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ENVIRONMENTAL TORTS FROM INDIAN PERSPECTIVE

Post 9os there is a tremendous and rapid growth witnessed by our country. In order to stimulate and sustain the growth wagon of the country, the government has in many ways overlooked the general mass at large. India employs a range of regulatory instruments to preserve and protect its natural resources. Across the country, government agencies wield vast power to regulate industry, mines and other polluter but are reluctant to use their power to discipline violators. There are over 200 central and State statutes which have at least some concern with environmental protection, either directly or indirectly. The plethora of such enactments has, unfortunately, not resulted in preventing environmental degradation which, on the contrary, has increased over the years. Undertaking a case study on the various projects in India which have amounted to environmental catastrophes:

1. A Case Study on Pohang Steel Company (Posco)1


The Posco steel project is one of many coming up in the Indian state of Orissa, which is going through a steel revolution of sorts. Over the past three years, the state government has signed more than 40 MoUs with companies, both domestic and foreign, mortgaging the 20 billion tonnes of iron ore reserves that its supposed to be sitting on. The third largest steel company in the world, Posco, has managed to grab a big chunk of these reserves - about 600 million tones which it expects to exploit over the next 30 years.

The Rapid Environmental Impact Assessment (REIA) fails to describe and assess the impacts of waste disposal: REIA describe about the management of solid wastes from the proposed facility. It has been found out that a large volume of wastes (as much as 120 tons per day of sludge; 490 tons per day of dusts) would be dumped.

Filing of objection to the public hearing of proposed setting of integrated steel plant and minor port of M/s POSCO India at Paradip, Jagatsinghpur, 13th April,2007 By Prafulla Samantra President, Lok Shakti Abhiyan

With regard to these wastes, the REIA states only: the expected dumping of solid wastes will be nominal, not even 10 per cent of the total generation. The REIA report has mentioned that Land area measuring around 900 acres has been earmarked for dumping of these unused wastes. This is untenable. Dumping more than 600 tons of waste on 900 acres of land holds the potential of immense environmental destruction. Similarly the REIA has failed to provide the data related to the aspects of chemical characteristics of these wastes, including the leach ability of toxic heavy metals from these wastes; Identification of the precise location of the 900 acres of land on which these wastes will be dumped; design and operation standards to which the dump site will be engineered; Assess the impacts of the release into the environment of contaminants from these wastes.2

It has been found out in the surrounding areas of Paradip that the common people living nearer to Industries are suffering from various types of disease due to air pollution. The people residing nearer to IFFCO fertilizer plant and PPL plant are the worst sufferer due to the air pollution. Diseases like bronchitis, allergy due to ammonia leakage from fertilizer plant, skin disease are commonly found in this area. So setting of this plant will definitely lead to health problem in and around the plant area.

Using baseline information in the REIA regarding existing ambient air quality (65 mcg/m3) demographic information in the REIA (approximately 70,000 persons in the study area), and using mathematical formula developed by experts at the World Health Organization, it has been calculated that a 10 mcg/m3 increase of PM-10 above baseline levels (from 65 to 75 mcg/m3) would result in an expected disease burden of nearly 2.8 added deaths per year, including 1.15 deaths among children under five years of age and nearly 1.2 deaths among adults over thirty years of age from cardio-pulmonary effects3

A case study of the Pohang Steel Companys (Posco) proposed project in Orissa, India, Manshi Asher, National Centre for Advocacy Studies June 2007. 3 Evaluation of the Rapid Environmental Impact Assessment (REIA) for 4 Metric Ton per Year (MTPY) Integrated Steel Project to be Set Up near Paradip in Orissa prepared by Mark Chernaik, Staff Scientist Environmental Law Alliance Worldwide U.S).

2. Case Study on Sukinda Mines, Orissa (Fourth Worst Polluted Place on Earth)4
Sukinda, Orissa Potentially Affected People: 2,600,000, Type of Pollutant: Hexavalent chromium and other metals. Source of Pollution Chromite mines and processing The Problem Sukinda Valley, in the State of Orissa, contains 97% of Indias chromite ore deposits and one of the largest open cast chromite ore mines in the world. Twelve mines continue to operate without any environmental management plans and over 30 million tons of waste rocks are spread over the surrounding areas and the Brahmani riverbanks. Untreated water is discharged by the mines into the river. Approximately 70% of the surface water and 60% of the drinking water contains hexavalent chromium at more than double national and international standards and levels of over 20 times the standard have been recorded. The Brahmani River is the only water source for the residents and treatment facilities are extremely limited. The State Pollution Control Board has conceded that the water quality at various locations suffers from very high levels of contamination. The air and soils are also heavily impacted.

Health Impacts: Waste rocks (meaning perhaps the overburden) are spread over Brahmani river banks and untreated water is discharged by the mines into the river.

Worlds worst polluted places, the top ten of dirty thirty. A Project of the blacksmith Institute, New York, September,2007

Approximately 70% of the surface water and 60% of the drinking water contains hexavalent chromium of more than the double national and international standards and a level of over 20 times the standard. Chromite mine workers are constantly exposed to contaminated dust and water; gastrointestinal bleeding, tuberculosis and asthma being common ailments. Infertility, birth defects and still births have also resulted. The OVHA (Orissa Valley Health Organization) reported that 84.75% of the deaths in the mining areas occurred due to chromite mine related diseases. 3. Case

Study on Vapi, Gujarat5 (Fifth Worst Polluted Place on

Earth)
Potentially Affected People: 71,000 Type of Pollutant: Chemicals and heavy metals Source of Pollution: Industrial estates The Problem: The town of Vapi marks the southern end of India's "Golden Corridor", a 400 km belt of industrial estates in the state of Gujarat which includes Nandesari, Ankleshwar, and Vapi. There are over 50 industrial estates in the region including more than 1,000 individual industries that extend over more than a thousand acres. Many of these are chemical manufacturing estates producing petrochemicals, pesticides, pharmaceuticals, textiles, dyes, fertilizers, leather products, paint, and chlor-alkali. The waste products discharged contain heavy metals, cyanides, pesticides, complex aromatic compounds (such as polychlorinated biphenyls or PCBs), and other toxics. Vapi and the Ankleshwar area were declared critically polluted by the Central Pollution Control Board of India (CPCB) in 1994. This followed a survey that revealed that there was no system in place to dispose of industrial waste at these estates. Down to Earth, an environmental magazine based in India, conducted an analysis on the groundwater and found
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Worlds worst polluted places, the top ten of dirty thirty. A Project of the blacksmith Institute, New York, September,2007

exceedingly high levels of mercury, lead and zinc. Mercury in Vapis groundwater is reported to be 96 times higher than WHO health standards. Effluents drain directly into the Damanganga and Kolak Rivers; water downstream of the Kolak is now unable to support much biological life. Active dumping is also reported in at least one industrial site. Air pollution results from emissions due to the improper handling of chemicals by industries.

Local produce has been found to contain up to 60 times more heavy metals (copper, chromium, cadmium, zinc, nickel, lead, iron) than non-contaminated produce in control groups. Heavy metal analyses have revealed that both the effluents and sediments collected were contaminated with cadmium, chromium, copper, lead, mercury, nickel and zinc. Sediment samples were found to contain 17 organohalogen compounds, including chlorobenzenes and PCBs as well as a range of other organic compounds including benzene derivatives and pesticides.

Health Impacts: Many residents have no choice but to drink contaminated well water as other clean water sources are more than a mile away. The Indian Medical Association reported that most of the drinking water supplies are contaminated, because of the absence of a proper system for disposing industrial effluents. This has resulted in very high incidences of respiratory diseases, chemical dermatitis, carcinoma, skin, and lung and throat cancers. Women in the area report exceedingly high incidences of spontaneous abortions, bleeding during pregnancy, abnormal fetuses, and infertility. Childrens ailments include respiratory and skin diseases and retarded growth.

Finally, on February 16, 1995, the 11 villages filed a public interest petition in the Gujarat High Court.

Note on Environmental Impact of Industrialization in Sambalpur Jharsuguda Region6


Huge deposits of coal, in proximity to Hirakud, one of the largest reservoirs of the country has made Jharsuguda Sambalpur region one of the most attractive and globally most competitive destinations for mineral based industrialization. The region makes an ideal site for production of Iron & Steel, Thermal Power and Aluminum sector. Growth in this region has been phenomenal in recent items and likely to continue in a more accelerated manner in the coming decade. The present iron and steel making capacity is likely to increase by 3.6 times (from 2.4 MTPA to 8.74 MTPA), Thermal Power by 24 times (from 849.5 MW to 20272.5 MW) and Aluminum by 9 times (from 3.5 LPTA to 31.6LPTA). This estimate does not include ultra-mega power projects which are likely to be established in the region. This will make this region the largest conglomerate of smelter and power house in the world (Appendix-I). It is unlikely that such fast paced growth would be sustained environmentally. In order to assess the risk and environmental damage in this region a brief desk study was made by State Pollution Control Board. Key features of the impact assessment study are presented below.

Impact on Air Quality a) With the nature of industrial activity, suspended particulate matter (SPM), Sulphur Di-oxide (SO2) and fluoride are the three critical parameters in air quality management needs a close watch. With the proposed industrialization plan SPM is likely to increase by 18 times, SO2 by 13 times and fluoride by 9 times (Appendix-II). High level of SPM and SO2 will pose significant health risk by raising the incidents of pulmonary disease.

before the national environmental appellate authority, new Delhi, memorandum of appeal against order Number F. No. J-11011/372/2006-IAII (I), dated 29th March, 2007granting environmental clearance to the Expansion of Integrated Steel Plant (1.20 MTPA to 2.20 MTPA) and Captive Power Plant (430 MW) by M/s Bhushan Power & Steel at Thelkoli, Rengali, Sambhalpur, Orissa. ,(under section 11(1) of the national environmental appellate authority act, 1997)

b) Of these gases fluoride which is emitted from the smelting process is the most potent to cause extensive damage to agriculture and forest. For example at the present capacity of 3.45 MTPA of NALCO emits about 40 kg/hr of fluoride, which causes at least one incident of crop damage in 2/3 years. In Jharsuguda region if all the proposed aluminium smelter capacities would be made operational the emission of fluoride will remain in the range of 250-360 kg/hr, and it would severely affect the agriculture more frequently and the forest around the smelters may even get wiped out permanently. Moreover fluoride bearing dust will get deposited on grass and likely to enter the human food chain through milk and drinking water.

Impact on Water Resource However, what is more critical is the run off contamination. The runoff in this region is likely to be contaminated with fluoride since the smelter in this region would annually consume about 80,000tons of fluoride bearing materials. Considering 1% spillage and related loss, about 800 tones of these materials may be washed into the reservoir. Besides 3160 tons of fluoride will be emitted through stack room and pot room emission, even when it remaining with permissible limit. Similarly, 1,26,000 tons of fluoride bearing hazardous waste would be generated in this region annually, which puts the reservoir under significant risk of fluoride contamination. Fluoride level of more than 1.5 mg/l in water is known to cause fluorosis, a deadly disease for which there is no cure, if contaminated water is consumed for a prolonged period. In areas around NALCO (whose present capacity is 10% of what is proposed in Jharsuguda) signs of dental fluorosis in bovine population have been documented. In the event, if Hirakud reservoir gets contaminated with fluoride, fluorosis may attain a dimension of epidemic in this region and beyond.

Green House Gas Emission Belpahar in this region is known hottest place in the State. During peak summer the temperature in this region goes up close to 52 Celsius. The thermal power plants of more than 20,000MW will burn 3.5 lakh ton of coal every day. In thermal power plant about one third of the heat

energy gets converted to electricity and remaining two third goes back to environmental, resulting in temperature rise in the vicinity causing a heat island. Thus, the ambient temperature in this region is likely to be at least 2-3 degree Celsius higher than its neighboring countryside.

The above issues are extremely critical for long term sustainable development of the region. It is time that the environmental issues of such large scale development are given due importance in the decision making process.

Law, Judiciary and Environmental Governance

In Subhash Kumar v. State of Bihar7, the Court observed that: The right to live is a fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution

The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of an environmental jurisprudence in India, while also strengthening human rights jurisprudence. There are numerous decisions wherein the right to a clean environment, drinking water, a pollution-free atmosphere, etc. has been given the status of inalienable human rights and, therefore, fundamental rights of Indian citizens. In M.K. Sharma v. Bharat Electric Employees Union, the Court directed the Bharat Electric Company to comply with safety rules strictly to prevent hardship to the employees ensuing from harmful X-ray radiation. The Court did so under the ambit of Article 21, justifying the specific order on the reason that the radiation affected the life and liberty of the employees.
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AIR 1991 SC 420

In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh8, the Supreme Court based its five comprehensive interim orders on the judicial understanding that environmental rights were to be implied into the scope of Article 21. Thus, expanding the scope and ambit of Article 21 to cover in it the rights which are not expressly enumerated, the Supreme Court has interpreted the word life to cover in it all aspects of life which go to make a mans life meaningful, complete and worth living. It will also cover his tradition, culture, heritage and health.

In Vellore Citizens Welfare Forum v. Union of India9, the Supreme Court interpreted the Polluter Pays Principle as the absolute liability for harm to the environment extends not only to compensate the victims of the pollution but also the cost of restoring the environmental degradation. This principle of compensating the victim as well as the environment is laid down in sec. 3 of the National Environment Tribunal Act, 1995.

Principle of new burden of proof


In the Vellore Case, Kuldip Singh J observed as follows: The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. In A.P. Pollution Control Board 10 case: it was explained that the precautionary principle has led to the new burden of proof principle. In environmental cases where proof of absence of injurious effect of the action is in question, the burden lies on those who want to change the status quo. This is often termed as a reversal of the burden of proof, because otherwise, in environmental cases, those opposing the change could be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to

AIR 1985 SC 652 1996(5) SCC 647, (at 659) 1996(5) SC 647 p 658 Para 11

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preserve the status quo by maintaining a less polluted state should not carry the burden and the party, who wants to alter it, must bear this burden.

Conclusion
If mere enactment of law relating to the protection of environment was to ensure a clean and pollution free environment then India would, perhaps, be the least polluted country in the world.

The effectiveness of a law to protect environment and achieve sustainable development remains an unmet challenge. Taking cue from pattern of development in India and the UK, a workshop recently organized in the Indian capital dwelt on some of the pressing issues concerning the complex field of environmental governance.

It is important to note here that the National Environmental Appellate Authority constituted under the National Environmental Appellate Authority Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. It has to be noted that since the year 2000, no Judicial Member has been appointed. So far as the National Environmental Tribunal Act, 1995 is concerned, the legislation has yet to be notified despite the expiry of eight years. Since it was enacted by Parliament, the Tribunal under the Act is yet to be constituted. Thus, these two Tribunals are non-functional and remain only on paper.

According to lawyer Sanjay Upadhyay environmental laws in India had come into being as a result of certain key triggers disasters, political compulsions, international obligations and economic imperatives.

For instance, the Indian government woke up to the need for a comprehensive legislation on environment protection only after the Bhopal Gas Tragedy in 1984. In 1986, it enacted The Environment (Protection) Act and several other subsidiary legislations with an objective of setting up a legislative, regulatory, and administrative mechanism in the country to fix culpability for violations and to ensure that such industrial accidents did not occur again. Yet, the failure to clean up the toxic waste from the Union Carbide premises demonstrates a wide gap between the law(s) and the actual implementation on the ground.

The problems are major, but this does not mean that they are hopeless. There are decades of experience in industrial nations in cleaning up the most toxic sites and as well as a handful of successful projects that are being implemented in the developing world.