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NGT Takes Up Fresh Petition on LG Polymers Gas Leak

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The National Green Tribunal (NGT) on Monday took up two petitions filed by former GOI secretary Dr EAS Sarma that deal with the damage caused to public health and environment by the styrene gas leakage from LG polymers near Visakhapatnam.

Dr Sarma, who has been fighting for the preservation of coastal ecology for decades, raised many issues like lack of environmental clearance for the LG polymers and the failure of the state pollution control board (PCB) in preventing a hazardous chemicals factory to start operations in a thickly populated area, in the petitions.

Dr Sarma requested the NGT to issue notices to both the LG Polymers and the AP State Pollution Control Board for their lapses. He asked the NGT to direct both the entities to pay damages for polluting the environment.

It may be recalled that the NGO has already taken up the matter suo motu and ordered a judicial probe into the gas leak incident. The Tribunal also asked the LG Polymers’ promoter to deposit an amount of Rs 50 crore towards damages.

LG Polymers running without ENVIRONMENTAL CLEARANCE

Stating that he had come to know through a search on the
internet that the Unit was running without any Environmental
clearance, Dr Sarma said the Unit had given an Undertaking Affidavit dated 09.05.2019 wherein paras 4 to 6 it is clearly admitted that the Unit is functioning without an Environmental clearance. The undertaking has been given by the Unit in order to apply online for an Environmental Clearance, he said.

The other issues raised in the petition

1. it is important to mention here that the Unit is dealing with Hazardous chemicals for the manufacturing of Polystyrene and Expandable Polystyrene. The Manufacture, Storage and Import of Hazardous Chemicals Rules needed to be followed during storage, transportation, and handling of raw materials. The Unit needs to
mandatorily undergo an EIA process to know the impact of the processes which EIA.

2. It is also important to mention here that not only the operation but the construction of the unit has been done without the unit undergoing the mandatory EIA process. The State Pollution Board has failed in its duty for having permitted the operating of such a highly polluting unit without undergoing EIA process.

4. Besides violation of the mandatory provisions of the EIA  notification,2006 the act, and omissions committed by the Unit as well as the State Pollution Control Board is against the law laid down by the Judgment dated April 1, 2020, of the Hon’ble Supreme Court of India in Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati, Civil Appeal No. 1526 of 2016 wherein it is categorically held that: “21…. The EIA notification dated 27 January 1994 mandated that an EC has to be obtained before embarking on a new project or expanding or modernizing an existing one. The EIA notification of 1994 has been issued under the provisions of the Environment Protection Act 1986 and the Environment Protection Rules 1986, with the object of imposing restrictions and prohibitions on setting up of new projects or expansion or modernization of existing projects.

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The measures are based on the precautionary principle and aim to protect the interests of the environment. The circular dated 14 May 2002 allowed defaulting industrial units who had commenced activities without an EC to cure the default by an ex post facto clearance.

Being an administrative decision, it is beyond the scope of Section 3 and cannot be said to be a measure for the purpose of protecting and improving the quality of the environment.

The circular notes that there were defaulting units that had failed to comply with the requirement of obtaining an EC as mandated. The circular provided for an extension of time and inexplicably introduced the notion of an ex post facto clearance.

In effect, it impacted the obligation of the industrial units to be
in compliance with the law. The concept of ex post facto clearance is fundamentally at odds with the EIA notification dated 27 January 1994. The EIA notification of 1994 contained a stipulation that any expansion or modernization of activity or setting up of a new project listed in Schedule–I “shall not be undertaken in any part of India unless it has been accorded environmental clearance”.

The language of the notification is as clear as it can be to indicate that the requirement is of a prior EC. A mandatory provision requires complete compliance.

The words “shall not be undertaken” read in conjunction with the expression “unless” can only have one meaning: before undertaking a new project or expanding or modernizing an existing one, an EC must be obtained. When the EIA notification of 1994 mandates a prior EC, it proscribes a post-activity approval or an ex post facto permission. What is sought to be achieved by the administrative circular dated 14 May 2002 is contrary to the statutory notification dated 27 January 1994? The circular dated 14 May 2002 does not stipulate how the detrimental effects on the environment would be taken care of if the project proponent is granted an ex post facto EC. The EIA notification of 1994 mandates prior environmental clearance. “

5. The State Pollution Control Board clearly committed gross negligence and have been lackadaisical in its approach in a case involving a Unit that was handling and utilizing highly hazardous
chemicals, having a devastating impact. It is stated that this is particularly gross given that the officials always aware that Unit
having dangerous processes was being allowed in a densely the crowded neighborhood of a major metropolis which could have the disastrous effect in case the local community members got exposed to its pollution

6. That, therefore, the Respondents- Project Proponent and the State Pollution Control Board have acted in hands in glove in connivance with each other in operation and construction of the said Unit illegally without the mandatory compliance of EIA notification,2006.