Once There is Damage To The 'Air Quality' Adversely Affecting The Health Of The Inhabitants, No Polluter Can Escape Liability : NGT [Read Order]

Once There is Damage To The Air Quality Adversely Affecting The Health Of The Inhabitants, No Polluter Can Escape Liability : NGT [Read Order]

GreenPeace noted in its report Airpocalypse: Assessment of Air Pollution in Indian Cities that deadly air pollution is not a problem restricted to Delhi-NCR (National Capital Region) or even to India's metros. It is a national problem that is killing 1.2 million Indians every year and costing the economy an estimated 3% of GDP. If the country's development is important, fighting air pollution has to be a priority.

Green Tribunal with its orders and judgments is also working towards that end. One such remarkable order was given by it in Charudatt Koli v. M/S Sea Lord Containers Ltd. in which it observed that "once there is damage to the air quality adversely affecting the health of the inhabitants, no polluter can escape liability for the polluting activities."

Tribunal found that there was damage to the "air quality" and did not accept the stand of the respondents' that their contribution to the air pollution was not established. It observed:

"Even a suspect polluter can be held accountable and precautionary principle as well as prohibitory remedial action can be required to be taken. Action may be closure of unit, requiring steps to check pollution and also requiring payment of compensation for damage to the environment. The principle of precaution, which is an established norm for sustainable development, involves the anticipation of harm and taking measures to avoid it or to choose the least environmentally harmful activity. Lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Action may be closure of unit, requiring steps to check pollution and also requiring payment of compensation for damage to the environment."

Issue before the Tribunal

The issue for consideration before the Tribunal was the remedial steps to be taken for control of air pollution in the outskirts of Mumbai, at and around villages Ambapada and Mahul. The major contributor to the air pollution was said to be the logistic services, storing oil, gas and chemical items, as well as oil companies releasing emissions. The emissions include Volatile Organic Compounds (VOCs) on account of loading, storage and unloading operations of hazardous chemicals at various stages.

The matter was dealt with by the Tribunal through its judgment dated 18.12.2015. It was found that there was deterioration of ambient air quality causing threat to health of the residents. Probable sources were found to be activities of respondents, M/s Sea Lord Containers Limited, Aegis Logistics Limited, Bharat Petroleum Corporation Limited and Hindustan Petroleum Corporation Limited, besides other unidentified sources.

Accordingly, the Tribunal vide order dated 18.12.2015 directed the Maharashtra Pollution Control Board (MPCB) to prepare a comprehensive action plan for control of air pollution. Health Impact Assessment study was directed to be carried out, apart from VOC assessment study. The Tribunal issued other incidental directions for prevention and remedial action by the operators of various projects as well as regulatory authorities.

But an execution application was filed before the Tribunal alleging non-compliance of the direction dated 18.12.2015.

Application Considered By Tribunal

The application was taken up for consideration on 05.02.2019, in light of earlier proceedings. The Tribunal considered the report of the joint Committee dated 01.01.2019, finding as follows:-

"Presence of VOCs is found in the area with concentration values more than odour threshold concentrations. Therefore, focus on control measures on dominant 'sources of emissions of VOCs is required in this case. Benzene, Styrene Toluene, Xylenes, Diethylbenzene, Trimethylbenzene and Dichlorobenzenes emerged as dominant VOCs present in significant concentrations at one or the other place in the area among total 21 VOCs detected in the area. The odour threshold values given in "Odour Threshold for Chemicals with Established Health Standard, 2nd Edition [American Industrial Hygiene Association] are referred."

"Concentration of Benzene has been found below the odour threshold value of 0.47 ppm in work zone as well as in ambient air but concentration values are found to be higher than the annual standard prescribed for ambient air i.e. 5 pg/m3. Maximum value of Benzene in ambient air found to be 88.67 pg/m3[0.0277 ppm] and maximum value in work zone found to be 540 pg/m3[0.16 ppm]. It is worth to mention that Benzene is predominantly handled by BPCL refinery in the area."

"Concentration of Styrene has been found above the odour threshold value of 0.0028 ppm in work zone as well as in ambient air. Maximum value of Styrene in ambient air found to be 775 pg/m3[0.182 ppm] and maximum value in workzone found to be 225 pg/m3 [0..0528 ppm]. The Styrene monomer is only handled by Logistics companies namely M/s Sealord Ltd and M/s Aegis Logistics Pvt. Ltd."

"Concentration of Toluene has been found much above the odour threshold value of 0.021 ppm in workzone as well as in ambient air. Maximum value of Toluene in ambient air found to be 639.50 pg/m3[0.169 ppm] and maximum value in work zone found to be 5000 pg/m3 [1.32 ppm]. The Toluene handled by both the refineries namely HPCL, BPCL and logistics company M/s Aegis Logistics Pvt. Ltd. as well.

"Concentration of Xylenes has been found above the odour threshold value of 0.012 ppm in work zone as well as in ambient air. Maximum value of Xylenes in ambient air found to be 365.4 ug/m3[0.0842 ppm] and maximum value in work zone found to be 1000 pg/m3[0.23 ppm]. The Xylene is handled by both the refineries namely HPCL, BPCL and logistics company M/s Aegis Logistics Pvt. Ltd. as well."

The joint Committee also gave suggestions to Tribunal on the control of VOCs.

Observations by the Tribunal

The Tribunal found that since there was damage to the air quality, the stand of the respondents that their contribution to the air pollution was not established could not be accepted. It was observed as follows:-

"We are of the view that once there is damage to the air quality adversely affecting the health of the inhabitants, no polluter can escape liability for the polluting activities. Even a suspect polluter can be held accountable precautionary principle as well as prohibitory remedial action can be required to be taken. Action may be closure of unit, requiring steps to check pollution and also requiring payment of compensation for damage to the environment. The principle of precaution, which is an established norm for sustainable development, involves the anticipation of harm and taking measures to avoid it or to choose the least environmentally harmful activity. Lack of full scientific certainty shall not be used as a reason for post-poning cost-effective measures to prevent environmental degradation. Action may be closure of unit, requiring steps to check pollution and also requiring payment of compensation for damage to the environment".

Action Plan by CPCB

Accordingly, an action plan was required to be submitted to the Central Pollution Control Board (CPCB) so that CPCB could give its comments in the matter. Meanwhile, The Civil Appeal M/s Sea Lord Container Ltd. Vs. Charudatt Pandurang Koli & Ors., was filed before the Supreme Court which was disposed of on 05.03.2019, leaving parties at liberty to show that the order of the Tribunal has been complied with.

Response by Respondents'

Respondents' furnished their action plans to the CPCB. CPCB filed its comments for each respondent response saying mostly that the compliance status submitted against the recommendations of joint committee report (1st " January 2019) are not quantifiable in terms of control of VOCs (leaks, removal efficiency, recovery, reuse etc.). Measurable targets and achieved performance needs to be reported for overall performance evaluation.

The counsel for the respondents fairly stated that the observations of CPCB will be met and a revised plan consistent with the above observations will be prepared and submitted to the CPCB within 3 weeks.

Directions by NGT

Tribunal said that CPCB will be at liberty to give any further direction as may be found necessary with prescribed timelines for compliance. That it may also oversee the compliance of the action plan and furnish its interim action taken a report within 3 months by e-mail at [email protected] and that the action taken report may thereafter be filed by CPCB to the Tribunal by e-mail at [email protected].

Compensation to Victims

As regards the claim for compensation to victims namely Charudatt Koli, Dayaram H. Mahulkar, Mohan L. Mhatre, and Dattaram L. Koli, Tribunal directed that Charudatt Koli and Dattaram L. Koli, be paid an interim compensation of 2.5 lakhs each. Dayaram H. Mahulkar and Mohan L. Mhatre be paid compensation of Rs. 5 lakhs each. It said that as per information with it, two of the applicants Charudatt Koli and Dattaram L. Koli are employees of BPCL and are paid medical expenses. On that account, a sum of Rs. 24 lakhs has already been spent for medical treatment. The compensation amount will be over and above any other payment earlier made. The compensation amount of Rs. 15 lakhs may be deposited with the MPCB for disbursement within one month. Disbursement, it said, be made by MPCB within one month thereafter and a report be filed before the Tribunal by e-mail at [email protected]

It also fixed an interim amount of Rs. 10 crores to be deposited with CPCB for restoration of the environment. The amount, it said, will be equally borne by Respondents' and will be deposited within one month from the passage of order. The CPCB, it said, will spend the amount for improvement of the air quality in the area by preparing an appropriate action plan and asked for reports of CPCB & MPCB to be put up for consideration on 15th of July 2019.

Read the Order Here