National Green Tribunal
K.Saravanan vs Ministry Of Environment Forest And ... on 28 April, 2025
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Monday, the 28th day of April, 2025.
Original Application No. 74 of 2021 (SZ)
&
I.A. Nos. 1 to 4 and 8 of 2025(SZ)
(Through Video Conference)
IN THE MATTER OF
Mr. K. Saravanan,
S/o kasinathan,
Aged about 37 years,
No. 30, Urur Kuppam, Besant Nagar,
Chennai - 90.
...Applicant(s)
Versus
1. The Union of India
Represented by its Secretary to Government,
Ministry of Environment & Forests& Climate Change,
Indra Paryavaran Bhavan, Jor Bagh, New Delhi.
...Respondent(s)
For Applicant(s): Mr. A. Yogeshwaran.
For Respondent(s): Mr. Sai Srujan Tayi for R1.
Mr. Chetan Sharma, ASG along with M/s.
Adarsh Tripathi & Ajitesh Garg - I.A.
Judgment Reserved On: 5th March, 2025.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The challenge in this application is to the OM dated 11.11.2020 bearing number F.No.-J-13012/8/2009-IA,II(T) issued by the MoEF&CC. The said OM allowed the thermal power plants to change their coal source without requiring fresh EIA or Environmental 1 Clearance. According to the applicant this OM undermined the statutory environmental safeguards and facilitated increased pollution without regulatory oversight, and violated constitutional and environmental principles.
2. Considering the fact that the said OM has pan India significance, originally the Original Application was transferred to the Principal Bench on 06.03.2021. However, the same was challenged alleging that it created an artificial hierarchy among the NGT zonal benches which was not provided for under the Act. The Hon'ble Madras High Court before which the said challenge was made, ruled it in favour of the applicant holding that all the zonal benches of the NGT exercise equal jurisdiction and that there was no statutory basis for requiring matters of pan-India significance to be heard only by the Principal Bench. Consequently, the matter was transferred back by the Principal Bench, NGT to the Southern Zone for adjudication.
3. The Environmental concerns raised in the O.A by the applicant are:
EIA process bypassed:
4. The EIA Notification, 2006 mandates that the project listed in the Schedule should be established only after obtaining prior Environmental Clearance under the Notification which includes even the change in fuel source, the impugned OM effectively nullifies this requirement by allowing the thermal power plant to switch from imported coal to domestic coal or vice-versa without conducting EIA, public hearing or obtaining amendment to the Environmental Clearance. It is emphasised by the applicant that such a change is significant, as different types of coal having varying emission 2 characteristics, ash content and calorific value which directly impact air and water pollution, necessitating thorough review. Jurisdiction over reaching by MoEF&CC:
5. The applicant argued that MoEF&CC lacks the authority to dilute the statutory environmental safeguards through an administrative order under Section 3 and 5 of the Environmental Protection Act, 1986. The Ministry is empowered only to take measures for protecting and improving the environment quality. The OM however does the opposite by taking away the regulatory standards thereby exceeding the Ministry's jurisdiction and facilitating industrial operation at the cost of environment protection.
Increased Environment and public health risks:
6. It is specifically pointed out that shifting to a different coal type would alters the emission levels of pollutants like Sulfur dioxide (SO2), Nitrogen Odixes (Nox), Carbon Monoxide (CO), Carbon Dioxide (CO2), Mercury (HG), Arsenic (As), Lead (Pb) and particulate matters. The change in the emission levels does have far reaching environmental and health consequences including:
(i) Air pollution: The change in the different coal type would result in increased emission which can lead to the formation of pollution hotspots depending on meteorological conditions such as wind speed, direction, humidity and temperature inversions.
(ii) Health impacts: The union of concerned scientists and Greenpeace have reported that emissions from coal fired plants contribute to asthma, lung diseases, cardiovascular disorders, neurological damage and premature deaths. The Greenpeace report estimates 80,000 to 1,20,000 premature deaths and 20 3 million new asthma cases a year due to the pollution from coal power plants. If the OM is allowed to stay, the need for thermal power plant and whether the increased pollution is acceptable to the people and other issues cannot be even considered.
(iii) Water and source contamination: The Coal ash disposal in ponds, lakes and landfills leads to ground water contamination affecting drinking water supplies.
(iv) Climate change: The coal combustion releases significant amounts of CO2, exacerbating global warming leading to extreme weather events, sea levels rise and biodiversity loss.
The OM violates constitutional and legal safeguards:
7. According to the applicant, when a pollution free environment is an integral part of the Right to Life under Article 21 of the Constitution of India, the OM contravenes the same by permitting unassessed pollution infringes upon this right.
8. The OM is in violation of Article 48(A) of the Constitution contradicting State's duty to protect and improve the environment. The impugned OM is diluting the EIA process by violating the principle that environment should be protected.
9. This Tribunal had already ruled that changing a thermal power plant's coal source necessitates a fresh Environmental Clearance due to the significant change in environmental impact. In fact, in Conservation Action Trust Vs. Union of India- O.A. No. 554 of 2018, it was reiterated that the EAC required a new EIA and public hearing rejecting a mere amendment to the existing Environmental 4 Clearance. The impugned OM contradicts this ruling without any sustainable ground for the same.
10. Thus, the applicant has challenged the OM alleging that:
(i) The said OM lacks scientific basis disregarding the environmental consequences.
(ii) The MoEF&CC had exceeded its authority under the Environment (Protection) Act, 1986.
(iii) The OM is issued without public participation and environmental assessment.
(iv) If the OM is allowed to stay it will be contradicting the Precautionary Principle, Sustainable Development and Intergenerational Equity.
(v) The change in coal would increase emission without any regulatory review or mitigation.
(vi) The pollution impact of the thermal plant changes with the coal type requiring reassessment.
(vii) The OM disregards the impact of emissions from various gases, mercury, arsenic and heavy metals as well as changes in coal transportation and ash management.
(viii) The OM also weakens the regulatory control and sets a dangerous precedent.
(ix) The OM indicates commercial interests prioritise over environmental protection. It only reflects industrial facilitation approach rather than environmental regulation.
(x) The thermal power plants will alter coal sources without environmental safeguards as the OM did not provide for additional ash ponds.
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11. The MoEF&CC, which is the 1st respondent, in its counter submitted that the OM under challenge does not provide any blanket exemption from the requirement of obtaining an Environmental Clearance. Instead, it mandates additional conditions for coal transportation and storage modifying existing Environmental Clearances for relevant sectors. These conditions apply from financial year 2020.21 onwards and the respective State Pollution Control Boards were directed to enforce them through the 'Consent to Operate' process. The OM has specifically mandated the project proponents to submit the progress report on rail or conveyor connectivity for coal transportation in their Environmental Clearance compliance reports. The object is to ensure that railway or conveyor-based coal transportation infrastructure is developed at the earliest thereby phasing out road transportation to reduce environment impacts.
12. The MoEF&CC also highlighted the key environmental safeguards prescribed for coal handling areas which includes:
(i) Air Quality Monitoring- Continuous Ambient Air Quality Monitoring Systems (CAAQMS) must be installed to measure pollutants such as PM10, PM2.5, SO2 and NOx. Additional manual monitoring must be conducted at three locations outside the plant area.
(ii) Dust Control Measures- Adequate dust extraction and suppression systems must be installed in coal handling areas, material transfer points, ash handling zones and along internal 6 roads. Water sprinkling arrangements must be implemented in several points including the excavation sites.
(iii) Fire Safety in Coal Yards- Thermal power plants are required to adopt preventive measures to control spontaneous combustion in coal storage areas.
(iv) Regulation of Storage Areas- which permits only the approved project area and an increase in the land beyond the approved land cannot be used.
(v) Hazardous Material Storage Compliance: Storage facilities for hazardous materials must adhere to the Petroleum & Explosives Safety Organization (PESO) regulations, with a cap on sulfur content at 0.5%.
(vi) Ash Generation, Handling, and Disposal- The MoEF&CC has categorically adverted to various notifications that regulate the management of ash generated by coal-based thermal power plants, particularly fly ash and bottom ash. These regulations aim to ensure proper disposal, reduce air and water pollution and promote sustainable utilization.
13. The question that arises for consideration is:
(a) Whether the OM under challenge dated 11.11.2020 and the subsequent amendments to the same dated 06.12.2023 and 07.01.2025 are sustainable?
14. It is the case of the applicant that while applying for the Environmental Clearance every thermal power plant has to provide a firm coal linkage and disclose the source of coal proposed to be used, its characteristics etc. The Environmental Impact Assessment studies are conducted only based on the coal characteristics and the 7 source. The impact of various aspects like air emissions, impact due to transport, storage, coal handling, water requirement, ash generation and storage, ash ponds and utilisation etc. are assessed, and anticipated impact is forecasted. Only based on the above factors, a public hearing is conducted after which the project is appraised and the Environmental Clearnce is issued.
15. In the OM which is under challenge the reasons for issuing the same is mentioned in Para-5. It is states that "the present process of dealing with change in coal source is to be apply at PARIVESH, subsequent appraisal by the Expert Appraisal Committee (EAC), processing of EAC recommendation and granting the amendment to the EC. The whole process would approximately take about 2-3 months".
16. Therefore, in order to simplify the procedure for change in coal source and encourage the thermal power plants to use domestic coal, the Ministry has decided to permit the thermal power plants including the captive power plants having Environmental Clearance to change the coal source (from imported to domestic, domestic to domestic and domestic to imported) directly through E- auction/short and long term linkage without seeking an amendment in Environmental Clearnce with certain conditions.
17. The emission standards for particulate matters is 30Mg/Nm3 for plants installed after 01.01.2017, 50 Mg/Nm3 for plants installed between 2003 to 2016 and 100Mg/Nm3 for plants installed before 30.12.2003. The above referred normal cubic meter (Nm3) refers to the standard state condition of a gas. Nm3 is used to provide a 8 consistent and standardised way to measure and compare gas volumes regardless of the initial condition of the gas.
18. The next aspect would be the mandatory fly ash utilisation. The MoEF&CC notification dated 31.12.2021 mandates 100 per cent utilisation of fly ash and bottom ash within 03 years. Legacy ash stockpiled in ash ponds must be progressively disposed of and fully utilized within 10 years. However, the OM impugned dated 11.11.2020 in Para- 7(d) prohibits the establishment of additional ash ponds due to an increase in ash content in raw coal. In this regard, the EAC prefers High Concentration Slurry Disposal (HCSD) systems due to their ecological advantages including reduced ash pond size, lower water consumption and minimal environmental contamination from runoff water or dust dispersion.
19. Besides the MoEF&CC has outlines strict limits on water consumption for thermal power plants in its notification dated 07.12.2015 subsequently amended on 21.05.2020. The said notification mandates that all plants with Once Through Cooling (OTC) must install Cooling Towers (CT) and limit water consumption to 3.5 m³/MWh within two years from the notification date. The existing CT-based plants must also reduce specific water consumption to 3.5 m³/MWh within two years. Any New thermal power plants installed after 01.01.2017 must not exceed a specific water consumption of 3.0 m³/MWh and must achieve zero wastewater discharge.
20. The impugned OM has not captured this aspect as the increased coal usage and ash generation will directly impact the quantum of water consumed by the thermal power plants. Water required for cooling 9 purposes increases on account of increased quantity of coal combustion, water consumed ash handling system will increase greatly as more water is required for making the dust cooling higher quantity of ash into slurry to be transported through pipelines.
21. The question whether change in the source of coal such as from domestic to imported, domestic to domestic or to a blended mix requires an amendment to the prior Environmental Clearances, arises how such changes are interpreted under the EIA Notification, 2006. To be noted is that the EIA Notification does not explicitly list change in coal source as a trigger for fresh appraisal but it does specify that "(ii) Expansion, modernisation or any change in the product mix or raw material mix in existing projects or activities, listed in the Schedule to this notification, resulting in capacity beyond the threshold limits specified for the concerned sector in the said Schedule, subject to conditions and procedure provided in the sub-paragraph (ii) of paragraph 7" which results in an increase in pollution load shall necessitate prior Environmental Clearance. The impugned notification clearly allows substantial exemption without proper legislative procedure and contravene the Precautionary Principle and the mandate of Regulation 7(2) of the EIA Notification, 2006.
22. Permission to change the fuel source without amendment of EC can amount to submission of false information or suppression of information since the character of pollution as well as quantum of pollution load varies with the source of coal and combination of domestic & imported coal. It is to be noted that shifting to domestic Coal will result in higher loads of fly ash generation which can impact 10 both air and water quality. In respect of imported coal the emission of SO2 will increase which can affect the air quality and could also result in acid rains which can in turn impact water and soil qualities.
23. Such a change without further scrutiny by EAC or SEAC (as the case may be) renders the EIA, EMP, Public Hearing and Appraisal made earlier inadequate leading to grant of EC based on incomplete information and inadequate EIA consequently imposition of conditions to mitigate pollution will also be inadequate.
24. When the above apprehensions were expressed during the arguments, the MoEF&CC reconsidered the OM and brought an amendment to the same on 06.12.2023. The amendment dated 06.12.2023 is based on the recommendations of the EAC and subsequent approval of Competent Authority. The amendment was to Para-7 of the impugned order dated 11.11.2020. The revised Para-7 of the OM dated 11.11.2020 shall be read as follows:
"All the Thermal Power Plants (including Captive Power Plants) having prior Environmental Clearance can change the following coal sources including Lignite, sourced directly through e-auctions/short term linkage/long term linkage/other linkage options of the Ministry of Coal or any organisation recognized for allotting coal linkages, without seeking amendment in Environmental Clearance, subject to compliance with conditions (a) to (f) enumerated in Office Memorandum dated 11.11.2020:
a. from domestic to domestic.
b. form domestic to domestic (blended with imported coal up to 30% content of imported coal.
c. from imported to imported (blended with domestic coal up to 10% content of domestic coal) d. from imported to domestic (where the GCV of the domestic coal is of the same grade as of imported coal).
All the Thermal Power Plants (including Captive Power Plants) having prior environmental clearance and going in for change in the coal source other than those falling in the aforementioned category of change in coal source shall approach the Ministry for amendment in environmental clearance along with a study on additional impact assessment and revised EMP based on the change in source of coal.
Further, condition no. (d) mentioned in Para 7 of the O.M dated 11.11.2020 shall stand substituted as follows:
(d) Additional ash pond shall not be permitted on account of increase in ash content in the raw coal due to change in coal source including 11 lignite other than the ash pond permitted and specified in the prior Environmental Clearance. 100% fly ash utilisation is to be achieved within 4 years in accordance with the extant provisions laid down in the Fly Ash notifications dated 14.09.1999, 27.08.2003, 03.11.2009 & 25.01.2016, 31.12.2021 and 30.12.2022 as amended from time to time."
25. The said amendment dated 06.12.2023 was also challenged by an amendment application in I.A. No. 131 of 2023 which was allowed. Thereafter, the MoEF&CC issued a further amendment regarding the change in coal source by thermal power plants by OM dated 07.01.2025. By this amendment the OM expanded the conditions in Para-7. The new clauses added include as follows:
i. Condition no. (b) mentioned in Para 7 of the OM dated 11.11.2020 shall stand substituted as follows:
The applicable flue gas emissions standards for Particulate Matter (PM), Sulphur Dioxide, Oxides of Nitrogen and Mercury shall be complied in line with Ministry's Notification vide S.O. 3305 (E) dated 07.12.2015 and its subsequent amendments from time to time, by installation/upgradation of requisite pollution control systems, as may be required. A progress of implementation and its compliance shall be submitted as part of compliance report.
ii. Condition no. (d) mentioned in para 7 of the O.M dated 06.12.2023 shall stand substituted as follows:
Additional ash pond shall not be permitted on account of increase in ash content in the raw coal due to change in coal source including lignite other than the ash pond permitted and specified in the prior Environmental Clearance. 100% ash utilisation shall be achieved in accordance with the ash utilisation notification dated 31.12.2021 and its subsequent amendments from time to time.
iii. Condition no (f) mentioned in Para 7 of the OM dated 11.11.2020 shall stand substituted as follows:
Every coal or lignite based thermal power plant shall ensure that loading, unloading, transport, storage and disposal of ash is done in an environmentally sound manner and that all precautions to prevent air and water pollution are taken and status in this regard shall be reported to the concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) as per the Annexure attached to ash utilisation notification dated 31.12.2022 and its subsequent amendments from time to time.
Subsequent to the condition no (f) mentioned in Para 7 of the O.M dated 11.11.2020, the project proponent shall comply with the following environmental conditions:
g. For controlling fugitive dust, regular sprinkling of water in the coal handling area and other vulnerable areas of the plant shall be ensured.
h. Project proponent shall comply with the specific water consumption for the Thermal Power Plants as per Ministry's Notification S.O. 3305 (E) dated 07.12.2015 and G.S.R. 593 dated 28.06.2018 as amended from time to time.
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26. A reading of the impugned OM and subsequent amendments dated 06.12.2023 and 07.01.2025 make it clear the inconsistency with Regulation 7(2) of the EIA Notification, 2006. The above OM and amendments create a blanket exemption from Environmental Clearance requirements for a variety of fuel source changes including cases of blending, domestic and imported coal so long as the blend falls within the specified threshold. This administrative policy change however dilutes the statutory obligation under the delegated legislation which explicitly requires the prior Environmental Clearance if pollution load increases.
27. From the environmental stand point, the above changes can permit transition to coal sources that may in practice result in higher emission or other forms of pollution due to blending practices, differences in coal quality or operation inefficiencies, none of which are evaluated prior to the exemption taking effect. The above OMs do not offer any methodology for assessing or verifying pollution load differences before exempting the project from regulatory oversight.
28. The second amendment dated 07.01.2025 makes a reference to the fly ash utilisation notification dated 31.12.2021 which had aimed at tightening the compliance obligations and the timeline for ash disposal and reuse. The amendment dated 07.01.2025 in Para-4 clause-3 refers to condition No. "F" mentioned Para-7 of the OM dated 11.11.2020 and substitute the same stating that the status of environmentally sound handling of ash "shall be reported to the concerned State PCBs or PCCs as per annexure attached to ash 13 utilisation notification dated 31.12.2021 and 30.12.2022 and its subsequent amendments from time to time".
29. To be noted here is that the above referred fly ash notification which has been amended from time to time from 1999 till 2022 mandate 100% ash utilisation by power plants within 03 to 05 years, introducing penalties for non-compliances. But from subsequent OMs there is a marked dilution of earlier environmental obligations even as the sector continues to under preform in ash utilisation as per various CAG and CPCB reports. In the light of the above, the invocation of 2021 notification in the 2025 amendment appears performative, lacking real regulatory bit.
30. The above aspect makes it clear that the Ministry is moving in two contradictory directions- while tightening compliance through formal notifications, simultaneously issuing OMs that open up exceptions and weaken oversight. This certainly would undermine the integrity of environmental governance. While the environmental safeguard should be the prime concern, the regulatory shift prioritising ease of business and operational flexibility should not be allowed to over take the same. The environmental risks associated with changes in coal source are not theoretical. The variation in coal grade, ash content, sulphur content, moisture level and calorific value can significantly affect emissions, thermal efficiency and ash generation.
It is specifically pointed out that imported coal often has lower ash content but higher in sulphur content. Whereas domestic coal on other hand can lead to increased particulate emissions and greater fly ash volumes. The exemption provided under the OMs failed to account for the scientific realities. The fugitive dust control and 14 reporting of ash disposal cannot be equated with safeguards against pollution escalation, particularly, when they rely entirely on self- reporting with no provision for free change environmental appraisal. The result is a system that trusts project proponents to implement post-facto mitigation measures rather than requiring them to prove in advance that pollution will not increase.
31. Learned Counsel appearing for the applicant would contend that even the invocation of fly ash utilisation notification dated 31.12.2021 is not complete as there is another notification in SO 6169 (E) dated 30.12.2022 issued regarding the ash utilisation which amends earlier notification from "a year" to "three years".
32. SO 5481(E) dated 31.12.2021 provide for unutilised accumulative ash i.e. legacy ash to be used utilised progressively by thermal power plants in such a manner that the utilisation of the legacy ash shall be completed fully within 10 years from the date of publication of the notification. Further it provided that the CPCB, State PCBs or the PCCs shall certify for the stabilisation or reclamation of the ash pond which will be carried out within "a year". But the said notification is further diluted by virtue of subsequent SO 6169(E) dated 30.12.2022 by substituting 03 years instead of 01 year.
33. This is only a status update which has to be sent to the State PCBs or PCCs without mandating adherence to any specific utilisation targets. The SO is also silent about the enforcement mechanism or penalty for non-compliance attached to this requirement. This only highlights the fact that there is a change in the environmental governance. The SO and the OMs earlier allowed strict norms while 15 these policy instruments like OMs have taken away the norms through procedural shortcuts. The apprehension of the applicant that the fly ash notification and the impugned OM have not adverted to the air ambient quality, coal transportation, increased consumption of coal, coal stockyard, ash pond handling system and water requirement. It is alleged that change in the fly ash notification from time to time and reference to the same in the impugned OM has become symbolic signal compliance rather than enforcing it.
34. The MoEF&CC which is a regulatory body of the environment and ecology, instead of converting towards higher accountability it is drifting towards dilution in the name of reforms. Plenary Environment Legislation and limits of subordinate legislation.
35. The Environment (Protection) Act, 1986 enables Central Government to take all measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution. The OMs in question are not legislative rules as they do not udergo the public consultation, stakeholder engagement or gazette publication in the same manner as that of the S.O or any statute. The OMs are issued without any scientific study or in fact assessment. The legal character of the OMs is administrative but their effect is legislative creating de facto exemptions from legal mandates. Such a shift in regulatory thresholds through OMs is 16 inconsistent with the Principle of Legality and with well established limits on delegated legislation.
36. The present case is the classic example to revisit the structural issue in India's environmental governance and its over-reliance on subordinate legislation and executive instructions. The powers provided to Central Government under Section 3 to take measures to protect environment is very wide and the same is already reiterated in M.C. Mehta vs. Union of India- AIR 1988 Supreme Court 1037. However, in practice the environmental law is largely driven by notifications, guidelines, office memorandum and circulars none of which comes under the legislative oversight. When the environmental norms are weakened then there is no institutional accountability mechanism.
37. In view of the forgoing circumstances, the Original Application is allowed and the OM dated 11.11.2020 bearing number F.No.-J- 13012/8/2009-IA.II(T) and subsequent amendments dated 06.12.2023 bearing number F.No.-J-13012/8/2009-IA.II(T) and O.M. dated 07.01.2025 bearing number F.No.-J-13012/8/2009- IA.II(T)[E-167634] issued by MoEF&CC are quashed. In view of the disposal of the O.A, the pending Interlocutory Application Nos. 1 to 4 and 8 of 2025 also stand disposed of.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.74/2021 (SZ)& I.A. Nos. 1 to 4 & 8/2025(SZ) 28th April, 2025. (AM).
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O.A. No. 74/2021(SZ)& I.A. Nos. 1 to 4 & 8/2025(SZ) 28th April, 2025. (AM) 18