1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 17 OF 2002 The Concerned Citizen, a non-Governmental Organization having its office at 23, 1st Floor, Karma Point, Near Municipal Market Vasco da Gama. ... Petitioner versus 1. M/s. Zuari Industries Ltd., a company incorporated under the Indian Companies Act and having its Registered Office at Zuarinagar, Goa. 2. The Member Secretary, Goa State Pollution Control Board, Patto, Panaji-Goa. 3. The Director of Industries, Government of Goa, Panaji-Goa. 4. The Chief Officer, Mormugao Municipal Council, Vasco da Gama. 5. The Secretary, Marmugao Port Trust, Marmugao, Goa. 6. The Chief Inspector of Dock Safety, Pravasi Building, 1st Floor, Vasco da Gama. 7. The Director of Health Services, Government of Goa, Panaji, Goa. 2 8. State through the Chief Secretary, Government of Goa, Secretariat, Panaji, Goa. 9. The Flag Officer Commanding, Goa Naval Area, Vasco da Gama, Goa. 10. The Director of Fire Services, Government of Goa, Panaji. 11. The Director, Central Pollution Control Board, Government of India, New Delhi. 12. The Collector of South Goa, Margao, Goa. 13. The Secretary, Ministry of Environment & Forest, Paryavaran Bhavan, New Delhi. ... Respondents Mr. M. B. Da Costa, Senior Advocate with Mr. M. S. Joshi, Advocate for the Petitioner. Mr. M. S. Sonak, Advocate for Respondent No.1. Mr. J. Godinho, Advocate for Respondent No.2. Mr. J. Vaz, Central Government Standing Counsel for Respondent Nos.6, 9, 11 and 13. Mr. N. K. Sawaikar, Advocate for Respondent No.4. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. H. D. Naik, Advocate for Respondent No.5. Mr. S. R. Rivonkar, Government Advocate for Respondent Nos.3, 7, 8, 10 and 12. 3 CORAM : P. B. MAJMUDAR & N. A. BRITTO, JJ. DATE OF RESERVING THE JUDGMENT : 6TH JANUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT : 14TH JANUARY, 2009. JUDGMENT(Per N. A. BRITTO, J.) In this writ petition filed in public interest on or about 14-1-2002 the Petitioner, a non-Governmental Organization, has, inter alia, sought for the de-commissioning of the 5000 M.T. Ammonia storage tank/terminal set up by Respondent No.1-ZIL and commissioned on or about 8/9th January, 2002, on a piece of land admeasuring 6000 sq. meters belonging to Respondent No.5-MPT. 2. Respondent No.5-MPT had issued an advertisement on local as well as national newspapers, way back on 21-8-1998 calling for applications from interested parties for lease of an area of 6000 sq. meters near Central Warehouse for setting up of ammonia storage and handling facility through Berth No.8 for a period of 30 years, and since Respondent No.1-ZIL was the only company to apply for the same the Tender Advisory Committee of Respondent No.5 as well as Respondent No.5 approved the proposal of Respondent No.1 at its meeting held on or about 30-1-1999 and the proposal was subsequently accepted by the Central Government on or about 15-2-2000. 4 3. The Respondent No.1-ZIL has a factory at Zuarinagar from the year 1971 or there about manufacturing fertilizers for which ammonia is required. They were earlier transporting ammonia from Mumbai and Mangalore ports by trucks and presently the ammonia is carried from the said tank/terminal to their factory at Zuarinagar and stored in hortonspheres in the factory premises regarding which there was writ petition filed by Goa Foundation being Writ Petition No.450 of 1988 which came to be dismissed by a Division Bench of this Court by Judgment dated 2-4-1998, with certain directions. However, we must hasten to add that the said storage of ammonia in hortonspheres or the transportation of the same from the said tank/terminal at the jetty which is at a distance of about 14 kms. from the factory of Respondent No.1-ZIL is not an issue in this petition but what is in issue is the safety aspects of the said storage tank/terminal. 4. The petition has been filed, inter alia, alleging that the tank/terminal is situated in a location which is a potential danger to human lives as it has no security or protection; is close to residential houses and also close to a main road and therefore it is amenable to sabotage and as such would be a live bomb and in the event of catastrophe either man made or accidental, the city of Vasco da Gama would be destroyed. Apparently, this writ petition was filed at a time when a Division Bench of Kerala High Court had delivered a Judgment in a petition filed by Law Society of India as regards a similar tank/terminal located on Wellington Island(reported in AIR 1994 Kerala 308). In that case the Fertilizers and Chemicals Travancore Ltd. had set up an ammonia storage tank and it was ordered 5 to be de-commissioned as the said tank was vulnerable to major leaks in the event of an air crash, sabotage or earthquake. The said decision of the Kerala High Court was taken in appeal before the Apex Court and the appeal was decided on 25-2-2004(reported in 2004 AIR SCW 1430). It may be stated that the Hon'ble Supreme Court had appointed EIL(M/s. Engineers India Ltd.) to re-examine all issues in relation to the said tank and submit its report and after considering the report submitted by EIL and the recommendations made by it, the Hon'ble Supreme Court noted that they were concerned with two issues only, namely structural integrity of the tank and its operation and observed that on both the said issues EIL had recommended the continuance of the tank in its present condition subject to certain measures being taken by the company and the company had taken those steps. The Apex Court then observed that sabotage, attack by terrorists, earthquake, etc. are all unenforceable(unforeseeable?) events and that we have to strike a balance between existing utilities which exist in public interest on one hand, and human safety conditions on the other hand. The Apex Court further noted that it was not in dispute that such plants are needed for the welfare of the Society and in modern times we have nuclear plants which generate electricity. Their structural integrity and their operations were vulnerable to certain risks. However, generation of electricity is equally important and within the prescribed limits Society will have to tolerate the existence of such plants and it is for that reason that they had called for a report from EIL so that they could examine the structural integrity of the tank, its operations and the measures which are required to be taken to minimize the risk factors. The Apex Court further noted 6 that if the argument of the original Petitioner was to be accepted then so such utility can exist, no power plant can exist, no reservoir can exist, no nuclear reactor can exist. The Apex Court then noted that they did not wish to discount such risks but noted that we have to live with such risks which are counterbalanced by services and amenities provided by these utilities, and, therefore proceeded to dispose of the appeals in terms of the report of EIL dated 24-12-2003. 5. The Respondent No.1-ZIL has filed several affidavits opposing the petition and have, inter alia, stated that the Petitioners had not raised any objections when public were made aware of the public storage facility way back in December, 1998. It is also stated that ammonia is essential raw material for fertilizers production which is vital for meeting the food grains and as such import of ammonia for production is of vital significance. Then, the places where such facilities have been set up have been mentioned. It is stated that the Respondent No.1-ZIL had approached the MPT in November, 1997 for allotment of land for setting up import facilities of ammonia including a storage tank and for that purpose had requested NEERI(National Environmental Engineering Research Institute), Nagpur to carry out a quantitative risk analysis for the purpose of ammonia storage terminal and who had deputed its project personnel to the site for carrying out quantitative risk assessment and after considering the full particulars and details of the proposed facility NEERI had submitted its report in September, 1999 and thereafter Respondent No.1 had applied to the GSPCB(Goa State 7 Pollution Control Board) and to Respondent No.6, the Chief Inspector of Dock Safety for permission, under the Manufacturing, Storage and Import Hazardous Rules, 1989. 6. There is no dispute that the storage tank/terminal has been set up after obtaining necessary permissions from various authorities which have been enumerated by Respondent No.1 in paras 6(l) to 7(a) to (l) of the reply. There is no challenge to these permissions, in this petition. 7. The Respondent No.1-ZIL has stated that it had its factory from the year 1971 at Zuarinagar for manufacture/handling of ammonia and that it had impeccable safety records. Various safety awards received by it has been enumerated in para 9(b) of the reply dated 24-1-2002. Then it is set out that the two hortonspheres for storage of upto 3000 MT of ammonia each are being operated from 1973 to 1988 without any accident at a pressure of 4 bars and that the storage at the terminal at the premises leased by MPT is at a pressure and at -33oC which increases the safety manifold. It is stated that the design and construction work has been carried out by Toyo Engineering India Ltd., an ISO 9000 engineering company of repute with sufficient previous experience in design and installation of such facilities, at a cost of 30 crores. It is stated that the design is proven one and this type of storage tanks are in operation in India and working satisfactorily all over the world and such facilities are in satisfactory operation in various ports in India including Mangalore, Cochin, Chennai, etc. It is then stated 8 that the NEERI, Nagpur had done the quantitative risk assessment for the facility and had given several recommendations to ensure highest safety of the facility which recommendations have been implemented. The safety features which make the storage tank inherently safe has been mentioned in para 15(a) to (y) of the said reply and apart from these safety features, the Respondent No.1 has ensured extra safety features and those have been enumerated in para 16(a) to (d) and which include the tank design being “Double Wall Double Integrity” which does not require the construction of dyke, as double protection is ensured by double wall construction, but as a tertiary containment, Respondent No.1 has also constructed a dyke around the tank to serve as an additional safety measure, and, in case of the most unlikely event of failure of both the inner and outer tanks(shells) the leaked ammonia would be contained within the dyke. The safety measures as regards transportation, with which otherwise we are not concerned, have been set out in clause (c) of para 19 of the reply filed. It is stated that between 1985 and 1994 the Respondent No.1-ZIL was transporting ammonia from Deepak Fertilizers & Chemicals from Taloja in Mumbai from a distance of over 500 kms, which they did without any accident from ammonia release inspite of the fact that the tankers passed through various towns which were heavily populated. Then it is stated that from February, 1999 to 7th January, 2002 Respondent No.1-ZIL transported ammonia from Mangalroe Chemicals & Fertilizers Ltd., over a distance of 360 kms. It is also stated that even at Mangalore, the ammonia storage facilities are close to the road and residential locations and to support the averments photographs have been produced. It is further stated that NEERI submitted two 9 reports in October/November, 2001 respectively in respect of post project monitoring facilities, and they clearly show that all recommendations of NEERI have been duly implemented by Respondent No.1-ZIL. Copies of those reports have also been produced. It is stated that the height of flare stack which was suggested by the expert of a height of 30 metres has been increased to 70 metres which is well above the height of the residential houses in the vicinity. It is further stated that catastrophic failure of ammonia tank as calculated by NEERI is found to 10-9 f/year which is one in a billion years and in view of the foam system introduced by Respondent No.1, that risk is further reduced by a further 80%. It is stated that Respondent No.1-ZIL as well as the MPT have adequate security available to counter any security problems and a safety net has also been provided to prevent any damage by any fissile material and it is further stated that the storage tank cannot be damaged by the firing gun shots as the same consists of thick metallic plates and as such the apprehensions of the Petitioners are wholly misconceived. As regards the population figures are concerned it is stated that NEERI had rightly taken the population figures as available, as per previous census by adding 16% growth of population and factually the 2001 census shows that the growth of the population has been lower than the 16% taken by NEERI. It is stated that Respondent No.1 has carried out hill stabilization to prevent any damage to storage facility by constructing a R.C.C. retaining wall and the hill slope has been graded to a safe slope along with seepage barrier and weep holes which is more than adequate. 10 4. At the time of hearing of this petition, Mr. M. B. Da Costa, learned Senior Counsel appearing on behalf of the Petitioner, has submitted that if at all the Judgment of a Division Bench of Kerala High Court was set aside and ammonia storage tank was allowed to be continued it was after the Apex Court had appointed experts and was satisfied on the basis of the report submitted by them and therefore has strenuously submitted that before proceeding further this Court also may appoint some expert agency to examine the structural integrity of the subject tank and has suggested CSE(Centre for Science Environment) having their Office at New Delhi, for the said purpose. Learned Senior Counsel has further submitted that NEERI was appointed at the behest of Respondent No.1- ZIL and therefore their report cannot be taken to be that of an independent agency. He has further submitted that NEERI did not take into consideration the population figures in the close vicinity available at the relevant time which could have been taken on the voters lists which were available. He has further submitted that NEERI also did not take into consideration the code of practice for storage of hydrous ammonia under pressure as prescribed in the United Kingdom which, inter alia provides, that such tanks should be situated as far away as possible from residential areas, public places, roads, railways and airports taking due account of the prevailing wind. 5. On the other hand, Mr. M. S. Sonak, learned Counsel on behalf of Respondent No.1-ZIL has submitted that Respondent No.1 has invested 30 crores in setting up the ammonia tank and has further submitted that Respondent No.2 11 had taken an opinion from NEERI prior to setting up the said tank and NEERI considered the population figures of 1991 census with 16% addition and that the population did not increase beyond those figures in the census of 2001 regarding which there is no challenge from the Petitioner. Learned Counsel further submits that NEERI is a reputed organization whose reports are sought by this Court as well as by the Apex Court on technical aspects and therefore only because NEERI gave a report at the behest of Respondent No.1-ZIL it cannot be said that their report is biased. Learned Counsel has further submitted that the experts from NEERI camped at site and thereafter submitted post project report and all the recommendations given by NEERI have been met by Respondent No.1-ZIL. Learned Counsel has further submitted that for over seven years now the storage tank has created no problem for anyone and every year a safety audit is conducted and has submitted a Safety Audit Report prepared by Synergy Engineers prepared between 29th to 31st October, 2007. 6. We have perused the report of quantitative risk assessment for the ammonia storage tank/terminal prepared by NEERI in September, 1999 as well as the said Safety Audit Report prepared by Synergy Engineers. Subsequent affidavits filed on behalf of Respondent No.1, as well as Safety Audit Report show that the installation is manned by 15 employees in all the three shifts, and, in addition there are two security personnel in each shift on contract basis. It also shows that Respondent No.1-ZIL had taken a sincere note of the earlier recommendations made by them and had complied clausewise all their 12 recommendations and the audit team was satisfied with the same. It also records that the overall record of house-keeping was excellent and even as far as occupational diseases are concerned Dr. Dabholkar carried medical examination of all the employees once a year. 7. As far as the risk assessment of setting up the said storage tank/terminal is concerned NEERI has concluded that the risk acceptance level varies from country to country and it depends upon several technological and socio-economic factors. The level of risk above the order of annual fatality risk level of 10-4/year is unacceptable It is stated that risk value of 10-5 to 10-6 f/year may be considered acceptable. The societal risk for population outside the proposed storage facility is of the order of 1 x 10-6 fatalities/year for a maximum distance of 0.75 kms. and this level of risk may be considered acceptable. Further, with the state of art instrumentation, the isorisk contour for 10-6 fatalities/year(even 10-7 fatalities/year) falls within the premises of the facility and the risk level reduces to 10-8 fatalities per year is upto a maximum distance of 0.75 km. It is also stated that the population exposed depends on the probability of wind direction being in same direction of the population, the wind speed, concentration of gases in the air, probability of persons being in door or outdoor and probability of tank failure. NEERI has found the probability of tank failure to be very low and therefore the risk is also very low. NEERI has concluded that double wall double integrity is considered a very safe design and is practised worldwise. Being inherently safe, it does not need a dyke. However, ZIL has 13 proposed to construct a dyke to alleviate the risks substantially. In Table 7.2 acceptance of annual fatality risk level has been explained and a risk of 10-6 is stated to be a risk which is not of great concern to average person as people are aware of these accidents but they feel that it cannot happen to them as the hazards have element of resignation: “lightning never strikes twice”, “an act of God”. 8. Having considered the submissions made, we are unimpressed with the submissions of the learned Senior Counsel that another expert agency is required to be appointed in this case to find out the structural integrity of the subject tank set up by Respondent No.1. It has stood the test of time and for seven years it has created no problems. It will give no problems in future in case it is continued to be maintained the manner it is done, after inspecting periodically, by experts. NEERI which is a reputed organization whose technical reports are sought by this Court as well as by the Apex Court has vouched for its integrity and safety and Synergy Safety Engineers have been monitoring it every year for its safety and have found no problems with it. We are not unmindful of the days we live in and the principles we follow. Sustainable development is the buzz word. That is the principle we are required to follow. Balance has to be maintained between environmental protection and protecting human rights on one hand and developmental activities on the other and only this approach can cater to the needs of the present generation without sacrificing the needs of future generations. The danger of the tank/terminal as projected by NEERI is minimal and is such that ordinarily it would not be taken note of. If those be the risks then we are bound to 14 live with them, as stated by the Apex Court in the decision cited hereinabove. In such circumstances, Petitioner's fears that existence of the said ammonia tank and its operation poses a danger to the citizens of the town appears to be more imaginary than real. 9. We therefore find there is no merit in this petition and consequently the same is hereby dismissed with no order as to costs. Rule discharged. P. B. MAJMUDAR, J. N. A. BRITTO, J. RD