The Polluter Pays!

In a landmark decision on April 4 this year, the Supreme Court of Sri Lanka awarded Rs. 20 million as damages to the people living within a 1.5 kilometre distance of the Northern Power Company (Pvt.) Ltd, (NPC) in Chunnakam.  The monetary consideration will benefit around 500 families, who will receive Rs. 40,000 each, to clean and rehabilitate their wells, which have been polluted by oil, grease and/or BTEX. (Benzene, Toluene, Ethyl Benzene and Xylene).

For environmentalist Dr. Ravindra Kariyawasam, the National Coordinator of the Centre for Environmental & Nature Studies, and the petitioner of the fundamental rights application, on behalf of himself and the residents of Chunnakam, the troubles of both affected humans and animals are far from over.   He is jubilant that the court ruled in favour of the people and that it also found the Board of Investment of Sri Lanka (BOI) and the Central Environmental Authority (CEA) negligent in their duties in ensuring all safety procedures had been followed by the Northern Power Company.

But, it would have been beneficial if the Courts had mandated health checks for the residents of Chunnakam, he said.

It is time, says Dr. Kariyawasam, the government stepped in to carry out health checks on the people and the animals in the area.  Many residents show signs of asthmatic conditions, and that is just external symptoms, he points out.   Lots of animals have perished after drinking the polluted water.  While the people practice precaution and filter the water they drink, they use the contaminated water for agricultural purposes as they have no other alternative.  There’s no telling what other ailments they have, given that the ground water is contaminated according to tests conducted in the area.  Residents whose main livelihood is agriculture have experienced low productivity, he claims.

A similar situation exists in the areas surrounding the Lakvijaya Coal power plant, commonly referred to as the Norocholai power plant.  Here, ash from the plant can be seen strewn on trees and buildings in surrounding areas.  As well, the hot water that is pumped back into the sea has resulted in the deaths of dolphins and is affecting the food source of dolphins and turtles, he alleges.  The coal power plant is situated in Norocholai, but the coal is trucked in from Trincomalee, which is costly.  Dr. Kariyawasam points out that this system only helps fatten the purses of those engaged in trucking, loading and unloading the coal, who, more often than not have political connections.

It was in 2015 that the fundamental rights petition against the Northern Power Company was filed.  Others cited in the case were the CEA and its Chairman, the Ceylon Electricity Board, (CEB) and its Chairman, the Chief Minister of the Northern Province, Ponnuthurai  Ayngaranesan, Minister for Environment, Northern Province, Chairman, Valikamam South Pradeshiya Sabha, the  National Water Supply and Drainage Board (NWSDB) and the Attorney General.

The petition was heard by a three-judge bench comprising Priyantha Jayawardena, PC, Prasanna Jayawardena, PC, and L T B Dehideniya.  The petitioner’s counsel, Nuwan Bopage and Chathura Weththasinghe  as well as Lalith Gunaratne provided their services free of charge.

In his petition, Dr. Kariywasam claimed that the Northern Power Company had been operating the thermal power station in a manner that has polluted the groundwater in the Chunnakam area. He had cited the CEB, the National Water Supply and Drainage Board (NWSDB), the CEA and the BOI of having failed to enforce the law to prevent the pollution and not acting in the interest of the public. The respondents, had thereby violated his rights and the residents of Chunnakam, as guaranteed by Articles 12 (1) and 12 (2) of the Constitution.   Dr. Kariyawasam told Counterpoint that since the area is made up mostly of limestone, it is easy for leakages to spread into the groundwater.

Dr. Kariyawasama pointed out that the NPC had, from time to time, operated the station without an Environmental Protection Licence (EPL), which, depending on the type of activity is valid for up to a year to three years. According to the Central Environment Authority website, the objective of an EPL is:

• To prevent or minimize the release of discharges and emissions into the environment from prescribed (industrial) activities in compliance with national discharge and emission standards.
• To develop an approach to pollution control that considers discharges from prescribed (industrial) processes to all media (air, water, land) in the context of the effect on the environment.
• To contain the burden on industry, in particular by providing guidance on pollution control for polluting processes.
• To ensure that the system responds flexibly both to changing pollution abatement technology and to new knowledge such as cleaner production, waste minimization etc.

Being a BOI project, at some point, the application for the EPL was put through the BOI. Therefore, both the BOI and CEA were responsible in ensuring and monitoring that the NPC was abiding by the regulations and obtaining the EPL within the prescribed time limit.

In documents submitted to the court it was revealed that the NPC had often functioned for several months at a time without the EPL.  The schedule is given below:

While the power plant had become operational in October 2009, as shown above the first EPL was issued only in May 2010.  Meanwhile, the court heard that residents had been complaining about the soil and ground water pollution since 2008.  In 2012, the NWSDB had, by letter informed the CEB that tests carried out on their intake well showed contamination.  Again, tests of a 150 wells in 2013 and 2014 carried out by the NWSDB had shown that 109 wells had oil and grease levels that were higher than what is allowed; as of August 2013, the maximum level of oil and grease content permitted in potable water, as per SLS-614 is 0.2.

While subsequent tests also proved contamination of surrounding land and waterways, tests done more recently have indicated that the situation was improving, according to documents submitted to courts.

The NCP had been incorporated in 2007 to boost the electricity requirements of the Jaffna Penninsula which at the time was provided by three other power plants; the CEB’s 14 MW diesel fired Chunnakam Power Station, another owned by Aggreko, a thermal power station using heavy fuel oil/diesel operating on CEB land, and another operated by an independent producer and located in the Kankesanthurai area.     The additional power was required to meet the needs of the peninsula during the war years. The NCP came in through a BOI agreement, and had leased an allotment from the land belonging to the CEB in Chunnakam.  The NPC’s thermal power station, too, used heavy fuel oil/diesel to operate the generators.  According to available information, the CEB had decommissioned its inefficient and ageing Chunnakam Power station and set up a 24MW thermal power station also using heavy fuel oil/diesel.  Known as the ‘Uthuru Janani” power station, it had commenced operations in 2013.

While the Courts found that the other power plants too had contributed to the pollution, the extent of contamination was far less than that by the NPC.

The order was made following the perusal of a fair volume of documentation showing test results conducted by a variety of sources.  Ann affidavit submitted by the then Chief Minister of the Northern Province C. V. Wigneswaran claimed that the activities of various respondents named in the petition were beyond his control and/or supervision, the “Northern Provincial Council continues to supply water transported in bowsers to meet the needs of the residents of the Chunnakam area.”

The Courts verdict was based on the “Polluter Pays” principle of the Rio Declaration which states; “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”.

The Courts also ordered that the compensation be paid within three months of April 4^th, through a special fund to be administered by the NWSDB and controlled by a panel made up of a representative each of the NWSDB, BOI, CEA and the NCP, ordering that the panel and the institutions be collectively responsible for the distribution of the compensation. In the event the number of residents who are affected exceeds 500, the panel was directed to give priority to those whose wells are affected the most.  The NCP would have to bear the cost of any expenses of the panel.

While the Courts denied the petitioners plea that the thermal power station  cease all operations, as the NPC is unlikely to further pollute the surrounding areas, the Courts allowed the resumption of operations as long as adequate measures to prevent contamination of the area is implemented.  It also ordered that a minimum of 50 wells within a 1.5 kilometre radius of the NCP be tested on a quarterly basis from the date operations are resumed.  If the tests indicate pollution above the levels allowed, remedial measures which could include suspension of operations have been recommended. If the tests are satisfactory for one year, thereafter, the tests are to be conducted every six months.

The Centre for Environmental & Nature Studies is made up of several individuals committed to protecting the environment.  They are self-funded, with members who are employed in various professions contributing a percentage of their wages to the Centre.