Supreme Court pulls up TN govt for not removing Sterlite’s copper slag dumped in 11 sites

He told Senior Counsel C S Vaidyanathan, who appeared for the TN government, “today you started your submission making us understand that the moisture which the soil absorbs that leads to this arsenic and all. These heaps at 11 different sites not within their campus, they are there for the past 5 years. What have you all done in the past 5 years, from 2018 to 2024?”

“We have asked them to remove”, Vaidyanathan told the bench presided by Chief Justice of India and also comprising Justice Manoj Misra.

“We know what you all will do. You all will again draw a sample from that place and you will show us (and say) look at the level of arsenic, the level of this mercury this, that..Bound to be, if you don’t take steps to remove them.”

Vaidyanathan responded, “I take the hint. We should do it ourselves. What the cost etc should be recovered, that’s another matter”.

He said the plant had continuously been flouting the norms it was required to follow to avoid polluting the environment and the “whole area is now polluted”. He said the TNPCB had stipulated that both slag and phosphor gypsum shall be disposed of then and there and not stored, but this was not followed.

The senior counsel said that the entire argument is as if it was the obligation of the state to point out their violations and if it hasn’t in the past, it cannot subsequently either.

To this, the CJI said there is a problem with such an argument.

“I will tell you the problem there. An industry cannot say that I will only comply with such objections which you raise during the operation. You are bound to comply with the law. You are bound to comply with all the terms of the consent to establish, consent to operate. No doubt about it. They cannot say I will only comply with those provisions of the Water Act which you point out. But when you seek to close down an industry on the ground that there is a violation, then you have to point out what the violation is. You cannot say that I will close down the industry for undefined violations. The closure affects the investment and the industry. There you have to point out what the violation is,” he said.

Vaidyanathan replied, “I was not revoking or cancelling a consent to operate which was valid. I was declining consent to operate. Their consent to operate had expired and they sought a renewal and I declined”.

The CJI, however, said, “This is not like renewal of a mining lease but renewal of a licence to operate an existing industry. So ordinarily, there is a legitimate expectation that if I have established an industry, I must get renewal subject to my being compliant with the law. Of course I cannot say I will not comply with the law and yet I am entitled to. There is no vested right of renewal in that sense. So if you are denying renewal, you must specify these are the grounds…Cannot say I will deny renewal on unspecified grounds”.

The counsel said that this question was raised before the HC too.

He said for a substantial period of time, the petitioner was operating without valid consent to operate. “They were operating either due to court orders or tribunal orders or by stating that consent for renewal is pending”.

The court which had earlier mooted setting up an expert panel to examine when the unit can restart operations and if so, what conditions should be laid down, repeated this Thursday.

“The experts can look into this…Post 2013 (when the SC had allowed it to continue operating), can the operation of the industry be compliant with environmental standards by adopting remedial steps or is closure the only option? Continuing from post 2013, what are the violations? Are these violations such that they have had an irretrievable impact on the environment so that they can never be remedied? Which means they have to close down the industry. Or are these capable of remediation and if so what?” said the CJI.

He said, “And based on their track record in violations, which have been pointed out, what are the steps the court should take in terms of monetary imposition to ensure that they make a good faith effort?…It’s not like they can have a free run, go on polluting the environment…And should that not be entrusted to a team which will of course include you but will include domain experts? Because if they tell us sorry this industry cannot run, we go by what they say. But if they say that x, y, z, can be done…”.

The CJI said, “If you say you don’t trust them to do x, y, z, we can impose terms on them of deposit in an escrow account to be operated by the Union Ministry of Environment or TNPCB or Central Pollution Control Board to ensure that if this time they don’t abide by their obligation, their bank guarantee will be revoked. Is it not necessary for us to therefore have some expert who will go into this now?”

Opposing the suggestion, Vaidyanathan said the HC had gone into the matter and “if the HC has gone into it, the expert body cannot sit in judgment over the HC’s finding”.

He said such an attempt “will be virtually outsourcing an adjudicatory function”. But the CJI did not agree and said, “It will not be outsourcing. We are not going to dispose it of and leave everything to the committee.”

The senior counsel said, “But to even say (about setting up the committee) after the HC division bench after (hearing) elaborate submissions on this aspect, having considered and had rendered..according to me, the institutional credibility is at stake.”