have found that the trucks are covered and the trucks were given exit out of the port premises through a gate opposite to the War Memorial. Invariably, the movement of trucks is permitted late in the evening up to dawn. As a result of movement of these trucks, the entire area would be covered with a thick cover of coal dust and it required heavy equipments to be used to remove the coal dust, as it had caused several accidents, not only it has caused pollution by way of spillage, but also has resulted in fatal accidents. That apart, the heritage building of the Madras High Court was also a victim to the indiscriminate handling of coal in the port premises. This has led to a Public Interest Litigation being filed before this Court and ultimately, the coal handling facility was shifted by the Madras Port Trust to a different location. Therefore, we can perceive and safely conclude that the petitioner did not take adequate precaution while transporting the copper concentrate from the port premises to their factory for a distance of about 18 kms. Page http://www.judis.nic.in 601 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
505.The impleaded respondents had raised an issue with regard to the quality of the copper concentrate, which had been imported by the petitioner stating that there is high arsenic content in the copper concentrate thereby, causing health hazard to port workers and susceptible to cancer. The respondents alleged that the petitioner is procuring low quality copper concentrate and that is why, it is called “Fools Gold”. Further, it is contended that the copper concentrate imported by the petitioner contains various elements including hazardous material and annually, the petitioner imports 11 lack tons of copper concentrate containing 25-100 PPM arsenic.
506.The petitioner would submit that this issue cannot be raised by the respondents and they are estopped from doing so, as it was raised in the earlier round of litigation. Without prejudice to the said contention, it is submitted that the copper concentrate imported by the petitioner is the second Page http://www.judis.nic.in 602 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 highest grade and operates at lowest arsenic blend compared to the copper concentrate used by the Dahej, Birla Copper.
507.It is further stated that the petitioner is using isasmelt since inception to eliminate emission to the surrounding environment and the technology is used by several developed countries. It is further submitted that the petitioner in their application to MoEF for clearance of their increased production capacity from 900 TPD to 1200 TPD, mentioned the estimated range of arsenic value in copper concentrate in market during that period. The quality of the copper concentrate varies due to natural phenomenal occurring in mines and the respondent's calculation is based on wrong assumption without considering the nature of copper imported by the petitioner.
508.Further, it is submitted that arsenic is fixed in the ETP sludge, which is disposed of in the on-sight SLF, nickel is fixed in the ETP slime Page http://www.judis.nic.in 603 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 sludge, which is disposed of to authorised recyclers and the mass balance submitted by the petitioner details the quantum of elements and its proportionate fixation in various streams. Rapid EIA report of 1995 was prepared by Tata Consultancy Services at the request of the petitioner. In Chapter V of the said report, which deals with “Environmental Management Plan”, it is stated that the petitioner is planning to procure copper concentrates nearly arsenic free with a result that separate treatment of arsenic wastes may not be required, however, provision for treatment of arsenic wastes should be made, if required.
509.Thus, what was projected by the petitioner in the year 1995 was to procure arsenic free copper concentrate, which obviously, the petitioner could not achieve and probably, cannot achieve and that is why, they have stated that they operate at the lowest arsenic blend and claim that the copper concentrate is the second highest grade. Thus, it is highly doubtful as to the Page http://www.judis.nic.in 604 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 quality of the copper concentrate procured by the petitioner primarily because TNPCB has not shown to have done any analysis or monitoring with regard to the efficacy or otherwise of the raw material procured by the petitioner. In fact, if the TNPCB had taken up an exercise of verifying the quality of the raw material imported by the petitioner, much of the allegations which have cropped up now, would not have arisen. The material placed before us does not sufficiently put forth as to what was the analysis done, when the cargo was off-loaded the vessel at the port premises. Even assuming if samples were drawn, the question is as to whether TNPCB had regularly monitored the raw material imported by the petitioner especially, when they had in their rapid EIA report, accepted to procure arsenic free copper concentrate. Therefore, much has to be said about the lack of proper monitoring on the part of the regulator and ensuring that checks and balances are put in place. As mentioned by us earlier, the TNPCB is under-equipped to deal with industries, which are of the magnitude of the petitioner, which carries on multiple Page http://www.judis.nic.in 605 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 processes, and several by-products and wastes are generated in the processes which may require monitoring at different stages, at different locations and at different times. We have also mentioned in our assessment that the data collected from the petitioner are through the monitors established by the TNPCB, which are not analysed. Had such an exercise been done, periodical notices would have been issued to the petitioner not only when an incident occurs or is reported. Therefore, the regulator needs to take the blame for not having adequately monitored this aspect of the matter. The projection, which was made by way of the rapid EIA report in the year 1995, is to procure copper concentrate nearly arsenic free and this will result in not requiring a separate treatment of arsenic waste. The petitioner obviously could not achieve it and that is precisely the reason that the arsenic is fixed in the ETP sludge, which is disposed of in the on-sight secured land fill. Therefore, the quality of the copper concentrate is definitely an issue, which is a matter of concern and we shift the blame to the TNPCB.
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510.The TNPCB has stated that several committees were appointed to visit and inspect the petitioner's unit and determine environmental compliance and impact. The committee found, the petitioner was not strictly complying with the provisions of the Act, Rules and consent conditions and made their recommendation for compliances and, this assumes significance, as in spite of imposition of consent conditions and regular interventions by the TNPCB, the petitioner has been continuously non-complaint. The 1998 report of NEERI states that the industry should not have been located at the present place; public participation ought to have been held; there is no perceptible green belt in the industry; relaxation of green belt condition is without adequate justification; there is perceptible air pollution around the petitioner's plant; and therefore, all clearances should be revoked and the plant should be closed till proper environmental impact assessment is done. Based on the said report, the High Court directed closure and subsequently permitted the factory Page http://www.judis.nic.in 607 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 to be temporarily reopened to enable NEERI to monitor the safeguards and submit report. In the report of NEERI, dated 09.02.1999, the undertaking given by the petitioner to improve several waste management parameters and construct new infrastructure that had not been done previously, was placed on record. Because of this undertaking, the petitioner unit was permitted to reopen and the TNPCB granted consents to operate. The Monitoring Committee appointed by the Hon'ble Supreme Court held that the petitioner's application for proposed expansion should not be granted. The report of NEERI of May, 2011 recorded certain adverse findings against the petitioner more particularly, stating about negligible green belt. It is stated that out of the 30 conditions, which the petitioner purported to comply with 29, the compliances and directions on green belt, slag storage and disposal, and ground water collection show that the compliance was to be on going, continuous and the position as on date shows gross non-compliance. Page http://www.judis.nic.in 608 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
511.The Hon'ble Supreme Court in C.A.No.4763 of 2013, issued directions to TNPCB to suggest additional conditions for reduction of pollution by the petitioner and an affidavit was filed by TNPCB stating that the petitioner should dispose the slag for beneficial purposes, which the petitioner failed to comply and dumped the same obstructing natural river course leading to water and air pollution and also widespread flooding in the area. Thus, if the reports of the various committees are cumulatively read, it demonstrates that during 1998, 1999, 2004, 2005, 2011 and 2012, the petitioner was found non-complaint at every stage. The issues of TDS, hardness, sulphates in the ground water, green belt, SO2 emission and disposal of gypsum pond etc., continue to cause concern till order of closure.
512.Further, it is stated that in 2018, it was the same pollution and non-compliance as brought out through admission and inspections and independent reporting of ground water parameters, that the TNPCB and the Page http://www.judis.nic.in 609 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 State acted as duty bound by statute and settled principles of environmental law. Thus, the past conduct of the petitioner is consistent with the conclusion that they have not been complied with the mandatory rules and regulations and has only attempted compliance under threat of judicial orders of closure/intervention and cannot be allowed to run a highly polluting red category industry, when the petitioner is oblivious to ecological sensitivities especially, after having polluted the area substantially over the past 22 years of its operation.
513.The petitioner's response is that there is not a single instance of violation between 2013 and 2018. The inspection reports issued by TNPCB for 2015-2016, 2016-2017 and 2017-2018 does not indicate any adverse comments regarding compliance with the consent conditions. In this regard, the learned Senior Counsel for the petitioner referred to the inspection reports dated 16.03.2016, 06.09.2017 and 22.02.2018 and a list of expenditure Page http://www.judis.nic.in 610 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 incurred by the petitioner for environmental improvement projects claiming that a sum of Rs.508 crores were spent on environmental improvement projects.
514.The fact that substantial amount of money was spent for environmental improvement projects would go to show that those improvements are required to be done. This directly goes to show that the petitioner is a highly polluting industry and these measures are required to be adopted to enable them to be termed as a “viable unit”. Despite these, the petitioner once again came to adverse notice of the respondents. Assessment and monitoring of pollution is a continuous process and bearing this principle in mind, we had observed that the conditions imposed while granting environment clearance, while granting consent to establish and operate, continue to remain in force and they are continuing conditions and not one time compliance condition.
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515.By way of illustration, if we take up the green belt requirement, the petitioner cannot be heard to say that it is a one time condition and any such attempt made by the petitioner is liable to be out rightly rejected because, green belt is a natural phenomenal, which involves a process of maintaining a green cover, that too, with specified species of trees and the noteworthy feature is, it should be surrounding the entire battery limit of the unit. TNPCB reports that on the date of closure and even as on date, the green belt requirement has not been complied with. Therefore, when a decision is to be taken as to whether the petitioner should be permitted to continue or not, no error can be attributed to the State or to the regulator to have a cumulative assessment of the petitioner's past conduct.
516.The shocking reality is that for the substantial period of the time from 1995 till 2018, the petitioner was operating without valid consent to Page http://www.judis.nic.in 612 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 operate. They were operating either on account of orders passed by Courts/Tribunal, or by stating that application for renewal of consent was pending. The first renewal of consent was valid up to 31.03.1998 and it was renewed only on 20.05.1999. In the interregnum period, the matter was pending before the Court and the petitioner still continued to operate contending that they have submitted application for renewal of consent and also remitted the requisite fee. The consent, which was renewed on 20.05.1999, was valid only up to 31.03.2000. The petitioner had operated the plant without an order of consent from 01.04.2000 to 18.04.2005, as an interim order was granted in the year 1999 and the petitioner states that their application for renewal of consent was submitted and requisite fee was paid. Thus, the petitioner has operated for 16 years and 92 days without consent from the TNPCB, it has operated for 10 years, 2 months and 15 days without a HWM authorisation. As mentioned earlier, even if a Court or Tribunal has granted an order of stay of closure, the natural corollary that should follow is Page http://www.judis.nic.in 613 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 that the unit should obtain an order of consent. An order of stay or injunction granted by a Court or Tribunal can at best protect closure on a permanent basis, but the industry being, a highly polluting industry could not have been established or continued its activities without an order of consent, an order of stay or injunction by a Court or Tribunal, cannot be a substitute to an order of consent to operate granted by a regulator.
517.Between 2006 and 2007 for a period of seven months, the petitioner had no valid order of consent to operate. Subsequently, from 08.05.2007 to 18.01.2009, the petitioner operated without a valid order of consent. The petitioner would state that their application for renewal of consent was submitted and the application for increased capacity of 1200 TPD was under scrutinisation. From September, 2009 to February, 2012, the petitioner did not have a valid order of consent, but continued to operate, as an interim order was granted by the Hon'ble Supreme Court. From October, 2012 Page http://www.judis.nic.in 614 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 st till 1 week of March, 2016, the petitioner operated the unit based on orders passed by the NGT and during the said period, they did not have a valid consent to operate, and ultimately, the application for renewal of consent for five years from September, 2018 was rejected by the impugned order. Thus, it is evidently clear that there was no proper monitoring of the industry presumably on account of the orders of Court/Tribunal, TNPCB did nothing in the matter, though it was well open to the regulator to inspect and ascertain as to whether the petitioner can be permitted to continue to operate the unit. The regulator failed to discharge their duties diligently bearing in mind the purpose for which it was constituted, nothing prevented the regulator from approaching the Court by way of an appropriate application appraising the facts and the need to monitor the petitioner.
518.It may be true that the petitioner would have uploaded the relevant data, the ambient air quality monitoring equipments would have recorded the value and if the regulator had found deficiencies, they should Page http://www.judis.nic.in 615 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 have brought it to the notice of the Hon'ble Court/Tribunal and seek for modification of the interim order or permission to conduct inspection etc. The longest period during which the petitioner operated the unit based on interim order passed by the High Court is for a period of five years from April, 2000 st to April, 2005. The second longest spell was between October, 2012 to 1 week of April, 2016, when they were operating based on orders passed by NGT. The third period was from 15.08.2009 till 02.03.2012, when they were operating the unit during the pendency of the matter before the Hon'ble Suprme Court and in view of the interim order granted therein. Apart from the above period, during which the unit was operating without a valid order of consent, there were shorter spells also, viz., from April, 1998 to May, 1999;
nd April, 2006 to 2 week of November, 2006; and May, 2007 to January, 2009.
519.Thus, in our considered view, the respondents are fully justified in considering the past conduct of the petitioner and cumulatively considering Page http://www.judis.nic.in 616 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 all the reports of the expert agency from the year 1998 and arriving at a conclusion that the petitioner deserves to be permanently closed. Therefore, we find no error in the decision especially, when the respondent-regulator has been able to establish facts and figures about the long list of non-compliance by the petitioner over the period of 22 years.
th
520.The 9 respondent referred to the order of consent to operate issue under the Water Act dated 19.04.2005 and has drawn our attention to condition No.18 of the additional main conditions stating that the concentrated copper ore shall be automatically sampled at every eight hours of the day and it shall be automatically analysed for the concentration of heavy metals and other impurities; the report thereon shall be furnished to the Board periodically. Our attention was also drawn to condition No.41 which states that the Unit shall conduct every year a comprehensive environmental audit and submit the report the Board; the audit shall focus on the performance of Page http://www.judis.nic.in 617 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the pollution control measures and mass balance for all pollutants and the Unit shall also conduct comprehensive environmental impact assessment study once in five years and furnish the report to the Board. Our attention was also drawn to condition Nos.17 and 18 of the consent for expansion of the operation of the plant granted under the Air Act dated 15.11.2006. Condition No.17 therein states that the Unit shall carry out detailed material, environmental and energy audit through suitable agencies after commencement and stabilization of the trial production of 1200 MTPD of copper anode as recommended by NEERI. Condition No.18 states that the Unit shall comply with the recommendations of the details material, environmental and energy audit to be conducted on commencement and stabilization of trial production of expansion activity. On 14.09.2005, show cause notice was issued to the petitioner alleging that they have failed to comply with the condition No.18 of the consent order dated 19.04.2005 as they failed to automatically analyse the sample copper concentrate for heavy Page http://www.judis.nic.in 618 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 metals and other impurities. The allegation against the petitioner is that the mass balance provided in the product and in the waste generated as stated by the petitioner in their counter affidavit in W.P(MD).No.16005 of 2018 shows that there is no full accounting of arsenic in the process and huge quantum is th unaccounted. Before we examine the contentions raised by the 9 respondent, we need to know as to what is material balance which is also known as mass balance.
521.In a book “Introduction to Environmental Engineering and Science” by Gilbert M.Master, Stanford University and Wendell P.Ela, University of Arizona, Third Edition, it has been stated under the Chapter Material Balance as follows. Everything has to go somewhere, this is the simple way to express one of the most fundamental engineering principles. The law of conservation of mass says that when chemical reactions takes place matter is neither created nor destroyed. The concept of material balance Page http://www.judis.nic.in 619 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 allows to track materials, for example, pollutants from one place to another with mass balance equations and this is stated to be the most widely used tools in analysing pollutants in the environment. It is further stated that the first step in a mass balance analysis is to define the particular region in space that is to be analysed which is often called the control volume. By picturing an imaginary boundary around the region, one can begin to quantify the flow of materials across the boundary as well as accumulation and reaction of materials within the region. It is further stated that a substance that enters the control volume has four possible fates, namely, it may leave the region unchanged, some of it accumulate within the boundary and some of it may be converted to some other substance. There is also possibility that more substance may be produced. By way of illustration, it is stated that CO may be produced by cigarette smoking within the control volume of a room. Further it is stated that when a chemical reaction is written down, it provides both qualitative and quantitative information. Qualitatively it can be seen which Page http://www.judis.nic.in 620 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 chemicals are interacting to produce which end products and quantitatively the principle of conservation of mass can be applied to give information about how much of each compound is involved to produce the results shown. The book proceeds to give various illustrations to explain the concept of mass th balance - A specific reference to Air Pollution. According to the 9 respondent when concentration of a contaminant in a waste stream is higher than the higher end of the range, that contaminant specified for the stream, it renders the waste stream too contaminated to be disposed of in the th permitted/prescribed manner. The 9 respondent once again refers to the averments made by the petitioner in the counter affidavit in W.P.(MD).No.16005 of 2018, wherein they have stated that the total quantum of arsenic in the copper concentrate used for the FY 2017-2018 is 1246 MT.
th According to the 9 respondent in order to balance this quantum, the petitioner has resorted to inflating the quantum of anode produced; mentioned spent anode in the input side; inflated the quantum of spent anode and falsely Page http://www.judis.nic.in 621 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 increased the concentration of arsenic in the anode, slag, ETP and scrubber cake. Thus, it is alleged that the petitioner has produced a false figure and misrepresented. It is stated in the common counter affidavit that the quantum of anode produced is 392544 tonnes, in the annual report of the petitioner, the quantum is mentioned as 3280765 tonnes and the excess quantum of anode is th 64468 tonnes. The 9 respondent refers to the production details of the petitioner and would state that consistently they produce anode in the range of 0.28-0.30 MT per ton of copper concentrate. The design production as mentioned by the petitioner for 20.17-2018 is 0.35 and as per the annual report th it is 0.2871. Therefore, the 9 respondent would state that the averments made by the petitioner in the counter affidavit are false statements. If according to the petitioner what has been stated in the counter is correct, then the petitioner is guilty of falsifying production figures to its shareholders in the United Kingdom and also to the Central Government/GST authorities in India. If on the other hand the figure mentioned in the annual report is correct then the Page http://www.judis.nic.in 622 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner is guilty of perjury for having provided false and misleading information to the Court by way of an affidavit. It is further contended that the spent anode should not be mentioned as input as it is a product from the process that is recycled back into the smelter. However, there is no such mention of spent anode in the input side in any other document. It is submitted that the reason for doing so is to artificially increase the quantum of anode so as to budget/allocate more quantum of arsenic than what is actually present. It is further stated that the spent anode according to the table is 64467MT, calculating the production of the petitioner for 52 weeks in a year it is stated that the total anode per year is 22848 multiplied by 50 would be 1142 MT of spend anodes. Therefore, the figure of 64467 tones of spend anode as mentioned in the table is false and to generate such quantity it will take 56 years and cannot be done in a single year, namely, 2017-18. Therefore, it is submitted that for computing mass balance arsenic in copper concentrate is relevant on the input side and the petitioner has resorted to this inflation to Page http://www.judis.nic.in 623 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 inflate the quantum of copper produce thereby increasing the amount of arsenic apportioned to anodes. Further, it is stated that the petitioner has falsely increased the concentration of arsenic present in the waste stream.
th Thus, it is the contention of the 9 respondent that in 2017-2018, 721.59 MT of arsenic is unaccounted and this quantum of arsenic has been released into the environment and the claim of the petitioner that they have operated within the four corners of law is false apart from the fact that the petitioner operated without authorization under HWM Rules and without manifest as specified in Rule 19 of the HWM Rules, it will not be possible to locate the hazardous waste generated and disposed of by the petitioner. The response of the petitioner is that their copper smelter is based on pyrometallurgical extraction process. Elements other than copper are very minor in the input in the copper concentrate and are usually in the order of PPM. Non-copper metals from smelter are recovered either by Gas Cleaning Plant [GCP] or in the refinery. It is submitted that all metals are either recovered and sold to authorized Page http://www.judis.nic.in 624 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 recyclers or fixed in a stabilized form in a secured land fill. In this regard, the petitioner has referred to the details of metal extraction as found in Volume 12 Part 2 - Page 31. It is further submitted that the arsenic content in the copper concentrate is fixed in the ETP sludge which is disposed of in the onsite SLF, Nickel is fixed in the ETP slime which is disposed to authorized recyclers. It is submitted that the calculations cannot be based on the ranges submitted by the petitioner, the application given in the past but should be taken on factuals. It is submitted that the total gross copper anode for FY 2017-18 is 392544 MT; fresh copper anode produced from copper concentrate is 328076 MT as reported in the annual report; the imported copper anode for cold doping in the FY 2017-18 is 64464 MT. Therefore, the total gross anode is 392544 MT and this total gross anode considered for this mass balance is sum of fresh copper anode produced from concentrate route and the imported copper anode. There th is no difference in production values as alleged by the 9 respondent. It is submitted that the petitioner has furnished a detailed mass balance for the Page http://www.judis.nic.in 625 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 entire copper operations which includes copper smelter and copper refineries. It is further stated that the respondent agrees with the entire mass balance analysis produced by the petitioner for all input and output material with regard to the copper production except spent anode and this is because of misleading of the table wherein the nomenclature of the spent anode has been used for the copper anode which is an external input to the copper operations. Further, it is stated that in the 2005 report of NEERI, the copper refinery operations has not been included in its mass balance analysis since copper refinery operation started only in the year 2005. Further it is stated that in- house produced scrap anode are not considered for calculating mass balance as they have already been considered in the first input. It is submitted that 64467 MT of spent anode mentioned are in fact the imported anodes. It is further th stated that the 9 respondent calculation are based on wrong assumptions without considering the nature of copper concentrate imported by the petitioner. It is submitted that in the application to MoEF for clearance of the Page http://www.judis.nic.in 626 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 increased production capacity from 900 TPD to 1200 TPD the petitioner has mentioned the estimated range of arsenic value in the copper concentrate during the relevant period due to deeper mining and scarce availability of resource, the concentrate received during the current period of time varies in th concentrations. Therefore it is erroneous for the 9 respondent to refer to the ranges which have been mentioned by the petitioner while filing its application to the MoEF. The learned senior counsel for the petitioner has also drawn the attention of the Court to the overview of the copper concentrate quality and treatment methods adopted by the petitioner. Further with regard to the allegation that the petitioner did not conduct material audit, the petitioner has submitted status of compliance of this consent condition.
522.From the averments set out by the petitioner, it is clear that there is a variation in the amount of arsenic which comes out of the process which according to the petitioner is bound to vary on account of deeper mining Page http://www.judis.nic.in 627 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 activities for recovery of copper concentrate. It is also clear that the quantum of arsenic which is generated in the process is not what has been mentioned by the petitioner while submitting application before the MoEF. Therefore, what stems out of this submission is that the arsenic which is generated during the process continues to vary. The NEERI in its report of March 2005 states that the petitioner is using copper concentrate which are sourced from various countries and at the time of visit to the industry, the petitioner was using three types of copper concentrate having arsenic content of 156 MG/KG, 350 MG/KG and 628 MG/KG with corresponding copper levels of 39.8%, 46.4% and 35.3%. The report further states that copper concentrate with less arsenic content, i.e. 156 MG/KG are available and it has recommended that the petitioner use such cleaner concentrate which will reduce the level of arsenic in the down stream waste and waste waters. With regard to the arsenic balance, it is stated that 0.008 MT/day of arsenic remains unaccounted which may be attributed to the untapped fugitive emission and the concentration of Page http://www.judis.nic.in 628 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 arsenic in the treated effluent from the ETP. The report recommends that it is critical to monitor in the treated effluent which is used by the petitioner to achieve zero discharge and the TNPCB is required to stipulate a level of arsenic in the treated effluent to avoid arsenic accumulation in slags, etc. In Table 6.8 in the report, the unaccounted quantity of arsenic has been furnished in a tabular column showing the stream from which it is generated. The petitioner filed an application to the MoEF on 03.01.2007 for ratification of 900 MTPD to 1200 MTPD copper production by de-bottlenecking project and in annexure 4 to the said application, the petitioner has mentioned that in copper concentrate arsenic is present in the range of 25-100 TPM and copper anodes, it is in the range of 200-300 TPM. In the rapid EIA done by Vimta Labs sponsored by the petitioner for expansion of copper anode production from 900 TPD to 1200 TPD, the material balance for arsenic has been furnished in table 2.12(c) and in respect of concentrate the total arsenic for three days cumulatively is 4.42 tonnes. The petitioner has filed a hazardous Page http://www.judis.nic.in 629 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 waste manifest in Form No.13 dated 02.06.2015, wherein the waste description has been given. The report submitted by NEERI of May 2011 to the Hon'ble Supreme Court gives the raw material composition and production details of the petitioner from 2004-2005 to April 2011 and the source of information is based on CPCB inspection conducted during January 2011. The relevant portion of the annual reports of the petitioner has also been filed. From all the above facts and details placed on either side, what emerges is that there is substantial quantity of arsenic, which comes out of the process and admittedly arsenic is a hazardous waste. How does this hazardous waste get monitored. The procedure is spelt out under the HW Management Rules. Unfortunately, the petitioner's HWM authorization was not renewed and kept pending for several years and ultimately rejected. The consequence of the same is rather disturbing. According to the petitioner they have been filing the returns periodically, they have been writing numerous letters to the TNPCB to renew their authorization but nothing happened and their application kept Page http://www.judis.nic.in 630 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 pending. The consequence that should flow out of the stalemate in the matter is to infer that the regulator has not examined as to the quantum of arsenic which has been generated in the process. From the materials placed on either side, it is evidently clear that the quantum of arsenic is a fluctuating figure and depends upon the quality of copper concentrate imported by the petitioner. As early as in the year 2005, the NEERI has recommended that the petitioner should use cleaner concentrate. The report also states that a quantity of 0.0008 MT/day of arsenic remains unaccounted. The petitioner would state that they have submitted compliance report, material audit requirement has been complied with and they account for the arsenic input and output in the process and there is no un-accounting. The question is as to who will testify for the correctness of the stand taken by the petitioner. Unfortunately, the organization which has to do the same, namely, the regulator, the TNPCB, appears to have not acted, presumably because the HWM authorization was not renewed. It is rather surprising as to how the TNPCB continued to permit Page http://www.judis.nic.in 631 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the petitioner to operate and handle and disposed of hazardous waste without renewal of the authorization. Thus, we can safely conclude that there is every possibility of these hazardous chemicals being not accounted for, thereby causing hazard to the environment. The person to be blamed is the regulator and the regulator alone. In the earlier part of this order, we have mentioned that mere pendency of an application for renewal of authorization cannot be a license to operate. Though a valid authorization may not be a condition precedent for applying a consent to operate once production starts and hazardous waste is generated while the plant is in operation, it goes without saying that handling and disposal of the hazardous waste is required to be done in accordance with the rules and conditions stipulated in the order of authorization. Thus, many issues have gone unnoticed and the regulator for the reasons best known has not followed up the matter with earnestness thereby putting the people of the locality in peril. Page http://www.judis.nic.in 632 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
523.The next aspect we consider is regarding the Hazardous Waste Management at the petitioner's Unit. In the report submitted by the Monitoring Committee to the Hon'ble Supreme Court during September 2004, it has been stated that the petitioner has not provided adequate infrastructure and facilities for management of waste generated. The inspecting team found arsenic containing slag dumped in the factory premises in the range of several thousands of tonnes and there is a mountain of arsenic bearing slag and also phospo-gypsum. Further it is stated that there are some issues still to be resolved in terms of the hazardous nature of arsenic bearing ETP waste which were earlier contained in an inadequately designed hazardous waste land fill and required disposal as per the CPCB norms. The Committee was of the opinion that without proper assessment of the infrastructure for the management of hazardous waste in compliance with the directions of the Hon'ble Supreme Court, the environmental clearance for the proposed expansion should not be granted by MoEF and if it has been granted, it shall Page http://www.judis.nic.in 633 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 be revoked. The Committee also directed the TNPCB to make a detailed visit to the plant to ascertain whether the Unit has already proceeded with the expansion of the project without permission from the appropriate authority in which case the TNPCB shall take suitable action under the EIA notification as well as the Water Act, Air Act and HWM Rules. In the report of the NEERI of March 2005 with regard to the land fill No.1, it is stated that from the design details provided by the petitioner for land fill No.1 constructed prior to the year 2001 is not safe and will not secure the waste in an environmental friendly manner in the long run. Further it is stated that the land fill system is likely to pose significant threat of leaching of various constituents from the contained waste and contamination of ground water. Further it is stated that the petitioner has provided only one monitoring well and since the well is not being monitored regularly by the petitioner/TNPCB, the detailed assessment of the performance of the land fill facility was not possible during the visit. The analysis of ground water sample indicated presence of arsenic [0.08 Page http://www.judis.nic.in 634 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 MG/L] and copper [0.09 MG/L] as against the stipulated limit of 0.05 MG/L as per the Indian Drinking Water Standards thereby indicating the possible relief of arsenic from the land fill. Therefore, it was recommended that the entire quantity of waste contained in land fill No.1 along with bottom soil, liner mater and cover soil be removed and disposed of in a safe and secured land fill facility designed and developed as per the criteria given by the CPCB.
524.With regard to the land fill No.1 [Cell No.1], it was found that the same having been constructed before February 2001 though the criteria fixed by the CPCB in February 2001 may not be applicable yet considering the presence of high concentration of arsenic in the waste and possibility of development of cracks and voids in the asphalt line in a long run, it is felt that a 2 cm of asphalt layer may not offer adequate protection for control of release of arsenic and other contaminants. It was stated that though the ground water samples collected showed arsenic levels within the stipulated limit, it was Page http://www.judis.nic.in 635 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 stated that the possibility of release of arsenic and other heavy metals in future due to deterioration of asphalt liner cannot be ruled out. Similarly, in respect of Cell No.2 of land fill No.2 inadequacy was pointed out. Ultimately, the report concludes that the land fills constructed by the petitioner prior to the year 2001 may not be safe and may not secure the waste in an environmental friendly manner in the long run. With this findings certain recommendations were made which are contained in paragraph 6.3.3 of the report. The petitioner would contend that the MoEF or CPCB did not issue any specific guidelines for the type of liner system to be followed and as per the recommendation of the Supreme Court Monitoring Committee, the waste stored in the lined pond was shifted to secured land fill constructed in the year 2004 as per the CPCB guidelines under the supervision of the respondent Board. It is submitted that the technology used and the methodology adopted by the petitioner for the construction of the secured land fill is on par with German technology and the construction was carried out by M/s.L&T under Page http://www.judis.nic.in 636 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the supervision of the National Productivity Council and since the Supreme Court Monitoring Committee directed the respondent Board to reduce the efficacy of the SLF constructed as per the National Productivity Council, TNPCB carried out efficacy of the existing land fill in the year 2006 and it was observed to be confirming with requirements. Further it is reiterated that the design measures adopted by the petitioner are at par with global standards which are followed by all industries in India. The liner system are designed and constructed and installed to prevent mitigation of waste leachate to the adjacent sub-surface soil, ground water or surface water. Further it is submitted that the petitioner Unit has chosen double liner in the construction even though the site do not bear any such condition that mandates the use of double liner system in the secured land fill. It is further submitted that the officials of the TNPCB inspected the secured land fill site during construction. The details of the approvals received for the construction of the secured land fill and capping the secured land fill filed with waste has been done as per the Page http://www.judis.nic.in 637 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 CPCB guidelines. With regard to the allegation that the petitioner has operated without authorization and have not submitted the manifest for scrubber cake, it is submitted that the petitioner has been in compliance with the consent conditions issued by the TNPCB and has taken efforts disposed the scrubber waste by fixing it with phospo-gypsum produced to cement companies. It is further submitted that the TNPCB recorded compliance status in their inspection report during the process of renewal of HW authorization stating that the scrubber cake is partly sold to beneficial uses. With regard to the presence of arsenic in the soil, the process of disposal to the secured land fill was stated and that the TNPCB has recorded compliance status in this regard. With regard to the enhancement of the quantum of spent catalyst waste, it is submitted that vanadium pentoxide, V2O5 is used as a catalyst in the catalytic converter of the sulphuric acid plant to convert SO2 to SO3 and to maintain the conversion efficacy the catalyst are partially replaced in a periodical manner. The spent catalyst being hazardous in nature are disposed Page http://www.judis.nic.in 638 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 in the secured land fill. It is further submitted that during the year 2014 shut down, entire spent catalyst has been replaced with new catalyst which resulted in higher quantity of hazardous waste generation and the petitioner has disclosed the details of the quantity of spent catalyst generated in their HW Annual Return in Form No.4. Further, it is submitted that when the application for renewal of authorization was pending, the petitioner once again reapplied for authorization on 28.04.2015 including additional list of waste and these wastes are generated in a very small quantity during plant maintenance usually kept in stores for giving back to supplier. Over a period of time this got accumulated and hence it was decided to dispose of them in the SLF after obtaining approval from the TNPCB. It is further submitted that when the petitioner applied for renewal of HW authorization in June 2012 there was no change in the list of waste but the quantity of process residue increased from 32850 tonnes per year to 36500 tonnes per year and anticipating the increasing of dust generation from back filters were additional Page http://www.judis.nic.in 639 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 installed as per the TNPCB direction. With regard to the allegation that all of a sudden in the HW approval application 15 MT of lead scales have been mentioned, it is submitted that lead scale will be generated once a while after expiry of lead anodes in the copper refinery and not generated on regular interval and hence not mentioned in the 2017 application. With regard to the allegation that ETP slime containing Nickel was disposed of to M/s.Suhans Chemicals without they having authorization for handling such waste. It is submitted that the said recycler is authorized for Nickel based residues by the Maharashtra Pollution Control Board and therefore they are authorized to deal with the said waste, thus the petitioner would contend that they have complied with all formalities required by furnishing a comprehensive list of hazardous waste which is never disclosed by other industries and now the petitioner is targeted for doing so. The petitioner adopts the national/international practices while handling hazardous waste such as ETP cake.
Page http://www.judis.nic.in 640 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
525.The above acts as pointed out by the Monitoring Committee and the NEERI coupled with the facts disclosed by the petitioner would show that substantial amount of arsenic bearing slag had been improperly handled by the petitioner and the petitioner had to remove the hazardous waste dumped in the SLF and shift it to a new facility. This according to the petitioner is due compliance of the recommendation made by the Supreme Court Monitoring Committee. However, considering the matter from an environmental perspective, what is required to be seen is the impact on environment caused on account of improperly lined pond/SLF. The fact that the petitioner in the year 2004 rectified the infrastructural deficiency cannot nullify the hazardous effect on environment caused on account of the improper design of the SLF. By removing the hazardous waste which was dumped in the SLF which design was found to be faulty may be a step to ensure that post 2004 there may not be any issues. But the fact remains that it remained dumped in the improperly designed land fill for quite a number of years and it can be easily perceived Page http://www.judis.nic.in 641 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 about the damage that would have been caused to the environment with particular reference to the ground water contaminant. While applying renewal of HW authorization during May 2014 additional list of wastes were mentioned. The explanation given by the petitioner that these wastes are generated in very small quantity during plant maintenance and they are usually kept in stores for giving back to the supplier is not a convincing explanation. The fact that such additional waste continue to remain in the factory, in store and ultimately disposed of in the SLF would go to show that they were hazardous waste. Similarly lead scales were not mentioned earlier and for the first time included in the renewal application submitted during 2017, the explanation offered is that it is not generated in regular intervals and that is why it was not mentioned in the application. We find this explanation being far from satisfactory. From the details furnished with regard to M/s.Suhans Chemicals, we find that they are not authorized to handle all category of waste generated by the petitioner as admitted by the petitioner themselves that they Page http://www.judis.nic.in 642 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 are recyclers of Nickel based residues. In any event the authorization given by the Maharashtra Pollution Control Board does not prima facie show that M/s.Suhans Chemical are authorized to recycle the large quantity of waste generated by the petitioner. We make such observation because in the order of consent dated 01.08.2017 granted by the Maharashtra Pollution Control Board to M/s.Suhans Chemicals Private Limited that they are authorized to manufacture Nickel Catalyst with maximum quantity of 240 tonnes per annum, Nickel salt of 48 tonnes per annum and as per the conditions in the said consent order they can accept and process spent catalyst containing Nickel – 610MF per annum as raw material. Thus, we find that the TNPCB had failed to properly monitor the Hazardous Waste Management procedures adopted by the petitioner, which ultimately boils down to the fact that the hazardous waste authorization was not renewed and yet the petitioner continued to carry on production, generate and handle hazardous waste. The fact as to whether the authorization/consent granted to M/s.Suhans Chemicals Page http://www.judis.nic.in 643 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 was implemented strictly is also a matter which remains unanswered. Obviously the said Company would not be exclusively handling the waste generated by the petitioner alone as there is nothing on record to indicate any such arrangement. Thus, the consented capacity can hardly be stated to have been exclusively used for the waste generated by the petitioner. That apart, the consent order given to M/s.Suhans Chemicals is for Nickel based waste and the question is as to what about the other waste which also form part of the waste generated. Therefore, we find that the explanation offered in this regard is far from satisfactory and not convincing. Once again it is the regulator who has to be held responsible for not carrying out their statutory duty in a proper manner. Thus the abundance of materials available before us convinces us to apply the doctrine as propounded by the Hon'ble Supreme Court that even if there is to be an error in the assessment it would be better to err rather than to give a clean chit to the petitioner as there are several inadequacies which have been pointed out, some of it are claimed to have been Page http://www.judis.nic.in 644 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 rectified and the issue would be what has happened when the infrastructural defect continued to exist. Therefore, the hazardous waste management procedures adopted by the petitioner are far from being satisfactory.
526.TNPCB issued show cause notice dated 24.03.2013 for contravention of the conditions imposed in the consent order issued under Section 21 of the Air Act. It was stated that during inspection on 23.03.2013, by the officials of the TNPCB, Thoothukudi, the officers of the petitioner reported 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 against put into service from 23.03.2013 at 03.30 am. It was stated that during the said time, the sulphuric acid plant bed was maintained at the required temperature using furnace oil and the emission was routed through TGS and around 04.00 am, copper concentrate at the rate of 26.77 ton/hour was fed as a trial for few minutes. The show cause notice further states that on 23.03.2013, Page http://www.judis.nic.in 645 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 public complaints were received around 07.00 am about eye irritation, throat suffocation in New Colony, Keelashanmughapuram and other areas of Thoothukudi town. It was stated that from the SO2 trend graphs of ambient air 3 3 quality, the value shot up suddenly from 20 ug/m to 62 ug/m located in the east direction around 06.00 am. The value was immediately reduced to 10 3 ug/m around 06.35 am and at that time, the wind direction was from north- west to south-east, that is, towards Thoothukudi town and the wind speed was 1.224 kmph as per the records maintained by the petitioner.
527.Further, it is stated that from the data of the online monitor connected with Care Air Centre of TNPCB, Chennai, it is seen that the SO2 emission monitor was not connected with Care Air Centre, Chennai during that time. Therefore, it was stated that air pollution control measures were not properly operated and the SO2 emission monitor was not connected with Care Air Centre, Chennai. Accordingly, the petitioner was informed that they are Page http://www.judis.nic.in 646 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 violating the condition issued to them under Section 21 of the Air Act, liable for being punished for offences under Section 37 read with Section 31A of the Air Act. The petitioner was directed to show cause within three days as to why penal action should not be taken against them and why an order of closure should not be passed and stoppage of electricity and water supply be not effected.
528.The petitioner by letter dated 25.03.2013, addressed the Care Air Centre, Chennai, in reply to the e-mail dated 23.03.2013, referring to inspection of the Chief Scientific Officer and Member Secretary, TNPCB on 24.03.2013, stated that the values are calibration gas value fed to the analyser and not the actual value. It was stated that the calibration of sulphuric acid plant SO2 online analyser was carried out on 23.03.2013 between 09.00 am and 11.15 am. The petitioner submitted their reply dated 27.03.2013 stating that during the alleged gas complaint period, the values of sulphuric acid plant Page http://www.judis.nic.in 647 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 SO2 on-line analyser as reported at Care Air Centre, Chennai, were found within the prescribed norms of 479 PPM, as the software captures the actual emission values, even though the software was in maintenance mode inadvertently during this period.
529.It was further reiterated that during the relevant time, there was a calibration exercise and the ambient air quality as stated in the show cause 3 3 notice was in the range of 20 ug/m to 62 ug/m at around 06.00 am, which is 3 within the permissible limit of 80 ug/m . Further, the SO2 emission monitor has recorded 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, the calibration period, which confirms the values are only calibration gas values fed to the analyser and not actual emission values.
530.With regard to the complaints received from the public regarding eye irritation and throat suffocation, the petitioner stated that during Page http://www.judis.nic.in 648 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the complaint period, the emission norms were well within the prescribed limits of sulphuric acid plant and hence, there has been no concern whatsoever on environment, health and safety related matters due to their operation. Thus, the petitioner would state that the operation, which was carried out at the relevant time, was a calibration exercise and only span gas was fed in.
531.The second aspect pointed out by the petitioner is that even 3 going by the value mentioned in the show cause notice, that is, 62 ug/m , it is 3 within the permissible limit of 80 ug/m . The fact that the District Administration issued a public notice asking the public not to panic is sufficient to disbelieve the stand of the public that they had suffered throat irritation, severe cough, breathing problems, nausea, etc.
532.If the incident cannot be disputed, only two aspects need to be seen, viz., whether the petitioner is responsible for such an incident. If the Page http://www.judis.nic.in 649 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner is responsible and if admittedly, there was a spike at the relevant time, has it or will it in future pose as a threat to the local public.
533.Reading of the reply to the show cause notice and the averments in the petitioner's rejoinder to the counter affidavit filed by the second respondent, it is seen that there is no specific denial by the petitioner about the said incident, nor the petitioner attempts to state that some other industry is the cause and not themselves. Therefore, the incident cannot be disbelieved and it is held that there was admittedly a spike in the gas, which has caused hardship to the public, which resulted in a panic situation in the area, which has compelled the Revenue Administration to issue a press release. From the press release, it is seen that responsibility was fixed on the petitioner resulting in an order of closure of the industry for a period of five days by exercising power under Section 133 Cr.PC.
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534.Having held so, we now have to decide whether the values recorded were as a result of a calibration exercise, or was it actual emission value. We are surprised to see that the calibration reports, prepared by the petitioner, who claims to function with state of art technology, are hand written reports. A bunch of reports have been filed by the petitioner in their typed set and all of them are hand written. When the petitioner points out that the equipments of the Board and other assessment made by them should be done properly, it goes without saying that the petitioner is also under an obligation to ensure that fair and appropriate steps are taken by them. When a dispute arises as to whether it was a calibration exercise or an actual emission, if the petitioner seeks to substantiate their case as a calibration exercise, they should be able to do so with sufficient documents. In such factual scenario, when hand written documents are relied on, it gives room for suspicion. Considering the magnitude of the petitioner's plant, it is hard to believe that the petitioner maintains calibration exercise records as loose sheets and they Page http://www.judis.nic.in 651 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 are manually prepared. The data, which is recorded has to be electronically recorded and the petitioner should have ensured that no tampering can take place in such electronic record. However, the petitioner places much reliance on hand written calibration exercise reports. We are not convinced to accept such reports more particularly, when the situation is very sensitive and public interest is involved.
535.In the reply to the show cause notice, the petitioner states that they “understand” that certain complaints were received from the public regarding eye irritation and throat suffocation. This reply is dated 27.03.2013, and much prior to that, the statement given by the District Collector was reported in the Tamil Dailies on 25.03.2013, and even prior to that, an inspection was conducted by the officials of the Pollution Control Board. Therefore, to feign ignorance of the incident is unbecoming of a corporate of the magnitude, such as the petitioner. Statements have been filed before the Page http://www.judis.nic.in 652 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Hon'ble Supreme Court, which were recorded by the Sub Divisional Magistrate and the Revenue Divisional Officer, Thoothukudi and all of them uniformly state about eye irritation, suffocation, etc. suffered by the people. The petitioner cannot attribute any motive to the local public because on one hand, they say several of the local public want their industry to continue operations. That apart, the petitioner cannot attribute motives to the general public spread over the length and breath of Thoothukudi. Therefore, the petitioner cannot wriggle out to state that they have nothing to do with the said incident.
536.Next, we have to consider as to whether the defence raised by the petitioner stating that what was done by them was calibration exercise is a correct and justifiable stand. The candid admission of the petitioner that the software was in a maintenance mode inadvertently is hard to believe especially when, the petitioner has taken a stand that they have adopted a state of art Page http://www.judis.nic.in 653 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 technology and even their trucks, which transport the raw material are GPS monitored. Therefore, the “story” which they seek to tell about the maintenance mode of the software is unbelievable and to be disbelieved and there is something more than what meets the eye.
537.In the report of the inspecting team, comprising of the Member Secretary, TNPCB; JCEE, Madurai; DEE, Thoothukudi; AEE, Thoothukudi; and CSO, Care Air Centre, who inspected the industry on 24.03.2013, reported that the plant was stopped on 21.03.2013 around 03.20 am, the smelter furnace was shut down for maintenance at the lance cooler failure and after replacement of the furnace cooling jacket, the smelter was started at 03.30 am on 23.03.2013. The copper concentrate was charged at the rate of 26.7 ton/hour from 04.10 am to 04.52 am and from 05.10 am to 10.28 am. Again it was charged at the rate of 42.9 ton/hour from 13.32 hours onwards. It is stated that during the start up operation, there has been a shock load discharge Page http://www.judis.nic.in 654 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 observed from SAP-I and high values in the range of 1104 PPM to 1123 PPM SO2 were recorded at the Care Air Centre, Chennai on 22.03.2013. The periods observed were the same as the charging periods from DCS-I at 02.15 hours and other at 09.15 – 11.00 hours. It was stated that SO2 was observed to 3 be discharged into the ambient air at a concentration level of 2947.03 ug/m 3 and it exceeded the prescribed standard of 1250 ug/m for sulphuric acid plant with capacity of above 300 ton/day. The same was recorded in the software at SAP-I at the industrial site and confirmed during inspection, which resulted in issuance of show cause notice dated 24.03.2013. The petitioner has not challenged the inspection conducted by a team of experts headed by the Member Secretary, TNPCB himself. The learned Senior Counsel appearing for the petitioner referred to various documents and took strenuous efforts to explain as to what is the maintenance mode and how the petitioner is not responsible for any such incident and the plant was only in the calibration stage.
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538.The TNPCB has stated that the petitioner has not given any prior information about this shut down and start up of the smelter operation, they have not reported to the Care Air Centre, about the alleged calibration of analyser in the maintenance mode. The stand taken by the petitioner was disbelieved, as there was clear logged on-line continuous monitoring data register at Care Air Centre, Chennai confirming the exceedance of emission standards of SO2 from SAP-I. Furthermore, adverse inference was drawn because there was no ambient air quality monitoring station in the relevant area. The ambient air quality monitor available in the factory site did not record any higher value and this was held to be not a ground to exonerate the petitioner. The fact that the people residing about 5 kms away from the unit suffered the symptoms was considered to be very relevant because of the wind direction and the wind speed and as to how the plume will subside. TNPCB had relied upon statements given by the public as well as Doctors. The Page http://www.judis.nic.in 656 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner seeks to discredit and discard them by alleging that the deponents were tutored or statements obtained to suit the requirement. In our considered view, the petitioner cannot be permitted to take such a stand, which in our view, is wholly untenable and arbitrary. The general public have experienced the symptoms and no sane member of public, that too, professional like Doctors would come forward to utter falsehood. The fact that power under section 133 Cr.P.C., was invoked and the pant was shut down itself would show that the District Revenue Administration had taken note of all parameters and after having properly ascertained as to the cause for the incident, have passed an order of closure.
539.The petitioner, in their rejoinder affidavit, states that only during long shut down of activities, they will intimate the TNPCB and not for intermittent stoppage. With regard to the intimation regarding calibration, the petitioner would refer to the instructions given by the original equipment Page http://www.judis.nic.in 657 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 manufacturer and seek to explain that the analyser reading with “M Tag” are not true representation of actual reading and it only denotes the calibration gas value fed to the analyser. Thus, the petitioner would candidly admit that intimation regarding a calibration exercise was not given to the TNPCB, rather, they would refer to the instructions given by the equipment manufacturer (OE Supplier) and that TNPCB should be aware of the fact situation. The contention raised by the petitioner is not acceptable for more than one reason. Firstly, the calibration exercise is not an exercise, which is unregulated, as the CPCB has issued instructions in the form of guidelines for Online Continuous Effluent Monitoring Systems (OCEMS). In para 5.4 which deals with “quantification”, instrument calibration has been mentioned in para 5.4.1; validation of COD, BOD, TOC and TSS have been mentioned in para 5.4.2. The report in protocol is contained in para 6.0 and data management 6.1. Therefore, the guidelines, which have been framed by the CPCB have to be adhered to and the stand taken by the petitioner that they are in the habit of Page http://www.judis.nic.in 658 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 sending communication to the Board only during long shut down activity and not during intermittent stoppage appears to be highly unprofessional. Shutting down a plant of such magnitude has been explained to us by the learned Senior Counsel for the petitioner to be a very elaborate and a technical exercise. If that is so, then re-starting such a plant is equally or more serious an exercise. The stoppage of the plant as was admitted by the petitioner was due to puncture in the furnace roof cooling jacket tube. The technical problem, which had occurred, appears to be not a minor problem or otherwise, the petitioner would have had alternate methods to attend such problems without requiring the plant to be shut down. Therefore, we hold that the petitioner should have intimated about the stoppage though according to them, th it was only an intermittent stoppage. The 9 respondent referred to an opinion given by a former Professor of Chemical Engineering, IIT, Madras. The learned Senior Counsel for the petitioner objected to the said report on the ground that the Professor was part of the Committee constituted by the Page http://www.judis.nic.in 659 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Hon'ble Supreme Court during 2010, when the Special Leave Petition was entertained. If the said Professor was part of an inspecting team constituted by the Hon'ble Supreme Court, the petitioner can hardly question his competence and independence more so when, the petitioner did not object to him being part of the Committee constituted by the Hon'ble Supreme Court. Therefore, we hold that the objection raised by the petitioner on the opinion of the Professor to be not tenable. Sans technical aspects mentioned in the report what strikes our eye is the statement that the symptoms reported are consistent with symptoms triggered by exposure to SO2. The intensity of symptoms reported from Thoothukudi town correspond to SO2 levels above acute exposure guideline values (AEGL-I and II) laid down by the United States Environment Protection Agency. The Professor has taken note of the low wind speed, that is, 1.22 kmph and states that it corresponds with the sequence of events and the timing of concept of symptoms reported by the residents of Thoothukudi. The fact that between 05.50 am to 06.05 am, the on-line Page http://www.judis.nic.in 660 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 ambient air quality monitor registered a sharp spike in the level of SO 2 to more 3 than 60 ug/m cannot be denied by the petitioner. There is no explanation or plausible explanation given by the petitioner for such sudden sharp spike. The readings on two previous dates did not show anything abnormal. It has been pointed out that data from the monitor is not available after 10.15 am and it is stated that this is curious and raises a question as to why the monitor stopped working precisely around the time of the second instance, that is, 09.15 am to 11.15 am that the Care Air Centre recorded SO2 level in excess of 1123.6 PPM. That apart, the petitioner is the sole large emitter of SO2 upwind of Thoothukudi town as per the meteorological data available. Thus, the Professor concludes by stating that he is of the opinion that evidences strongly point towards the petitioner, as the source of emissions responsible for the acute exposure effects on 23.03.2013.
540.The petitioner had taken a stand that for calibration, the company had ejected zero gas (0 PPM) and span gas of 1000 PPM calibration. Page http://www.judis.nic.in 661 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 The calibration report provided records the values as 5 PPM and 6 PPM for zero gas before calibration and as zero after calibration. For 1000 PPM, span gas diluted from 4000 PPM standards, the report records 1004 PPM before calibration and 1000 PPM after calibration. The question which the expert has posed is, if these were the cases, the same numbers ought to have been displayed in the Care Air Centre. The display in the Care Air Centre recorded 1104.2 PPM, 1123.6 PPM and 803.5 PPM more importantly, the levels reflected in the Care Air Centre's display reflects the maximum recordable levels of the device and not the readings during calibration. The upper end of the range measurement is 1123.6 PPM, emissions above that, even if they exceed the level, will not be recorded and the only way to deduce the intensity of the emission is by gauging the nature and extent of symptoms among exposed population.
541.In our considered view, the technical opinion rendered by the Professor, who in fact, was part of the inspecting team constituted by the Page http://www.judis.nic.in 662 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Hon'ble Supreme Court should be given due credence. The factual aspect regarding the maximum recordable level of the device as 1123.6 PPM has been mentioned in the opinion, which in our considered view, is a very vital information, not made known to us by TNPCB, nor it has been shown that the opinion is wrong.
542.The petitioner has referred to the monitoring stations of TNPCB in SIPCOT area near AVM Jewellery in Thoothukudi town to show that the values recorded in those stations are much less than the permissible limit. We are not convinced with the said contention for the simple reason that the values recorded in the Care Air Centre are of utmost importance and cannot be brushed aside. More interestingly, while concluding the written submission on this aspect, the petitioner would state that even assuming that there has been emission, the MoEF notification dated 16.11.2009, clarifies that it is only when the levels exceed the prescribed limits for more than two days, measures Page http://www.judis.nic.in 663 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 to be adopted and the measures mentioned therein are regular or continuous monitoring or further investigation. In our considered view, the MoEF notification dated 16.11.2009 cannot be applied to the present fact situation, where there has been a public out cry, action had to be initiated under Section 133 Cr.P.C., to abate the nuisance. The Revenue Divisional Officer has recorded statements from the public, Professor, Doctors, etc., and to state that the MoEF grants two days time for action to be initiated even if there is an excess, is an argument which has to be out rightly rejected.
543.In the light of the findings and facts recorded by us on the above issue, we disbelieve the stand taken by the petitioner that they were under a calibration exercise and we find that the stand taken by the TNPCB to be just and proper and the professional opinion rendered by the expert also aids and strengthens the decision taken by TNPCB leading to the closure of the petitioner industry.
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544.The 9 respondent referred to the report submitted by the Department of Community Medicine, Tirunelveli Medical College in 2008 tilted “Health Status and Epidemiological Study around 5km radius of the petitioner-industry”. The study covered a population of 80,725 people and compared the health status in villages around the petitioner-industry with the average health status prevailing in the State and two other locations, where there were no major industries. The report indicated prevalence of brain tumours among males is 1000 times national incidence rate; 12.6% of death due to nervous diseases; 13.9% respiratory diseases were significantly more prevalent in the areas surrounding the factory; incidence of asthmatic bronchitis is 2.8%, more than double the State average of 1.29%; eczematous skin lesions were high (1.38%) in the region; women in the area had more menstrual disorders; disorders of the joint and musculoskeletal system were significantly elevated in the villages around the factory; iron content in the Page http://www.judis.nic.in 665 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 groundwater in Kumareddiapuram and Therkuveerapandiapuram were 17 and 20 times higher than permissible levels prescribed by the Bureau of Indian Standards (BIS) for drinking water and 2 out of 7 groundwater samples had higher levels of fluoride than the permissible levels.
545.The petitioner's response is that the report, as a whole, does not show any health issues due to the operation of the petitioner's unit. The Community Health Monitoring Reports and the information received by the petitioner under the Right to Information does not show any health issues due to its operations. Further, the petitioner are operating from 1997 with employee strength of more than 4,000 including women technicians and Engineers and if any health issues had arisen, they would be most impacted. The Community Health Monitoring Reports shared with TNPCB from the year 2011 once in every six months and the latest report of February, 2018 were referred to and submitted that there are no major health effects identified Page http://www.judis.nic.in 666 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 or attributed to the petitioner-industry. The credibility of the health report is being questioned on the ground that it is not a report based on scientifically designed study geared to identify the impacts of the petitioner's factory on the th health of surrounding community. On the other hand, the 9 respondent seeks to disregard the data presented by the petitioner, which is gathered from medical camps conducted by the petitioner as part of the company's CSR exercise and no meaningful inference can be drawn from the report given by th the petitioner. The petitioner would contend that the data submitted by the 9 respondent is self-serving, unsubstantiated and unreliable and the so-called symptom survey has been conducted by the members of the anti sterlite peoples movement, who are having vested interest and no credence should be given to the said data.