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NEW DELHI: The Tamil Nadu government has been punching the air since ordering the “permanent closure” of Sterlite Copper smelter in Tuticorin on Monday, but legal experts say the grounds of the order are so weak that the company could challenge it.

After 100 days of protests and two days of firing that claimed 13 lives last week, the government closed down the unit citing article 48-A of the Constitution, which deals with protection and improvement of environment, and a section of the Water Act which gives powers to the state government to make a direction to the pollution control board—in this case the direction to close the plant.

Advocate Ritwick Dutta who specialises in environment law, said, “If the pollution control board or the government is directing for closure, specific violations of the Air Act, Water Act and Environment Protection Act need to be cited. The order should be based on sound reasoning and state what the liability of the company as they have to clean up the mess.”

TNPCB can ask the Centre to revoke the environmental clearance given to the plant to make it difficult for the company to go to court. The government can also file civil proceedings in NGT and criminal proceedings in a trial court. The continuous air and water quality data should be in public domain and TNPCB should be able to present its case. “TNPCB should present all the evidence, and there is enough evidence,” he said.

It wasn’t the first time Sterlite was in the vortex of pollution charges. In March 2013, TNPCB issued a closure notice to Sterlite after residents of the area complained of gas leak. On several occasions, TNPCB found violations by the plant, but failed to reason its decision in the National Green Tribunal (NGT). Now, the case is weaker because the Tamil Nadu government hasn’t cited current pollution levels or specific violations in its closure order.

The TNPCB website has no historical data of air or water pollution levels from the industry. TNPCB public relations officer P Sai Prasad said, “We cannot speak on pollution levels without our seniors’ permission.”

There is hardly any other published material either on the emissions from the Sterlite plant, except a 145-page NGT judgement of 2013 which allowed the plant to reopen following allegations of a gas leak from its premises. The TNPCB on March 29, 2013 issued a closure order to Sterlite Industries Ltd after it received several complaints of eye irritation, throat constriction and breathing difficulties from residents in nearby areas.

During inspection, TNPCB officials were told that operations in the plant were shut between March 21 and March 23 to attend to a technical fault. But the same was not informed to TNPCB earlier. The Care Air Centre (that collects real time air quality data) found that the stack emission of sulphur dioxide (SO2) was in the range of 803.5ppm to 1123.6ppm as against the standard of 477.53ppm prescribed by the environment ministry. But Sterlite contested this by saying that the aberration was because the plant was calibrating its emission monitoring equipment. TNPCB countered it by stating that such high emission levels were recorded 84 times between October 2012 and March 2013. The pollution board argued that had the peak in SO2 emissions been due to calibration, the readings would have shown sudden spurts, may be of 30 seconds in the graph; but the spurt in this case was noticed for nearly 40 minutes. After all that, TNPCB’s arguments didn’t stand in court; it was also not able to pinpoint that the emissions were exactly from Sterlite. NGT allowed the plant to reopen with certain conditions and said that no action should be suspicion based.

The National Environmental Engineering Research Institute (NEERI) also conducted a number of inspections on the plant since 2005, in adherence to Supreme Court directions, but none of those are in public domain. A senior NEERI official shared the institute’s findings from 2011 with TOI which found several aberrations including the risk of fugitive emissions. For example, the green belt developed by the industry covered only 12.1% of the industry area as against 25% stipulated in the environmental clearance papers.

The report also stated that fugitive emissions, raw material storage and handling need to be controlled for reducing PM 2.5 and PM 10 emissions. Waste heat recovery boiler emissions also exceeded the standards for particulate matter. Treated effluents from plants also did not meet the standard for fluoride. It is not clear whether these issues were rectified. “We did the inspections based on court orders, so we don’t know the current status,” said the NEERI official.

Aishwarya Sudhir, an independent air pollution researcher said lack of transparency is a common character of industrial zones across the country. “The government introduced the continuous emission monitoring system (CEMS) a few years ago, but there has been no compliance. Look at any critically polluted area, there is no data in public domain,” she said. In many industrial areas, the affected people may not be able to carry forward their cases due to lack of data in public.

Advocate Dutta believes the TN government would find it difficult to defend its case if the company goes to court. “If the 2013 closure order didn’t stand, this surely won’t,” he said.

