Revisit Hazardous Industries’ fate in wake of Vedanta Gridlock

Created on Sunday, 08 July 2018 07:58
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 (Edited Image courtesy: Youtube & Vedanta)

1) Is a preventive maintenance system in place, including review thereof? 2) Is Identification and prioritization done for all equipment / system requiring preventive maintenance based on criticality? 3) Is there an established procedure for capturing maintenance needs based on condition of each equipment? 4) Are responsibilities assigned and frequencies established? 5) Is there a system in place to report in writing, on a day-to-day basis, all observed substandard actions or hazard conditions?

Many more such questions would have been fired by chemicals safety regulator at the police and other government officials, who currently control Vedanta’s copper-cum-chemicals complex (formerly Sterlite) at Tuticorin inTamil Nadu This would have happened only if we had a statutory, preventive chemical safety statutory framework.

The five questions are verbatim production from the 59-pages‘Chemical Plant Safety & Security Rating System’ drafted by UPA Government in September 2013.

Neither this proposal nor the proposed safety regulator named Chemical Standard Development Organisation (CSDO) envisioned by the draft National Chemical Policy (NCP-2012) have been finalized & implemented.

Would latest litigation over safety of Tuticorin Complex arisen, if the two proposals had been put in action? How long can India avoid the need for a regulator on the lines of US Chemical Safety Board (CSB)? CSB enjoys statutory protection from interference from any executive arm or other regulators.

Modi Government’s failure on policy-cum-regulatory front has thus made Indian chemical industry vulnerable to belligerent activism. This has resulted in bizarre governance & tight-rope justice on account of many public interest litigations (PILs) from anti-Vedanta camp over a decade.

Should timeline not be set for delivering final verdict on contentious projects? Should the Supreme Court not put a cap on PILs at various tiers of justice system?

Before elaborating chemical safety, consider a few instances of bizarre governance.

First, Prime Minister Narendra Modi’s stony silence on 13 deaths due to police firing at anti-Vedanta riots is shocking. Compare this to his appeal for calm after nine deaths in Patel during Patel agitation on 27th August 2015. He had also appealed for calm in Kashmir valley during July 2016.

Is silence due to apprehension that any intervention might be twisted by critics against the backdrop of the fact Vedanta group donated handsomely and only to BJP in 2013-14? The legal donations helped BJP come to power at the Centre.

On the other extreme of public discourse is an NGO that has demanded dismantling of Tuticorin complex to build a memorial in honour of 13 persons killed in firing. 

Should there be double standards on human life?

This question is also applicable to Vedanta opponents as well as Tamil Nadu Government. Did they seek lockout/dismantling of the State’s firecrackers units and industrial explosives companies that have collectively caused few hundred deaths over two decades?

 Human tragedies due to non-compliance of safety norms have become an integral part of Tamil Nadu’s fireworks and explosives units.

Second instance of weird governance is the rush among civil rights protection authorities to be seen as empathizing with victims of police firing.

National Commission for Scheduled Castes (NCSC) thus deputed a delegation to Tuticorin to probe death of 4 SCs, who were among 13 killed in police firing.

Would probe deal with issues such as: Did the cops identify caste of violent persons before opening fire? Were the cops, who opened fire, from upper castes? Should the Constitution be amended to stipulate identification of SCs, Scheduled tribes, other backward classes and minorities killed in riots that are non-communal?

National Human Rights Commission (NHRC) last month also sent a team to probe deaths in police firing. National Commission for Backward Classes (NCBC) missed the probes bandwagon perhaps because it is totally vacant at the top.

Should NCSC and NHRC not have left the investigation to Tamil Nadu’s State Human Rights Commission (SHRC), which was gracious enough to even meet victims of mob violence? In any case, the State Government had constituted a Commission of Inquiry on 23rd May to probe police firing and riots.

What if all probing entities arrive at different conclusions on the tragedy? Would anyone probe delay in enforcement of principle of natural justice for mob-terrorized families of Vedanta employees & thousands of persons directly or indirectly dependent on Tuticorin complex for their livelihood?

Vedanta’s woes are not isolated. Many projects including environmental-friendly ones such as gas pipelines & waste processing plants face risk of stoppage due to environmental activism. This subject is, however, a separate story in itself.

Coming back to chemical plants safety, the Union government is armed to teeth with rules to handle accidents. It also has in placer rules to dole out compensation to persons/families affected by chemical accidents.

A reading of The Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996 issued under the Environment (Protection) Act, 1986 shows it lists no statutory steps to prevent accidents during start-ups, shut-downs and lock-outs.

The preventive maintenance aspect, however, figures in the ‘National Disaster Management Guidelines Chemical Disasters (Industrial)’ issued by National Disaster Management Authority (NDMA) in April 2007. The guidelines lack statutory backing and are thus best ignored by populism-obsessed governments.

Nevertheless, it is worthwhile to quote the guidelines. They say: “Efficacy of safety systems shall be checked daily and listed with special emphasis on the following: i. Provisions of two-to-three tier safety. ii. Early-warning system. iii. Two-to-three tier power back-up system for safety of equipment/provision. iv. Start-up and shutdown procedures”.

The guidelines continue: “v. Daily exceptional reporting for top management based on status of full preparedness/compliance according to latest internal safety audit; internal audit highlights; high accident potential jobs, actions or conditions to be dealt on priority basis. The audit shall indicate shortfalls according to accident potential. vi. Best maintenance and preventive maintenance practises. a. Regular improvisation of safety systems based on global success stories”.

Leave aside lax and deficient chemical safety framework. Modi Government appears unconcerned over a potential tragedy that might occur at Tuticorin complex or elsewhere.

It is the indifference of both the Centre and the States towards such preventive measures that contribute to factory accidents and empower street-smart activists.

It is the half-knowledge about safety that emboldens the authorities to cut the grid power supply and declare permanent closure as kneejerk reaction to riots & social media outcry.

In the mobs-driven governance & judicial tight-rope walking, rationalism & holistic perception become the first casualty. Any one citing facts runs the risk of being dubbed as an agent of corporate looters/ polluters/ big industries.

Even venerable Sadhguru and Swami Ramdev have been targeted by anti-Vedanta camp for preaching logic to protect jobs, tax revenue for social welfare, national self-reliance and ‘Make In India’ initiative.

How risky is situation today at Tuticorin can be assessed by looking at facts about chemical plants safety across the world.

See what CSB has to say on preventive upkeep of plants. In a factsheet titled ‘Preventive Maintenance’ released during April 2018, CSB says: “Inadequate mechanical integrity and preventive maintenance programs, and aging infrastructure and equipment are a recurring root cause of incidents”.

It adds: “Damage mechanisms must be promptly identified and mitigated; equipment must not be operated beyond its life cycle expectancy; and upgrades and replacements must not be delayed”.

CSB has cited a few major accidents that occurred due to gaps in preventive maintenance. It should be based on actual conditions of the plant and not solely on design parameters.

Are cops, civil authorities and pollution control experts familiar with the actual operations of Tuticorin complex? Do they have first-hand experience of plant workers and foremen who keep a tab on each pipe, each valve, each pressure vessel, etc?

If cops are versatile to manage upkeep of the Complex, why did they not plug the leakage of concentrated sulphuric acid leak on 17th June? Why was the leak allowed to snowball? What if heavy rains had splashed on the leaked acid?

Concentrated sulphuric acid’s “contact with water causes violent frothing and spattering,” cautions Canadian Centre for Occupational Health & Safety.

According to US Agency for Toxic Substances and Disease Registry, “Concentrated sulfuric acid can catch fire or explode when it comes into contact with many chemicals including acetone, alcohols, and some finely divided metals”.

The acid leak led Vedanta to plead to Madras High Court (MHC) to allow its operating staff to enter the Complex and look after daily upkeep to prevent any accident. At the court hearing on 27th June, authorities, however, opposed restoration of even bare minimum power supply to the Complex for daily upkeep of different plants. MHC has not yet granted any relief to the company.

District authorities, in consultation with TNPCB and company officials, later reportedly arranged transportation of 2,124 tonnes of sulphuric acid in 95 tankers to different acid-using units in the State. Latest reports suggest that TN Government-formed experts committee would oversee removal of all chemicals from the complex over next 30 days.

What if hired labourers operating under cops’ supervision keep few bags or cans of two different chemicals together?  What if this leads to mix-up, triggering some chemical reaction? Who would be penalized, if complex bursts the way France’s Grande Paroisse Fertilizer Plant exploded during September 2001.

The Grande disaster happened due to inadvertent clubbing of two packages of chemicals in the plant’s storage. The clubbing caused a reaction, resulting in production of a deadly chemical. It led to massive explosion, resulting in death of 29 persons and injuries to several thousand persons.

Leave aside alien cases, what have we learnt from Bhopal gas disaster? Was it not preventable? Should mob terror & subsequent ‘public sentiment’ compel authorities to leave safety risks to fatalism.

If a disaster happens at locked Tuticorin complex, would anyone share the blame: NGOs who instigated mobs, State Government or its expert committee overseeing safety of Tuticorin complex or the judiciary/quasi-judical authorities?

The need for such question would not arise. This is because activists and their fans would have flooded with the social media with instant kangaroo verdicts: We told you the complex was not safe. It should not have been built in the first place. Dismantle it at once. Hang Vedanta Chairman Anil Agarwal. Shut down Vedanta’s Alumina refinery. Vedanta, Quit India.

A day after the riots, MHC ordered suspension of work on expansion project. It also ordered public hearing (PH) before grant of fresh environment clearance within four months. The Court thus reversed its earlier verdict of April 2016 that upheld Union Government’s exemption to the project from PH. The reversal was necessitated by presentation of new developments to the court.

The chief being Union Government’s decision on 27th April 2018 to mandate PH for metallurgical & 12 other type of projects located in industrial parks.

In other words, Vedanta has been subjected to retrospective application of Union Government’s order. The company would perhaps have to write off a few hundred crores already spent on the project because prospects of project get nod at PH are dim.

Tuticorin expansion is thus likely to suffer the same fate as faced by Vedanta’s Vedanta's Lanjigarh refinery expansion project.

After MHC’s order, Tamil Nadu Pollution Control Board (TNPCB) pressed the accelerator. It ordered stoppage of power supply to the Complex and its closure. TNPCB claimed that the company was undertaking activities to restart the complex even after denial of statutory ‘Consent to Operate’ (CtO).

TNPCB contended that the order was reportedly necessitated by its finding that “the unit was carrying out activities to resume its production operations.” If this is a fact, then the risk of complex in a transient phase suffering chemical accident is heightened. An additional factor for elevated risk is MHC-ordered stoppage of work on expansion project.

Was the mob fury engineered to derail hearing on Vedanta’s plea by appellate authorities to quash TNPCB’s denial of CtO? On 18th May, 2018, four days before riots, Vedanta lawyer had put a strong defence before TNPCB Appellate Authority.

The Lawyer reportedly stated: “There is not a single piece of paper available from August 8, 2013, the day when Supreme Court passed a judgment, till date, which suggests Sterlite has caused ambient air and water pollution. We have achieved zero liquid discharge (ZLD) and there is no substantial evidence to prove some of the health problems faced by local communities was because of Sterlite, considering there are several red category industries in the industrial cluster”.

He also pointed out that of the five grounds on CtO was denied, Vedanta was already compliant with three. He claimed that 4th ground, dumping of copper slag near a river was not done by Vedanta but by a firm that bought the slag from it in 2010. Vedanta, however, offered to remove the dumped slag at its own cost.

As for 5th ground, the Lawyer pointed out that Central Pollution Control Board’s guideline for building gypsum pond, he said the deadline for its compliance was October 2019.

The Lawyer stated “When we still have more than a year to comply with the condition, how can pollution board deny us consent? This defies the principle of natural justice. The board without giving us an opportunity has outright shut down the industry.”

This is unparalleled situation faced by Tuticorin Complex. None of the 124 copper smelters across the world have faced such situation. Hence the risk of accident is anybody’s guess in the present case.

 TNPCB’s order was followed by State Government diktat to permanently close down the complex. The diktat was enforced immediately, forcing even the staff manning captive power generation,electronic control rooms and other safety staff to exit the premises. No one knows whether any hazardous materials have been left unattended by contractors at expansion site or within the existing plants.

Anyone familiar with process plants knows that abrupt power disruption can be disastrous. “Power outages and restarts could potentially trigger a serious chemical accident” stated the United States Environmental Protection Agency (EPA) in a safety ‘Alert’ issued way back in September 2001. EPA cited a case of sulphur dioxide and sulphur trioxide gases leakage due to sudden power cut-off at a plant in Richmond, California during May 2001.

Fortunately, no such emissions happened at Tuticorin, which converts such gases discharged by copper smelter into sulphuric acid. The company sells part of the sulphuric acid to industrial units and uses a part in-house to react it with rock phosphate to obtain phosphoric acid. Both acids are crucial for production of phosphatic fertilizers.

How many in the rampaging mobs knew that their actions would benefit foreign fertilizer-grade phosphoric acid cartel that has been exploiting India periodically? Did NGOs who instigated mobs to burn Vedanta staff housing colony know that phosphate is present in their genes? Life can’t exist without phosphates, which are vital building blocks of both DNA and RNA.

It is apt here to quote American Antitrust Institute’s 2013 monograph captioned ‘The Fertilizer Oligopoly:The Case for GlobalAntitrust Enforcement’. It says: “A few transnational corporations and foreign governments now control world reserves of phosphorus and potash. Those who control inputs to food production (i.e., fertilizer, seed, technology, water and energy) control food. Reserves of phosphorus are projected to be exhausted in 25 years in the U.S. and somewhat longer in politically unstable Western Sahara and Morocco, an availability crisis that has been termed “the gravest natural resource shortage you’ve never heard of”.

There should thus be a totally independent probe into hidden foreign hand behind the riots. Recall the UPA Government’s probe into role of foreign-funded NGOs instigating protests and violence over Kudankulam nuclear power project in Tamil Nadu. In this case too, police was forced to fire at mobs, resulting in one death in 2012.

The Government should ask National Environmental Engineering and Research Institute (NEERI)/Central Ground Water Board to investigate TNPCB & NGOs’ allegation that Tuticorin complex has polluted groundwater. If the allegation (denied by the company in MHC) is proved correct, then the Government should take stringent legal action against Vedanta.

To set the controversy at rest, the Government must get real-time air emissions data pertaining to the Complex audited by NEERI to find whether there has been any day(s), when emissions exceeded the stipulated levels. If any independent probe finds Vedanta guilty of pollution, then State Government should impose stringent penalty.

Ideally, the pollution control boards in all States should make public real-time data on emissions to bridge the distrust between public and the industry. Let there by a digital application on lines of NaMo App.

If an odd deviation from stipulated air emission levels or minor leak rattles Tamil Government, then it should urge the Centre to commission a global study on emission and safety rankings of 124 copper smelters across the world?

 Such a study would show where Vedanta and its two other Indian competitors stand. The study should also compare permitted emission norms in each country.

There should be regular studies on global benchmarking of all hazardous industries in the country. If such studies exist, they should be made public.

Before invoking full transparency in conduct of environmental management, the Government must first penalize officials of State &Thoothukudi district for the failure to utilize Rs 100 crore penalty that Vedanta had paid in keeping with the Supreme Court judgment in April 2013, overturning MHC verdict to close down Tuticorin complex.

An RTI disclosure shows paltry use of interest income from this bank deposit and its misuse as reported by a section of the Press. This deposit has grown to Rs 141.68 crore following accumulation of interest over five years. Of this, the district authorities have so far spent only Rs 7 crore on different local initiatives.

Why this entire amount has not been utilized to install public RO water systems in habitations within five kms of the Complex? The Government could have asked Vedanta to chip in more money as part of its corporate social responsibility to provide safe potable water to all persons in area. Had the administration acted on these lines, would there have been riots?

Did any foreign-funded NGO demanded installations of RO waters systems?Did anyone care to tell public what Supreme Court stated in concluding paragraph of its verdict? 

The judgement says: “The plant of the appellants (Sterlite) contributes substantially to the copper production in India and copper is used in defence, electricity, automobile, construction and infrastructure etc. The plant of the appellants has about 1300 employees and it also provides employment to large number of people through contractors. A number of ancillary industries are also dependent on the plant”.

It added: “Through its various transactions, the plant generates a huge revenue to Central and State Governments in terms of excise, custom duties, income tax and VAT. It also contributes to 10% of the total cargo volume of Tuticorin port.For these considerations of public interest, we do not think it will be a proper exercise of our discretion under Article 136 of the Constitution to refuse relief on the grounds of misrepresentation and suppression of material facts in the special leave petition”.

The judiciary should always keep such holistic logic in mind before ruling on PILs seeking project bans and plant shutdowns. After all, public interest has several dimensions including of those who don’t resort to lung and muscle power.

If judiciary wants to ban or suspend any economic activity, it should not let the issue linger on for a decade as has happened in the case of Tuticorin complex. While taking a firm call on fate of existing projects, the judiciary should direct the State Government and NGOs to promptly arrange jobs to those directly affected by ordered closure.

The verdicts should also provide for compensation to those who were indirectly dependant of a business to be shut to appease NGOs.

If the core issue is NGOs’ irresistiable hatred for Vedanta promoters, then Tamil Nadu Government should take over the Complex in national interest.  Let a Tamil State enterprise operate it as the world’s best copper smelter-cum chemicals complex.

The acquisition would help State enhance its contribute towards protection of India’s strategic interests. These are inherent in production of copper and intermediates for phosphatic fertilizers and other chemicals. 

Recurring PILs on different grounds against Vedanta over the years have vitiated investment climate especially for process-based industries in the country. Prolonged closure of Tuticorin complex would thus not only weaken India’s strategic interestsbut also give a big jolt to growth, jobs and tax revenue generation.

If State Government does not want to reconsider its decision to close down the plant, then it must issue an order for safe dismantling of the complex. There should be no more deaths and injuries at/near the complex.

India also needs a clear-cut policy on PILs on hazardous industries. If public wants all metals and chemicals to be imported, then the Government should straightaway ban both brownfield and greenfield projects. It should also unveil policy for phased closure of all existing plants.

If public wants economy to go do the dogs, so be it. Let the rupee breach Rs 100 to a dollar mark. Let Tuticorin mob furry sow seeds of a million unrests against inflation and shortages.

Let Mera Kya; Mujhe Kya become India’s new religion.











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