National Green Tribunal
Prafulla Samantaray vs Moef on 21 September, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
APPEAL No.02/2021/EZ
(I.A. No.23/2021/EZ)
IN THE MATTER OF:
Prafulla Samantray,
S/o Dinabandhu Samantaray,
R/o A/3, Road No.8, Unit-9,
Bhubaneswar, Odisha,
.... Appellant(s)
Versus
1. Union of India,
Ministry of Environment, Forests & Climate Change,
Through its Secretary,
Indira Paryavaran Bhawan,
Jorbagh Road, Aligunj,
New Delhi - 110003,
2. State of Odisha,
Through its Chief Secretary,
Sachivalaya Marg, Unit-2,
Bhubaneswar, Odisha,
Pin - 751001,
3. Odisha State Pollution Control Board,
Through its Member Secretary,
Paribesh Bhawan, A/118 Nilakantha Nagar,
Unit-VIII, Bhubaneswar, Odisha,
Pin - 751012,
4. M/s NLC India Ltd.,
NLC Talabira Thermal Power Plant,
Kumbhari and Taraikela Villages,
District-Jharsuguda and Thelkoloi Village,
District-Sambalpur, Odisha,
Corporate Office at:- M/s NLC India Ltd.,
Near Kilpauk Road, Egmore-Nangambakkam,
Chennai - 600031,
.... Respondent(s)
1
COUNSEL FOR APPELLANT(S):
Mr. Kaustav Dhar, Advocate
COUNSEL FOR RESPONDENT(S):
Mr. Soumitra Mukherjee, Advocate a/w Ms. Anamika Pandey,
Advocate for R-1,
Mr. Shakti Prasad Panda, AGA for R-2,
Ms. Papiya Banerjee Bihani, Advocate for R-3,
Mr. Swarajit Dey, Advocate a/w Ms. Riddhi Jain, Advocate for R-4,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE DR. ARUN KUMAR VERMA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- September 04th, 2023 Pronounce On:- September 21st, 2023 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. The Appellant in the present Appeal is seeking quashing of the Environmental Clearance dated 02.02.2021 granted by the Ministry of Environment, Forests and Climate Change to M/s Neyveli Lignite Corporation India Limited (NLCIL) for its 3X800 MW Thermal Power Plant in the area of Talaibira which is part of the IB Valley in Jharsuguda District of Odisha.
2
3. The contention of the Appellant is that the Environmental Impact Assessment ('EIA' for short) was made but various factors have not been taken into consideration and the Appellant has highlighted the inadequacies given in the Report of the Sub- Committee constituted by the Expert Appraisal Committee ('EAC' for short) which, according to the Appellant, was not considered by the EAC while granting the Environmental Clearance.
4. The Appellant has further alleged that the Thermal Plant is being set-up in a 'Critically Polluted Area' and impact thereof on ambient air quality, water bodies, land health, etc., have not been well studied in the EIA report.
5. Briefly stated the facts of the present case as mentioned in para 5 of the Memo of Appeal, read as under:-
"A. On 05.09.2017 an Online Application for grant of ToR was submitted by the Project Proponent and the matter was taken up on 25th September 2017 for grant of ToR in the 10th meeting of the Re-Constituted Expert Appraisal Committee (EAC). Considering the environmental sensitivity and location of the project, the committee deferred the project for making a site visit by a Sub- Committee consisting of 4 members which shall visit the project site.
B. On 04th November, 2017 the Sub-Committee visited the site and submitted its Report in the 13th meeting of the Re-constituted Expert Appraisal Committee (EAC) held on 28th November, 2017. The EAC recommended the grant of ToR subject to submission of revised layout along with following additional conditions:-
3
(i) All the recommendations made in the site visit of the Sub-Committee shall be followed
(ii) The proposed power plant area shall be reduced and the Raw Water Reservoir area be shifted near to the existing water bodies. Re-alignment of proposed power plant is to be done and the revised map is to be submitted.
(iii) Ficus species to be raised in and around temples.
C. Public hearing for the project was conducted on 13.11.2019 at Jharsuguda and on 10.01.2020 at Sambhalpur, Odisha, after which the final EIA Report was submitted in January, 2020.
D. On 10th April, 2020 the 39th meeting of the Re- Constituted Expert Appraisal Committee (EAC) was held for considering the project for grant of Environmental Clearance. as the EIA Report was found lacking in several aspects the Project Proponent was directed to revise the EIA Report according to the observations of the EAC.
E. On 1st May, 2020 ADS was sought and reply was submitted by the Project Proponent on 19th June, 2020. F. On 19th June, 2020, Revised EIA Report was submitted by the Project Proponent.
G. On 28.07.2020 in the 1st meeting of the Re-Constituted Expert Appraisal Committee (EAC) held for considering the project for grant of Environmental Clearance it was noted by the EAC that several recommendations made by the Sub-Committee had not been addressed and the proposal was deferred for seeking further clarifications. H. On 9th August, 2020, ADS was sought by EAC and reply was submitted by the Project Proponent on 4th November, 2020.
4
I. On 17th November, 2020, in the 4th meeting of the Re- Constituted Expert Appraisal Committee (EAC) held for considering the project for grant of Environmental Clearance the project was recommended for grant of Environmental Clearance.
J. On 02nd February, 2021, Environmental Clearance was granted to the Project Proponent for establishing the 3x800 MW NLC Talabira Thermal Power Plant."
6. During the course of the hearing, following issues/points have been raised and argued by the learned Counsel for the Appellant:-
(I) Lack of Cumulative Impact Assessment; (II) Social Impact Study has not been done; (III) False Air Quality Baseline considered for Air Modeling;
(IV) Health Study has not been done; and
(V) Public Hearing has not been carried out,
7. The State Pollution Control, Odisha, Respondent No.3, has filed affidavit dated 27.08.2021, stating therein that as per the provisions of the EIA Notification, 2006, the role of the State Pollution Control Board is to facilitate the conduct of public hearing and forward the proceedings of the Public Hearing to the concerned regulatory authority for consideration of grant of Environmental Clearance. It is stated that public hearing for Jharsuguda District was held on 13.11.2019 and the proceedings of the public hearing were forwarded to the MoEF&CC, Government of India, vide State Board's letter dated 05.12.2019. Public Hearing for Sambalpur District was held on 10.01.2020 and the proceedings thereof were 5 also forwarded to the MoEF&CC, Government of India, vide State Board's letter dated 01.02.2020.
8. The Respondent No.2, Additional Secretary, Forest, Environment & Climate Change Department, Government of Odisha, has filed affidavit dated 23.12.2021, stating therein that the Project in question does not come under the purview of the State Government and the State Government has no role to play in the matter.
9. Counter-affidavit dated 13.05.2022 has been filed by the Respondent No.1, Ministry of Environment, Forests and Climate Change.
10. Counter-affidavit dated 17.05.2022 has been filed by the Respondent No.4, M/s NLC India Limited.
11. Additional affidavit dated 05.12.2022 has been filed by the Appellant.
12. Final EIA Report, January 2020, has filed by the Appellant.
13. Additional affidavit dated 11.07.2023 has been filed by the Appellant.
14. Affidavit in reply dated 27.07.2023 has been filed by the Respondent No.4, M/s NLC India Limited.
15. The case of the Respondent No.4, Project Proponent, is that the Project in question is being implemented to supply power to the 6 States in India being States of Odisha, Tamil Nadu, Kerala and Pondicherry. It is stated that the Respondent No.4 has been granted Environmental Clearance on 02.02.2021 for operating 3x800 MW Thermal Power Plant. The Project site is at Kumbhari and Tareikela Villages in District-Jharsuguda and Thelkoloi Village in District-
Sambalpur, Odisha.
16. In the affidavit of the Project Proponent it is stated that the Central Pollution Control Board has carried out the physical study of the industrial clusters in the country with reference to the Comprehensive Environmental Pollution Index ('CEPI' for short) which includes weightages on the nature of pollutants, ambient pollutant concentrations, receptors (number of people affected) and additional high risk element and on the basis of the study jointly carried out by the Central Pollution Control Board and the State Pollution Control Boards, industrial clusters were notified as 'Polluted Industrial Areas' (PIAs). These PIAs were then ranked as 'Critically Polluted Area' (CPA), 'Severely Polluted Area' (SPA) and 'Other Polluted Area' (OPA), depending upon the CEPI scores of each of these industrial areas. As per the CEPI score:-
(I) 'Critically Polluted Areas' (CPAs) are those areas crossing CEPI score 70;
(II) 'Severely Polluted Areas' (SPAs) were given the index between 60 to 70; and (III) 'Other Polluted Areas' (OPAs) were given >60. 7
It is stated that as per the study, the Central Pollution Control Board identified 100 polluted industrial clusters which includes:-
(i) 38 CPAs,
(ii) 31 SPAs, and
(iii) 31 OPAs,
17. The case of the Respondent No.4 is that as per the CEPI index, Jharsuguda is 37.20 and, therefore, the Jharsuguda falls in the 'Other Polluted Areas' (OPAs). It is also stated that since the Sambalpur is not included in list of 100 industrial clusters, therefore, Sambalpur is not a notified 'Polluted Industrial Area' PIA.
18. The contention of the Appellant is that Environment Impact Assessment ('EIA' for short) has failed to address the issues relating to compliance of ToR i.e., Terms of Reference. The specific contention of the learned Counsel for the Appellant is that the recommendations of the Sub-Committee dated 04.11.2017 had not been complied with by the EIA. The recommendations of the Sub- Committee and the contention of the Appellant thereto read as under:-
S.No. Sub-Committee recommendation Contentions of the Appellant In the vicinity of the proposed power No data has been used in plant, cluster of power plants, modeling for air emission from Integrated steel plants, Alumina all the point sources.
Plants, Open cast Coal Mines etc
1 existing, cumulative pollution level
to be assessed by considering all
the point sources including the
proposed TPS.
8
Due to construction of boundary No plan has been submitted to wall after leaving 500 m width from show said access road for the HFL, the villagers shall not have villagers. Moreover, in the NLC direct access to their agricultural reply dated 4th November it is land. Therefore an approach along mentioned that they will 2 the boundary wall of power plant acquire additional land for should be constructed so that developing green belt between villages can have easy access to 250 meter line and the river their agricultural fields. bank to compensate shortage in 3 As per Hon'ble Supreme Court, no Issues with regard to construction within 500m width maintaining a no construction from the HFL shall be proposed. The zone within 500 meter width of area requiring for construction of river HFL is not complied.
over bridges should be included in the proposed project. and accordingly necessary permission to be taken from the competent authorities.
The course of Nala exists in the i) At few places the distance proposed Ash pond areas should between proposed ash not be diverted and necessary dyke and river Bedan is protection measures such as proper less than 500 m. revised lining at both banks, etc. to be area plan superimposed on provided. Ash pond area requires to google earth is still showing 4 be realigned so that the village shall habitation on northern and remain outside of the boundary of southern part of the the propose ash pond area and proposed ash dyke.
fresh lay out map, in this regard, to Moreover, the edge of ash
be submitted. dyke at few places are less
than 500 m which shown in
red line Annexure-A8.
Moreover, superimposed
revised layout plan on
Google earth is still
showing that about 70%
area of the proposed ash
9
pond will get inundated in
50 and 100 years of return
flood scenario which is
annexed as Annexure-A9.
ii) The argument submitted by
the NLC about 100% fly ash
utilization is not
sustainable as they have
not undertaken any
demand supply gap
analysis report to claim
that 100% of the generated
fly ash will be utilized
within 100 km of the
proposed project site.
iii) No plan has been
submitted for the disposal
of fly ash in the mine void
of captive Talabira mine.
Green Belt between the village and No plan has been submitted in the proposed ash pond will be the revised lay out map developed. Fresh water available in regarding development of 5 the existing water bodies in the green belt between village and proposed project should be reused the proposed ash pond. for construction work to minimize requirement of fresh water. No ground water shall be drawn for construction work.
The course of Nala exists in the NIH report identified two proposed ash pond areas should options for the nallah, and it not be diverted any necessary did not express a preference 6 protection measures such as proper for either option. Option one lining at both banks, etc. to be was to leave the nallah provided. undisturbed and to build separate fly ash and bottom ash impoundments to the north and south of the nallah, 10 respective NLC is destroying a functioning nallah in order to gain a relatively tiny amount of additional ash disposal capacity, contrary to the ToR and sub-committee recommendation.
NLC's motive for ignoring the
sub-committee and the ToR
recommendations is stated in
their response above; they
want to maximize ash basin
storage capacity at the
expense of destroying a
functioning
19. We may, therefore, examine each of the issues raised by the Sub-Committee as well as the contention of the Appellant and also examine the question relating to compliance/non-compliance of the recommendations of the Sub-Committee.
20. Item No.1 of the Sub-Committee recommendation that 'in the vicinity of the proposed power plant, cluster of power plants, Integrated steel plants, Alumina plants, Open cast Coal Mines etc. existing, cumulative pollution level to be assessed by considering all the point sources including the proposed TPS', the contention of the Appellant is that no data has been given in the modeling for air emission from all the point sources.
21. We find that the recommendation of the Sub-Committee in Item No.1 has been specifically dealt with in Chapter 4 of the EIA 11 Report. The cumulative pollution level assessed considering the industries in the vicinity and the results are given in section 4.4 of the EIA Report. The EIA Report has been prepared by the ABC Techno Labs India Private Limited, an ISO certified company, accredited by NABL, NABET and MoEF, and the study period is January-March, 2018. The said Final EIA Report has been filed with the counter-affidavit of the Respondent No.4 dated 17.05.2022.
22. With regard to the Cumulative Impact Study of Pollution, Section 4.4 of the Final EIA Report deals with "Air Quality Impacts":-
A. In the Report it is noted that apart from various sources of air emission during construction phase including site clearing, demolition activities, vehicle movement, material storages and handling and operation of construction equipment result in temporary degradation of air quality. However, it is noted that Particulate Matter (PM10 & PM 2.5) rise in ambient air will be coarse and will settle within a short distance close to the construction site. Hence, dust and other emissions are unlikely to spread sufficiently to affect the surrounding villages of the project site. B. It is also noted in the Report that emission from various construction machinery fuelled by diesel and from mobile source will be in the form of CO, NOx and SO2. It is also noted that impact on air quality will not be significant as the pollutant emission activities (point and area sources) 12 will be limited within the project boundary and the activities will be short term.
C. Mitigation Measures have been suggested in Section 4.4.1 of the Report.
23. Section 4.4.2 of the Final EIA Report deals with "Noise Quality Impacts":-
A. The Report notes that the general noise levels during construction phase such as due to working of heavy earth moving equipment and machinery installation may sometimes go upto 90 dB(A) at the work sites in the day time. However, it is noted that noise level will attenuate fast with increase in distance from noise source. Impacts due to noise during construction activities will be minimal since the settlements are of scattered nature. B. Mitigation Measures have been suggested in Section 4.4.3 of the Report.
24. Section 4.4.4 of the Final EIA Report deals with "Water Quality Impacts":-
A. The Report notes that during construction phase of the proposed Project water will be used for construction of civil structures, dust suppression and drinking purpose. The construction water requirement of the Project will be met from Bedhan River through Barge mounted temporary pumping system. It is also noted that the likely impacts on 13 water quality during the construction phase may mainly arise from inappropriate disposal of construction waste and wastewater generated from the construction sites. It is also noted that the domestic water requirement during construction phase will be limited to drinking water and for sanitation and all the domestic wastewater generated from the site will be sent to septic tanks followed by soak pits so that it shall not contaminate the ground water in the nearby areas.
B. The Report also notes that during the monsoon season there are chances of wash out of mud and debris in the run-offs. This may result in suspended solids and turbidity in run offs water during the monsoon period but this impact shall be lasting only for the duration of the construction period. Efforts be made to reduce the suspended solids content of storm water run-offs by routing the storm water drains through settling tanks/catch pits. C. The Report further notes that liquid effluents generated shall be collected and treated/recycled and an independent plant effluent drainage system would be constructed to ensure that plant effluents do not mix with storm water drainage. The Report also notes that it is anticipated that there will be no significant impact on the surface water or ground water hydrology and water use of the area. Rain water harvesting will be carried out.
14 D. Mitigation Measures have been suggested in Section 4.4.4.1 of the Report.
25. Section 4.4.5 of the Final EIA Report deals with "Land Use and Land Environment Impacts":-
A. The Report notes that the proposed Project will be housed at two Villages - Taraikela and Kumbhari. To optimize cutting and filling quantities, the finished floor level of plant area has been kept at RL (+) 203m. The formation level of western side green belt area is kept at 202.5m and eastern side green belt area at 202.0m.
B. Mitigation Measures have been suggested in Sections 4.4.6 and 4.4.6.1 of the Report.
26. Section 4.4.7 of the Final EIA Report deals with "Solid Waste Generation (Hazardous and Non-Hazardous) and Disposal Impacts:-"
A. The Report notes that during construction phase, solid waste such as - excavated soil, debris, stone, bricks, sand, metal waste, polythene sheets, etc. will be generated which may contaminate soil at plant site temporarily and will be restricted to a small area. The Report also mentions that procedures for maintenance of equipment will ensure that this risk is minimized and clean up response is rapid, if any spill occurs. Hence, waste generated will be disposed of by selling to appropriate vendors as per Hazardous Waste 15 (Management, Handling and Transboundary Movement) Rules, 2008, and amendments thereto.
B. The Report also notes that the Municipal Solid Waste generated by the construction work force will be minimal as most of them will belong to local areas and no construction camps are proposed within the Project site. The waste so generated will be collected, segregated and will be sent to the solid waste disposal site/land-fill allocated by the local administrative authorities.
C. Mitigation Measures have been suggested in Section 4.4.8 of the Report.
27. Section 4.4.9 of the Final EIA Report deals with "Socio- Economic Environment Impacts":-
The Report notes that construction will involve generation of a lot of employment, both direct and indirect, which will affect the economy of the study area.
28. Section 4.4.10 of the Final EIA Report deals with "Hydrology and Drainage":-
The Report notes that natural drainage system will be preserved and not altered due to the proposed Project. Storm water will be collected through storm water drains and will be stored in water bodies, planned to be distributed equally in the plant premises so that maximum rainwater will be recharged back to aquifer. The Project development will not alter any 16 water body or pond, therefore, no impact is anticipated on the hydrology of the study area.
29. Section 4.4.11 of the Final EIA Report deals with "Terrestrial Ecology Impacts:-"
A. The Report notes that the activities of proposed Project will be confined to the Project site within the boundary of existing plant premises. The site is grassland with no tree cover and does not come under any forestry and agricultural activities. There are few shrubs along with seasonal grasses which plant species are more vigorously disturbed in the buffer zone and, therefore, the present activities will not cause any significant loss of any important flora.
B. Mitigation Measures have been suggested in Section 4.4.12 of the Report.
30. Section 4.5 of the Final EIA Report deals with "Potential Impacts during Operation Phase":-
The Report notes that the potential impacts during the operation phase have been identified within the project site as well as the study area of 10 km radial around the proposed project such as:-
• Air Environment
• Water Environment
• Land Environment
• Noise Environment
17
• Socio-economic Environment
31. Section 4.5.1 of the Final EIA Report deals with "Air Environment Impacts":-
A. The Report mentions that the pre-project (baseline) ambient air quality status in the study area during winter season of 2018 indicates that all the criteria pollutants are well within the prescribed NAAQS for industrial, residential, rural and other areas. The sources of emission during operation phase have been identified as from:-
• TP Plant Stacks • Emergency Power Supply System-DG sets • Coal Handling and Stockpiles.
B. The Report further mentions that fugitive dust will be generated from handling and feeding of raw materials which is sought to be controlled by water sprinkling as well as use of bag filter. It is also mentioned that adequate stack height will be provided for better dispersion of flue gas as per the guidelines of the CPCB/CECB and in addition, adequate green belt will be developed by the Project Proponent for further control of air pollution due to fugitive emissions at the site.
32. Section 4.5.3 of the Final EIA Report deals with "Meteorological Data":-
A. The Report notes that the Meteorological data collected from 1st January to 31st March 2018 has been given in Chapter-3 18 which indicates that the predominant wind direction is blowing from North-East to South-West. Wind speed, wind direction and temperature have been processed to extract the 8-hourly mean meteorological data for application in AERMOD.
B. Summary of Predicted Ground Level Concentrations has been dealt with through tables showing 24-hours-PM (Scenario-1), 24-hours-SO2 (Scenaroi-1), 24-hours-NO2 (Scenario-1), 24-hours-PM (Scenario-2), 24-hours-SO2 (Scenario-2) and 24-hours-NO2 (Scenario-2) in Section 4.5.6 of the Report.
C. Table No.4 to 10 shows resultant concentrations after implementation of proposed project along with the existing industries in the vicinity (cumulative impact) which read as under:-
Sl. Maximum Predicted Resultant NAAQs
No. Baseline Incremental Maximum Limits
Pollutant Concentration, Increase Concentration µg/m3
µg/m3 GLC µg/m3 µg/m3
1. Particulate 79.60 1.8613 81.4613 100
Matter
2. Sulphur 11.70 8.4058 20.1058 80
Dioxide
3. Nitrogen 24.90 8.1125 33.0125 80
Dioxide
19
33. Section 4.6 of the Final EIA Report deals with "Discussion":-
A. The Report notes that the ambient air quality values were reported to be 11.70, 24.90 and 79.60 µg/m3 for SO2, NOx and PM respectively. The cumulative maximum worst case incremental GLCs of the study area were recorded to be 8.40 µg/m3 for SO2, 8.11 µg/m3 for NOx and 1.86 µg/m3 for PM. The predicted maximum worst case background concentrations are expected to be 20.10 µg/m3 for SO2, 33.1 µg/m3 for NOx and 81.46 µg/m3 for PM within 10 km radius of the study area.
B. Mitigation Measures have been suggested in Section 4.6.1 of the Report.
34. Section 4.7 of the Final EIA Report deals with "Water Environment Impacts":-
A. The Report notes that the consumptive water requirement for 2400 MW capacity project is estimated as 72 cusecs. The water is proposed to be drawn from Hirakund reservoir at a point near the intake location of M/s Bhushan Steel and Power Ltd., at a distance of about 20 km. B. Mitigation Measures have been suggested in Section 4.7.1 of the Report.
35. Section 4.8 of the Final EIA Report deals with "Noise Environment":-
20
The Report mentions that stationary sources due to operation of heavy duty machinery at the project site like Compressors, Pumps, Turbines, Boilers etc. Mobile sources corresponding to mainly vehicular traffic for staff mobilization, material transport and fuel transport to project site etc. materials loading and unloading at conveyors will also generate some noise.
36. Section 4.10 of the Final EIA Report deals with "Ecology":-
Under the heads 'Loss of Species', 'Gaseous Pollution', 'Dust Generation', 'Noise Pollution', 'Congregation of Labour', 'Effluent Discharge', mitigation measures have been given in the Report.
37. Section 4.14 of the Final EIA Report deals with "Greenbelt Development Programme":-
The Report notes that the plant area is 602 acres and Reservoir Area is 88 acres. As per CEA norms, one third of plant area needs to be earmarked for green belt which works out to 230 acres of NTTPP, whereas 252 acres of green belt is envisaged. The Report further mentions that the ideal size of green belt shall be between 10 and 50 meter wide and run the length of roads, major structures and open spaces. Species of plants to be planted have been given in Table 4-11 of the Report.
38. Section 4.18 of the Final EIA Report deals with "Waste Generation":-
21
The Report mentions that the waste generated at the project site falls in categories of hazardous and non-hazardous wastes which are to be managed as per the prevailing regulatory norms.
39. Section 4.19 of the Final EIA Report deals with "Non- Hazardous Waste":-
A. The Report notes that the solid/semi solid waste envisaged from the proposed Project are spent oils, lubricants and chemicals etc. from the process units and clarifier sludge from raw water treatment plant, oily sludge from wastewater treatment plant as well as biological sludge from sewage treatment plant; coal dust will be generated generally at the conveyor transfer points, coal unloading area and coal stockpile area.
B. The Report further notes that dust suppression/dust extraction facilities will be provided including enclosed galleries.
40. Section 4.20 of the Final EIA Report deals with "Hazardous Waste":-
The Report notes that the hazardous waste generated from the Proposed Project will be waste oil and grease drained out of gear boxes and other equipment and the same will be disposed of as per the Hazardous Waste Management Rules to the licensed vendors.
22
41. Section 4.21 of the Final EIA Report deals with "Socio- Economic Impacts":-
A. The Report mentions that the proposed Project will support strategic needs of the communities and villages in the area. The economic point of view is that the Project will generate employment and help people to earn money as well as ability to pay for consumption; the proposed Project will lead to infrastructure development in the area such as - road, schools, health facilities, drinking water facilities, market facilities, processing facilities etc. B. The Report further mentions that in-migration will boost demand for several goods, services, communities and it will create a pressure to improve productivity of natural and human resources in the area.
This also address the Issue Nos. I & II raised by the learned Counsel for the Appellant.
42. Learned Counsel for the Appellant submitted that the AAQ7 Monitoring Station, Jharsuguda, is situated only 1.3 kilometers from the Cox Colony.
43. The learned Counsel further referred to Annexure-14 (page
177) to the Memo of Appeal and submitted that the National Air Monitoring Programme of 2018 for Jharsuguda shows average concentration of PM10 as being higher than the national standard. Learned Counsel specifically submitted that for Cox Colony PM10 level shows 106 which is higher than the prescribed standard of 23 100 and submitted that Cox Colony is located only 1.3 kilometers north of the AAQ7 Monitoring Station.
44. The allegation of the Appellant has been refuted by Mr. Swarajit Dey, learned Counsel for the Respondent No.4, who has referred to Table No.3-10 (page no.621 of the paper book) of the EIA Report for Ambient Air Quality Monitoring Locations and submitted that the distance of Cox colony is 1.3 kilometers further to the North of the Monitoring Station AAQ7, which itself is 9.90 kilometers from AAQ1, Project Site, thus, the total distance of Cox Colony from the Project site AAQ1 is 1.3 + 9.90 i.e., 11.2 kilometers which is outside the study area of 10 kilometers. Learned Counsel further referred to the CEPI scores for industrial areas/cluster monitored during 2018 wherein Jharsuguda (Orissa) is shown at Sl. No.98 and the CEPI score is shown as 37.20. The scores have already been referred to hereinabove and the score of 37.20, therefore, falls under the heading 'Other Polluted Area' and, therefore, we are of the view that in any case the Project Site does not fall within the 'Critically Polluted Area' or 'Severely Polluted Area'.
This also deals with Issue No.III raised by the Appellant during arguments.
45. As regards the Item No.2 of the Sub-Committee recommendation, namely, that the Project Proponent should construct a boundary of minimum width of 20 meters having alleviation of at least 202 meters Above Mean Sea Level, the same 24 has been dealt with under the heading '6 Conclusions' (page no.908 of the paper book) in para 9 that construction of embankments on both left and right bank is also analysed for various return period floods. It is suggested that embankment is to be constructed on both banks as construction of embankments only in right bank (main plant area) will not be able to protect the ash pond area. However, instead of creating embankment along the left bank of river, selective protection to only ash dyke can be made.
46. We find that in Condition No. (viii) of the Environmental Clearance dated 02.02.2021 it is provided that embankment Bund on the banks of the Bhedan river is to be strengthened which is +1m above the High Flood Level (HFL) limits, so as to prevent flooding. The bund formation shall be developed with a base width of 20 m. In addition, the bund shall also be provided on the other bank of the river to safeguard the ash disposal area. The height of the river bund shall be minimum RL 202 meters. The Project is still at a nascent stage of construction and, therefore, it is premature at this stage to assume that there is violation of Environmental Clearance conditions.
47. Learned Counsel for the Appellant has drawn the attention of the Court to Annexure-A17 (page 216 of the paper book), which is a letter of the Ministry of Environment, Forests and Climate Change dated 19.11.2018 and submitted that directions were given by the MoEF&CC that the Expert Appraisal Committee shall deal with the standard conditions at the time of appraisal of proposal for grant of 25 Environmental Clearance and also with regard to Human Health Environment four directions were given which reads as under:-
1. Bi-annual Health check-up of all the workers is to be conducted. The study shall take into account of chronic exposure to noise which may lead to adverse effects like -
increase in heart rate and blood pressure, hypertension and peripheral vasoconstriction and thus increased peripheral vascular resistance. Similarly, the study shall also assess the health impacts due to air pollution agents.
2. Baseline health status within study area shall be assessed and report be prepared. Mitigation measures should be taken to address the endemic diseases.
3. Impact of operation of power plant on agricultural crops, large water bodies (as applicable) once in two years by engaging an institute of repute. The study shall also include impact due to heavy metals associated with emission from power plant.
4. Sewage Treatment plant shall be provided for domestic wastewater.
48. We find that these issues have been dealt with in Section 7.9 under the heading 'Occupational Safety Management and Surveillance Program'' of the Final EIA Report and referring to the provisions of the Factories Act, 1948, the Report notes that the State Government is vested with powers to appoint a competent person to conduct inquiry into the causes of any accident or notifiable diseases. The following measures need to be implemented in the work places to enhance occupational health:-
• Identify and involve workers in assessing workplace risks, 26 • Assess and consider employees' needs when planning and organizing work, • Provide vehicle, information and training to employees, as well as mechanisms for employee feedback such as a suggestion scheme, Occupational health surveillance and Occupational health audit, to develop a system of • creating up to date data base on mortality, and morbidity due to Occupational diseases and use it for performance monitoring of the same and • extending support to the state government for effective enforcement of the health provisions stipulated under section 41F of the Factory Act be equipping them with work environment monitoring technologies.
49. The Report also mentions that a dedicated occupational health center shall be developed consisting of the following facilities:-
a) A full time doctor may be appointed to monitor the day-
to-day occupational health aspects and also to provide medical advice to the workers, employees and residents and residents of the colony,
b) Minimum facilities such as oxygen cylinder for emergency medical use, two bed clean room for first aid applications, first aid kits as per the Factories act, 27
c) ECG and X-ray facilities, Peak Expiratory flow Meter to check the lung function,
d) As part of the surveillance program, the following minimum medical expansion may be undertaken during the pre-employment phase:-
1. General physical examination and blood pressure,
2. X-Ray of chest & ECG,
3. Sputum examination,
4. Detailed routine blood and urine examination,
5. Audiometry, and
6. Spirometry
e) As part of the routine and annual medical examinations on the persons working in the high noise generating areas, stress areas and dust exposure areas, a comprehensive surveillance program may be adopted.
f) Medical records- A record-keeping system for holding results of medical examinations and reports of systems will be needed as part of the health surveillance scheme. These are confidential records relating to individuals.
g) As part of the health surveillance programme, workers should be informed of the confidential results of such assessment and if any implications of the findings, such as the likely effects of their continuing to work with vibration.
28
Thus, Issue No. IV raised by the learned Counsel for the Appellant has been adequately dealt with in the EIA Report.
50. With regard to Issue No. V raised by the Learned Counsel for the Appellant that Public Hearing has not been carried out, we may note that Public Hearing was held on 13.11.2019 at 10:00 AM in Village-Tareikela, infront of Gariadihi up school near Hirma Village of Jharsuguda District, Odisha, and on 10.01.2020 at Khumbhari and Tareikela in the District of Jharsuguda and Thelkoli Village in the District of Sambalpur (for Sambalpur District).
51. A perusal of the minutes of the 1st meeting of the Re- Constituted Expert Appraisal Committee (EAC) on Environmental Impact Assessment (EIA) of Thermal Power Projects held on 28.07.2020 (Annexure-R2, page 334 of the paper book), filed along with the counter-affidavit of the Ministry of Environment, Forests and Climate Change dated 13.05.2022, issue relating to Public Hearing has been dealt with in Section 1.3.3 sub-para (iv) and it is mentioned that the SIA study enumerated a total 512 families from the list given for survey, of which 291 will be displaced as their residential area is going to be acquired, and 221 families will be affected as their land is going to be acquired for setting-up of the proposed industry in five villages. The expected displaced people were residing in Villages - Tareikela, Kumbhari and Gariadihi Kisan Pada (a hamlet of Hirma Village) and the expected affected people were from Village-Tumbekela, Tareikela, Kumbhari and Hirma.
29
Name of No. of No. of Percentage No. of percentage
Village families displaced affected
families families
Hirma 124 39 31.5% 85 68.5%
Kumbhari 163 123 75.5% 40 24.5%
Tereikela 136 129 94.9% 7 5.1%
Tumbekela 89 0 0% 89 100%
Total 512 291 62% 221 38%
52. In Section 1.3.3 sub-para (v) it is also mentioned that most of the people in the Project area wanted to vacate their homes provided they would get suitable monetary compensation for their land, houses and immovable assets. According to them, the cost of land is highest in the area so they should be compensated accordingly.
53. In the sub-para (v) it is further mentioned that owners of land near the Bheden river in Kumbhari and Tareikela Villages wanted to part with their land as they will face problem in cultivation. The proposed Project maps show exclusion of those patches of land and they requested that the company should acquire that patch of land for tree plantation or any other purpose.
54. In this view of the matter, we are of the view that since most the residents of the villages who were to be affected by the proposed Project coming-up were willing to give-up their lands provided they would be adequately compensated for the same, in our opinion, not holding a fresh Public Hearing after submission of 30 the revised EIA Report would not be fatal to the grant of the Environmental Clearance to the Project.
55. Next referring to Item No.3 of the Sub-Committee recommendation, namely, that due to construction of boundary wall after leaving 500 meter width from High Flood Line, the villagers shall not have direct access from their agricultural land and, therefore, approach road should be constructed, Mr. Swarajit Dey, learned Counsel for the Project Proponent, has drawn our attention to the Main Plant Area Map filed at page no. 1334 of the paper book, and from the map he has shown that the purple line immediately after the green belt is the road which has been provided for the villagers and in addition, bridges have been constructed over River Bhedan to provide access to the villagers to their agricultural fields. The purple line in the map is marked as 'Peripheral Road' for villages and, therefore, we have no reason to doubt that access road would not be provided for the villagers.
56. Learned Counsel for the Appellant next submitted that no construction within 500 meter width from the High Flood Line shall be proposed as per the directions of the Hon'ble Supreme Court. A perusal of the Map (at page no. 1334 of the paper book), shows that there are no constructions between the area marked in 'white' following the Bhedan river and the road marked in 'purple'. Even otherwise, the township or the Plant itself has not yet been constructed and, therefore, the directions of the Sub-Committee and implementation thereof are all in the future and it would be 31 highly and unfairly presumptive at this stage to believe that the same will not be followed by the Project Proponent.
57. Learned Counsel for the Appellant next submitted Item No.5 of the Sub-Committee recommendation that construction of Raw Water Reservoir may be shifted towards the existing water pond and space provided for construction of 4th unit of 800 MW may not be kept at the existing proposal as lot of agricultural land is getting affected.
58. Mr. Swarajit Day, learned Counsel for the Project Proponent, in response submitted that the Raw Water Reservoir has been shifted towards the north and the area has been reduced from 126 acres to 88 acres. The Map (at page no.1334 of the paper book), clearly shows the Raw Water Reservoir area is at a considerable distance from Bhedan river and this area has now been reduced to 88 acres and the area is to the north of the river Bhedan.
59. The next submission of the learned Counsel for the Appellant is with regard to the Item No.6 of the Sub-Committee recommendation that before any construction is taken up in either of these areas, the transmission lines be shifted.
60. Mr. Swarajit Dey, learned Counsel for the Project Proponent, submitted in this regard that Odisha Power Transmission Corporation Limited (OPTCL) has already been approached to carry out the diversion of transmission lines and survey for the same by 32 the OPTCL is under progress and the money for the same has already been deposited with the OPTCL.
61. Learned Counsel for the Appellant has next referred to Item No.7 of the Sub-Committee recommendation and submitted that the Committee has recommended that Ash Pond Area be re-aligned so that the village shall remain outside the boundary of the proposed ash pond.
62. Mr. Swarajit Dey, Counsel for the Project Proponent has referred to the Map (at page no. 1334 of the paper book) and submitted that the Ash Pond Area has been re-aligned in such a manner that the village remains outside the boundary. This is evident from the Map itself. He further submitted that the nalla requires diversion if original alignment is to be maintained, the dyke has to divide and the ash disposal area gets reduced and as per the drainage study this routing is not recommended. Learned Counsel informs that the second alternative for re-routing along the boundary southwards has been suggested by the NIH, Roorkee, and in any case the ash dyke is not crossing the nalla. The nalla has been shown in the Map in two blue lines just above the 'Emergency Ash Dyke (175 acres)' and the area to the north of the nalla has been crossed out with slanting lines which area is shown to have been omitted and, therefore, it is evident from the Map that the Ash Dyke is not dividing the nalla.
33
63. Learned Counsel for the Appellant next submitted with regard to the recommendation 8 of the Sub-Committee that green belt be developed between village and proposed ash pond.
64. We find from the Map at page no.1334 of the paper book that green belt area has been demarcated in green and marked as 'Green Belt' and no ground water has been envisaged. For construction purposes, it is mentioned that fresh water available in the existing water bodies in the proposed Project will be re-used for construction work to the extent possible to avoid or minimize requirement of fresh water.
65. Condition (xii) of the Environmental Condition provides that in terms of MoEF&CC Office Memorandum dated 31.10.2019, Green Belt shall be developed in an area of 40% of the total Project Area instead of 33% as the Project is located near IB Valley Critically Polluted Area and that the additional area is to be acquired for meeting the target of 40% Green Belt of the total Project Area.
66. As we have already noted hereinabove the Project is still at a nascent stage and, therefore, assumption of violation of Environmental Clearance conditions at this stage is wholly premature.
67. Appellant has mentioned that issue of carrying capacity was raised during the public hearing of District Jharsuguda, because 802 emitting major industries were quoted to be located in the area according to Greenpeace and Wetland International South Asia 34 Report. It is alleged that Project Proponent did not respond to the query as to any survey to assess the carrying capacity of the area was undertaken before making proposal for establishment of such large industry. Appellant emphasised that matter is of extreme concern since a number of highly polluting and emission related industries, thermal power plants and coal mines are existing within 10 km zone of Talabira-1-TPP. It was further quoted that in Original Application No.1038/2018, this Hon'ble Tribunal in its order of 10.07.2019 has observed that:-
"28..... no industrial activities or expansion be allowed with regards to read and orange category units till the said areas are brought within the prescribed parameters or till carrying capacity of area is assessed and new units or expansion is found viable having regards to the carrying capacity of the and environmental norms....."
68. The learned counsel for the Project Proponent argued during hearing that all the studies have been conducted in the EIA according to the ToR given by the MOEF & CC. The observation of the Hon'ble Tribunal was with respect to CPA and SPA, whereas the proposed Plant falls within the OPA. Environmental carrying capacity with respect to industries includes multiple factors such as atmospheric environment, land environment, social economy and water environment, and reflects the threshold of supporting capacity for the industries in a region with specific natural resources and ecological environment. Studies with respect to air, water, land, flora, fauna etc. have been made in the EIA which inter alia with other results conveys the carrying capacity too. The 35 Project Proponent in his affidavit has annexed the order of the Tribunal dated 10.07.19 in OA 1038/2018 which contains the CEPI Scores for Industrial Areas/ Clusters monitored during 2018 and it gives CEPI score of 37.2 for Jharsuguda at serial number 98. The Tribunal has already decided OA 1038 of 2018 by its order dated 22.08.23 and it has been observed that:-
"144. Central Statutory Regulators i.e., CPCB in the process of its discharge of statutory obligation of taking steps for identification of the most polluted areas so that immediate steps be taken for remediation thereat. It appears to have realised that human activities, that are part of the evolution of urbanization and industrial development, have led to major pollution related issues. These include categorical impact of residential, industrial and other developmental projects such as power plants, mining etc., that affect the environment and human living conditions. Lack of planning and a basic understanding of the ecology affects its balance leading to pollution of water, air, soil and other natural resources.
145. To address the above, CPCB came forward with a lucid cum quantifiable method called CEPI score. The exercise of determination of CEPI score was undertaken and CEPI method was formulated in order to measure, understand and take action on polluters. CEPI bridges perceptive gap between experts, public and Government departments by simplifying complexity of environmental issues. It aims at categorising critically polluted industrial areas based on scientific criteria so as to ascertain various dimensions of pollution. This is a combined framework used to evaluate the impact caused by industrial clusters on the nearby environment as a numerical value. This was made applicable firstly in respect to areas where there is industrial cluster i.e., the area identified for development 36 of industries by providing requisite infrastructure which are called sometimes Economic Zone, Industrial Estate etc.
146. CEPI score, therefore, is nothing but a methodology of quantifying and numerically marking the environmental status of a particular area. In this case, the areas were industrial clusters in the country."
It clearly means that assessment of CEPI score is to know the environmental status of the concerned regions for establishment/operation of industries as well as remedial action plan that can be made if required. Hon'ble Tribunal has also clarified that there was no blanket ban on the establishment of new industries or expansion if it complies environmental norms and additional environmental stress is properly mitigated.
"221. .....With regard to confusion created in respect of Red and Orange category, Tribunal clarified in para 10 that if any Red and Orange category unit are viable by not causing pollution, there is no absolute bar in permitting setting of such industries. MoEF&CC can devise an appropriate mechanism to ensure that new legitimate activity or expansion can take place after due precautions are taken in the areas in question by red and orange category units."
Thus, we do not find any strength in this argument that carrying capacity of the area has not been assessed.
69. No further points were argued by the learned Counsel for the Appellant.
70. For reasons aforesaid, we do not find any merit in the present Appeal and the same is accordingly dismissed. 37
71. I.As. if any, stand disposed of accordingly.
72. There shall be no order as to costs.
......................................... B. AMIT STHALEKAR, JM ................................................. DR. ARUN KUMAR VERMA, EM Kolkata, September 21st, 2023, APPEAL No.02/2021/EZ (I.A. No.23/2021/EZ) AK 38