National Green Tribunal
Amaravati Fly Ash Bricks Manufacturers ... vs Union Of India on 15 December, 2022
Item No. 2 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Original Application No. 327/2022
(I.A. No. 110/2022, I.A. No. 174/2022 & I.A. No. 256/2022)
Amaravati Fly Ash Bricks
Manufacturers Association ...Applicant
Versus
Union of India & Ors. ...Respondents
Date of hearing: 15.12.2022
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER.
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER.
Applicant: Mr. Gaurav Kumar Bansal, Advocate.
Ms. Nandita Dhar, Advocate (in I.A. No. 174/2022 and
I.A. No. 256/2022).
Respondents: Mr. K.M. Nataraj, ASG with Mr. Joshi Watsal, Advocate for
respondents no. 3, 4 and 6-MMSME, MoP and MoC
(through VC).
Mr. GIGI.C.George, Advocate for MMSME, MoP and MoC
with Mr. Satish, Director, Ministry of Power.
Mr. Kumar Rajesh Singh and Ms. Punam Singh,
Advocates for respondent no. 1-MoEF&CC
Mr. Mahfooz A. Nazki and Ms. Rajeswari, Advocates for
respondent no. 5-Dr. NTR Thermal Power Station.
None for respondent no. 2-Niti Ayog.
APPLICATION IS UNDER SECTION 18(1) READ WITH SECTION 14 OF
NATIONAL GREEN TRIBUNAL ACT, 2010
ORDER
1. The Amaravati Fly Ash Bricks Manufacturers Association has filed the present application under Section 18(1) read with Section 14 of the National Green Tribunal Act, 2010 for quashing of office order dated 22.02.2022 issued by respondent no. 4-Ministry of Power (MoP) and office order dated O. A. No. 327/2022 Amaravati Fly Ash Bricks Manufacturers Association vs. U.O.I & Ors.
-2- 16.03.2022 issued by respondent no. 5- Dr. NTR Thermal Power Station on the ground of being violative of order dated 18.01.2022 passed in O.A. No. 164/2018 (earlier O.A. No. 276/2013) titled as Ashwani Kumar Dubey Vs. Union of India and Others and for directing respondent no. 4 to issue office orders prohibiting dumping of ash into ash pond and to put fly ash depots at urban growth centers to cater to fly Ash needs of brick manufacturing industries.
2. Initially the application was filed against respondents no. 1 to 5 and vide order dated 14.11.2022, Ministry of Coal (MoC) was impleaded as respondent no. 6.
3. Notice of the application was served on the respondents. Replies were filed by respondent no. 4-MoP vide emails dated 04.08.2022 and 22.08.2022, by respondent no. 5-Dr. Narla TATA Rao Thermal Power Station vide email dated 22.08.2022 and by respondent no. 1-MoEF&CC vide emails dated 14.11.2022 and 09.12.2022.
4. Affidavit has been filed by MoP in the course of proceedings today, which is taken on record.
5. In the affidavit filed on behalf of respondent no. 4-MoP, it has been mentioned that the joint meeting of senior IAS Officers of respondent no. 1 and respondent no. 4-MoP was held on 14.11.2022 and they arrived at the following conclusions:-
"i. The Notification dated 31.12.2021 provides freedom to thermal power plants to exercise options in order to ensure 100% utilization of ash.
ii. The MoP's Advisory dated 22.2.2022 is in consonance with the Ash Utilization Notification dated 31.12.2021 issued by MoEFCC.
O. A. No. 327/2022 Amaravati Fly Ash Bricks Manufacturers Association vs. U.O.I & Ors.
-3- iii. The Advisory dated 22.02.2022 mentioned one of the approaches for 100% utilization of ash by thermal power plants. iv. The MoP advisory dated 22.02.2022 falls within the clause on 'mutually agreed terms' specified in para B(1) of Ash Utilization Notification, 2021."
6. In the affidavit, it has been mentioned that auction/competitive bidding of fly ash not been introduced for the first time and competitive bidding/auction of fly ash has been in practice for a very long time. The present Advisory dated 22.02.2022 has been introduced to make the process of fly ash disposal/utilization by Thermal Power Plants (TPPs) more systematic and to remove the malpractices. In the affidavit, it has also been prayed that "this Tribunal may examine the present matter only with regard to the environmental protection and the advisory of the MoP dated 22.02.2022 which deals with economic policy of the department and the same may not be interfered by it.
7. Due to complexities of environmental litigations requiring assessment to scientific data, this Tribunal was set up by enactment of the National Green Tribunal Act, 2010 by the Parliament, in view of directions of Hon'ble Supreme Court and recommendations of the Law Commission, to adjudicate upon civil cases involving question relating to environment arising out of enactments specified in Schedule I and to grant relief and compensation to the victims of pollution/environmental damage and direct restitution of property and environment damaged. This Tribunal has also been conferred appellate jurisdiction in respect of any direction issued under Section 5 of the Environmental (Protection) Act, 1986 besides order or decision made by the appellate authority or the State Government or other authorities, directions issued by the Pollution Control Board (PCB)/the Central Pollution Control Board (CPCB)/MoEF&CC and order granting or refusing to grant O. A. No. 327/2022 Amaravati Fly Ash Bricks Manufacturers Association vs. U.O.I & Ors.
-4- environmental clearance on or after commencement of the National Green Tribunal Act, 2010. Section 20 of the National Green Tribunal Act, 2010 mandates this Tribunal to apply the principles of sustainable development, the precautionary principle and the polluter pays principle while passing any order or decision or award.
8. The environment and economics are two sides of a coin. The economic policy ignoring environment may lead to disasters. Therefore, in our view, Sustainable Development can only be achieved by integrating Economics with Environment. While adjudicating upon civil disputes/appeals within its jurisdiction, this Tribunal is required to assess the impact of economic policies/activities/programs on environment for ensuring sustainable development. Generally speaking, there can be no objection to any method including sale of utilization and disposal of fly Ash so long as the same facilitates timely utilization and disposal of entire fly Ash generated and does not cause any hindrance/obstruction to utilization and disposal of the same. It may be added here that any such method cannot be arbitrary, discriminatory or unreasonable so as to offend the mandates of constitution of India embodied in Part III and Part IV thereof. Even though this Tribunal is not primarily concerned with enforcement of fundamental rights yet. This Tribunal is also under obligation to protect and enforce fundamental rights which are integral to/give rise to environmental rights and this Tribunal can also go into the questions of constitutional legality/validity of economic policy adversely impacting environment.
9. This Tribunal has, vide order dated 18.01.2022 passed in O.A. No. 164/2018 (Earlier O.A. No. 276/2013) titled as Ashwani Kumar Dubey Vs. Union of India and Others, already held that fly ash has adverse impacts O. A. No. 327/2022 Amaravati Fly Ash Bricks Manufacturers Association vs. U.O.I & Ors.
-5- on the environment and causes air, soil and water pollution and accordingly this Tribunal issued directions for taking of remedial measures for utilization/disposal of fly ash. The dispute raised before this Tribunal in the present case raises questions relating to environment arising out of the implementation of the enactments specified in Schedule I of the National Green Tribunal Act, 2010 and in view of the averments made in the application and replies submitted the following questions arise in the present case:-
i. Whether notification dated 31.12.2021 issued by MoEF&CC, respondent no. 5 contemplating utilization/disposal of legacy fly ash during period extending to ten years permitting storage thereof in fly ash dykes/ponds for the above said period is detrimental to environment and violative of the fundamental right to clean and healthy environment forming part of the right to life and liberty under Article 21 of the Constitution of India and the mandates of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.
ii. Whether the TPPs are liable to pay environmental compensation for air and water pollution caused by legacy fly ash stored by them in the ash dykes/ponds without taking appropriate remedial measures for utilization/disposal thereof. iii. Whether advisory dated 22.02.2022 issued by MoP and order dated 16.03.2022 issued by respondent no. 5 are not in consonance with notification dated 31.12.2021 issued by MoEF&CC and are violative of order dated 18.01.2022 passed by this Tribunal in O.A. No. 164/2018 (earlier O.A. No. 276/2013) O. A. No. 327/2022 Amaravati Fly Ash Bricks Manufacturers Association vs. U.O.I & Ors.
-6- titled as Ashwani Kumar Dubey Vs. Union of India and Others.
10. In view of the questions involved in the present case, respondent no. 1-MoEF&CC and respondent no. 4-MoP are directed to file additional affidavits with respect to following aspects covering all the TPPs run by coal/lignite by Governments (Central/State), Public Sector Undertakings (PSUs), Private:
a. Numbers of TPPs as on 31.12.2022.
b. The installed capacity (MW) as on 31.12.2022. c. Coal consumed (in million tons) during the period from 01.01.2022 to 31.12.2022.
d. Fly Ash generated (in million tons) during the period from 01.01.2022 to 31.12.2022.
e. Quantum of fly Ash (in million tons) utilized/disposed of during the period from 01.01.2022 to 31.12.2022 with mode of utilization/disposal.
f. Quantum of legacy fly Ash (in million tons) stored in Ash dykes/ponds upto 31.12.2022.
g. The period of storage of fly Ash in Ash Dykes/ponds in the past and reasons for prolonging future storage of fly Ash in Ash Dykes/ponds for period extending upto ten years.
h. Recommendations, if any, of any Committee appointed or study made for finding out methods of early utilization/disposal of fly Ash and assessing comparative cost of adverse impact of prolonged storage and advantages of early disposal for making informed policy decisions in this regard.
O. A. No. 327/2022 Amaravati Fly Ash Bricks Manufacturers Association vs. U.O.I & Ors.
-7- i. Quantum of legacy fly Ash (in million tons) utilized/disposed out of legacy fly Ash stored in Ash dykes/ponds of during the period from 01.01.2022 to 31.12.2022 with mode of utilization/disposal. j. Quantum of (a) fly Ash generated and (b) legacy fly ash (in million tons) disposed of by way of (i) bidding (tender/contracts mutually agreed upon between the TPP and the users), (ii) giving free of cost to the consumer with stipulation for bearing of cost of transportation by such consumer and (iii) given free of cost to the consumer with stipulation for bearing of cost of transportation by the TPP during the period from 01.01.2022 to 31.12.2022. k. The extent of land (in ha) occupied by the fly Ash dykes/ponds in all the TPPs in the country, the area of land (in ha) to be released (year wise) by utilization/disposal of legacy fly Ash and financial benefits to accrue from use/utilization for other purposes.
11. Additional affidavits, as directed above, be filed by respondents no. 1 and 4 within six weeks by email at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
12. Copy of Circular No. 15/2/2022-EC&ET-1 dated 06.12.2022 issued by MoP, GoI has been filed today whereby in pursuance of the direction of this Tribunal, all coal/lignite based TPPs have been informed to keep the implementation of MoPs Advisory dated 22.02.2022 in abeyance till the matter before this Tribunal attains finality.
13. I.A. No. 174/2022 has been filed by VTPS Fly Ash Brick Association, Vizag Area Fly Ash Building Material Manufacturers Association and Rayalaseema Fly Ash Brick Industries Association for impleading them (as O. A. No. 327/2022 Amaravati Fly Ash Bricks Manufacturers Association vs. U.O.I & Ors.
-8- co-applicants) in the main application and I.A. No. 256/2022 has been filed by Mr. Kumar Keshav vide email dated 17.10.2022 for impleading him as co- applicant and impleading Central Pollution Control Board (CPCB), Bihar State Pollution Control Board, NTPC-Corporate Office, NTPC-Barh STPP, NTPC Kahalgaon Power Station, NTPC Kanti Thermal Power Plant, NTPC Nabinagar and NTPC Barauni, NTPC Eastern Region as respondents.
14. Replies to I.A. No. 174/2022 and I.A. No. 256/2022 be filed by the original applicant and the respondents, if so desired, within one month by email at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
15. Vide order dated 25.08.2022 passed on Interim Application no. 110/2022, this Tribunal stayed operation of above said orders dated 22.03.2022 and 16.03.2022 which order shall continue to operate till further orders to the contrary as already directed.
16. List for further consideration on 07.02.2023.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM December 15, 2022 AVT