Environmental Foundation
Limited v. The Attorney-General
S. C. Application No. 128/91; D/-11-12-1992
Supreme Court of Sri Lanka
G.P.S De Silva, C. J., K.M.M.B. Kulatunga J., P.Ramanathan J.
Application under Article 126 of
Constitution-alleged infringement of fundamental rights under Articles 3, 11,
14(1) (g) and (h) read with Directive Principles of State Policy - blasting
operations at quarry - damage to health and property and threat of serious
injury to 2nd to 21st petitioners and other persons of
the area-class action by 1st petitioner on behalf of unrepresented
residents of the area - failure of 2nd to 5th respondents
who were state officers and authorities to take action as empowered by law -
settlement by mediation - times, frequency and strength of blasting to be
regulated - appointment of Monitoring Committee.
The 2nd
to 21st Petitioners were residents of the Nawimana and Weragampita
villages in the South of Sri Lanka who claimed to be suffering serious injury
to their physical and mental health and serious damage to their property and
means of livelihood, as well as a constant threat to their safety as a result
of large-scale blasting operations which had commenced in 1987 at a rock quarry
close to their villages. The 1st Petitioner was a company limited by
guarantee engaged in the protection of the environment through law and brought
this section as a class action on behalf of all unrepresented residents of the
area.
This quarry had
been operated prior to 1987 by others without giving rise to complaint, but the
Petitioners alleged that after the 6th Respondent (one Tilak
Pathirana carrying on business as “The Southern Group”) took over the quarry in
1987 the frequency and the scale of the blasting had increased considerably and
included simultaneous blasting of several bore holes. They stated that as a
result, pieces of rock 20 centimetres in length were projected onto their
villages which were 300 metres away, posing a serious danger to life and
property. In addition they complained of unbearable noise both from the
blasting and from a stone-crusher which operated at the same time, as well as
severe vibrations and thick smoke caused by the explosions.
Among the
specific incidents alleged by the Petitioners were the falling of piece of rock
weighing about 2 kilograms onto the roof to the 15th petitioner’s
house; respiratory problems caused to several Petitioners by the smoke; a
miscarriage suffered by the 15th Petitioner which she attributed to
the effects of the blasting; hearing problems due to the noise; children
suffering from frequent headaches and dizziness as well as bad dreams;
structural damage to the houses of the Petitioners caused by the vibrations;
damage to the water table as a result of the deep bore holes dug by the quarry
workers, causing the village wells to dry up; consequent inability to cultivate
crops.
The
Petitioners stated that despite their complaints the Government Agent, Matara,
(2nd Respondent) had renewed the license for the quarry without
giving the petitioners a hearing and had also failed to regulate the blasting
in any meaningful way which he had jurisdiction to do. The Petitioners claimed
that the 3rd Respondent (the Superintendent of Police, Matara) had
failed to exercise his powers to abate a public nuisance despite the
Petitioners’ complaints. The 4th Respondent (the Central
Environmental Authority) was alleged to have failed to exercise its powers
under the National Environmental Act No. 47 of 1980 as amended by At No. 56 of
1988 which provided for the licensing and regulation of the emission of
pollutants into the environment. The operator of the quarry had not obtained a
license from the CEA. The 5th Respondent (Director, Geological
Survey Department) and the 7th Respondent (the Grama Sevaka of the
area) were also alleged to have failed to take action which they were empowered
to take under the law, despite repeated complaints from the Petitioners. The
Petitioners claimed that the 6th Respondent, as the party who had
benefited from the executive action or inaction of the other Respondents,
should bear the financial cost of restoring to the Petitioners their physical
quality of life.
The
Petitioners claimed violation of their rights under the following provisions of
the Constitution:
(1)
Article 3: “.......sovereignty is in
the people and is inalienable and includes fundamental rights”.
(2)
Article 11: “No person shall be
subjected to torture or to cruel, inhuman or degrading treatment”.
(3)
Article 14(1) (g): “Every citizen is
entitled to the freedom to engage ...... in any lawful occupation “.
(4)
Article 14(1) (h): “Every citizen is
entitled to the freedom of movement and of choosing his residence within Sri
Lanka”.
Following
the institution of this action, officials of the Central Environmental
Authority (CEA) together with scientific experts visited the site of the
quarry, watched the operations and measured the vibrations and noise levels
from the blasting. Thereafter a series of meeting were convened by the CEA with
representatives of all the parties to work out a scheme for the regulation of
the quarry. On 11 December 1992 Counsel informed Court that a settlement had
been reached, the terms of which would be filed in Court, and moved to withdraw
the application. The Court accordingly dismissed the application without costs.
The
terms of settlement filed in Court
were as follows:
We,
the above parties, beg to bring to Your Lordship’s notice that the parties to
Supreme Court Application 128/91 have agreed to abide by the following
conditions which have been laid down by the Chairman of the Central
Environmental Authority in respect of the operation of the metal quarry at
Nawimana. It is further agreed by the Petitioners that they will withdraw their
application in view of the mediated settlement.
1. Number of blasting
1.1 Blasting to be
conducted on 03 days of the week, namely, Monday, Wednesday and Friday.
1.2 However, in case there is a necessity to
increase the number of blasting per week, i.e. exceeding the stipulated number
of blasting at 1.1 above, approval of the Committee, mentioned at Item (11)
below should be obtained.
2. Alternative Day for blasting
2.1 In the event the
blasting could not be done on any one of the three days mentioned in 1.1 above,
a blasting could be done on an alternative day, suitable to the 6th
Respondent, during the same week or the following week, in consultation with
the Committee, mentioned at Item (11) below.
2.2 However, 24 hours
written notice of such intention should be given to the Grama Niladharis, who could put up written notices on the office
notice boards.
2.3 Contingencies
which could prevent a scheduled blasting will include bad weather, inability of
the police to be present and such other like conditions beyond the control of
the 6th Respondent.
3. Time for blasting
3.1 Blasting will be
confined to the hours between 10.00 a.m. and 5.00 p.m. inclusive.
4. Time-space between blasting
4.1 There should be
at least a time lapse of 20 seconds between each blasting. Simultaneous
blasting is not permitted. Electronic detonators may be used with the approval
of the Central Environmental Authority.
5. Depth of bore hole
5.1 The maximum depth
of a bore hole should not exceed 8 feet.
6. Number of blasting per day
6.1 It is agreed not
to stipulate the number of blasting per day.
7. Quantity and type of explosives
7.1 100 g dynamite
and 300 g ammonium nitrate, provided however that the total quantity in any
given bore hole should not exceed 350 g.
8. Method of blasting
8.1 Blasting
will be done using the safety fuse method.
8.2 Use
of Dyna-cord is subject to the approval of the Central Environmental Authority.
9. Report of the police officer
9.1 It
is agreed that a monthly report containing the following information be
maintained at the premises of the quarry by the 6th Respondent:
(a)
Total quantity of explosives used.
(b)
Depth of bore holes.
(c)
Dates on which blasting were carried out.
(d)
Commencement and close of blasting.
(e)
Method used for blasting.
(f)
Number of bore holes on each day.
(g)
Complaints by petitioners, if any.
9.2 Item
(c) of the report should be certified by the manager of the site.
9.3 The
entirety of the report should be certified by the police officer/s in
attendance during the blasting operations.
9.4 The
report will be made available for reference by the Government Agent of the
district or his authorized officer, and the Central Environmental Authority.
10. Secondary blasting
(a)
Drilling will be manual or with the
driller/compressor with a one inch drill (or equivalent in millimetres).
(b)
Depth of bore hole not to exceed three (03) feet.
(c)
Secondary blasting can continue only till 5.00 p.m.
on the days of blasting.
(d)
Diameter of a bore hole should not exceed one (01)
inch.
11. Monitoring Committee
11.1 It
is agreed that a Committee consisting of the following members be appointed to
monitor the blasting operations:
(a)
two (02) persons nominated from among the
Petitioners and Intervening Petitioners nominated by the first Petitioner;
(b)
two (02) persons from Southern Group Ltd;
(c)
Grama Niladhari of the village
of Nawimana;
(d)
Grama Niladhari of the village of
Weragampita;
(e)
The
Government Agent, Matara or an officer nominated by the Government Agent, Matara
who shall be the Chairman of the Committee.
11.2 The
Committee shall meet at least once in three (03) months.
11.3 The
Committee shall decide on the procedure for the conduct of their business,
subject to the terms and conditions given herein.
12. Operation of the crusher
12.1 A
continuous wet process should be used for the crusher operation.
12.2 The CEA
shall include a condition in the Environmental Protection License with respect
to the construction of a sound barrier, within a time period of one (01) year.
13. Siren
13.1
The Siren should be sounded three (03) times before
commencement and after completion of blasting operations.
14. Maximum noise and vibrations permissible
14.1 The
following noise and vibration levels should be maintained at the perimeter of the
quarry:
(a)
Maximum air blast over pressure level – 105 DB;
(b)
Ground vibration – Peak particle velocity below 5
mm/second; and
(c)
Sound level – 5 DB.
Signed on the 10th
day of December 1992.
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