National Green Tribunal
Chandni Chemicals Pvt Ltd vs Uttar Pradesh Pollution Control Board on 12 November, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 02 to 06 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
(By Video Conferencing)
Appeal No. 14/2020
WITH
I.A. No-201/2021
(With report dated 30.09.2021)
Chandni Chemicals Pvt. Ltd. Appellant
Versus
Uttar Pradesh Pollution Control Board
Govt. of NCT of Delhi Respondent
WITH
Appeal No. 15/2020
WITH
I.A. No-202/2021
Amelia Textiles and Chemicals Pvt. Ltd. Appellant
Versus
Uttar Pradesh Pollution Control Board Respondent
WITH
Appeal No. 16/2020
WITH
I.A. No-203/2021
Rukmini Chemicals Ltd. Appellant
Versus
Uttar Pradesh Pollution Control Board Respondent
WITH
Appeal No. 17/2020
WITH
I.A. No-204/2021
Heilgers Chem Pvt. Ltd. Appellant
Versus
Uttar Pradesh Pollution Control Board Respondent
1
WITH
Appeal No. 18/2020
WITH
I.A. No-205/2021
Waris Chemicals Pvt. Ltd. Appellant
Versus
Uttar Pradesh Pollution Control Board Respondent
Date of hearing: 12.11.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant(s): Mr. Santosh Krishnan, Advocate
Respondent(s): Mr. Pradeep Misra and Mr. Daleep Dhyani, Advocates for UPPCB
ORDER
1. This set of Appeals involves common issue of liability of the appellants for damage to the environment on account of illegal storage of chromium waste. Such storage led to pollution of ground water adversely affecting health of large number of inhabitants. The matter was dealt with by this Tribunal vide order dated 15.11.2019 in OA No. 985/2019, In Re :
Water Pollution by Tanneries at Jajmau, Kanpur, Uttar Pradesh, in the light of a report by Justice Arun Tandon, former Judge of Allahabad High Court, who was appointed to head a Committee to oversee control of pollution in River Ganga vide order dated 06.08.2018 in O.A No. 200/2014, M.C Mehta v. Union of India. The said matter was earlier dealt with by this Tribunal on transfer of W.P. (Civil) No. 3727/1985 by the Hon'ble Supreme Court.
The Tribunal passed orders dated 10.12.2015 and 13.07.2017 for different segments of River Ganga. Execution of the said orders is still being dealt with. Considering the report of Justice Tandon, the Tribunal directed 2 remediation of the chromium dump sites at Kanpur Dehat and Khan Chandpur and making provisions for health checkup and drinking water supply to the victims. The Tribunal also directed recovery of compensation on "Polluter Pays" principle and deposit of adhoc compensation by the State pending recovery from the generators of waste resulting in damage to the environment.
2. The matter was considered on 10.07.2020 as follows:
"1. This set of Appeals involves common issue of liability of the appellants for damage to the environment on account of illegal storage of chromium waste. Such storage led to pollution of ground water adversely affecting health of large number of inhabitants. The matter was dealt with by this Tribunal vide order dated 15.11.2019 in the light of a report by Justice Arun Tandon, former Judge of Allahabad High Court, who was appointed to head a Committee to oversee control of pollution in River Ganga vide order dated 06.08.2018 in O.A No. 200/2014, M.C Mehta v. Union of India. The said matter was earlier dealt with by this Tribunal on transfer of W.P. (Civil) No. 3727/1985 by the Hon'ble Supreme Court. The Tribunal passed orders dated 10.12.2015 and 13.07.2017 for different segments of River Ganga. Execution of the said orders is still being dealt with.
2. The Committee visited the site along with representatives from the NMCG, CPCB, UPPCB and the UP Jal Nigam. Noticing that the water from hand pumps/borewells was coloured and unfit for drinking, photographs of the same were taken and samples of the water were taken. It was also found that there was no source of potable water and the residents were required to purchase drinking water. Consumption of water was leading to diseases to the inhabitants and the animals.
3. After considering the report of the Committee, the Tribunal directed the Chief Secretary, Uttar Pradesh to forthwith ensure steps for supply of drinking water to the residents in the affected area, apart from taking other remedial measures in the light of the report of Justice Tandon in respect of Rania, Kanpur Dehat and Rakhi Mandi, Kanpur Nagar, around the area of Chromium dumps as per earlier orders of this Tribunal. The Tribunal also considered the Report of the Chief Secretary, UP that the Executive Officer, Nagar Panchayat, Akbarpur had been directed to supply drinking water through tankers in the affected areas around Khanchandpur, Rania, Kanpur Dehat. Principal Secretary, Rural Development, UP had been asked to establish Piped Water Supply (PWS) in the affected areas. The District Magistrate, Kanpur Dehat and Principal Secretary, Panchayati Raj, UP had been directed to seal identified handpumps/borewells. Potable water supply already available for Rakhi Mandi was to be augmented. The Principal Secretary, Medical and Health had been asked to organize health checkup camps and 3 to provide treatment. Direction had also been issued for in-situ safe disposal of Chromium dumps under the guidance of CPCB. UPPCB has identified six industries responsible for dumping of the waste. The said industries were closed in the year 2005. Environmental Compensation of Rs. 280.01 crore had been assessed to be recovered from the said industries. Closure order had been issued against 122 tanneries to prevent flow of effluents in the CETP which did not have sufficient capacity and also to prevent discharge in irrigation channel on 01.10.2019.
4. Finally the Tribunal directed as follows:
"11. It is undisputed that Chromium dumps containing toxic hexavalent Chromium (as mentioned in the report of the CPCB quoted above) has been in existence since 1976 and requisite steps have not been taken so far to dispose of the same as per mandate of law. Chromium is considered to be an environmentally hazardous element and classified as class-A human carcinogen.1 Hexavalent Chromium Cr (VI) is toxic and the World Health Organization (WHO) has classified it as carcinogenic and can cause stomach ulcers and cancers and severe damage to kidneys and liver. 2 The industries responsible for generating the said dumps were closed in the year 2005. The SPCB has assessed liability of environmental compensation of Rs. 280.01 crore only on 24.10.2019. There is no explanation why no such step was taken against the said industries earlier. We may note that this Tribunal has been issuing directions for shifting of the Chromium dumps but the State of UP has failed to do so. The direction of this Tribunal has already been quoted above from the order dated 22.08.2019 (para 24). Such directions were also issued earlier vide order dated 13.07.2017.
12. From the above, it is clear that there is failure on the part of State of UP and its authorities in disposal of the Chromium dumps which is hazardous to the public health and the environment and the proposal now mentioned in the report of the Chief Secretary, UP is for in-situ remediation though earlier stand of the State of UP was to shift the Chromium waste to the Treatment Storage and Disposal Facility (TSDF) for hazardous waste as per Hazardous Waste Management Rules, 2016. The fact remains that the problem has not been tackled for the last 43 years and it has resulted in contamination of ground water affecting the health and life of the inhabitants and fauna. Compensation has been assessed only in the year 2019 without it being clear whether there is a chance of actual recovery of the same. There is no explanation for earlier inaction by the State of UP and the UPPCB.
13. For this failure, under the Public Trust Doctrine, the State is liable to deposit the said assessed amount in an ESCROW account for restoration of environment and the 1 http://www.isca.in/rjcs/Archives/v7/i7/7.%20ISCA-RJCS-2017-024.pdf 2 https://www.who.int/water_sanitation_health/waterquality/guidelines/chemicals/chromium.pdf?ua=1 4 public health in the area. Such deposit may be made within one-month from today. The amount may be spent after preparation of an action plan by the District Magistrates and the SPCB with the approval of the CPCB. The ESCROW account will be operated by the concerned District Magistrate in terms of action plan. The State will be at liberty to recover the amount from the erring industries and/or from the erring officers who failed to take necessary action.
19. xxx xxx xxx i. The State of UP is held liable for failing to take any action for shifting of Chromium dumps at Rania and Rakhi Mandi which resulted in damage to the environment and the public health for the period from 1976 till date. The amount of compensation in this regard is held to be the amount assessed by the UPPCB to be recovered from the erring industries. Till such recovery, the State itself must pay the amount by way of transfer to an ESCROW account. The amount is to be utilized for restoration of the environment and the public health in the area in the manner mentioned earlier. The State of UP is at liberty to recover the amount from the erring industries or erring officers as already mentioned in para 13 above."
5. The five appellants out of the six industries referred to above (one is said to have been wound up) earlier approached this Tribunal against the order of the UPPCB fixing liability vide order dated 19.11.2019. The Tribunal observed that the appellants be heard by the UPPCB. Thereafter, the appellants were heard by the UPPCB and impugned order dated 28.05.2020 has been passed inter alia as follows:
"That prior to it, in the year 2009, the proposal for imposing fine for generating approximately 45000 metric ton hazardous waste stored illegally by the factory in question and other 06 factories in illegal manner in Khanchandpur Rania, Kanpur Dehat was given to competent officer for its disposal, but the Central Pollution Control Board for the remediation of hazardous waste vide its Letter No.B-29016/56(1)WMI/NCEF(4)/2018/10340 dated 31.03.2018 has calculated 62225 metric ton stored chromium waste in an uncontrolled manner vide Detailed Project (DPR) for Remediation of Chromium contaminated area at Rania, Kanpur Dehat under National Clean Energy Fund (NCEF).
That the Zonal Office, Kanpur Dehat had found the polluted ground water in Village Khanchandpur, Umran and Fatehpur of Rania, Kanpur Dehat and Arya Nagar, Rajender Nagar Chauraha of Roshnai and polluted ground water due to illegal dumping of Hexavalent Chromium. The factory in question whose per day 5 production was 3.0 metric ton, had illegally stored/dumped the Hexavalent Chromium containing hazardous waste in an insecure manner during the period of production. Out of total 62225 metric ton of hazardous waste stored/dumped in illegal manner, the contribution (calculated according to the production capacity of your factory) is 14.28 percent.
That in the Representation dated 10.02.2020 received from the factory in question, the Respondent has himself admitted that they have established and operated the factory which is generating Chrome Contaminated Waste at the abovementioned area. It has not been clarified in the said Representation that how and where the disposal of hazardous waste has been done by them and have not disposed off the hazardous waste in the abovementioned area in an illegal manner. That it is undisputed that 06 factories have been set up in Khanchandpur, Rania area which is generating chrome contaminated waste and the hazardous waste is being disposed off at the abovementioned area in an illegal manner, whose calculation has been done in the D.P.R. prepared by the Central Pollution Control Board.
That in Para No.17 of the Representation submitted by the factory, it has been submitted that a proposal has been given on 01.04.2009 for imposing fine towards illegal hazardous waste has been done for the year 2009 too. The factory has informed that in Para No.17 of its Representation that fine has been imposed on the basis of approximate quantity of stored chromium waste of 45000 metric ton, whereas, in the D.P.R. prepared by the Central Pollution Control Board through its Advisor, the quantity of abovementioned stored chromium waste has been calculated as 62225 metric ton.
That the Hon'ble National Green Tribunal has passed an order in O.A. No.200/2014 in the matter of M.C. Mehta Versus Union of India dated 07.08.2019 that ....(viii) Other directions including displaying water quality data in public domain and at prominent places, development of biodiversity parks, prohibition of river bed mining, remediation of chromium dumpsites in Uttar Pradesh, collection of compensation from violators and involvement of society including religious, charitable, social and educational institutions for preventing and remedying of River Ganga..... That apart from the above said order, the Hon'ble National Green Tribunal, the Board has directed to impose the amount of environmental compensation in various other cases.
That Hon'ble Justice Shri Arun Tandon, President of Monitoring Committee has given following order during the review meeting on 08.08.2019 in compliance of order passed in O.A. No.200/2014: -
"It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The committee directed CPCB to issue notice for levy 6 Environmental Compensation to the industries which have caused and area causing damage to the environment."
That the order was passed during the review meeting in the leadership of Chief Secretary, Government of U.P. on 17.10.2019 in compliance of order dated 27.09.2019 passed in O.A. No.985/2009 and O.A. No.986/2019 by the Hon'ble National Green Tribunal that "The proceedings for imposing of environmental compensation and its recovery shall be initiated on the basis of Polluter Pays Principle against the factories who have illegally dumped their chromium waste in Umran, Prasidhpur and Village Khanchandpur, District Kanpur Dehat." It has been mentioned in the minutes of meeting sent vide Letter No.N.G.T.335(2)/81-7-2019- 44(Writ)/2016 T.C. dated 19.10.2019 issued by Environment, Forest and Climate Change Department, Govt. of U.P. That the following environmental compensation amount has been imposed against M/s Chandni Chemicals Pvt. Ltd., Khanchanderpur, Rania, Kanpur Dehat while taking into consideration the guidelines issued in respect of calculation of environmental compensation in violation of Hazardous and other waste (Management and Transboundary movement) Rules, 2016, issued by the Central Pollution Control Board, New Delhi.
Environmental Compensation (EC)=Q x ERF x R Where Q is noticed or observed quantity (in ton) of hazardous or other wastes which have not been managed in compliance with various provisions of the Acts/Rules/Guidelines/ conditions of the authorization/ directions issued by CPCB/SPCB/PCC/MoEF&CC (barring procedural violations which have not caused environmental damage).
ERF: Environmental Risk Factor which is a number (as given in Table-1 below) denoting the increasing degree of risk to the environmental and human health due to the scenarios as given in the table: -
S. Violation ERF
No.
For For other
Hazardou Waste*
s Waste
1 When hazardous and other 1.5 0.3
wastes is disposed at
unauthorized place or handed
over or sold to unauthorized party
2 When treatment has not been 1.0 0.2
imparted, as required, but only
partial treatment has been given
(TDF/Actual user)
3 When product (derived from 1.0 0.2
hazardous or other waste) is not
confirming to prescribed
7
specification or is specified for
restricted use but sold in open
market against (in case of actual
user)
4 Wastes found stored beyond the 0.1 0.05
stipulated period (refer Rule 8 of
the HOWM Rules, 2008)
R= Environmental Compensation factor, which may be taken as Rs.30,000/-
That in view of the abovesaid facts, the environmental compensation amount of Rs.39,98,57,850/- (Rupees Thirty Nine Crores Ninety Eight Lacs Fifty Seven Thousand Eight Hundred and Fifty) imposed on the factory in question by the Board on 19.11.2019 on the basis of Representation dated 10.02.2020 submitted by the Respondent, there are no basis to change it or set it aside.
Therefore, it is directed that the factory namely M/s Chandni Chemicals Pvt. Ltd. Khanchanderpur, Rania, Kanpur Dehat should deposit amount of Rs.39,98,57,850/- (Rupees Thirty Nine Crores Ninety Eight Lacs Fifty Seven Thousand Eight Hundred and Fifty) imposed on it as environmental compensation without any further delay in the Bank Account No.701502010002104, IFS Code: UBIN0570150 of U.P. Pollution Control Board, maintained with Union Bank of India, Vaibhav Khand, Gomti Nagar, Lucknow and ensure to produce the proof of payment of said amount in the Zonal Office and Head Office of the Board."
6. In the present set of Appeals, the principal contention is that the appellants were closed in the year 2005 and till 2019, i.e., for 14 years, no action was taken. At present, five companies are existing only on paper without any commercial activity. It is submitted that the proceedings for compensation are time barred. There is no explanation for the long inaction by the authorities. At this stage no record is available. There is neither any basis to hold that the waste belonged to the appellants nor for fixing quantum thereof. Their assets, as per learned counsel, are less than 1 Crore collectively (subject to further verification by learned counsel). They thus have no capacity to pay the amount as on today. It is further stated that there were similar 18 other companies generating chromium in the area. It has not been verified as to whether they have also contributed to the chromium dumps in question.
7. We find it necessary to seek response of the UPPCB with reference to the above which may be furnished within two months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."
83. Thereafter, vide order dated 04.01.2021, it was found that liability of the appellants has to be in terms of the violations attributable to them which must be specifically determined by the State PCB after opportunity to the affected parties and further consideration. The operative part of the order is as follows:
"4. We however do not find that a case is made out for absolute interim relief. While it is true that the State PCB failed to take action when the violation of environment norms commenced and for 14 years after the companies claim to have been closed. Limitation under Section 15(3) of the National Green Tribunal Act, 2010 for intervention of this Tribunal is five years from accrual of cause of action. If no limitation is prescribed, action has to be taken within reasonable time. At the same time, Section 15(3) does not apply for action by the State PCB and reasonableness of period is to be determined from case to case. There is no absolute bar to delayed action in every situation. Inaction by the PCB should not result in irreversible damage to the affected victims. Absolute liability for continuing damage to the environment and public health cannot be ignored and "Polluter Pays"
principle has to be applied even if delay has been caused. The chromium dump in question at Kanpur Dehat is continuing to cause damage to the environment and the public health. The persons responsible for dumping such hazardous waste, which has contaminated the ground water to the detriment of the inhabitants, cannot disown responsibility for liability for such damage on the ground of inaction of the authorities or closing of the companies.3 Corporate veil may not be a defence to absolute liability for damage to environment.4 Of course, the liability of appellants has to be limited to the violations clearly attributable to them. The State PCB must determine such liability specifically, after due opportunity to the appellants, preferably within a period of three months and till this is done, further coercive measures may not be taken. It is made clear that any further proceedings will be subject to further orders."
4. In continuation of above, the matter was last considered on 24.08.2021 and it was found that specific liability had not been considered by the State PCB though six months had passed. Accordingly, the matter was deferred to enable State PCB to finalize the pending issue.
3See (1987) 1 SCC 395, M.C. Mehta v. Union of India & Ors., Para 31, (1996) 3 SCC 212, Indian Council for Enviro Legal Action and Ors. v. Union of India, Para 66, 67: (for Absolute Liability and application of "Polluter Pays" principle) and Hindustan Times v. Union of India (1998) 2 SCC 242, Para 20-22 for limitation not being applicable to such situations 4 (2016) 4 SCC 469, State of Rajasthan & Ors. v. Gotan Limestone Khanij Udyog Pvt. Ltd. & Anr., Paras 24 to 28 9
5. Report has been filed on 30.09.2021 mentioning that a Committee was constituted for the purpose and investigation was conducted against five defaulting units, other than the appellants. The revised decision said to have been taken is reproduced below:
" Sr. Name & Address of Waste Revised
No. industry Quantity Environmental
(MT) Compensation
(in Rs.)
1 M/s Amelia Textiles & Chemicals 2545.921 114566431
Pvt Ltd, 23, Khanchadpur, Rania,
Kanpur dehat.
2 M/s Cerulean Chemicals Pvt Ltd, 15275.524 687398586
Khanchadpur, Rania, Kanpur
dehat.
3 M/s Chandni chemicals Pvt Ltd, 4773.601 214812058
Khanchandpur rania, Kanpur
dehat.
4 M/s Heilger chem pvt ltd, 6334.125 285035616
vilichiraura raipur, rania, kanpur
dehat.
5 M/s Rukmani Chemicals Pvt Ltd. 8168.162 367567299
Rania, Kanpur dehat.
6 M/s Waris Chemicals Pvt 7518.382 338327196
Ltd. Khanchandpur, Rania,
Kanpur dehat
7 M/s Khanna Vivek Chemicals 1230.528 55373775
Pvt. Ltd. C30D, Sitel, Panki,
Kanpur Nagar
8 M/s Unicame India, Village Malo, 7637.762 343699293
GT Road, Chaubepur, Kanpur
Nagar
9 M/s IGS Chemical Pvtl Ltd, Plot 1782.144 80196502
No.211, BhawanipurMandhana,
Kanpur Nagar
10 M/s Kaleena Chemicals, Pvt. 3139.969 141298598
Village Malo, GT Road,
Chaubepur, Kanpur Nagar
11 M/s Rahman Industries Ltd, (Old 3818.881 171849646
Name Bharat Chemical Udhyog)
1002, 1003, Akrampur,
Chakarmpur, Unnao
TOTAL 62225 MT 280,01,25,000 "
10
6. It is further stated that the State PCB has issued show cause notices to enforce the above decision and further action will be taken after considering the response of the five units.
7. Though we are not taking up the matter for consideration on merits today in view of difficulty expressed by the learned Counsel for the State PCB, we find that due action has still not been taken in terms of earlier orders. It is necessary that a specific finding is recorded about the attributability of the default to particular units. The report does not show such scientific exercise for determining liability. The conclusion fixing liability must be backed by scientific data and record including Form No. 1 and Form No. 13 submitted by concerned units at the time of seeking consents. The stand of the concerned units needs to be duly analysed to ascertain its veracity. To the extent the liability is admitted therein, the same ought to be straightaway enforced, pending further consideration.
Let such an exercise be undertaken
8. The appellants have filed their objections to the report with applications for condonation of delay in filing such objections to the report of the State PCB dated 30.09.2021. IA Nos. 201/2021 to 205/2021 filed for condonation of delay in filing objections are allowed and objections are taken on record. Above observations are subject to consideration of the said objections.
List for further consideration on 19.01.2022.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM 11 Dr. Nagin Nanda, EM November 12, 2021 Appeal No. 14/2020 WITH I.A. No-201/2021 & other connected matters DV 12