National Green Tribunal
Vijesh Kumar V vs Moef on 24 August, 2021
Bench: K Ramakrishnan, K. Satyagopal
Item No.07:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 155 of 2020 (SZ)
(Through Video Conference)
IN THE MATTER OF
Vijeesh Kumar
S/o. Vidhyadharan,
Shailaja Bhavan, Enthivila, Cheeranikkara P.O.
Vembayam, Thiruvananthapuram
...Applicant(s)
Versus
Union of India,
Ministry of Environment, Forests & Climate Change,
Rep. by its Secretary, Indira Paryavaran Bhavan,
Jorgagh Road, New Delhi and others.
...Respondent(s)
Date of hearing: 24.08.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. Dr. K. SATYAGOPAL, EXPERT MEMBER
For Applicant(s): Mr. S. Sai Sathya Jith represented
Mr. P.B. Sahasaranaman.
For Respondent(s): Mrs. Me. Saraswathy for R1.
Mrs. Vidhyalakshmi Vipin for R2.
Mr. Kumaresh Babu represented
Mr. C.R. Jaimurugan and Mr. Abdulhadi for R3.
Mr. B. Sarath Babu represented
Mr. E.K. Kumaresan for R4.
Page 1 of 14
ORDER
1. The above case has been posted to today for completion of pleadings, filing objections (if any) to the report already filed and also for consideration of further report to be filed as directed by this Tribunal by order dated 16.03.2021.
2. The Joint Committee has filed a report dated Nil along with a memo of the counsel dated 23.08.2021, e-filed on the same date and received today which reads as follows:-
"SUPPLEMENTARY REPORT OF THE JOINT COMMITTEE ON ENVIRONMENTAL COMPENSATION IN THE ORIGINAL APPLICATION NO 155 OF 2020 FILED BEFORE THE HON'BLE NATIONAL GREEN TRIBUNAL, SOUTHERN ZONE, CHENNAI.
1. Background:
M/s Covenant Stones Pvt Ltd. is involved in the operation of a building stone quarry and dimension stone quarry in an area of 8.9637 Ha. in the Manikkal and Thekkada Villages of Nedumangad taluk of Thiruvananthapuram district Kerala. The first environmental clearance was issued by SEIAA to this quarry on 2014 vide environmental clearance No 237/SEIAA/ KL/ 885/2014 dated 27/11/2014 and it was expired in 2019. The SEIAA had given an extension of six months vide environmental clearance by SEIAA No 1422/EC1/2019/SEIAA dated 3.01.2020 from 2019 to 2020. Meanwhile the Tahsildar, Nedumangad taluk issued a stop memo dated 7.3.2020 to M/s Covenant Stones Pvt Ltd for transporting quarried material without valid documents. At present the environment clearance is not in force and all the quarrying operations are stopped.
As per the statement of the Company representative the quarry is not Page 2 of 14 in operation since 7th March 2020. At the moment the extension period of the EC is over and the mining operations have come to a standstill. Further extension of the lease period is rejected by SEIAA. Now the company has applied for the approval of Terms of reference (TOR) for conducting an EIA study followed by public hearing which are pre requisite for applying Environmental Clearance (EC) for any mining projects having areal extent of 5 Ha or more. This application is now pending before SEIAA, Kerala.
Shri Vijeesh Kumar filed OA No 155/2020 before Hon'ble NGT South Zone alleging that lot of environmental damage has done on account of violations committed by M/s Covenant Stones (P) Ltd, Vembayam , Thiruvananthapuram and the Proponent had manipulated mining plan submitted with application for EC for the subsequent periods.
Vide order dated 19.08.2020 in OA No 155/2020 Hon'ble NGT South Zone has directed to appoint a Joint Committee consisting of officers from SEIAA- Kerala, MoEF & CC, KSPCB, DMG and NCESS to ascertain the real state affairs and also the violation said to have committed by M/s Covenant Stones in carrying out quarrying operations.
Members of the Joint Committee were:
1. Shri G. Sankar, Member, SEAC, Kerala and Scientist G (Retd), National Centre forEarth Science Studies, Thiruvananthapuram
2. Dr S. Prabhu, Scientist C, MoEF and CC, Integrated Regional Office, Bengaluru
3. Shri A. M. Harees, Env. Engineer, Kerala State Pollution Control Board, DistrictOffice, Thiruvananthapuram.
4. Dr A. Krishnakumar, Scientist D, National Centre for Earth Science Studies (NCESS),Thiruvananthapuram
5. Shri M. M. Vahab, Geologist, Directorate of Mining and Geology (DMG), Kerala SEIAA, Kerala coordinated the work as the nodal department. This Committee submitted the report on 17.12.2020. The concluding Page 3 of 14 remarks and suggestions of the Committee are given below.
This report prepared by the Joint Committee is based on available records and on the spot field observations made during a time when this quarry is not functioning. The satellite images from 2003 were examined and we have come to the conclusion that minor quarrying activities are seem 2003 onwards. Joint committee visited the site on November 2, 2020. Both the quarry and crusher unit were not working at the time of visit.
Important observations of the Joint Committee:
The JC members checked the EC conditions as well as the points raised by the Hon'ble NGT. It was noticed that two of the Special conditions such as quarrying outside the lease area and negligence in maintaining boundary pillars noticed. Few boundary pillarsare found missing.
Out of the 5 Specific conditions imposed while issuing EC the Company has complied only three. Two conditions are not complied. In the general conditions the Company have compliance only for 22 conditions. 5 conditions were partly complied, 3 conditons were not got a clear answer due to non working of the quarry and 10 conditons are notcomplied at all.
Excess quarrying was observed at many places. Area demarcated for buffer and garland canal was also mined. Benching at 5m x 5m is also not observed. Google time series maps have indicated that at many places quarrying has encroached to adjacent area also. Department of mining and geology have calculated the excess mining quantity for building stone as well as dimension stone and issued notices to the Company.
Mine closure, mine rehabilitation and reclamation etc have not been done. Company has applied for environmental clearance in SEIAA for further extraction of building and dimension stones. Environmental degradation has happened in this area due to quarrying. Available analytical results of land, air and water show not much degradation. But excess and unscientific mining has resulted in Page 4 of 14 landform changes, loss of bio diversity.
Compensation for building stone was calculated based on the figure given by the DMG. Regarding the calculation of dimension stones the DMG has not completed calculating the excess amount. So, the environmental compensation could not be calculated for dimension stones.
Survey conducted in the areas around the quarry indicated that problems due to dust, vibrations movement of large trucks are the major problems. There are other quarries are also working in this locality. So, the problem is cumulative. There are no major issues related to the quality of water except the acidic nature of water. Though the people who were working on the quarry for their livelihood are facing severe economic crisis after the closure of the quarry, the present field investigation revealed that that resource extraction through mining and quarrying activities took place here has accelerated the degradation of environmental conditions in various ways. So, formulation of an effective integrated management plan and cross checking of the same at every stage of quarrying operation is essential with the proper consultation of the geo- environmental experts in the concerned research areas.
It seems there are no effective follow up or checking of the compliance of the conditions imposed with environmental clearance. Concerned agencies should make sure that all conditions are complied with after getting their half yearly compliance reports. Any application for renewal of EC of this quarry should be based on a new mine plan with new EMP and EIA with public hearing.
As per order dated 16.03.2021, this Tribunal had considered the Joint Committee report dated Nil e-filed on 17.12.2020 and received on 08.01.2021 which was extracted in Para 3 of the order and then, passed the following order:-
"4. It is mentioned in the report that the environmental compensation on direct basis cannot be possible in Building Stone Quarry matters and as such they have not calculated environmental Page 5 of 14 compensation but confined to the penalty already imposed by the department for the excess mining done by the third respondent.
5. It may be mentioned here that this Tribunal as well as the Hon'ble Apex Court in the case of violation of environmental laws has come heavily on the authorities for not recovering environmental compensation applying the Polluters' Pay Principle. Further in Forest matters the Hon'ble Apex Court has even gone to the extent of fixing the Net Present Value (NPV) of the trees cut to be calculated after assessing the ecological value that is likely to be obtained from the tree and that will have to be converted into money value while fixing the value of thetree for afforestation scheme.
6. Further in this case excess mining was done by doing mining beyond the mining lease area. Thereby heavy loss has been caused to nature and the ecology and what will be the time taken for the purpose of recouping such loss are all the matters to be taken into account for fixing the environment compensation. This has been repeated by this Tribunal in several cases of similar nature and directed the authorities to calculate the environmental compensation on that basis.
7. Further, they can also ascertain the profit that had been earned or the market value at which the mined article is being sold that will give an indication as the real value of the article that has been mined in excess, which can be taken into account for the purpose of fixing to the compensation as well.
8. Further, the possibility of damage caused to the environment on account of unscientific mining will also have to be taken into consideration as it is likely to cause natural calamity when heavy rain comes, resulting in heavy landslides causing lot of expenditure for the Government to rehabilitate the persons who are likely to be affected on account of the same. There is a possibility of damage being caused to the existing plants trees and for protection of such that plants trees some precaution any measures will have to be taken. Those are all the matters to be considered by the committee while fixing the environmental compensation to be recovered.
9. Further, Mine Closure Plan has not been implemented and Page 6 of 14 that is one of the violations of the environmental clearance granted for the purpose and for that also guidelines have been provided by the Central Pollution Control Board (CPCB) as to how the environmental compensation has to be calculated. So the observation made by the committee that it is not possible to assess the environmental compensation in the case of Building Stone Quarry cannot be accepted. So they are directed to assess environmental compensation as directed by this Tribunal for the violation of conditions imposed including the excess mining and loss caused to environment, ecology and bio-diversity as mentioned above. The committee members wanted some more time for submitting further report as directed by this Tribunal. The Hon'ble NGT (SZ) has directed the committee to file a further report on or before 20.08.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules. The Joint Committee met in Thiruvananthapuram on 29th July and 13th August 2021 to finalise the methodology and report. One of the members of the Joint Committee Shri M.M.Vahab of Department of Mining and Geology was retired on 28th February 2021. Since he was involved in the site inspection and data collection, he was requested to help the Committee in finalizingsupplementary report. The Committee examined the earlier work conducted in similar cases of environmental compensation. In the case of environmental compensation of excess quarrying in building stone and dimension stones there are no methods available. The methodology followed in Judgement of the Hon'ble NGT (PB) dated 26.02.2020 in the OA No 360 of 2015 for the calculation of excess mining of river sand (Annexure - 1) was adopted here. However, there are methodologies available for the calculation of environmental compensation for violations in building stones quarrying. There are methodologies described in illegal granite stone quarrying and mining report in OA 508 of 2019 before the Hon'ble NGT (SZ) filed by Kerala State Pollution Control Board (Annexure - 2) and laterite mining irregularities report in OA 14 of 2016 before the Hon'ble NGT (SZ) Page 7 of 14 filed by the Kerala State Pollution Control Board (Annexure - 3) and. Laterite and granite building stone quarry environmental compensation methods are similar. The Committee decided to follow the method adopted in O.A No 508/2019 (with report dated 09.09.2020). O.A No 14 of 216 and O.A No 508 followed CPCB guidelines. The mineral extraction details were made available by the Department of Mining and Geology(Annexure - 4).
2. ENVIRONMENTAL COMPENSATION (EC):
VIOLATIONS OF THE ENVIRONMENTAL CLEARANCE CONDITIONS:
As per CPCB guidelines (Polluter Pays Principle), Environmental Compensation has been calculated using the following formula, subject to the condition that the general environmental compensation for a violation shall be a minimum of Rs 5000/- per day and a maximum of Rs 60,000/- per day.
Calculation of Environmental Compensation EC = PI x N x R x S x LF Where EC = is Environmental Compensation in Rupees Pollution Index (PI) Pollution Index of industrial sector = 80 (Quarry being a red category, which may be a minimum of 60 and maximum of 100. Average pollution index is taken as 80).
Number of days during which violation took place (N) N = Number of days during which violation took place. Calculation is detailed below:
From documents the company submitted to SEIAA for renewing the EC they have mentioned that "The company has obtained the quarry lease in the year 2011 and after the development of the site, the quarrying operations was started in the year 2013. There upon the EC was obtained on 27.11.2014 and mining plan approved on 29.04.2015. it is further submitted that the quarry has not been functioning since 07.03.2020 and the EC period expired on 25.05.2020 Page 8 of 14 For calculating the total number of days for which polluting activities took place, here the day the EC was given i.e. 27.11.2014 to the day quarry was stopped by the Revenue authorities i.e. 07.03.2020 was considered.
No of days the available from 27.11.2014 to 07.03.2020 = 1943 days (Including Sundays, National holidays, State holidays totalling 297 days. So the no. days of working of quarry is 1646 days). Even though the no of working days may be 1624 in the case of calculating environmental degradations due to violations the total no of days is taken in account. The quarry was functioning since 2011 only the period under the EC (for which the unit functioned without observing the some of the specific and general conditions. ) given by SEIAA is considered.
This quarry was functioning with environmental Clearance from 27.11.2014 for a period of 5 years i.e 26.11.2019. Further SEIAA had given a six-month extension of the EC. The operations of the quarry were stopped following a stop memo issued on 7.3.,2020. So, the quarry was functioning since 27.11.2014 till 7.3.2020. For calculation of Environmental Compensation 1943 days were taken. Factor in Rupees for deriving the EC (R ) R= 250 (which may be a minimum of l00 and maximum of 500, (usually taken as 250) Calculation of Rupee factor (R Factor) As per CPCB guidelines R has to be in the range of 100 to 500 and usually taken as 250. The R factor shall be calculated based on the number of working days per year (no of violation (Na) category of activity (Cr) factor of Scale of the unit (Sr) R= 100 + 21.75 (Na x Cr x Sr).
The minimum value of R may be taken as 250.
Factor for No of violation (Na) It is number of working days for which violation is observed. Consider the Na factor as 1 upto 365 days, 2 for 365- 730 days, 3 for 730 - 1095 days and 3.5 for above 1095 days.Page 9 of 14
Na (Number of working days) factor Value
Up to 365 days 1.0
365 - 730 days 2.0
730 - 1095 days 3.0
More than 1095 days 3.5
Since the number of violation days are 1646 days more than 1095 the Na factor is 3.5 This Na value is applicable only for calculating R factor Category Score (Cr) Category score (Cr) may be taken as 0.5, 1.0, 1.5 for Green.
Orange and Red respectively
Category Category Score (Cr)
Green 0.5
Orange 1.0
Red 1.5
Since the CPCB has classified Mining and related activities as Red category Cr is 1.5 in thiscase.
Scale factor (Sr) Scale factor (Sr) may be taken as 1.0, 2.5 & 3.5 for small (< 5 Crores), Medium (5-10 Crores)and Large (>10 Crores).
Scale Sr factor Small Scale ( < Rs 5 Crores) 1.0 Medium Scale ( Rs 5-10 Crores) 2.0 Large Scale (>10 Crores ) 3.5
The Project cost of this project is Rs 25 crores. This project can be considered as a largescaleunit and the Sr factor is 3.5. R= 100 + 21.75 (Na x Cr x Sr) Rupee factor (R) = 100 + 21.75 (3.5 x 1.5 x 3.5) = 499.65. So, Rupee factor (R) is taken as 500.Page 10 of 14
S = Factor for scale of operation which could be based on small /medium/ large industry S=3.5 LF = location factor = 1 (Since population is less than one million). EC = PI x N x R x S x LF EC = 80 x 1943 x 500 x 3.5 x 1 = 2,72,02,000/- ( two crore seventy two lakh two thousandonly) i.e Rs 14,000 per day of violation. EXCESS MINING:
There is no separate formula/ method available for the calculation of environmental compensation for the excess stone quarry. It is noted that Hon'ble NGT (PB) vide Judgement dated 26.02.2021 in OA 360 of 2015 approved the following method for calculation of EC for illegal sand mining.
PV= ∑t 5 = 1 (Dx RF)/ (1+r) t, Where D is Market Value of Illegally mined Material and PV is Present Value of Foregone Ecological values (@5-8% discount rate and over 5 years).
Risk factor (RF) = 0.25, 0.50, 0.75, 1.00 as per the extent of severity of damage and ecologicalfragility of project.
Severity of Mild Moderate Significant Severe
Impact
Risk level 1 2 3 4
Risk Factor 0.25 0.50 0.75 1.00
Discount Rate 8% 7% 6% 5%
Net Present Value (after netting out market value of illegally mined material) - i.e, Total Compensation to be levied, NPV= PV-D Based on the above the, EC is calculated.
CALCULATION Building stone:
The committee observed that Permitted Quantity of building stone is 9,75,675 MT (As per DGM report) and but total extraction is 19,27,653 Page 11 of 14 MT. The Committee noted that PA has extracted excess building stone (Including buffer zone mining at Sy. No. 470 - 3570 m3) of 9,61,581 MT.
RF is considered as 0.5 (Moderate). Market value of Rs 450 as per the DMG is considered.
Excess Quantity mined out = 9,61,581MTMarket value, D, = 450/- Rs= 9,61,581x 450= Rs 43,27,11,450/-
PV = [43,27,11,450x 0.5]/ (1+0.07)1 + [43,27,11,450x 0.5]/ (1+0.07)2 +[43,27,11,450x 0.5]/ (1+0.07)3 +[43,27,11,450x 0.5]/ (1+0.07)4+[43,27,11,450x 0.5]/ (1+0.07)5 =Rs 88,72,68,389 /-
NPV = PV-D=88,72,68,389 - 43,27,11,450= Rs 45,45,56,939/-
Dimension Stone:
The committee observed that DGM has not provided information like permitted quantity of dimension stone, total extraction and excess extraction. Therefore,the committee has not calculated.
Sl. No. Name of the Excess mined Environmental Penalty collected, Rs.
materials Quantity compensation
calculated based on
the above, Rs
1 2 3 4
1 Building 9,61,581 MT 45,45,56,939 6,71,08,430
Stone
2 Dimension - - -
Stone*
Sub Total 45,45,56,939 6,71,08,430
Total (3-4) Rs. 38,74,48,509/-
(Excess amount) (Rupees Thirty Eight Crore Seventy Four Lakh
Forty Eight Thousand Five Hundred Nine
only).
*Information provided by DMG insufficient It can be seen from the above table that the Environmental Compensation worked out based on the Judgement of Hon'ble NGT(PB) Page 12 of 14 dated 26.02.2021 in OA 360 of 2015 is more than the penalty levied by DMG. The excess amount may be recovered from the Project Proponent.
3. CONCLUSION:
a. Environmental Compensation for violation of Environmental Clearance conditions as per "Polluter pays" principle by CPCB guidelines. EC = Rs. 2,72,02,000/- (Rupees two crore seventy two lakh two thousand only) i.e Rs 14,000/- per day of violation.
b. Environmental Compensation for Excess Mining: There is no separate formula/ method available for the calculation of environmental compensation for the excess stone quarrying. The Committee adopted the Hon'ble NGT (PB) vide Judgement dated 26.02.2021 in OA 360 of 2015 approved method for calculation of EC for illegal sand mining. Environmental Compensation (EC) = Rs. 38,74,48,509/- (Rupees Thirty Eight Crore Seventy Four Lakh Forty Eight Thousand Five Hundred Nine only).
c. Total Environmental Compensation will be 38,74,48,509 + 2,72,02,000 = 41,46,50,509/- (Forty One Crore Forty Six Lakh Fifty Thousand Five Hundred Nine Only).
4. FINAL RECOMMENDATIONS:
The excess amount of environmental compensation for excess mining be recovered from the Project Proponent and may be used for Eco restoration including the implementation of mine closure plan at Project area. The DMG office shall be strengthened with additional manpower & advanced infrastructure facilities for strict vigilance on illegal mining activities.
Audit on the quantity permitted, quantity mined out, rate of replenishment etc shall beconducted every year."
3. If the parties want to file any objection to the latest report, they are at liberty to file the same before the next hearing date.Page 13 of 14
4. The parties are also directed to complete the pleadings before the next hearing date, failing which, this Tribunal will be compelled to dispose of the matter with the available materials on record.
5. The parties are directed to file the pleadings and objections (if any) to the report on or before 14.09.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules and the case can be posted to 20.09.2021 for consideration of report and also for hearing.
6. For consideration of report, completion of pleadings and also for hearing, post on 20.09.2021.
Sd/-
......................................J.M. (Justice K. Ramakrishnan) Sd/-
................................E.M. (Dr. K. Satyagopal) O.A. No.155/2020 24th August, 2021. Mn.
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