National Green Tribunal
K.K.Muhammed Iqbal, S/O. Kochu ... vs Kerala State Pollution Control Board, ... on 7 July, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 262 of 2017(SZ)
IN THE MATTER OF:
K.K. Muhammed Iqbal
Aged 42 years,
S/o. Kochu Muhamed
Residing at Kudilil House, Eloor East,
Udyogamandal P.O,
Ernakulam - 683 501.
...Applicant(s)
Versus
Kerala State Pollution Control Board
Pattom P.O., Thiruvananthapuram - 695 004,
Represented by its Chairman and Ors.
...Respondent(s)
For Applicant(s): None.
For Respondent(s): Mrs. V.K. Rema Smrithi for R1, R2.
Mr. D.S. Ekambaram along with
Mrs. P. Jayalakshmi for R3.
Mr. Hariraj M.R. for R4.
Judgment Pronounced on: 07th July 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.262/2017 (SZ) 07th July, 2022. Mn.
Page 1 of 68 Item No.1:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 262 of 2017(SZ)
IN THE MATTER OF:
K.K. Muhammed Iqbal
Aged 42 years,
S/o. Kochu Muhamed
Residing at Kudilil House, Eloor East,
Udyogamandal P.O,
Ernakulam - 683 501.
...Applicant(s)
Versus
1. Kerala State Pollution Control Board
Pattom P.O., Thiruvananthapuram - 695 004,
Represented by its Chairman.
2. The Environmental Engineer,
Kerala State Pollution Control Board,
Environnent Surveillance Centre,
FACT Quarters No. S-5, Udyogamandal P.O,
Ernakulam- 683501, Kerala.
3. Central Pollution Control Board,
Parivesh Bhawan, CBD - cum - Office Complex,
East Arju Nagar, Delhi - 110 032
Represented by its Chairman.
4. M/s. Sree Sakthi Paper Mills Limited,
Industrial Development Area, Edayar,
Muppathadom P.O, Ernakulam - 683 110.
...Respondent(s)
For Applicant(s): None.
For Respondent(s): Mrs. V.K. Rema Smrithi for R1, R2.
Mr. D.S. Ekambaram along with
Mrs. P. Jayalakshmi for R3.
Mr. Hariraj M.R. for R4.
Page 2 of 68
Judgment Reserved on: 21st April 2022.
Judgment Pronounced on: 07th July 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes.
Whether the Judgement is to be published in the All India NGT Reporter - Yes.
JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The above application was filed by the applicant, a resident of Eloor-
Edayar Industrial cluster, one of the 24th critically polluted clusters as identified by the Central Pollution Control Board and an environmental activist and a victim of uncontrolled industrial pollution. He had involved in environmental protection activities, creating environmental awareness in that area. Eloor-Adyar Industrial belt is spreading over the territories of Eloor Municipality and Kadungalloor Grama Panchayat on either sides of Eloor banks of river Periyar which accommodates about 280 industries. People in Kochi are depending on the river for drinking and other water use, but due to continues untreated discharge of effluents, it has become highly contaminated with industrial effluents.
2. It is alleged in the application that the 4th respondent - M/s. Sree Sakthi Paper Mills Limited is an industrial establishment which has been operating on the eastern bank of Periyar in Edyar Industrial Area, manufacturing Kraft paper since 1993. As per the integrated Consent to Operate issued by the 1st respondent, its production capacity was 180 Tonne Per day (TPD). The 3rd respondent/Central Pollution Control Board had identified 17 categories of highly polluting industries which requires special attention for environmental monitoring. Pulp and Paper industry having production capacity above 30 TPD was enlisted in 17 categories of highly polluting industries. The 4th respondent industry is falling under 17 Page 3 of 68 category industries, as its production capacity is 180 TPD. The environmental standards prescribed under Rule 3 of the Environment (Protection) Rules, 1986 identify pulp and paper industries having production capacity above 24,000 Ton Per annum as large scale units. As the annual production capacity of 4th respondent is about 70,000 Ton, it should be considered as a large scale industry and standards prescribed for large scale paper and pulp industry under Schedule - I of the Environment (Protection) Rules, 1986 is applicable to them.
3. It is further alleged in the application that the 4th respondent industry is all along operating in violation of consent conditions issued by the Pollution Control Board from time to time and in defiance of the directions issued by the appropriate authorities since its inception. The unit was served with several show cause notices and direction for closure since it was found violating the provisions of the Consent and provisions of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. Now, the industry was not in operation since it was served with a closure direction issued by the Kerala State Pollution Control Board under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 for violating the provisions of the said Act and the consent conditions issued by them and the closure direction dated 24.05.2016 issued by the 2nd Respondent/Kerala State Pollution Control Board was produced as Annexure - A1. Annexure - A1/Closure direction was challenged by the 4th respondent before the Hon‟ble High Court of Kerala by filing Writ Petition as W.P.(C) No.18558 of 2016 under Article 226 of the Constitution of India. Closure direction issued under section 33A of Water (Prevention and Control of Pollution) Act, 1974 is an appealable order before the National Green Tribunal under section 33B(c) of the Water (Prevention and Control of Pollution) Act, 1974 read with Section 16 (c) of the National Green Tribunal Act, 2010, but the 4th respondent had invoked the writ jurisdiction of the Hon‟ble High Court of Kerala stating that there was no alternate remedy provided. The applicant‟s parent organisation viz., „Janajagratha‟ got impleaded in the writ petition and sought dismissal of the writ petition on the ground that the 4th respondent is left with statutory remedy of an appeal before the Page 4 of 68 National Green Tribunal and the specific direction of the Hon‟ble Apex Court in Bhopal Gas Peedith Mahila Udyoga Sangathan & Ors. Vs. Union of India & Ors. (2012) 8 SCC 326 that the matters covered under the provisions of the National Green Tribunal Act and/or in Schedule - I to the National Green Tribunal Act, 2010 can be instituted only before the National Green Tribunal and the copy of the I.A. No. 6813/2016 filed by „Janajagratha‟ was produced as Annexure - A2.
4. At the time of issuing Annexure - A1/Closure direction and during the pendency of the writ petition, the 4th respondent was operating under Consent to Operate issued to the unit by the 1st Respondent on 06.04.2016 which is having validity upto 30.06.2016 and the same was expired and the copy of the Consent dated 06.04.2016 was produced as Annexure - A3. The Consent issued after expiry of the previous Consent dated 25.03.2013 which expired on 30.06.2015 was produced as Annexure - A4. Annexure- A3/Consent dated 06.04.2016 was granted on submission of Bank Guarantee for Rs.24 Lakhs and subject to the conditions stipulated in the previous Annexure - A4/Consent. While granting Annexure - A3/Consent, a specific condition was also imposed that full compliance of consent condition Nos. 3.2, 3.3, 3.4, 3.9, 3.11, 4.1(11), 4.6, 4.1 (iii), 4.1 (IV), 4.4, 4.7, 5.2, and 6.1 of Annexure-A4/Consent shall be achieved before 30.06.2016 and failure on which, a Bank Guarantee executed shall be forfeited and consent should not be extended.
5. The 2nd respondent field a detailed counter affidavit in the Writ Petition before the Hon‟ble High Court of Kerala inter alia showing the status on environment pollution control measures by the 4th respondent as per consent conditions and as per the directions issued against the unit from time to time by the Kerala State Pollution Control Board. A true copy of the counter affidavit dated 31.05.2016 submitted by the 2nd respondent before the Hon‟ble High Court of Kerala in W.P.(C) No. 18558/2016 was produced as Annexure - A5.
6. During the pendency of the Writ Petition, the 4th respondent submitted before the Hon‟ble High Court of Kerala that they had brought down the production and effluent generation and they were not discharging Page 5 of 68 effluents into river. Therefore, the Hon‟ble High Court of Kerala had directed the 2nd respondent to conduct inspection of the unit and submit a report about the status of pollution control facility and assessment on water consumption, effluent generation and discharge of the unit. The 2nd respondent had inspected the unit on 10.06.2016 and submitted the report dated 13.06.2016 before the Hon‟ble High Court of Kerala, where it was reported that no significant improvement was seen in terms of pollution control measures from the previous inspection. The existing effluent treatment system was not at all sufficient to reduce the BOD and other parameters to the prescribed level. It was also reported that total capacity of all the collection tanks existing in the present Effluent Treatment Plant (ETP) comes around 1000 m3 only which is adequate for keeping not more than two days‟ effluent generation. The unit was discharging inferior quality of effluent intermittently into river. The copy of the report submitted by the 2nd respondent before the Hon‟ble High Court of Kerala was produced as Annexure - A6.
7. The Writ Petition was ultimately dismissed by the Hon‟ble High Court of Kerala for want of jurisdiction, since the 4th respondent had an appeal remedy before the National Green Tribunal relying on the direction in Bhopal Gas Peedith Mahila Udyoga Sangathan & Ors. Vs. Union of India & Ors. (2012) 8 SCC 326, evidenced by Annexure - A7. According to the applicant, as per the contentions raised in the counter affidavit/Annexure- A5, issuance of Annexure-A3/Consent on 06.04.2016 was illegal, as they had not complied with the conditions imposed in the Annexure-A4 previous consent.
8. The Local Area Environment Committee (LAEC) constituted under the direction of Hon‟ble Supreme Court Monitoring Committee (SCMC) for conducting environmental audit in the industrial units located in Eloor- Edyar inspected the 4th respondent company during the period 2004 - 2005 and the Local Area Environment Committee (LAEC) found that the unit was not having consent under the Water (Prevention and Control of Pollution) Act, 1974 on the pretext of their claim to have zero discharge effluent treatment system and was found discharging untreated effluent into river Periyar and on land. During the occasions of its visits, Local Page 6 of 68 Area Environment Committee (LAEC) found that the effluent treatment system that claims to have zero discharge is not operating at all which is evidenced by Annexure - A8 contained in Page Nos.157 to 165.
9. In Annexure - A8/Report, it was revealed that it was not complying with the conditions and they were pumping hot raw effluents directly into open land and they were not maintaining the standards prescribed for treated effluents under the Environment (Protection) Rules, 1986 as Biological Oxygen Demand (BOD) should not exceed 30mg/l, but the sample analysis of effluent collected from the 4th respondent unit by the Local Area Environment Committee (LAEC) showed that the Biological Oxygen Demand (BOD) level was alarmingly high in the range of 2040mg/l to 3100mg/l. The Local Area Environment Committee (LAEC) had recommended the State PCB to assess the capacity and efficiency of the Effluent Treatment Plant (ETP) available and to allow the unit to run and take such quantity of production that generate effluent proportionate to the capacity of the existing Effluent Treatment Plant (ETP). The Effluent Treatment Plant (ETP) make zero discharge system functional within 45 days on 16.06.2005 and the unit should be allowed to take full production only after it establishes effective zero discharge system. They were stacked raw material waste paper in open ground and ash generated from the incineration of plastic wastes as well as boiler ash were deposited on open ground letting it into the river during the rainy season. Waste plastic materials were brought to another compound on the rear yard of the factory and dumped in open area without confining to any particular room with a roof protecting it from being disposed into the Periyar River. The Local Area Environment Committee (LAEC) also recommended the unit to segregate storm water drains and effluent drains and to meter the intake of water and process requirements. From the status report contained in Annexure-A5 submitted by the Environmental Engineer, the recommendations of Local Area Environment Committee (LAEC) made earlier in the year 2005 like zero discharge effluent facility, installation of meter for effluent and intake of water, disposal of plastic waste, rain water harvesting, disposal of Effluent Treatment Plant (ETP) sludge and incinerator ash as per the Hazardous and Other Wastes (Management and Page 7 of 68 Transboundary Movement) Rules, 2016 were not complied with by the unit even after the lapse of more than ten years.
10. The Central Pollution Control Board (CPCB) has power under Section 18(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974 as well as the Air (Prevention and Control of Pollution) Act, 1981 to issue direction for abatement of pollution being caused and that has to be implemented by the State PCB. The 4th Respondent industry is being one of the highly polluting industries falling under 17 categories and non- compliance of the directions will amount to breach of environmental laws by the 4th respondent.
11. The 3rd respondent issued reminders to the 1st respondent on 31.10.2014 and 24.12.2014 requiring action taken report to Central Pollution Control Board (CPCB) before 10.01.2015 and thereafter, Central Pollution Control Board (CPCB) had issued further direction under Section 18(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974 as well as the Air (Prevention and Control of Pollution) Act, 1981 to the 1st respondent, fixing a deadline as 02.03.2015 for installation of Online Monitoring System, evidenced by Annexure- A9 and reproduced below:
(1) All the industries will submit bank guarantee of 100% of the cost of online monitoring systems (emission and effluent whichever applicable) for ensuring timely installation of online monitoring systems by 30.06.2015 and such bank guarantee will be discharged if they install system before 30.06.2015;
(2) If the industries will not install the online monitoring system by 30.06.2015 their consent to operate of the industry shall be withdrawn and bank guarantee shall be forfeited evidenced by Annexure - A9.
12. The 4th respondent issued a letter to the 1st respondent informing that no further extension of time will be given after 30.06.2015 and withdrawal of Consent to Operate along with forfeiture of Bank Guarantee of non- complying units will be the only option to the State PCB, evidenced by Annexure - A10.
13. The National Green Tribunal also in its Order dated 15.12.2014 in the matter of Krishnan Kant Singh Vs. M/s. Hindustan Cola Beverages Pvt. Ltd., Varanasi held that "it seems appropriate introduction of online monitoring Page 8 of 68 system for the industries need to be explored and if it is possible to provide for joint online monitoring system." The Central Pollution Control Board on exploration of online monitoring device in other countries came to a conclusion that online monitoring devices are essential for improving compliance, as the conventional monitoring system not able to capture violations on regular basis, but the 4th respondent industry did not install the online monitoring system on any of the timelines provided which is evidenced from Annexure - A5 and A6.
14. On 24.07.2015, the Central Pollution Control Board (CPCB) had issued a show cause notice to the 4th respondent for closing down the unit and it has not complied fully with the direction with respect to installation of online emission and effluent monitoring system by 30.06.2015. The 4 th respondent was directed to submit documentary evidence regarding status of installation of online effluent monitoring system and the status on connectivity for submission of online 24 x 7 monitoring data to the State Pollution Control Board (SPCB) and Central Pollution Control Board (CPCB) within 15 days which is evidenced by Annexure - A11.
15. Section 5 of the Environment (Protection) Act, 1986 empowers the Central Government to issue directions to any person, officer or any authority and such person shall be bound to comply with such directions and that power includes power to closure, prohibition or regulation of any industry, operation or process. Ministry of Environment and Forest, Government of India vide Notifications dated 27.02.1996 and 10.07.2022 had delegated the powers vested under Section 5 of Environment (Protection) Act, 1986 to the Chairman, Central Pollution Control Board (CPCB) to issue any directions to any industry or any local body or any other authority. The 4th respondent had not responded to the Annexure - A11/Show Cause Notice issued and not submitted any documentary evidence regarding status of installation of online effluent monitoring system. The Annexure - A11/Show Cause Notice issued was published in the newspaper evidenced by Annexure - A12. No stringent actions were taken regarding this aspect. Various Consent orders were produced by the applicant as Annexure to the application. Since the 4th respondent had not complied with the conditions, the Kerala State Pollution Control Board had earlier Page 9 of 68 issued directions and various show cause notice issued and stringent directions were taken. In spite of the various violations, without conducting any further enquiry, consents were renewed by the Kerala State Pollution Control Board. They operated the industry in violation of the Water (Prevention and Control of Pollution) Act, 1974 as well as the Air (Prevention and Control of Pollution) Act, 1981 and provisions of the Environment (Protection) Act, 1986 and few such action was taken by the authorities. In the decision of the Hon‟ble Gujarat High Court in M/s. Gujarat Ambuja Proteins Limited & Ors. Vs. Dahyabhai Kalubhai Solanki & Anr. (1997 Cri LJ 3473), the Hon‟ble Gujarat High Court observed that "None can afford to forget that the pollution is a monster sitting right on the chest of the public life, sucking the lives of human beings, animals, birds, plants-all sorts of global existence which depend for survival/flourish and prosper upon unpolluted air and water. In this view of the matter, proceedings of such types cannot be permitted to the protracted, and no learned Magistrate/authorities can be party to delay unless itself want to get arraigned for helping accused for offences under the Pollution Act. As a matter of fact, the prosecution under the Pollution Act must be given utmost and "A" priority from day to day. This is the only way whereby the Pollution Law can be made meaningful, its objects realised and public is spared from the agony of contaminated atmosphere created by air and water pollution."
16. The applicant also narrated the penal action provided under the Water (Prevention and Control of Pollution) Act, 1974 as well as the Air (Prevention and Control of Pollution) Act, 1981. Renewal of the Consent by the Board authorities without complying with the earlier direction was illegal. On the basis of the complaints made by the authorities, inspection was conducted and on that basis the further direction under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 evidenced by Annexure - A24.
17. Thereafter, on 23.05.2016, joint inspection was conducted to ascertain as to whether the conditions imposed were complied with and on satisfaction that it was not complied with, Annexure - A1/Closure direction issued by the Board. The unit had no intention to resume the operation after installing various pollution control measures as directed to be implemented. The applicant was under the apprehension that the 4th respondent was likely to shift the plant and machineries from the premises Page 10 of 68 of the 4th respondent at Edayar industrial area without disposing the plastic waste alarmingly heaped on open ground leading to river and the Effluent Treatment Plant (ETP) sludge, incinerator ash and other wastes as per Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016. The 4th respondent unit had a Duplex Board Unit at Kanjirappilly, Chalakkudy which had been wound up, against which closure order was issued under Section 5 of the Environment (Protection) Act, 1986 by the 3rd respondent directing not to resume the factory. Annexure - A25 was produced to show the pathetic condition of dumping of plastic garbage in the property. It is highly necessary to have a joint inspection team comprising of Central Pollution Control Board (CPCB) officials and Senior Officers of Kerala State Pollution Control Board and a Senior Scientist of Central Pulp and Paper Research (CPPRI), Saharanpur, Uttar Pradesh to make an assessment of the situation and suggest remedial measures after considering the following aspects:-
a. Assess the actual water requirement of the unit for manufacturing 180 TPD Kraft papers.
b. Assess the actual quantity of water consumed by the unit since Annexure - A18 consent dated 26.03.2007 till the date of closure of the company. c. Assess the capacity and efficiency of the ETP now available in the unit. d. Assess the daily quantity of effluent that can be recycled and used by the unit as power the existing ETP system.
e. Assess the daily quantity of effluent that discharged by the unit as per the existing ETP system.
f. Assess and report the status of hazardous waste such as ETP sludge and incinerator ash and used oil and prepare an estimate for its safe disposal as per HW Rules. g. Assess the quantity of plastic wastes stored on open land by the unit and prepare an estimate for its safe disposal in accordance with Environmental standards and laws. h. Prepare water balance and material balance of the unit i. Verify the legal documents and invoice of waste paper consignments imported by the unit along with the reject plastic wastes stored in the rear yard of the unit to ascertain whether it used to import plastic wastes in the guise of raw materials. j. Prepare Process flow chart including the potential points and/or sources of generation of liquid, solid and gaseous pollutants/wastes d. Quantities of liquid, solid and gaseous pollutants/wastes generated per day, as per the records maintained by the industry. k. Assess Effluent and Sewage Treatment facilities provided in the industry and their adequacy and efficiency based on the records maintained by the industry and the critical observations recorded by the team.
l. Assess Disposal method(s) and Discharge point(s) of treated effluent and sewage.
18. Since no effective steps were taken by the authorities, the applicant has no other remedy except to approach this Tribunal seeking the following reliefs:-
Page 11 of 68"(a) Direct the 4th respondent to remove the plastic garbage heaped in their open land beside the river Periyar forthwith and the respondents 1 and 2 may be directed to ensure removal of plastic waste;
(b) Constitute a joint expert committee with officials of Central Pollution CPCB and senior official and two representatives of applicant to assess the status of pollution control measures in the 4th respondent unit and to fix their environmental liability for removing plastic wastes and hazardous sludge;
(c) Direct the 2nd respondent to assess the total effluents discharged by the industry during its operation for the last 5 years and the 4th respondent may be directed to pay fine at the rate of 10 Paise per litre for the material discharged by the company for the last 5 years into Periyar River Protection Fund;
(d) Direct the respondents to ensure that all the consent conditions and directions issued by Board vide Annexure -A3 and A23 are complied with by the 4th respondent before resuming its operation;
(e) Direct the respondents to ensure that 4th respondent installs online continuous emission and online continuous effluent monitoring system in the unit in compliance of Annexure - A9 before it resumes operation/process;
(f) Direct the respondents to ensure that 4th respondent installs water intake meters and energy before they resume its operation;
(g) Direct the respondents to ensure that there is no by-pass prior to the ETP or subsequent to the ETP in the premises of the 4th respondent unit and no connectivity by underground or any other drain or storm water drain on the boundary of the industry to the manufacturing processes and there shall be dedicated line to ETO which shall be operative 24 x 7 without default, before they resume its operation;
(h) Direct the joint expert committee of Respondents 1 to 3 to conduct a material balance audit and trial test to assess the efficiency and adequacy of the ETP before the 4th respondent is permitted of applicant and his two representatives;
(i) Direct disciplinary action against the 1st respondent for non compliance of Annexure - A9 direction issued by CPCB thereby violating section 18 (1)(b) of the Water (Prevention and Control of Pollution) Act, 1974 as well as Air (Prevention and Control of Pollution) Act, 1981;
(j) Direct disciplinary action against the officers who have issued consent to operate vide Annexure A13 dated 26.07.2010, Annexure - A1 dated 25.03.2013 and Annexure - A3 dated 06.04.2016 to the 4th respondent violating the provisions of Water Act;
(k) Direct the 1st respondent to withdraw the content to operate issued to 4th respondent, a 17 category industry and to forfeit 100% cost of providing online effluent monitoring system in the 4th respondent industry in compliance of Annexure - A23 direction;
(l) Direct the 1st respondent to forfeit the bank guarantee of Rs.24 Lakhs furnished for security for compliance of conditions stipulated in Annexure - A4 consent before 30.06.2016;
(m) Declare that Annexure - A24 order issued by 2nd respondent lifting Annex-A23 his own direction issued under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 is illegal and ultravires."
19. The 3rd respondent filed counter affidavit narrating the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 regarding the constitution of Central Pollution Control Board and the State Pollution Control Board and the powers given under the said Acts. The State Pollution Control Board is bound to implement the directions issued by the Central Pollution Control Board. The Central Pollution Control Board in collaboration with the Indian Institute of Technology (IIT), Delhi had carried out a comprehensive Page 12 of 68 environmental assessment of 88 prominent industrial clusters based on Comprehensive Environmental Pollution Index (CEPI) criteria. Out of identified 88 prominent industrial clusters, 43 industrial clusters in 16 States having Comprehensive Environmental Pollution Index (CEPI) score of 70 and above were identified as „Critically Polluted Industrial Clusters‟. Further, 32 industrial clusters with Comprehensive Environmental Pollution Index (CEPI) scores between 60 & 70 were categorised as „severely polluted areas‟. According to the environmental assessment carried out, the industrial clusters in the Greater Kochi area had been identified as one of the „critically polluted area‟ which includes Eloor - Edayar and Ambalamugal industrial clusters (constitute 17.4 km2 or 2.8% of Greater Kochi area in the country with Comprehensive Environmental Pollution Index (CEPI) score of 75.08. The Ministry of Environment, Forests & Climate Change (MoEF&CC), Government of India had imposed temporary moratorium on consideration of new projects/expansion of existing projects for Environmental Clearance (EC) to be located in Critically Polluted Areas, vide Office Memorandum dated 13.01.2010. There were 83 red categories (including 17 categories) out of which, 79 industries had fallen within the industrial clusters of Greater Kochi Area (GKA). In order to minimise the pollution caused by industries, industry specific action plans were prepared for implementation by the State Pollution Control Board. Based on the progress in implementation of action plans by the respective industries had resulted in decrease of Comprehensive Environmental Pollution Index (CEPI) Score from 75.08 to
57. 39 in 2011. Accordingly, the Ministry of Environment, Forests and Climate Change (MoEF&CC) vide Office Memorandum No. J11013/5/2010-IAII (I) dated 23.05.2011 lifted the moratorium imposed on new development projects in Greater Kochi Area, subject to certain conditions and the Comprehensive Environmental Pollution Index (CEPI) score was 57.94 in 2013. The Pulp and Paper industries having the production capacity upto 24000 MT per annum and classified as Small Pulp and paper industry and above 24000 MT were classified as Large Pulp and paper industry and respective discharge and emission standards were notified under Schedule - I of the Environment (Protection) Rules, 1986 vide S.O. 844 (E) dated 19.11.1986. The 4th respondent - M/s. Sree Page 13 of 68 Shakti Paper Mills was engaged in manufacturing of Kraft paper with production capacity of 180 TPD (i.e. 65700 TPA). As per the Consent to Operate orders issued under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 to M/s. Sree Shakti Paper Mills, Edyar by the Kerala State Pollution Control Board in the year 2007, 2010 & 2013, the unit was classified as „Medium Scale‟ with production capacity of 180 TPD (i.e. 65700 TPA). Subsequently, in the Consent/Authorisation renewed vide No. PCB/HO/EKM/ICO-R/04/2016 dated 06.04.2016 with validity upto 30.06.2016, the unit was classified as „Large Scale‟. The Central Pollution Control Board had issued modified directions under Section 18(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 to all State Pollution Control Boards/Pollution Control Committees including Kerala State Pollution Control Board regarding Harmonization of Classification of Industrial Sectors under Red/Orange/Green/White Categories and to submit the action taken report and the action taken report from Kerala State Pollution Control Board was yet to be received by the Central Pollution Control Board. The 4th respondent unit had to ensure and comply with all the consent conditions issued by the Kerala State Pollution Control Board. The pulp and paper industries (30 TPD and above) were identified as one of the 17 categories of highly polluting industries which have been discharging pollutants directly or indirectly into the ambient water and air having potential threat to cause adverse effect on the environment and for strengthening the monitoring and compliance through self-regulatory mechanism, online source emission and effluent monitoring systems needs to be installed and operated by the industries on "Polluter Pays" principle. The Central Pollution Control Board had explored installation of online monitoring device in other countries and come to the conclusion that the online monitoring devices were essential for improving compliance, as the conventional monitoring system was incapable of capturing violations continuously at all times. So, they had issued directions on 02.03.2015 under Section 18(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 in the matter of pollution control in 17 category of Highly Polluting Industries, Page 14 of 68 CETPs and Common Hazardous & Bio-medical waste incinerators regarding self-monitoring of compliance to all the State Pollution Control Boards and Pollution Control Committees in the country with certain direction which were reproduced by the applicant in the application itself. So, we are not re-extracting the same.
20. It is further contended that the Central Pollution Control Board had communicated a letter (B-29016/04/06/PCI-I) to all State Pollution Control Boards/Pollution Control Committees dated 29.05.2015 stating that "no further extension of time period will be given and State Pollution Control Boards/Pollution Control Committees had no option except that action like withdraw of Consent to Operate and forfeit of bank guarantee of those industries who had not taken any action". They had issued directions dated 24.07.2015 under Section 5 of Environment (Protection) Act, 1986 for installation of Online Effluent and Emission Monitoring System to 246 pulp and paper industries identified across the country including the 4threspondent - M/s. Sree Sakthi Paper Mills Limited and directed the industries to comply with the following directions:-
i) The unit shall submit documentary evidence regarding status of installation of online effluent monitoring system.
ii) The unit shall submit the status on connectivity for submission of online 24X7 monitoring data to State Pollution Control Board/Pollution Control Committees and Central Pollution Control Board.
iii) The unit shall submit the details as per the Annexure - I through
a) Email id: [email protected]
b) Uploading the data on the link provided on Central Pollution Control Board website (www.cpcb.nic.in) and
c) By speed post tot the Member Secretary, Central Pollution Control Board.
21. It is further contended that in response to the show cause notices, the unit vide letter dated 23.11.2015 and 09.12.2015 informed the Central Pollution Control Board that steps were already taken for implementation and procurement of online monitoring system and requested to allow one more month for completion of installation of online system, evidenced by Annexure - R3(a). The Central Pollution Control Board had issued notice to the non-responsive industries including the 4th respondent - M/s. Sree Sakthi Paper Mill Ltd., Edayar through leading newspapers dated 01.01.2016 stating that: "... the listed industries should respond immediately but not later than within a week‟s time from the publication Page 15 of 68 of this notice failing which the industry shall be liable for closure for non- compliance for the direction under Section 5 of Environment (Protection) Act, 1986." As per the information received from the Kerala State Pollution Control Board, the 4th respondent - M/s. Sree Sakthi Paper Mills Limited closed all its operation after closure direction issued by the Kerala State Pollution Control Board dated 24.05.2016 and presently, the unit was not in operation. The Central Pollution Control Board had also issued closure direction under Section 5 of the Environment (Protection) Act, 1986 dated 29.03.2016 to other unit of the 4th respondent - M/s. Sree Sakthi Paper Mills Limited, (Duplex Board), located at Kanjirapally, Pariyaram, Chalakudy, Thrissur, Kerala directing the unit to remain closed and not to resume their manufacturing operations till installation and commissioning of Online Effluent Monitoring System, evidenced by Annexure R3(b). The units were expected to maintain the standards prescribed under the Environment (Protection) Act, 1986 and the standards of 100 CuM/Ton of paper produced, but the recent consent condition of the effluent generation from the unit is 9000 Cu M/day i.e., 50 CuM/Ton of paper produced. The Central Pollution Control Board was monitoring the surface water quality in the entire country under National Green Water Quality Monitoring Programme (NWMP) through respective State Pollution Control Boards/ Pollution Control Committees and there are eight (8 Nos) of water quality monitoring stations established in the River Periyar. The water quality data of eight National Green Water Quality Monitoring Programme (NWMP) stations of river Periyar for the year 2015 was tabulated as follows:-
Water Quality of Eight NWMP Stations of Periyar River Stations Alwaye- Kalady Sewage Muppa- Pathalam Kalama- Purapa- KWA Eloor (18) Discharge thadam (2334) ssery llikavu Intake Parameters (17) Point (2333) (2335) (2336) Aluva, (1338) Ernakulam pH 6.5-7.3 6.6-8.6 5.9-7.3 6.6-7.3 6.4-7.2 6.-7.2 6.3-7.3 6.5-7.4 Dissolved 2.6-6.5 2.8-8.0 2.5-7.4 5.4-7.3 3.6-6.5 4.2-6.7 5.4-7.4 0.2-7.3 Oxygen (mg/L) BOD 0.9-3.3 0.3-9.8 0.1-2.8 0.4-2.0 0.5-3.3 1.1-4.2 0.6-3.5 0.1-4.0 (mg/L) Total 26-1100 17-920 22-460 27-920 21-540 34-790 21-700 27-240 Coliform (MPN/100 mL) Page 16 of 68
22. The above table shows that the water quality of River Periyar is not complying with respect to the BOD at most of the locations. The water quality falls under „Class - C‟ category of drinking water standards with respect to Total Coliform. So, they prayed for accepting their contentions and passing appropriate orders.
23. The 4th respondent filed their counter statement contending that the application was not maintainable and they denied most of the allegations made of causing pollution to Periyar River on account of Eloor - Edayar Industrial area and non - compliance of the conditions imposed in they should be in operation. It was a public limited company engaged in the activity of manufacturing corrugated paper (Kraft Paper) by recycling used paper boxes and waste paper by recycling used paper boxes and waste paper. The company was established in the year 1992 in Edayar Industrial Area and they had provided employment for more than 500 persons both directly and indirectly. They are paying substantial amount to the employees‟, taxes to the Governments and dividend to the Shareholders during the past 24 years. Unfortunately, the manufacturing process of the company was often mistaken as a pollution causing activity due to lack of awareness about the manufacturing process adopted by the company.
Unlike the several hundreds of industries functioning on the banks of Periyar River, no chemicals or harmful substances produced in their factory, either as any main product or as any by-product. The raw materials required were waste paper and used cartons for re-cycling the same to make kraft papers. They had given the details as to how the manufacturing process was involved. The manufacturing activity of the company did not result in generation of any toxic fuels, harmful chemicals or hazardous waste and it actually was an environmental friendly process. The waste products are the plastic strips found in the empty cartons used as a raw material and the metallic strips and stapler found in the cartons. The metallic clips are segregated and sold to scrap dealers. The plastic wastes contained from the cartons were burnt in the incinerator established in the premises in tune with the directions of the Kerala State Pollution Control Board. In the manufacture of paper from virgin pulp made of wood and bamboo harmful chemicals like Sulphuric Acid, Hydrogen Page 17 of 68 Peroxide, bleaching powder of various grades, different types of dyes, caustic soda, ammonia etc. are used in huge quantities in addition to the larger quantity of water. On the other hand, the 4th respondent company was only subjecting the waste paper to the process of harmless recycling and kraft paper was manufactured. The water used was purified and used again. The comparatively, environment friendly, pollution free activity of the company had been unjustly blamed for causing pollution. The company had filed a representation dated 14.11.2016 before the 3rd respondent, evidenced by Annexure R4(A), specifically drawing the attention of the Chairman of the 3rd respondent to the error in the classification of the paper mills who manufacture kraft paper by recycling waste paper, without using the chemicals along with other paper mills manufacturing paper from virgin pulp also as highly polluting industry. The 4th respondent requested for the modification of the schedule in accordance with the nature of the activity carried on by the company. They had denied the allegation for causing pollution on account of their activities. The direction to close the factory was issued on 27.06.2016 without finding out the cause of pollution and the industries which caused pollution. They had filed the Writ Petition before the Hon‟ble High Court of Kerala for challenging Annexure - A1/Order. Annexure - A5/Counter affidavit also reflect the wrong impression of the 2nd respondent carried about the manufacturing activity on by the 4th respondent. They had taken all steps for abating the pollution and the applicant could not have any grievance regarding their activity. Categorising the 4th respondent unit as one of the 17 categories of highly polluting industries was questionable. Though several notices had been issued by the Kerala State Pollution Control Board and they were complied with by the 4th respondent and only on satisfaction that they had issued subsequent renewal orders. They had also suspected some influence of hands on the 4th Respondent on issuing notices through the 2nd respondent. Even after the closure of the unit, the pollution level in Periyar river has not changed, evidenced by Annexure - R4(B) and Annexure - R4(B1) newspaper reports dated 07.09.2016. It is seen from the report that instances of death of fish occurred on 14 occasions due to the pollution caused to River Periyar, evidenced by Annexure - R4(C)/Newspaper report in Malayala Manorama daily dated Page 18 of 68 24.09.2016 and Annexure R4(D)/Newspaper report in the same newspaper dated 25.09.2016. Plastic waste is being used for establishment of roads and if it is causing an environmental damage that would not have been adopted by the Government. So, they denied the various allegations made in the application and prayed for dismissal of the application.
24. Earlier, this application was filed before the Circuit Bench at Kochi and numbered as Original Application No.409 of 2016 and after the Circuit Bench, Kochi was non-functional, the same as renumbered as Original Application No. 262 of 2017 (SZ) before this Bench.
25. Vide Order dated 29.09.2016, this Tribunal had observed that since the 4th respondent unit had been closed and the only grievance was regarding the question as to how the waste plastic which was kept in the premises of the 4th respondent and also on the banks of the river Periyar had to be disposed of. So, the learned counsel appearing for the applicant was directed to make necessary representation to the Kerala State Pollution Control Board to take appropriate action against the 4th respondent for removal of the same, failing which, remove the same through the concerned Municipality/Panchayat and realise the amount from Bank Guarantee furnished by the 4th respondent lying with the Kerala State Pollution Control Board.
26. When the matter was pending before the Circuit Bench by order dated 05.08.2016, the Senior Officer of the Central Pollution Control Board (CPCB) and the Kerala State Pollution Control Board (KSPCB) were directed to inspect all the industries situated on the banks of the river Periyar to ascertain the quantum of sewage and effluents generated as well as the efficacy of the Effluent Treatment Plant (ETP) and also whether the effluents being discharged into the river were within the prescribed parameter and to submit the report.
27. Respondents No. 1 and 2 had filed a status report dated 22.12.2016, wherein they had stated that as per the representations made by the applicant dated 21.11.2016 and also as per the orders of the Circuit Bench, Page 19 of 68 Kochi of this Tribunal dated 29.09.2016, they had taken the following steps:-
"(i) M/s. Sree Sakthi Paper Mills Limited, the 4th Respondent in the OA was directed to remove the heap of plastic wastes in their premises. Copy of the letter is enclosed as Annexure - R1(a).
(ii) The Secretary, Kadungallor Grama Panchayat was directed to carry out the appropriate action to remove the plastic wastes. Copy of the letter is enclosed as Annexure - R1(b)
(iii) The General Manager, District Industries Centre was asked to intervene in the matter. Copy of the letter is enclosed as Annexure - R1(c).
(iv) The Revenue Divisional Officer was asked to intervene in the matter. Copy of the letter is enclosed as Annexure - R1(d).
(v) The Branch Manager, Federal Bank, Aluva was directed to transfer the back guarantee amount to the Kerala State Pollution Control Board. Copy of the letter is enclosed as Annexure R1(e)."
28. The Central Pollution Control Board also filed an affidavit dated 03.02.2017 along with the inspection report showing the nature of industries functioning and their conclusions arrived at on the basis of the inspection and also limitation/constraints of the study.
29. Since there was no sitting, no effective orders have been passed. The matter was taken up by this Tribunal on 20.01.2020 and on that day, considered the pleadings and various orders passed earlier and the reports of the Central Pollution Control Board (CPCB), and also considered the submissions made by the learned counsel appearing for the 4th respondent that the unit had been closed and they had stopped the manufacturing of paper and they had changed the name as M/s. CELLA SPACE LIMITED"
and converted their business to logistics business and they had already removed 4,067 tonnes of plastic waste dumped in their factory premises and only 600 tonnes were available in that area and they were taking steps to remove the same, for which, the 1st respondent had given time up to 28.02.2020.
30. After considering the various submissions and the various reports, this Tribunal had appointed a Joint Committee comprising of (1) a Senior Officer or Scientist from the Central Pollution Control Board, (2) Kerala State Pollution Control Board and (3) National Environmental Engineering Research Institute (NEERI) to inspect the industrial clusters in question and to submit a status and action taken report regarding the things mentioned in the order dated 05.08.2016 and 29.09.2016 in respect of Page 20 of 68 efficiency of ETP, CETP and also sewage generation in the industrial clusters of Greater Kochi Area, whether they were discharging trade effluents in to the river Periyar including the standard and the present water quality of the river Periyar and also the efficacy of the treatment system and zero liquid discharge facility system had been provided by the industrial unit, so as to provide the recycling of the treated waste without discharging into the same in the river Periyar and if so, what was its efficacy. If any damage had been caused to river Periyar on account of the violation of the industrial units, the committee was directed to suggest the remedial measures to be taken for making the river Periyar Pollution free and they were also directed to consider the question of damage caused to environment caused on account of the violation committed by the 4th respondent unit for the non - disposal of the plastic waste generated by them and keeping it in their premises for a long period and assess the environmental compensation as per the guidelines issued by the Central Pollution Control Board (CPCB).
31. This case was directed to be posted along with O.A. No. 396 of 2013 which was dealing with pollution caused to river Periyar. The matter was considered by the Tribunal along with O.A. No. 396 of 2013 (SZ), O.A. No. 242 of 2016 (SZ) on 23.09.2020 and this Tribunal had expressed its displeasure since proper reports were not filed and for the inaction on the part of the State Government in rendering the support and directed the committee to file a progress of the study conducted by them and directed the Chief Secretary, State of Kerala and the Principal Secretary to Government for Irrigation and Local Administration to render all help to the committee in carrying out the directions of this Tribunal to conduct the study and submit the report.
32. Vide Order dated 19.01.2021, this Tribunal had considered the earlier orders passed and considered the status report submitted by the Kerala State Pollution Control Board dated 19.01.2021 and extracted in Para (5) of the order and also considered the various other issues raised by the Chairman, Kerala State Level Monitoring Committee, the case was adjourned for enabling the Kerala State Pollution Control Board to file a report as per earlier orders in this case and this was delinked from other Page 21 of 68 cases, as the limited question to be considered in this case is very narrow when compared to the question to be considered in other two connected matters viz., O.A. No. 396 of 2013 (SZ) and O.A. No. 242 of 2016 (SZ).
33. Again, the matter was taken up on 29.01.2021 and this Tribunal had considered the interim report dated 27.01.2021 filed by the Kerala State Pollution Control Board and extracted in Para (5) of the order and then granted time to the Kerala State Pollution Control Board and also to the committee to file their respective reports. The matter was again taken up on 24.02.2021 and on that day, this Tribunal had considered the report submitted by the Joint Committee dated 22.02.2021, received on 24.02.2021 and extracted in Para (3) of the order and granted time to the committee to determine the extent of depth of the plastic contamination in soil in the property of the 4th respondent unit and granted time to the committee to submit the report.
34. Thereafter, the matter was taken up on 23.08.2021 and on that day, this Tribunal had considered the additional report submitted by the committee dated 07.07.2021, e-filed on 08.07.2021 and extracted in Para (7) of the order wherein, they have stated about the work done by them and the difficulties were explained by them for taking sample and without getting the report, they expressed their inability to submit the final report and wanted further time for that purpose. So, further time was granted to the committee to submit the report.
35. Again, the matter was taken up on 07.12.2021 and on that day, this Tribunal had considered the Joint Committee report dated 17.11.2021, e- filed on 18.11.2021 and extracted in Para (3) of the order which reads as follows:-
"REPORT FILED BY THE COMMITTEE CONSTITUTED BY THE HONOURABLE TRIBUNAL AS PER THE ORDER DATED 20.01.2020 IN THE ABOVE APPLICATION About the industry M/s. Sreesakthi Paper Mills Ltd., IDA, Edayar, Ernakulam.
M/s. Sreesakthi Paper Mills Ltd., was a craft paper manufacturing unit situated in the Industrial Development Area (IDA), Edayar, Ernakulam in the state of Kerala. The industry was established in the year 1992 with one unit (Unit-1) and later expanded production by establishing another unit (Unit-2) in the year 2006. The industry was engaged in the manufacturing of craft paper by recycling waste paper and cardboard boxes. The production capacity of unit-1 at the time of establishment Page 22 of 68 was 900-950 tons per month and KSPCB had granted permission for discharging 100 KLD of treated effluent into river Periyar with specific conditions. The following consents to establish (CTE)/ consents to operate (CTO) were issued by KSPCB for applications received from Sreesakthi Paper Mills Ltd.
Consent was issued in the year 2007 during its renewal for increasing the production capacity of unit I to 1500 tons/month (TPM) CTE was issued to unit 2 in the year 2006 for a production capacity of 70,000 tons per annum (TPA).
Consent was also issued in the year 2007 to establish an incinerator with a capacity 400 Kg/day for disposing the plastic waste generating from the process CTO was issued to unit 2 in 2007 (with capital investment 20 crores and production capacity 70,000TPA) with the consent condition to attain zero discharge before 31/12/2007.
CTE for expansion was issued for the installation of 22TPH power boiler for Captive Power Plant (CPP) of 48 MW/day capacity on 29/11/2011 with a validity up to 31.08.2014. The water consumption rate of the CPP was 20 KLD.
The raw materials used in the manufacturing of craft paper were old cartons boxes and waste paper which were collected from both local market and imported from different countries. The consented water consumption limit imposed on the industry was 300KLD. The pollution control measures/ devices provided by the industry during its operation phase were:
ETP for the treatment of trade effluent generated Cyclone dust separator with 30 m stack provided for CPP boiler Wet scrubber cum quenching facility to the 30m stack connected to the incinerator Acoustic enclosure with adequate stack height for DG sets The industry was situated in 8.75 acres of land and about 81 cents of land were utilized for dumping plastic waste, incinerator ash generated from the processes. The solid waste generated from the unit contained steel clips, stapler pins, plastic wastes including plastic labels, plastic laminations, sacks and other plastic wastes. The other wastes generated from the industry were ETP sludge, ash from the captive power plant and incinerator. Waste oil and incinerator ash generated from the industry were brought under the ambit of hazardous wastes. The waste management were done as per the following:
ETP sludge was disposed through the common TSDF M/s. KEIL, Kochi Incinerator waste was dumped in the unit premise/plot. The plastic wastes generated were disposed through the conventional type incinerators installed and later it was sent to co-processing in cement units. Later the plastic waste was disposed to TSDF, M/s. KEIL, Kochi as per the order of the Hon‟ble High Court in the matter of WP(C) 5803/2017.
As per the directions of Honorable High Court of Kerala, the plastic wastes were removed from the site. The quantum of plastic waste removed and disposed to the common TSDF (M/s. KEIL, Kochi) is enclosed herewith and marked as ANNEXURE R1(a). The reclaimed area is in the process of converting to a parking space for warehouse operated M/s. Cella Space currently established in the location for industrial/ warehousing/ logistics purposes. Consent to Establish (PCB/ESC/IC/CE- 50/2019) was issued to the above unit on 09.11.2019 (valid up to 23.10.2024) and subsequently consent to operate (PCB/ESC/CO/IC-64/2020) was issued on 24.11.2020 (valid up to 31.10.2025). The area in which plastic waste was dumped is now in the process of converting into a parking area of M/s. Cella Space after the removal of dumped plastic wastes.
3.0 Joint Committee meetings and site investigations The first joint committee meeting and site inspection was carried out on 19.02.2020.Page 23 of 68
In the meeting, decision was taken to collect soil sample to assess the extent of plastic wastes still present in the site. On 19.02.2021, the Joint Committee inspected the site and collected soil samples from the site where plastic was previously dumped. On the day of inspection, it was observed that plastic was spread over the plot and site preparation activities were already initiated to convert the plot into a parking area for trucks. On investigation, it was found that plastic wastes were still present in the soil on the surface and within 1 feet depth. Surface/ top soil samples were collected for the analysis of plastic (ANNEXURE-PHOTOGRAPHS). Soil samples were segregated by progressive sieving of soil samples and were sent to Central Institute of Petrochemical Engineering and Technology (CIPET) on 20.02.2021 for analysis. Weight by weight percentage of plastic present in the soil samples collected is summarized in table: 1.
Table 1: Quantification of plastics in soil samples
S. Total sample Weight of Plastic content
Sample ID % Plastic
No weight (Kg) Plastic (mg) (mg/ Kg)
1 SR1 1.1 90,000 81,818 8.18
2 SR2 2.03 10,000 4926 4.9
3 SR3 1.6 5,000 3125 3.1
4 SR4 1.1 90,000 81,818 8.18
Qualitative assessment of samples using Fourier Transform Infrared Spectroscopy (FTIR) and Differential Scanning Calorimetry (DSC) for confirming the presence of plastic in the soil was carried out. As per the analysis of soil samples, the soil is contaminated with Poly Ethylene (PE), Poly Propylene (PP) and Polyethylene Terephthalate (PET) particles/ crumbs. Details of the analysis is given in table: 2 and the analysis result from CIPET is enclosed herewith and marked as ANNEXURE R1(b). The analysis of soil samples confirmed the presence of plastic particles/ crumbs in the soil samples taken from the plot.
Table 2: Qualitative assessment/ identification of plastics in soil samples S.No Sample ID Test Method Result 01 SR-1 (Coarse Particles) ASTM D 3418 Polyethylene (PE) Polypropylene (PP) & Polyethylene Terephthalate (PET) ASTM E1252 02 SR-1 (Fine Particles) Polyethylene Terephthalate (PET) Once, the presence of plastic waste in the soil was confirmed, the Joint Committee carried out the second phase of soil sampling in the areas adjacent to the Periyar River where site preparation activities was yet to start. Soil samples were collected up to three feet depth at 5 different locations using powered earth augur driller. Photographs of the same is enclosed herewith and marked as Annexure R1(c). The soil samples collected were assessed for the extent of plastic wastes by progressive sieving and separation of plastic materials. The macro plastics present in the soil samples was quantified on the basis of percentage (weight/weight). The details of soil investigation are presented in table:
3. Average plastic quantity estimated in the soil sample is 21883.65 mg/ Kg of soil.
Table 3: Assessment of plastics in the soil samples collected from the plot Samples Bulk Total Weight % Sampling Density Weight of Plastic Plasticsin Depth Coordinates (Kg/m3) (Kg) Plastic (mg/kg) the ID (mg) Samples (Ft) Page 24 of 68 SS1 1 10° 04' 44.0" N 810.5 0.54 2818 5218.51 0.52 SS1 3 76° 18' 53.6"E 953.7 0.56 NIL NIL NIL SS3 1 10° 04' 43.9" N 808 0.42 5395 12845 1.28 SS3 2 76° 18' 53.4"E 360.5 0.25 35000 140000 14 10° 04' 43.8" N SS4 1 942.4 0.64 NIL NIL NIL 76° 18' 53.4"E SS5 1 10° 04' 43.4" N 564.6 0.40 NIL NIL NIL SS5 3 76° 18' 52.6"E 572.15 0.26 NIL NIL NIL 10° 04' 44.9" N SS6 3 1010 1.4 23808 17005.71 1.7 76° 18' 53.7"E Average quantity of plastic in the soil 21883.65 mg/ Kg Based on above sampling, analysis and assessment, it is confirmed that three types of plastic materials (PE, PP and PET) are still present in the soil as a contaminant. The plastic still present in the site is quantified as illustrated in table: 4.
Table 4: Estimated total weight of plastic remaining in the site S.No Particulars Calculations 1 Total contaminated area= 78 cents 3156.66 m2 (78 x 40.47) 2 Average depth 3 ft = 0.91 m 3 Total volume of contaminated soil 3156.66*0.91=2872.56 m3 4 Average Bulk density 752.73 kg/m3 5 Weight of the contaminated soil 2872.56 x 752.73 (Volume x Average Bulk density) (21,62,262.09 Kg) 6 Average Plastic Content in the soil 21883.65 mg/Kg 7 Estimated total weight of the plastics 47.318 Tons 6.0 Assessment of environmental damage/ cost of plastic pollution One of the directives of the honourable NGT is to consider the question on damage to environment caused on account of the violation committed by Sreesakthi Paper Mills Ltd for non-disposal of the plastic waste generated by them and keeping it in their premises for a long period. Unmanaged or poorly managed plastic wastes have serious implication on the environment. Environmental damages due to specific anthropogenic activities have far reaching effects on various habitats and ecosystems and also impair human‟s consumer & non-consumer values. Environmental damages significantly vary in terms of the damage‟s space, scope, level and magnitude. Due to this, significant indices or markers of environmental damage differ considerably and one of the initial steps of environmental damage assessment is to determine the unique indices or markers which help assess the actual damage. However, due to the complicated conception of ecosystems, it would be a daunting task to understand and assess the extent of environmental damages. In most of the cases, the baseline indices and markers required to envisage the extent of environmental/ ecological/ social costs are not available for the accurate assessment of environmental damages and often the assessment has to be done on 'notional' basis under the ambit of „polluter pays principle‟.
Page 25 of 68As per the European Parliament study (The environmental impacts of plastics and micro- plastics use, waste and pollution: EU and national measures, 2020), the inherent economic impact due to plastic waste is very vast, with an estimated economic damage to the global marine ecosystems surpassing € 11 billion. The study also put forth that, in Europe, € 630 million are spent every year to clean plastic waste from coasts/ beaches, while the failure to recycle costs to the European economy is € 105 billion. According to WWF (World Wide Fund for Nature) International‟s report (Plastics: The costs to society, the environment and the economy; 2021), the impacts of plastic pollution, generate significant costs for society and these costs are not accounted in plastic‟s market price. The lifetime cost of the plastic produced in 2019 will be at least US$3.7 trillion (+/- US$1 trillion) and is more than the GDPof India.
Since the introduction of plastic and its industrial production, the volumes of plastics produced have outpaced those of almost any other material. However, the characteristics that render plastics highly desirable are also those that render them ubiquitous and persistent in the environment, as a large fraction of plastics is designed to be discarded almost immediately after their use. Studies shows that, only 9% of all the plastic ever manufactured has been recycled and most of the plastic waste ends up in landfills and, ultimately, in the environment. Most plastics do not degrade, instead, they slowly fragment into smaller particles, referred to as micro plastics, and, further disintegrate into nano-plastics. These plastic particles, have profound detrimental consequences for ecosystems, biota, and the environment, but also for the economy and human health.
As per the European Union study for Policy Department for Citizens' Rights and Constitutional Affairs Directorate-General for Internal Policies (The environmental impacts of plastics and micro-plastics use, waste and pollution: EU and national measures, 2020), approximately two-thirds of all plastic ever produced has been released into the environment, where it continues to impact ecosystems as it fragments and degrades. Only a small fraction of plastic waste is recycled and plastic recycling is considered as an expensive process owing to the inherent complexities of collection, transportation, processing, and re-manufacturing. These considerable costs in combination with the low commercial value of recycled plastic on the one hand and the low cost of virgin polymers on the other seldom renders the recycling process profitable and often requires huge subsidies to sustain.
Improper handling/ disposal of plastic waste/ process sub-products/ raw materials leads to the formation of primary micro plastics and over the period of time secondary micro plastics are generated from the plastic litter/ waste dumps/ or by the abrasions in landfill or dumpsites. In the case of plastics, the term "end of life" does not equate to "end of impact" and the waste plastic materials persist and pollute long after their intended use. Now it is well established that there is no such thing as "end of life"
for plastics and depending on how plastic is handled, it may pose a significant threat to the environment and to the climate when it reaches the waste phase of its life- cycle.WWF International in a report (Plastics: The costs to society, the environment and the economy; 2021) provided an overview on the quantifiable and non-quantifiable costs imposed by the plastic lifecycle. As per the report, the cost imposed by plastic on account of market production cost and waste management are currently quantifiable. However, the cost of greenhouse gas (GHG) emissions from plastic and unmanaged plastic wastes have both quantifiable and unquantified elements. But the cost of plastic imposed on health are currently unquantified.
In this specific matter, it is the issue of unmanaged plastic waste on the banks of river close to the estuarine/ brackish water ecosystem and the quantifiable cost elements are:
Lost ecosystem service costs of estuarine/ coastal/ marine plastic pollution paid for indirectly by governments and all other stakeholders, given the environmental and economic consequences.
Revenue reductions from fisheries and tourism as a result of estuarine/ marine plastic pollution.
Clean-up costs, containment, remediation activities and restoration cost.
The unquantifiable cost of unmanaged plastic waste is on account of lost ecosystem service costs of plastic pollution on terrestrial ecosystems (any ecosystems which are Page 26 of 68 found on land including rainforests, deserts, and grasslands). In this case, this aspect may not be significant since, the polluted/ contaminated site is in notified industrial area. However, there are chances of spillage and carry forward of plastic particles from the site to the river, then to the estuarine/ brackish water system and ultimately to the marine environment.
In the WWF International‟s report on „Plastics: The costs to society, the environment and the economy; 2021, the GHG emissions from end-of-life processes per tonne of plastic waste is estimated as ~0.53 tonnes of CO2e(Carbon dioxide equivalent) per tonne of waste generated. Associated cost of carbon from GHG is estimated as $ 100.00 per tonne. In another landmark study, the social cost of carbon associated with GHG emissions for India is estimated as $ 86.00@ per tonne of CO2.The plastic waste management cost is estimated as $ 125.68* per tonne of waste as per the WWF‟s report. All the cost estimates are based on the 2019 US consumer price index (CPI). To adopt the above cost factors, it is required to relate the above to the Indian consumer price index. It is suggested that the cost estimates of various factors/ elements based on US CPI shall be related in terms of corresponding Indian CPI. The US consumer price index as on July, 2021 is 273.012 point (https://tradingeconomics.com/united- states/consumer-price-index-cpi) and corresponding CPI of India was 162.9 points(https://tradingeconomics.com/india/consumer-price-index-cpi). For the assessment of potential environmental damage/ cost of plastic pollution, the above cost factors are adjusted to Indian CPI and are summarized in table: 5.
Table 5: Cost elements adjusted to Indian CPI for the assessment of damage.
No. Cost element Estimated cost/ ton Adjusted to Indian CPI 1 Cost of proper plastic waste $ 125.68* $ 74.991 management 2 GHG emissions from end-of-life $ 100.00* $ 59.661 plastic waste.
3 Social cost of carbon emission $ 86.00 @ India specific cost @ 4 Unmanaged plastic waste: $ 3300.00# $ 1,969.031 Ecological cost CPI: Consumer Price Index 1 Cost adjusted to Indian consumer price index (CPI) as on July 2021.
* Plastics: The costs to society, the environment and the economy; published in September2021 by WWF - World Wide Fund for Nature (Formerly World Wildlife Fund), Gland, Switzerland. @ Country level social cost of carbon, Katharine Ricke, Laurent Drouet, Ken Caldeira andMassimo Tavoni, Nature Climate Change, Vol 8, October 2018, https://doi.org/10.1038/s41558-018-0282-y # Global ecological, social and economic impacts of marine plastic. Beaumont N J, Margrethe Aanesen, Melanie C. Austen, Tobias Börger, James R. Clark, Matthew Cole,Tara Hooper, Penelope K. Lindeque, Christine Pascoe, Kayleigh J. Wyles. Marine Pollution Bulletin, Volume 142, 2019, Pages 189-195, ISSN 0025-326X, https://doi.org/10.1016/j.marpolbul.2019.03.022 Based on the above cost factors, indicative environmental damage/ cost of plastic pollution was estimated as summarized in table: 6. The quantifiable cost factor with respect to the market price of plastic waste was not considered as the plastic waste dumped is a waste by- product of kraft paper making process and hence the market price of plastic is not imposed. Cost of plastic pollution on account of health is unquantifiable due to lack of baseline data and relevant health data. The clean-up/ containment cost on account of unmanaged plastic waste may be waived as the proponent is developing a concreted parking space in the site and if the construction is properly engineered to contain the remnant plastic in the site. Revenue reduction with respect to unmanaged plastic waste was not quantified as the site is in notified industrial area and due to lack of relevant data on revenue reduction from tourism and fisheries. The environmental damage/ cost Page 27 of 68 of plastic pollution on account of GHG emissions from end-of-life plastic waste has been estimated to be $ 59.661, however, India specific social cost of carbon was put forth ($ 86.00 @) recently and it is more appropriate to impose the social cost of carbon for the estimated GHG emissions in this scenario.
Table 6: Indicative Environmental Damage Cost due to plastic pollution No. Cost element Unit cost Estimated quantity Damage/ Cost adjusted to Indian CPI 1 Cost of proper plastic $ 74.991 47.32 Tons $ 3,548.53 waste management Rs. 2,61,455.45 2 Social cost of carbon $ 86.00 @ 47.32 Tons (0.53 $ 2156.85 on account of GHG tons of GHG/ ton of Rs. 1,58,916.38 emissions from end- plastic waste). Total of-life plastic waste. GHG emissions 25.08 tons.
3 Unmanaged plastic $ 1,969.031 47.32 Tons $ 93,174.50
waste: Ecological cost Rs. 68,65,097.13
Cost of plastic pollution/ environmental damage: Rs. 72,85,468.96 US $ Exchange rate Rs. 73.68 as on 20-09-2021.
CPI: Consumer Price Index 1 Cost adjusted to Indian consumer price index (CPI) as on July 2021. @ Country level social cost of carbon, Katharine Ricke, Laurent Drouet, Ken Caldeira andMassimo Tavoni, Nature Climate Change, Vol 8, October 2018, https://doi.org/10.1038/s41558-018-0282-y.
The estimated environmental damage/ cost of plastic pollution was limited to the phase after the removal plastic waste from the site. The environment damage cost of historic plastic pollution due to waste plastic dump in the site and the river is not considered as relevant data on the quantity of waste dumped and the quantum of plastic reached river and adjoining estuary is not available.The joint committee is of the opinion that the environmental damage/ cost of plastic pollution owing to the accumulation of plastic waste in the site from the inception of the industry could not be assessed due to paucity of relevant data. There are no records on the daily generation of plastic waste, the quantum of waste incinerated, daily dumping rate in the dump site and the possible carry over to the river during monsoon period. Since the requisite data are not available, the committee has not ventured in to the environmental damage footprint of the past accumulation/ dumping of plastic waste in the site adjacent to the river.Relevant data and baseline indices are lacking for the quantification of revenue loss/ reduction on account of fisheries and tourism in the affected river and estuary. Thus the cost of plastic pollution with respect to the above are not quantified.
The proponent is in the process of converting the site as a parking lot with impervious concrete/ bitumen surface with compound wall. However, if the proposed construction can be done under the supervision of expert agency and other competent authorities with the objective of containing the contaminated soil and prevent further flow of plastic contaminated soil into the river, the calculated environmental damage/ cost of plastic pollution due to remnant plastic in the site can be utilized/ earmarked for this activity. Authorities have to review the engineering aspect and has to make sure that the construction will secure the site and prevent further flow of contaminated soil into the river without disturbing the natural drainage pattern of the site and without compromising river‟s flood plain zone.
It was also reported that the incinerator ash was disposed in the dump site for several years and there could be possible contamination of soil on account of heavy metals and other organic contaminants. A detailed study is warranted on the contamination status of soil with respect to heavy metals and other organic contaminants as per the schedule II of HWM Rules, 2016 or as per the Guidance Document for Assessment and Remediation of Contaminated Site in India, issued by MoEF & CC. During the investigations, the project proponent carried out works in the site and the Joint Committee could not carry out extensive soil sampling to assess the extent of Page 28 of 68 contamination in the site. The COVID-19 pandemic situation also hindered the sampling and inspections. It was learnt that the project proponent has carried out a third party study on the possible contamination in the site through the CSIR institute NIST, Thiruvananthapuram.
Though the above proposed damage calculation was discussed in detail by the committee, representative of NEERI has insisted on recording his views that in consideration of the facts and limitations, most attainable solution is to impose penalty rather than environmental compensation on the unit by the statutory bodies KSPCB/ CPCB in terms of violation caused for unplanned and negligent waste management in its premises. The NEERI representative is also of the opines that the aspect of environmental damage shall be quantified scientifically in terms of facts and data and only after that, the damage cost calculation part may be proceeded. The detailed note by the NEERI representative on his views on the limitations to the existing scenario on environmental damage assessment for the alleged plastic waste storage is enclosed herewith and marked as Annexure R1(d) and the para wise justifications to the note by the other committee members are enclosed herewith and marked as Annexure R1(e).
7.0 Assessment of Environmental Compensation (EC) As per the records available, the industry violated consented conditions on several occasions and there were several complaints raised against the industries on the grounds of pollution especially about the heaped up plastic garbage/ dump. The joint committee proposed to assess the environmental compensation (EC) from the date of issue of first notice for the removal of plastic dump. First notice was served by KSPCB to the unit on 29.11.2016 for removing the heaped plastic garbage from the premises and removal of plastic waste initiated by M/s. KEIL was on 01.09.2018 only after the intervention of Honourable High Court of Kerala. Thus number of days of violation after serving notice and the first action on removing the waste are 641 days. M/s. KEIL completed the removal of plastic dump on 01.03.2020 and the number of days between the serving notice and completion of transportation/ disposal of plastic waste to common TSDF are 1188 days (Table: 7). Even after the notice, the industry has not taken any action on the notice served on them by KSPCB. The actual removal happened only after the intervention of Honourable High Court, hence the number of days of violations shall be from the first notice to completion of removal, which is 1188 days. Violations prior to the notice served on 29-11-2016 are not considered as the exact period of violations are not available.
Table 7: Number of days of violation
Year Month Days
2016 November 1
2016 December 31
2017 January - December 365
2018 January - December 365
2019 January - December 365
2020 January 31
2020 February 29
2020 March 1
No. of days of violation 1188
Environmental compensation (EC) was assessed based on the CPCB guidelines using the following formula. The descriptors used in the formula and values considered for the descriptors are summarized in table: 8.
EC (Rs.) = PI x N x Rx S x LF
Table 8: EC descriptors and values considered
Page 29 of 68
Components Description Value considered
PI Pollution Index of industrial sector Red category (PI = 80)
N Number of days of violation took place 1188 days
R Rupee factor (100-500) Industrial area (R factor 100)
S Scale of operation (Small/ Medium/ Large) Large (S = 1.5)
LF Location factor Industrial area (LF = 1)
The EC (Rs.) is worked out as = 80 x 1188 x 100 x 1.5 x 1 = 1,42,56,000.00The estimated EC for a violation period of 1188 days is Rs. 1,42,56,000.00 7.0 Summary The estimated financial liability on account of environmental damage/ cost of plastic pollution and environmental compensation are summarized in table: 9.
Table 9: EC descriptors and values considered
No. Components Damage/ EC Remarks
1 Environmental Rs. 72,85,468.96 This component may be utilized for the restoration/
damages/ cost of containment of the site. In case the proponent is
plastic pollution willing to contain/ secure the site with proper
due to the engineered measures, this component can be
remnant plastics utilized for that purpose under the supervision of
in the soil/ site. expert agencies and
other stake holders.
2 The estimated Rs. 1,42,56,000.00 Environmental compensation for not taking action
Environmental for the complete removal/ disposal of accumulated
Compensation plastic waste in the site. Though KSPCB has issued
(EC) for the total notice in 2016, the industry has not taken any
violation period of measure to comply with the notice. Only after the
1188 days. intervention of honorable High Court of Kerala,
the removal of plastic
waste was initiated.
36. Thereafter, at the request of the learned counsel appearing for the 4th respondent, the matter was adjourned for filing their objections to the report filed by the Joint Committee.
37. The 4th respondent filed their objections to the Joint Committee report denying the allegations and also questioned the method of calculation of compensation and as per order dated 03.03.2022, this Tribunal had directed the Joint Committee to go through the objections filed by the 4th respondent to the report submitted and give their views on the objections and file further report. The Kerala State Pollution Control Board was also directed to produce all the previous proceedings initiated by them leading Page 30 of 68 to the closure of the unit and invoking the bank guarantee as directed by this Tribunal and what is the nature of further steps taken by them to remedy the situation till the Hon‟ble High Court of Kerala interfered with the matter. The Joint Committee was also directed to ascertain the remediation process that will have to be carried out and if the same can be carried out by the 4th respondent under the supervision of the Central Pollution Control Board and the Kerala State Pollution Control Board, whether that will meet the ends of justice instead of directing them to pay compensation for remediation purpose. Further, this Tribunal had mentioned that the question as to whether the damage had been caused to environment on account of dumping of waste for a longer period can be independently considered after getting further report on basis of the objections filed by the Joint Committee.
38. On 21.04.2022, this Tribunal had considered the report submitted by the Kerala State Pollution Control Board dated 30.03.2022, e-filed on the same date and extracted in Para (5) of the order which reads as follows:-
"REPORT FILED BY THE CHIEF ENVIRONMENTAL ENGINEER, REGIONAL OFFICE, ERNAKULAM FOR AND ON BEHALF OF THE KERALA STATE POLLUTION CONTROL BOARD AS PER THE ORDER DATED 03.03.2022
2. It is respectfully submitted that the Board had initiated several actions to bring the pollution generated from the industry in question which include following notices and directions as well in which specific reasons were illustrated for such notices, i. Closure intention Notice dated 29.10.2014 ii. Show Cause Notice dated 17.09.2015 iii. Show Cause Notice dated 06.02.2016 iv. Show cause Notice dated 18.03.2016 v. Direction to close down the unit and to stop discharge to Periyar river dated 04.05.2016 vi. Direction to close down the unit and to stop discharge to Periyar river dated 24.05.2016 vii. Direction to stop illegal operation of the unit dated 27.06.2016 viii. Letter to Bank Forfeiting Bank guarantee dated 03.12.2016 ix. Letter to Bank Forfeiting Bank guarantee dated 22.12.2016 Accordingly, closure of the unit in question was effected and they made a request to release the bank guarantee vide their letter dated 27.07.2016. It is true that the Hon‟ble Tribunal directed the KSPCB to inform the 4th respondent to remove the plastic deposited there. The Hon‟ble tribunal also directed vide order dated 29.09.2016 in Application No. 409 of 2016 that KSPCB to take appropriate action against the 4th respondent company for the removal of the same, failing which KSPCB should remove the plastic wastes through local body and the cost should be realized from the bank guarantee. It is pertinent to note that the Board had initiated actions to invoke the bank guarantee asking the bank to do so vide the letter dated 22.12.2016. Copies of all notices / directions are attached as Annexure 1.Page 31 of 68
3. It is respectfully submitted that regarding writ petition filed by Shri.P.E Shamsudheen, it may be noted that it was filed inter-alia for a direction to M/s Sree Sakthi Paper Mill (Now renamed as M/s. Cella Space Limited) to remove the plastic wastes from the river side of its premises to M/s. KEIL, Ambalamughal within a specified time frame under the supervision of the PCB where the Board had filed a report intimating the actions/ action plans. Again, a report was filed by the Board on 22.09.2020 in continuation to the report filed on 27.03.2019 explaining the actions initiated by the Board till that date.
4. I may humbly submit that the Hon‟ble Court of Kerala vide orders dated 13.07.2018,08.10.2018, 16.11.2018 and 04.02.2019 in WP© 5803 of 2018 specifically directed M/s Sree Sakthi Paper Mills to shift the plastic wastes stored in the premises situate at the bank of River Periyar and also directed the Board to release money as instalment to M/s KEIL from the bank guarantee forfeited (Rs. 24 lakhs) from the Company. It was reported earlier that 1452.76 MT tones of waste was shifted by M/s Sree Sakthi Paper Mills as on March, 2019. The Board paid a total amount of Rs. 13 Lakh to the 8th respondent as on March, 2019. Hence, an amount of Rs.11 lakhs was remained as balance amount with the Board as on March, 2019.
5. It is respectfully submitted that the entire wastes were shifted under strict supervision of the Board and the amount already released were in accordance with the directions issued by the Hon‟ble High Court. The unit had shifted 6713.250 MT of wastes to KEIL. The shifting was completed on March 2020. Details of shifting of waste on various months are as follows, SL Month Quantity of wastes shifted No (MT) 1 September 2018 265.035 2 November 2018 284.48 3 December 2018 252.58 4 January 2019 218.855 5 February 2019 333.965 6 March 2019 308.360 7 May 2019 377.810 8 July 2019 221.865 9 August 2019 113.810 10 September 2019 656.770 11 November 2019 1023.785 12 December 2019 131.995 13 January 2020 123.215 14 February 2020 2391.22 15 March 2020 9.505 Total 6713.250
6. It is respectfully submitted that the Committee constituted by the Hon‟ble NGT had inspected the industry on 19.02.2020 and noted that the 3 company had completely removed the plastic waste stored along the river bank in compliance with the Order of Hon‟ble Court of Kerala. Also, as a follow up action, the site was inspected by the Board‟s Environmental Surveillance Centre Page 32 of 68 at Eloor on 21.01.2021 and noticed that entire plastic wastes accumulated along the river banks were already transferred to KEIL (the CTSDF Project at Ambalamughal for secured land fill). M/s KEIL has shifted 6713.250 MT in total of contaminated mixed plastic, paper and other miscellaneous imported paper waste from the premises of M/s. Sree Sakthi Paper Mills. The entire quantity was lifted during the period from September 2018 to February 2020. As per the KEIL report, the total invoice for the disposal and transportation of 6713.250 MT was Rs. 1,53,07,252/-. It may be noted that as per the order of the Hon‟ble High Court of Kerala in WPC 5803 of 2018, the Board had paid the balance amount of Rs. 11 Lakhs on 04.10.2021 out of the total 24 Lakhs to M/s KEIL which was originally forfeited from the bank guarantee submitted by M/s. Sree Sakthi Paper Mills. Copies of all the orders dated 13.07.2018, 08.10.2018, 16.11.2018 and 04.02.2019 of the Hon‟ble High Court are attached as Annexure 2, 3, 4 and
4. It is respectfully submitted that the industry has successfully completed the transfer of wastes and there is no chance of any waste flow to river Periyar as the new industry in the name and style M/s Cella Space Ltd. has taken over the said land and completed certain construction works, a warehouse for which Consent to Operate was issued by the Board. It may also be noted that there is a proposal from the unit to convert the emptied plastic dumpsite to vehicle parking area. Also, the new unit M/s Cella Space Limited has submitted a request before the Board explaining all the matters related to this case especially to construct a compound wall and tree plantations along the banks of the river Periyar to prevent further flow of water in any form to river from their place. Copy of the request from M/s Cella Space Limited is attached as Annexure 6.
5. I may humbly submit that a committee was constituted as per the order dated 20.01.2020 of the Hon‟ble Tribunal in OA 262/2017 to report the environmental issues due to the unscientific disposal of plastic waste by M/s. Sreesakthi Paper Mills. This committee consists of Sri. Jowin Joseph, NEERI, Sri. Deepesh V, CPCB and Smt. K S Vinaya is now jointly investigating this issue. It may also be important to note that the environmental issues of River Periyar is being investigated by two Committees ie Joint Committee constituted as per the order dated 19.08.2020 of the Hon‟ble Tribunal in OA 395 of 2013 and Supervised Committee in OA 396 of 2013. The Committee already completed their visit to every Tributary, Major drains and the entire stretch of River Periyar and several samples were collected from almost all these points."
39. Thereafter, the matter was taken up for Judgment with direction to the Committee to file the report within five days with advance copy to the learned counsel appearing for the applicant as well as to the 4 th Respondent and granting time to the 4th respondent to file their objection within a further period of five days.
40. The Joint Committee has filed the report dated 26.04.2022, e-filed on 27.04.2022 along with certain annexure which reads as follows:-
"Report filed by the Committee constituted by the Hon'ble Tribunal as per the order dated 03.03.2022 in the above application.Page 33 of 68
As per the judgment dated O3.O3.2O22, it was directed the committee to give their views on the objections filed by the 4ti' respondent and file further report on this case and also directed the joint committee to ascertain the remediation process that will have to be carried out by the 4th respondent and if the sarne can be carried out by the 4tr' respondent under the supervision of the Central Pollution Control Board and State Pollution Control Board, whether that will meet the ends of justice instead of directing them to pay compensation for remediation purpose. We humbly submit the parawise report on the objections filed by the 4tt' respondent on 17.O2.2O22.
i. Sreesakthi Paper Mills Ltd was a craft paper manufacturing unit situated in Industrial Development Area Edayar, Ernakulam in Kerala and was situated near Periyar river. As per the consent issued by KSPCB it was a large scale red category industry with capital investment in tune of 77.48 Crores. The industry was established in the year 1992 and later expanded the unit by establishing another unit in the year 2006. The industry was engaged in the manufacturing of kraft paper by recycling waste pb.per and cardboard/carton boxes.
2. The 4th respondent locally collected the raw materials as well as imported from abroad. The raw materials contain waste brown paper, ca-rtons, cardboard boxes and wastes including plastic and metal. This plastic wastes consists of packing materials, plastic sacks, plastic covers, labels, stickers, plastic ropes, plastic straps, laminations etc. During the operations of the factory, they were uriable to incinerate all the plastic wastes generated in the unit, thus the Page 34 of 68 plastic wastes accumulated day by day and it was heaped like hills on the bank of river Periyar'. This plastic contains pulp waste, meta-l waste, soil etc. Around 2-3 acres of land were dumped with such waste at an average height of 10 ft. and was on the bank of Periyar river and there was possibility of reaching these wastes to river during heavy storms and raih;'
3. As per schedule VI of the Hazardous and other Waste (Management and Transboundary Movement) Rules, 2016 (hereinafter referred to as Rules) the plastic waste dumped in the unit land is included in schedule VI under the description'hazardous and other wastes prohibited for import' as Basel No.B3 i.e, wastes containing principally organic constituents which may contain metals and inorganic materials. Also the puip and paper industries having 30 TPD productions are treated as highly polluted industry as per CPCB guidelines dated 24107 lL5.
4. The statement of the 4th respondent that 'there was no accumulation of plastic waste' is absolutely wrong. Google Earth historical imaging for different periods enclosed herewith and marked as ANNEXURE R1(a) for the proof of accumulation of plastic wastes.
Consent to Establish for incinerator with capagity of 4OOKglday was issued on 26.1.L2OO7 validity up to 25.I1..2OIQ vide no PCBIHOIEKM/ CE|L6|OT with conditions to provide scrubber cum quenching facility and continuous emission monitoring. The incinerator ash shall be disposed as per Hazardous Waste (Management & Transboundary Movement) Rules and shall be operated as per CPCB guidelines for Hazardous waste. Consent to Operate was issued on 2O1O validity upto 30/0612012 to dispose of the plastics and other paper wastes in the incinerator and the incinerated ash shall be disposed through KEIL, CTSDF, Ambalamugal. But they have not complied with the Page 35 of 68 Consent to Establish conditions and operated the incinerator. Hence they were directed to stop burrling of plastic wastes in the incinerator and to dispose these plastic wastes through Cement plants for co-incineration vide letter dated 06/07l2OL2 and 16|08/2012, 06lLOl12. But during inspection on 2619112, it was noticed that they were burning the:piastic wastes in incinerator without having adequate pollution control measures. But the incinerator was working without having any scrubbing system, continuous air monitoring system and not as per CPCB guidelines. They were directed to stop burning of plastic wastes in the incinerator and to dispose of these plastic wastes through Cement plants for co-incineration vide letter dated 06l07l2or2 and 16loBl2oL2, 06lLo/12. But during inspection on 26191t2, it was noticed that they were burning the plastic wastes in the incinerator without having adequate pollution control measures. Complaint was also received against the burning of plastic waste in the incinerator on 27 111/13 from one Mr. Mohammed Iqbal. Complaint received against the dumping of incinerator ash from the 4tr' respondent near Unthithodu on l4/rIlr3. Direction was issued on 22llI l13 to stop the dumping of boiler ash at private properties and paddy fields. As per the consent.No. pcBlHolEKMiICo/ R2l15l2O13 dated 25/03/13 they have been directed to provide a continuous monitoring system in the incinerator stack and water scrubbing system. Also directed that the plastic waste shall not be incinerated in the incinerator and shall be disposed through cement plants like ACC for co-processing. They were also directed to transfer the plastic waste to "Cement Plants like ACC for co-
processing vide letter dated 2816lL4 from the Chairman. But the industry was not complied with these directions.Page 36 of 68
In the objection filed, 4th respondent has attempted to explain the 'plastic waste', which is the crux of the original application No. 262/2OI7 SZ.
Like all other kraft paper making industry, plastic/ metal items separated out from the raw materials (waste paper with plastic coating/ lamination/ metal clips/ fasteners/ binding pins/ piastic packaging) shall "be separated out during the process of pulping ald has to be disposed of in environmentally sound manner as per the conditions imposed by the regulatory authority. The claim that, by just doing recycling of waste paper, a company cannot claim "green industry" unless it makes earnest efforts to reduce the environmental footprint of their recycling process to a bare minimum. From the historic google earth images from 2003 to 2019 clearly shows the dumping of this so called plastic wastes by the industry over the period of time (Google Earth images enclosed as Annexure). As claimed by the industry, if the plastic wastes were disposed of with the incinerator properly, then there is no chance of such accumulations as evident from the satellite images. If the claims of the industry, that there was no accumulation of plastic waste and there was no scope for any complaint; why the honourable Tribunal and high court of Kerala intervened in the matter. in the matter of the writ petition no. 5303/2018 dated l3lo7 118 fil6d by P,E. Shamsudheen, it was prayed for a direction to the 4tr'respondent to remove the plastic waste from the river side. Honourable High Court vide order dated 13.O7,18 and 16.11.18 directed the 4th respondent to shift tlre plastic waste stored in the premises close to River Periyar and also directed the 2nd respondent to release money as insta-lment to KEIL from the barrk guarantee forfeited. The unit had shifte d 67 813.25 MT of heaped waste to KEIL by March 2O2O.In the light of the above facts, the claim that there was Page 37 of 68 absolutely no accumulation of plastic waste and no room for the complaint was baseless.
Sreesakthi Paper Mill was established in the yeat 1992 and later expanded in the unit by existing another unit in the year 2006. As per the consent information the production capacity increased from 960 to.1500 T/month in 2006 and the quantity of effluent discharged was 100KLD. The industry was directed to provide zero effluent discharge system in the second unit. The total production capacity of the unit was 1500 T/month of kraft paper as per the consent renewal No.PCB/RO-EKM/A lRS l 1312006 dated 22.07 .06 valid up to 31.12.08. Consent was issued with a condition to augment the existing ETP of l"t unit and to implement zero effluent discharge system in the second unit. Consent to Operate vide No, PCBIHOIEKM/ COlICl2lOT valid up to 30.06.2009 under Water Act was issued to the unit with a condition to provide facilities for recycling the entire quantity of effluent in the factory by installing a zero efflueni discharge system on or before 3LI2.O7.
Show Cause Notices were issued by the Board from 22.O 1.2008 onwards as the industry failed to provide zero effluent discharge system in the unit II and existing ETP was not adequate to treat the effluent from both the units I & II. Closure Intention notice was issued on 17.03.08 as they have not augmented the ETP for unit I which was not working properly and for Unit II they have not provided control measures for containing the effluent, Existing ETP was not adequate to treat the unit II effluent also. Several directions have been issued by KSPCB on 26.08.08, 11.12.08, 27.12.O8 and 29.04.09 before issuing Closure Notice on 28.05.09. Based on the industry request that they will comply with the consent conditions, Closure Order was not issued. The industry again took things casually and failed to comply with Board's Page 38 of 68 directions. Board again issued show cause notices on 05/09 lo9, 02106llo and 03/08/10. Show"Cause Notice dated 18.02.10 and 03.03.10 were issued directing the industry to transfer waste to KEIL, the common hazrdous waste disposal facility in Kerala. Consent to Establish for 22 TPH boiler generating 2MW power using back pressure turbine (Saw dust, coal and paddy husk are the fuel) was issued on 29.LL.fi valid upto 3i.08.14 vide no.PCB/HOIEKMIICOI 287l2OIl with condition to provide Electro static precipitator (ESP) as pollution control measure and with a condition to augument ETP.
Consent to Operate was issued on 2LO7.2OIO vide no.
PCBII{o/EKM/Ico l2loT lRrl2oro dated 2r.o7.2o10 valid up to 30.os.2or2 to produce kraft paper of 180 Tlday and waste incinerator of capacity 400 kglday with a condition to provide recycling the entire quantity of effluent generated in the factory to achieve zero effluent status on or before 31.I2.7O. Additional condition were also imposed on the quantity of treated effluent not to exceed 10,000 rlday, to achieve zero effluent status, to provide eners/meter and to dispose of paper and other plastic waste as per CPCB guidelines. It was also mandated to dispose of ash and ETP sludge to CTSDF. Letter was also issued on Q9 / IO / 12' to relocate the effluent discharge outlet to downstrearn, and the industry has not taken any steps to comply with these directions. This is respectfully reported that the 4th respondent company continuously and willfully violated the Environmental Laws, neglected the directions of the statutory bodies like State, PCB and damaged the river, soil and environment without any concern to the society and environment. Consent to operate was issued on 25.03.2OL3 on submission of a bank guarantee for Rs 12 lakhs (IBG 40630 dated 23 l03 I 13 validity upto 221 IO I 13\ vide no Page 39 of 68 PCBIHOIEKM/ICO /R2115/13 valid up to 30.06.2015 to produce kraft paper 180 T/day, incineratof 400 Kglday, captive power plant 2 MW (22 TDIH Boiler with Back Pressure Ttrrbine to produce 2MW) with a condition to provide detailed proposal for ETP augmentation within 3 weeks to complete ETP augmentation within 6 months i.e. within 25/O4l14. Adilitional conditions like continuous monitoring of the incinerator, transfer of accumulated plastic waste to cement industries for co-processing and the bank guarantee of Rs. 12 lakhs shall be released only after the industry fully complying with the consent conditions. The industry again failed to comply with these consent conditions and they dumped/burned the plastic waste in its premises. The industry continues their practice to extend the Bank guarantee and not complying with the consent conditions and closure intention notice was issued on 1,8lOIl74 as they were discharging untreated effluent to river Periyar. Surveillance camera footage on 2I,22 and 23101/14 shows that they were discharging waste water to the river Periyar. Direction was issued to Close down the industry on 24lor/r4. But the Closure order was kept in abeyance on 25101/14 based on the industry's written commitment dated 25/Oll14 that they wiil complete the work as per the consent conditibns before 26lO2l7a.
However the industry was not having any intention to comply with the Board's directions/conditions and were instructed vide letter No. PCB/ESC/CO/99 /07 dated 03.03.2016 to comply with consent conditions but the industry as usual failed miserably to comply. Integrated consent to operate was again renewed on 06.04.2016 upto 30.06.2016 (instead of 30.06.18 as they had not complied with the consent conditions) with a condition to comply the consent conditions before 30.06.16 failing on which bank guarantee will be forfeited and consent shall not be extended on their assurance of taking all the measures mentioned Page 40 of 68 in the consent and an extension of bank guarantee of Rs.24 lakhs (i.e. additional 12 lakh; (IBG 55924 dated 2gll}ll4). They are aLso directed to reduce the production capacity to 50% of the existing capacity till the augmentation is completed.
A committee formed by the Chairman including tlie Senior officers of KSPCB, representative of Eloor Municipality, representative of Environmental orga'nization inspected the unit on 09.05.16 and a direction was given based on the inspection on 10.05.16. The committee was verified the directions issued on 23.05.16 and it was noticed that the industry has not complied with the majority of directions and closure order issued on 24.05.2016 vide no PCB/ESC lCOl99/07. The industry filed a WPC No.18558/2016 against the Closure Order issued on 24lO5l 16 and obtained stay from High Court of Kerala upto L7106l16. As per the Board's inspection report dated 14106l16 and as per the High Court Order dated 2I/06116 Closure Order was issued on 27106116 to stop the illegal/unauthorized operation of the industry.
6. The statement of the 4th respondent in para 6 was that 'the closure was not due any allegation in respect of accumulation of plastic', this found to be not true.
It is menii'oned in the direction to close down the unit, vide no.PCB/ESCICA-99lOT dated 24.05.16 that, 'the direction regarding the removal/disposal of dumped plastic and other solid wastes was not complied'.
Also mentioned that serious lapses on taking envir6nmental pollution control , measures by the unit by way of water pollution, hazardous waste handling and solid waste disposal. Copy of the direction is enclosed herewith and marked as ANNEXURT Rl(bl. In the consent issued it was clearly mentioned that the plastic waste shall not be incinerated and shall be transferred to cement plants Page 41 of 68 10 like ACC for co-processing and in the Closure Order it was clearly mentioned that they were not cbmptyrng with the consent conditions.
7. As per the information received from KSPCB, the industry is having a long history of non-compliances from the year 2006 onwards, when the industry increased the production capacity to 1500T/ month. A-s per the consent information, the production capacity of the industry was enhanced from 960 to 1500 T/month in 2006 and the quantity of effluent discharged was 100 KLD.
Industry was directed to provide a zero effluent discharge (ZLD) system in the second unit. The total production capacity of the unit was 1500T/month of kraft paper as per the consent renewal No.PCB/RO-EKM/AlRSl1312006 dated 22.07.06 valid up to 31.12.08. Consent was issued with a condition to augment the existing ETP of l*t unit and to implement ZLD system in the second unit. Consent to Operate vide No, PCBIHOIEKM/ COlICl2l0T valid up to 30.06.2009 under Water Act was issued to the unit with a condition to provide facilities for recycling the entire quantity of effluent in the factory by installing a zero effluent system on or before 3L72.OT. However, the unit taiied repeatedly to abide the consent conditions and at the time of renewal of consent, the industry managed to renew their consent with their false commitment seeking time to comply with the consent conditions. From the records it-is clear that the industry never shown any commitment to environment by not complying the conditions to augment the ETP and to provide zero liquid discharge system to the 2'a unit. On account of these non-
compliances bank guarantees were imposed on the industry.
8. No comments to offer on specific statements in para 14 and 15.
9. The company has not produced any document regarding the actions for the removal of plastic wastes through KEIL.Page 42 of 68
1.7
10. Actually the bank guarantee of Rs.24 lakhs collected by the Board was not for the plastic waste reloval but it was for the augmentation of their ETp. They had not augmented the ETP for the entire period of functioning bf the compaly and not complied with the directions of the Board regarding the augmentation of ETP and implementation of zero effluent discharge Based on the "y"i.-.
direction of the Honble NGT, Board had forfeited the Bank Guarantee on O4.O2'I7 and this amount was utilized for the removal of plastic waste.
11.The total expense for the transfer of plastic waste to KEIL was more than Rs.i'50 Crore, but the bank guarantee amount was only Rs. 24 lakhs, hence the argument is baseless. Also the bank guarantee collected. by the Board was not for this purpose, as it was for the augmentation of ETP. But the company not augmented their ETP for the entire period of functioning and this amount had to be forfeited for the non-compliance regarding ETP augmentations. Based on tle order of the Honble NGT bank guarantee for Rs.34 lakhs forfeited by the Board and this was utilized for plastic waste removal, based on the direction of the court.
12'It is respectfully submitted that the Honourable National Green Tribunal Chennai bench in.the order dated 29.09.2016 in Application No. 409/2016 (South Zone) had directed the applicant (Sri. MuLtammed lqbal)therein to make necessary representation to Kerala State Pollution Controi Board to take appropriate action by giving direction to the unit for the removai of plastic wastes and failing which remove the waste through concerned, Municipality/Panchayat ald reaJize the amount from the bank Guarantee of the unit lyrng with the Board. Based on the order of Honourable National Grei€n Tribunal, the Board had directed the unit vide letter No.PCB/ESC/CO-Page 43 of 68
T2 99107 dated 29.LL.2O16 to take urgent steps for the disposal of the plastic wastes and the follorling suggestions were also given.
1) To transfer the plastic wastes to the cement plants for co-
processing as already specified in the consent.
2l To transfer to the common facility (Treatment Storage Disposal Facility- TSDF) at Ambalamughal.
3) Incinerate as per the guidelines of Central Pollution Control Board.
The Unit had not replied to the direction glven by the Board. Reminder letter was also sent on 22lL2l16. Hence, direction was given on 03.12.2016 vide letter No. PCB/ESC/CO-99 l07 to the Secretary, Kadungallur Panchayath to take necessa{/ action to comply fulfill the order of t}re Honourable National Green Tribunal. The direction was issued to the Manager, District Industries Centre also vide letter No. PCB/ESC/CO-99 l07 dated 03.12.2016.
The Kadungalloor Grama Panchayat informed the Board vide letter No.A4- ILI32l2Ol6 on 29.12.2016 tJ'at the Panchayath has no adequate land and facility to dispose the plastic waste and reported their inability to handle and dispose the plastic wastes. Based on the direction of Honourable National Green Tribunal the bank guarantee of 24 lakhs submitted by the unit was forfeited by the Board on O4.O2.2OL7. It is submitted that the area of around 2-3 acres of the unit is dumped with such waste with an average height of i0ft.
The land is on the bank of river Periyar and there were ample possibilities of waste reaching the river.
Page 44 of 68 13The Unit submitted a letter on 75.02.2018 requesting to refund the amount of Rs'24 lakhs to the" company and the company expressed. its willingness to remove the wastes from their land. Board had directed the unit to submit a detailed time bound action plan for the removal of the plastic wastes with the details of the disposal method in order to ensure the safe disposal of the waste as per Letter No.PCB/ESC/CO-99 lO7 dated 23.03.2018. Since the waste was generated by the company, it is their duty to dispose the waste safely and without causing any environmental damages, based on polluter pays principle.
Closure of the company does not relieve the management of the company from this primary responsibility. The writ petition no. 5803/2018 dated 13l07 118 was filed inter-alia for a direction to the 4th respondent Sreesakthi Paper mill to remove the plastic waste from the river side of its premises to M/s. KEIL with a specifred time under the supervision of the 2"a respondent by P.E. Sharnsudheen. Honble High Court vide order dated 13.07.18 and 16.11.18 directed the 4n respondent to shift the plastic waste stored in the premises near Periyar river and also directed the 2.d respondent to release money as installment to KEIL from the bank guarantee forfeited. The Board had paid 16 lakhs in which 3 lakhs was replenished'by the 4tt'respondent on 8th March 2OIg rrra tn. remaining 11 lakhs is paid on 04. 77.2L The unit had shifted 6713.25 MT of heaped waste to KEIL by March 2O2O.
13. As the waste was generated by tJ:e company arrd the accuneulation of these waste was due to mismanagement of the company and due to the negligence on the direction of the Board, it was the responsibility of the company to safely and securely dispose these wastes, based on the polluter pay principle.
Page 45 of 68t4 It is tried. to project that, the bank guarantee imposed was for the removal of the plastib waste, contrary to the fact that it was imposed for the repeated non-compliances of the consent conditions to augment ETP and to provide ZLD system for the 2"a unit. it is reiterated that based on the orders of honourable high Court in the matter of the writ petition no' 5803/2018 vide order dated 13.07.18 and 16.1i.18 directed the 4th respondent to shift the plastic waste stored in the premise close to River Periyar and also directed the 2nd respondent to release money as instalment to KEIL from the bank guarantee forfeited. The bank guarantee was forfeited for the cumulative non-
compliances of the industry from the year 2006 onwards. The contention of the 4th respondent that the KSPCB failed to remove the waste with the help of local bodies is an example of their casual nature when it comes to environment' As a generator of the waste, does they have any legal obligation to manage the waste without harming the environment? The industry exemplified their surrogatory approach to environment right from their expansion in 2006 till it was closed down in 2016. They have not budged an inch to comply with the consent conditions to augment the ETP and to provide ZLD system for 10 years and that shows how much concern they have to the environment. It is repeatedly claimed that the onus of removing the waste is on KSPCB a]rd not to them as they have no obligation to manage thewaste generated by them. it is due to the gross violations and mismanagement of the industry, such a dire situation was arrived, which warranted the intervention of honourable Tribunal and High Court of Kerala.
l4.Actually the bank guarantee of Rs.24 iakhs collected by the Board was not for the plastic waste removal but it was for the augmentation of their ETP' They had not augmented the ETP for the entire period of functioning of the company Page 46 of 68 15 and not complied with the directions of the Board regarding he augmentation of ETP and implementation of zero effluent discharge system. Based on the direction of the Honble NGT, Board had forfeited the Bahk Guarantee on
04.O2.17 and this amount was utilized for the removal. of plastic waste.
15.As per the NGT order dated 2olorl2o in oA 262/20'17, the Honbie NGT directed to constitute a committee to report the environmental damage caused by M/s. Sreesakthi Paper Mills for non disposal of plastic waste and keeping it in the premises for a long period. As per the judgment the Joint Committee inspected the site on L9.O2.2O2O. During the visit of the NGT Committee on
79.O2.2O it was noticed that they have removed the stored plastic completely but some plastics were seen spread over the soil at that time itself. They were directed to remove these plastics on 05.03.20 vide letter no pcB/Esc/co-
99107 . The committee decided to collect soil sample to assess the extent of piastic waste still present in the site. On the day of inspection it was observed that plastic wastes are spread over the plot and site preparation activities were already initiated to convert it into parking area. On preliminary investigation it was found that plastic wastes were still present in the soil surface within 1ft depth. As per the analysis, soil is contaminated with PE, Pp and pET particles /crumbs. Once-the presence of plastic waste in soil was confirmed, the committed decided to carry out the second phase of soil sampling by using an auger driller' But the committee could take samples only in areas adjacent to Periyar river where site preparation activities were not done. In the second phase of inspection it was noticed that they have completely covered, the area where the plastic waste were dumped, with mud and stone aggregates/ rubble and the committee could not take samples to assess plastic contamination. The presence of plastic waste in the soil was confirmed, the Joint Committee Page 47 of 68 L6 carried out the second phase of soil sampling in the areas adjacent to the Periyar River where"site preparation activities was yet to start' Soii samples were collected up to three feet depth at 5 different locations -using powered earth auger. The soil samples collected were assessed for the extent of plastic wastes by progressive sieving and separation of plastic rnaterials' The macro plastics present in the soil samples were quantifred on the basis of percentage (weight/ weight). The details of soil investigation and average plastic quantity estimated in the soil sample were already reported on l7.Ll'2O21 before the Hon'ble NGT.
The first phase of the sampling revealed that the soil in that area were contaminated with plastic wastes, even after the statement of the company that they had completely removed the plastic waste. But they covered that area by red earth and rubble, and that area converted for parking space for trucks and containers, before the next phase of inspection and sampling. It is seen that this action was willful and it was to obstruct the committee to collect further samples for.the verification of the compliance of the court directions. It is also reported, that they had not applied for any permission to convert that area in the mid,d.le of examinations of the committee, before the committee or before the Honbld Court.
The'accumulation of the plastic waste was due to the negligence of the company on the various d.irections of the Board. And the removal of these wastes also was the sole responsibility of the company; as they were the polluters.
16.Company already spent around Rs.1.52 Crores for the dumped plastic wastes, but the soil in that area contaminated with plastic wastes. This is evident from the two phases of sampling of the committee. Detailed sampling could not be Page 48 of 68 17 done by the committee due to the unauthorized conversion of this land into parking area by the +.r' respondent, witlrout having the permission of the committee or by the Honble Court.
17. Actually the bank guarantee of Rs.24 lakhs collected by the Board was not for the plastic waste removal but it was for the augmentation of their Btp. They had not augmented the ETP for the entire period of functioning of the company and not complied with the directions of the Board regarding he augmentation of ETP and implementation of zero effluent discharge system. Based on the direction of the Honble NGT, Board had.forfeited the Bank Guarantee on
04.O2.I7 and this amount was utilized for the removal of plastic waste.
In para three it was claimed that there was accumulation of plastic waste and there was no scope for any complain as they disposed of the plastic waste with the incinerator on a daily basis. However, para 15 is contraqz to the above claim as it is admitted that67I3.25 MT of waste containing plastic, damaged imported paper and sand were disposed to KEIL. It is beyond comprehension how the onus is on KSPCB to remove all the accumulated waste in the premise of the 4th respondent industry. It is claimed that the accumulated waste and delay in removing the waste is not attributable to the generated. industry. The industry is tryrng repeatedly to project that the bank guarantee imposed is for the removal of waste and it waS invoked by the KSPCB without grving sufficient time. The truth is that the bank guarantee was imposed for the non-compliances of consent condition and industry failed to comply the conditions from 2006 to 2016 (10 years).
18. al The Said Annexure R1(d) of the report, has not mentioned anywhere that the,.report to impose compensation/damages is not sustainable. The said Annexure only highlighted the limitations in existence of conventional Page 49 of 68 18 methods for scientifrcally quantifying the damages to tl-e environment in the concerned. scenario. Huge quantities of plastic wastes were stored by the concerned mapufacturing unit for several years in an unscientific manner adjacent to a perennial river body without responsibly adopting any waste management practices. The Annexure explains why the damage could not be assessed as there were limitations in data availability to quantify the damage caused. However, this in no manner conveys that no darnage had been caused by the industry to the environment.
It is argued that it is not sustainable to impose compensation/ damage in line with the note submitted by the representative from NEERI. The methodologr for levying environmental compensation (EC) was proposed by CPCB based on NGT d,irections and it has been imposed on many defaulting entities in several cases. A d,etailed note on the non-compliances / violations was provid,ed, by the KSPCB and it is evident that the industry failed to comply consent conditions for almost 10 years. This is a blatant violation of the consent conditions. imposed right from 2006 onwards and a solid reason for imposing EC. It is also reiterated that, there are no universal methods for the assessment of environmental damages as the environmental situation varies widely gtven the 'scenario. In this matter also there was no baseline data to delineate the changes in the environmental indices to gauge the changes resulting from the pollution. However, this should not be a loophole for the polluting entities to get away from their wrong doings. The industry admitted that they removed 6713 odd tons of waste from their premises and the primary onus of accumulating the waste without proper management/ disposal lies with the industry itself.
Page 50 of 68 19b) Though NEERI member had highlighted the limitations in environmental damage cost calcllation in this particular incident, however had concluded/insisted at the end of the Annexure Ri(d) that penalty shall be levied for the violation committed by tlle unit for unplanned and negligent waste management practices in its premises for years together.
A detailed note on the non-compliances / violations was provided by the KSPCB and it is evident that the industry failed to comply consent conditions for almost 10 years. The blatant violation of the consent conditions imposed right from 2006 onwards is a solid reason for imposing EC. The unit was given notices for unauthonzed discharges, non-compliances of consent conditions and intentional discharges damaging the environment. Had they managed the waste properly, the dire situation would not be raised, warralting the intervention of honourabie NGT and High Court. If the actual violation from 2006 is, accounted based on the non-compliance to augment ETp and implementing zLD, very hefty Ec needs to be imposed. However, the ECimposed should act as a reasonable deterrent and there is no point in imposing EC which is beyond the capacity of the defaulters.
c) A11 the environmental regulations have evolved from research and development activities and at present the environmental damage assessment is in R&D stage world over. Without relying on the R&D works environmental damages cannot be assessed as it is constantly being evolved from various research studies carried out world over with several experts. Moreover, the environmental damage assessment gets complicated if it is dealt in details considering all the intricate ecological interlinking and the monetary valuation of the damages increases proportionally over several magnitudes. From the google earth images from 2005 to 2013, it is ciear that there was pollution on Page 51 of 68 20 no baseline account of storing plastic waste close to the river. Though there a-re data, it is evident that environmental degradation happened in the site and adjoining river on account of huge plastic waste dump. For example, under the sunlight, plasticisers (chemical additives which are potential carcinogenic substances) present in the plastic waste could have been:leaching to the soil and river water over the years. However, there is no record on the baseline values of plasticisers in the environment and hence cannot be compared with the present values. But this could not be used as an excuse and should not relive the defaulting industry from its responsibilities.
d) The environmental surveillance ca-rnera has already recorded footages of unauthorized discharges from the industry and plastic crumbs and chips cannot be differentiated in the flowing watet f discharge and runoff' Plastic tends to d.isintegrate under hot sun and usually get carried in the wind and flowing/ running water f runoff.
ef consent to Establish an incinerator with capacity of aooKglday was issued on 26.|12007 valid.ity up to 25.lI.2OlO vide no PCBIHOIEKM/ CEl16lOT with condition to provide scrubber cum quench facility and continuous emission monitoring shall be provided before commissioning. The incinerator ash shall be disposed as per Hazardous waste (Management & Transboundary Movement) Rules and shall be operated as per CPCB guide lines for Hazardous waste. Consent to Operate was issued on 2O1O validity upto 30/0612OI2 to dispose the plastics and other papef wastes in the incinerator and the incinerated astr shall be disposed through KEIL, Ambalamugal' But they have not complied with the Consent to Establish conditions and operated the incinerator. The capacity of the incinerator was not enough to incinerate all the plastic waste generated in the industry and they were not operated the Page 52 of 68 2L incinerator in a ful1 fledge manner. Hence the plastic waste accumulated day by day and heapea iite tritts.
A detailed note on the non-compliances / violations was provided by the KSPCB and it is evident that the industry failed to comply consent conditions for almost 10 years. This is a blatant violation of the'consent conditions imposed right frorn 2QQ6 onwards a solid reason for imposing EC The notice served by KSPCB to the unit to remove the heaped plastic waste from the dumping area on 29.II.2016 based on the NGT Order dated 29109116 on OA 4O9l2016, but the removal. initiated but the 4rh respondent only on 01.09.2018 after the intervention of Hon'ble High Court of Kerala. Meanwhile a number of directions were issued by the Board to the 4th respondent, but they had not complied with. Hence the statement regarding the timely compliance is not true.
The said industry was a large red category publicly listed company. The justification and explanation provided by the industry on why it will not bare the liability for its unscientific storage of several tons of plastic waste is unintelligible. Closure of company does not relieve the management from the huge liability it had created over years. Though the company recycled waste papers ald waste'eartons, still it does not stand out from the implications of water act t974, air act 1981, environmental protection act of 1986 and other environmental rules and regulations. As much as the industry required consent to establish, consent to operate and was not exempt from periodical visits by statutory and pollution control bodies for its continuous operations, the company is responsible in sa-fely managing and disposing all the wastes generated from its production/ operations. Accordingly any waste generated in its processes is the sole responsibility/liability of the company to Page 53 of 68 22 store/treat/d.ispose in a scientific manner approved by the concerned pollution control body. Hence it is trigfrty condemnable by a manufacturing unit to state that responsibility of pollution generated from the plastic cannot be exclusively imposed on the industry alone.
A11 industries have products, by-products and wastc products, in this case the plastic/ metal items separated from the raw material is a waste product as it calnot be re-utilized and has to be disposed of safely. The responsibility of tJ' e disposal is bestowed with the industry and they have to d.ispose it in an eco-friendly manner. It is claimed that the industry cannot be penalized for merely collecting and storing plastic rejects ald should not be imposed as a liability as the industry was engaged in recycling. The question here is the industry was engaged in recycling at what cost? Whether they can recycle waste paper leaving an enormous environmenta-l footprint in the form of unmanaged plastic rejects? If so what should be the environmental cost of recycling if we consider the pollution created by the plastic dump? Any recycling endeavouf to be sustainable sha1l reduce the environmental footprint to a bare minimum.
g) In environmental economics, the environmental externalities are accounted for valuing the damages incurred due to pollution or environmental degradation.
The cost of-removing a particular waste is not only the cost paid for physically removing it from the site, it includes the cost of removing all tl-e chemicals leached out in the environment due to its storage, the remediation cost for the soil, clean-up cost for bringing the contaminants in the environment to the baseline values ald many more linked factors based on the complexity of the enwironment. Our present market system does not internalize these Page 54 of 68 23 environmental externalities and hence the cost of production does not include the cost of environmental pollution and other externalities
h) The concept of social cost of carbon is important with respect to preparedness to the global climate change. The social cost of carbon helps reveal how much society should sacrifice to avoid climate change and in this case the unmanaged plastic waste imposed certain social cost on the society.
il & j) In environmental economics, the environmental externalities a-re accounted for valuing the damages incurred due to pollution or environmental degradation. The plastic dump was accllmulated over a period of time and disintegrated plastic particles and other chemicals leached out and reaches soil and nearby waterbody through runoff. A11 these externalities add to the ecological cost and there could be some adverse changes in the abiotic or biotic factors in the immediate vicinity. However, these cannot be ignored just because we.do not have baseline datal information on these environmentaL parameters. There is no point in providing barriers and other things in the last minute to prevent further damages to environment. It is also to be noted that, the construction proposed is for parking ground and the present construction could not replace an engineered containment for.the.purpose of preventing leftover plastic reaehing the river. The site is in the flood plan of the river and any construction to prevent further release of plastics to river also has to consider that it does not conflict with natural drainage patterns. A11 the marine plastics eventually came from the land through the plastics flushed out to sea through rivers, drains and through the coastline.
k) The statement, "this Honourable Tribunal had already directed that the plastic should be removed by the 1"t respondent with the help of local self government institutions", is not true. As per the order of the Honble NGT Page 55 of 68 24 dated 29.09.2016 in OA 409/2016, "the 2"d respondent (The EE, KSPCB) to take appropriate aetion against the 4tt'respondent (M/s. Sreesakthi Paper Mil1s Ltd.) for the removal of the sa-rne, failing which remove the slme through the concerned Municipality/Panchayat and realize the amount from the Bank Guarantee furnished by the 4th respondent, lyrng with the Board' Actual purpose of the Bank Guarantee was not for the plastic removal, but it was for the augmentation of ETP. The amount had to be forfeited by the Board for the non-compliance, i.e., not augmented the ETp, but Board complied with the above order of Hon'ble NGT and utilized this amount for the removal of plastic. Hence the whole responsibility of the plastic removal was on the 4t'respondent, but they manipulated the court order.
One of the major reasons for the delay in plastic removal was the huge quantity, which was due to the accumulation of plastic waste for a couple of yeafs.
l) The actual date of violation started years before 2oI6,and it is evident that in the Google Earth historical imaging. Google Earth historical imaging for March 2OO9 and Janutry 2013 are attached herewith for the proof of earlier plastic waste dumping. But the Environmental compbnsation calculated based on the notice issued on 29.11.2016 to remove the plastic waste from that area based on NGT Order. A letter already sent to the 4ti'respondent on29,LI.2016 directed io remove the plastic waste through KEIL and. Environmental compensation calculated from this date only.' Another letter dated I1O7.I4 was issued to the company was also directing the same. Copy of the letters are enclosed herewith and marked as ANNEXURE Rl(c|. If the Environmental compensation calculated based on tfre actual date of commencement of plastic Page 56 of 68 25 waste dumping, i.e., 2oo9, the amount would be much higher than the calculated amount.' ml After the first phase of sampling carried out by the cornmittee, the 4tr, respondent willfully covered the area with red earth and granite rubbles, so converted the area for parking purpose, without having p-ermission from the committee constituted by the Court or the Honble Court itself. It can be understood that this was an action to prevent the further sampling and to obstruct the duties of the committee.
Detailed inspection and sampling using auger could not be done by the committee due to the unaulhoized conversion of land into parking area by the 4tt' respondent. The 4th respondent was aware that the inspections and sampling were going on and they intentionally covered this land by red earth and rubble to obstruct the duties of the committee entrusted bv the Honble Court.
The industry has a long history of non-compliances right from 2006.
Since, the industry refused to heed to the KSPCB notices to remove the waste, Honourable Tribunal l }{igt' Court had to intervene. The bank guarantee was imposed on non-compliance to consent conditions and it was encashed based on honourable high-court directions for the removal of waste. However, the sole responsibility of heaping the waste in the site lies with the industry, which is classified as a red category industry as per the consent. By the time committee was trying take sarnples, the site was filed up with earth and aggregates and samples could not be taken from many parts. As per the Google Earth images, the wastes were dumped in the entire site.
f,r or Pr 9, r, sl Plastics are made of different polymer and it is no different in the plastic used of coating I Iarninaling paper. They also contain chemical Page 57 of 68 26 additives called plasticisers to enhance the plastic properties' Though the industry separated p"lastics as it cannot go into their product, they failed to dispose them properly, allowing plastic dump to accumulate over a period of time.
While calculating environmental damages, the damage costs were adjusted as per the Indian consumer price index. The environmental damage assessment methods are being studied by academic institutes through several researches and is being constantly evolved and developed based on the intrinsic complexities of the environment. It is reiterated that the damage assessment has to be done on notional basis when the baseline indices ldata are not available.
The sole responsibility of accumulated plastic waste is with the industry and there is no point in blaming others for the waste dump made in the industry premises. The cost of all environmental externalities has to be borne by the industry who is responsible/ obligated to prevent such accumulation of waste. The industry has made up this scenario as they mismanaged the waste, and the responsibility of potential generation of microplastics in the site and further transport to river are obvious after effects' The 4th resp'ondent could not clear the heaped plastic wastes, which was generated due to the day to day production activities, and it was accumulated on that area. company's priority was only on the production and they were plastic neglecting the proper operation of ETP and the time to time removal of waste.
The directions of sPCB were on Il.o7.I4 and 29.II.16 to remove these p\3stic wastes, the company neglected these directions until the Honble High Court intervened in this matter and started the removal only on 01.09.18.
it is Page 58 of 68 evident that the company tried to delay the removal by neglecting the directions of the SPCB and they had started the removal only after the direction of the Court."
41. The learned counsel appearing for the applicant was not present and there was no representation for the learned counsel for the applicant on the previous occasions as well. So, this Tribunal heard the learned counsel appearing for the Kerala State Pollution Control Board, Central Pollution Control Board and other respondents, including the learned counsel for the 4th Respondent.
42. The learned counsel appearing for the Kerala State Pollution Control Board and the Central Pollution Control Board argued that the unit was non- compliance unit since long time, evidenced from the various proceedings initiated and ultimately, the closure order was issued in the year 2016. Even at the time of closure order issued, huge amount of plastic wastes were dumped in the premises and the study conducted will go to show that due to dumping of plastic waste for a long time, environment has been severely damaged and the compensation was assessed on the basis of the data‟s available for assessing compensation of such nature by advanced countries, as there is no Indian Standards provided for that purpose. They have also given their reason for assessing environmental compensation in the latest report based on the objections raised by the 4th respondent and they will abide by further directions issued by this Tribunal in this regard.
43. On the other hand, the learned counsel appearing for the 4th respondent argued that the manner in which the compensation has been assessed and in fact, the 4th Respondent unit is an environmental friendly unit, recycling the waste into certain products thereby helping disposal of the waste generated in that area and that aspect has been not been taken into consideration while assessing compensation by the Joint Committee. Further, as per the directions of this Tribunal, the plastic waste dumped in the premises have to be removed either by the 4th respondent and if not done, the same ought to have been carried out by the Kerala State Pollution Control Board and the expenses incurred should have been recovered from the bank guarantee submitted by the 4th Respondent. But without doing the same, keeping it for a longer period and fastening the liability for such Page 59 of 68 a longer period on the 4th respondent is illegal and unjustified. In fact, certain amount of wastes have been transferred to M/s. KEIL by the 4th respondent themselves by spending huge amount and that aspect has not been considered by the Joint Committee. So, they prayed for leniency in imposing compensation, considering the fact that it is a closed unit and no further alleged polluting activities being carried on by them. Even after the closure of the unit, the pollution level in river Periyar has not been reduced and that still continues and the 4th respondent unit alone cannot be held responsible for the alleged pollution of river Periyar.
44. We have considered the pleadings, reports, objections and submissions made by the learned counsel appearing for the parties at the time of hearing and also perused the documents available on record.
45. The points that arose for consideration are:-
(i) Whether there was any violation committed by the 4th respondent in carrying out the obligations fastening on them as per the environmental laws?
(ii) Whether there was any damage caused to the environment on account of the activities of the 4th respondent by dumping the plastic waste in the open area for a long period?
(iii) Whether the 4th respondent is liable to pay compensation and if so, what is the quantum of compensation payable?
(iv) What are all the further directions (if any) to be issued for restoring the damage caused to the environment applying the "Precautionary Principle"?
(v) Relief and Costs. POINTS:-
46. The grievance in this application was that the 4th respondent unit was one of the highly polluted 17 industries categorised by the Central Pollution Control Board and on account of their activities, large scale pollution had been caused in the river Periyar and even after the closure directions issued, they had not removed the plastic waste that had been collected Page 60 of 68 which was being used as a raw material by them for manufacture of kraft papers and according to the applicant, on account of the same, environment damage had been caused which had to be studied and further directions have to be issued.
47. The 4th respondent filed their counter statement denying the allegations that they are highly polluting industries and it was made on the basis of the misconception of the manufacturing process that has been undertaken by them and they have also mentioned that they are not liable for any of the reliefs claimed.
48. It may be mentioned here that on the basis of the study conducted by the Central Pollution Control Board regarding the polluting status of the industries, the Eloor- Edayar Industrial Area in Greater Kochi Area was declared as a „critically polluted‟ industrial area and brought under the moratorium issued by the Ministry of Environment, Forests and Climate Change (MoEF&CC) in the year 2011, as the Comprehensive Environmental Pollution Index (CEPI) Score was more than 70. It was also clear from the categorisation made by the Central Pollution Control Board that the 4th respondent unit was categorised as one of the 17 highly polluting industries. Though a representation was made by the 4th respondent to re-categorise their unit, but that was not accepted by the Central Pollution Control Board and the 4th respondent had not taken any action against that direction to re-categorise or to reclassify their unit to make it as less polluting industry.
49. So under such circumstances, the contention of the learned counsel appearing for the 4th respondent that the unit cannot be treated as one of the 17 units categorised by the Central Pollution Control Board as severely polluting industries cannot be accepted and the same is rejected.
50. It is also an admitted fact that from the series of directions were issued by the Kerala State Pollution Control Board and the Central Pollution Control Board, the 4th respondent unit was a non-compliance unit and ultimately, in 2016, a closure direction was issued by the Kerala State Pollution Control Board and the Central Pollution Control Board for non-compliance Page 61 of 68 of the directions issued which was challenged by the 4th respondent before the Hon‟ble High Court of Kerala by filing Writ Petition No. No.18558/2016 and ultimately, that Writ Petition was dismissed by the Hon‟ble High Court relying on the decision of the Hon‟ble Apex Court in Bhopal Gas Peedith Mahila Udyoga Sangathan & Ors. Vs. Union of India & Ors. (2012) 8 SCC 326, leaving open the right of the 4th Respondent to file appeal before this Tribunal under the National Green Tribunal Act, 2010.
But the 4th respondent had not challenged the closure order issued by filing an appeal before any appellate forum as provided under the statute. So, that order has become final.
51. So, the 4th respondent cannot now contend that they are complying units and they have not committed any violation of the consent conditions and there was no necessity of issuing any closure order and they are not liable to pay the compensation as well.
52. The report submitted by the Joint Committee appointed by this Tribunal showed that on account of dumping of plastic waste for a longer period has resulted in contamination of the soil and the possibility of contamination being caused to the water quality on account of the same. It is true that there are other industries situated in that area and some of the units were also responsible for the pollution being caused to the river Periyar, but that alone will not be sufficient to exonerate the 4th respondent from liability of causing damage to the environment on account of their activities.
53. The Joint Committee had assessed the environmental compensation to the tune of Rs.1,42,56,000 (Rupees One Crore Forty Two Lakhs and Fifty Six Thousand only) and also an amount of Rs.72,85,486.96 being the damage caused to the environment/cost of plastic pollution due to waste plastic dump in the site. It is also suggested in the report that the remedial measures will have to be taken for removal of the entire plastic waste that is found under soil to make that area contamination free after conducting certain studies and that environmental compensation has to be utilised for the purpose of making the area contamination free by taking remedial measures.
Page 62 of 6854. As regards the quantum of compensation is concerned, we feel that it was an assessment made by the Joint Committee, quantum of which was challenged by the 4th Respondent unit. So, the Kerala State Pollution Control Board can be directed to take appropriate steps by issuing show cause notice under Section 5 of the Environment (Protection) Act, 1986 to show cause as to why that much of amount cannot be imposed as compensation and after giving an opportunity to the 4th respondent to file their objections on the question of quantum alone as the liability was fixed on the 4th Respondent and hearing them, pass appropriate orders and that will be sufficient, so that the right of the 4th respondent to challenge the same, if he is aggrieved by the final orders to be passed on the question of quantum of compensation, as we have affirm the liability of the 4th respondent to pay compensation, but only the quantum of compensation has to be decided by the regulator after complying with the procedure provided in accordance with law.
55. As regards the remedial measures are concerned, the Central Pollution Control Board and the Kerala State Pollution Control Board shall evolve the methodology of the remediation process and utilising the amount of compensation so far realized from the 4th respondent to take steps to carry out the remediation process to make the area contamination free. If any further studies will have to be conducted in this regard, then the expenses for conducing such study has to be borne from the environmental compensation recovered from the 4th Respondent and the 4th respondent has to carry out the remediation process under the supervision of Central Pollution Control Board and the State Pollution Control Board
56. So under such circumstances, we feel that the application can be disposed of by giving following directions:-
a) The contention of the 4th respondent that they are not highly polluting industry and they are not liable to pay compensation, as no damage has been caused to the environment on account of their activities is rejected and the 4th respondent is liable to pay compensation for the damage caused to the environment, but the quantum of compensation can be quantified after giving Page 63 of 68 opportunity to the 4th respondent as directed by this Tribunal in the earlier paragraphs.
b) The Kerala State Pollution Control Board is directed to issue a show cause notice under Section 5 of the Environment (Protection) Act, 1986, giving an opportunity to the 4th respondent to show cause as to why the quantum of compensation assessed by the Joint Committee appointed by this Tribunal should not be imposed and after giving them an opportunity for filing their objections, the Kerala State Pollution Control Board is directed to pass final order against the 4th respondent on the quantum of compensation and action in this regard has to be completed within a period of four months.
c) The right of the 4th respondent to challenge the quantum of compensation imposed, based on the final orders to be passed by the Kerala State Pollution Control Board as directed by this Tribunal before the appropriate forum under Section 5 A of the Environment (Protection) Act, 1986 r/w Section 16 of the National Green Tribunal Act, 2010 is left open. If any amount has been spent by the 6th Respondent for removing the plastic waste dumped in their premises and the amount of Bank Guarantee furnished and forfeited, the State Pollution Control Board is also directed to adjust towards the compensation payable by the 4th Respondent and this will have to be considered by the Board while assessing the environmental compensation payable by the 4th Respondent.
d) The Central Pollution Control Board and the State Pollution Control Board are directed to conduct a study regarding the process of remediation to be done to make the site contamination free and the expenses for conducting such study has to be met from the environmental compensation recovered from the 4th Respondent and the nature of remediation process has to be carried out by the 4th respondent under the supervision of the Kerala State Pollution Control Board and the Central Pollution Control Board by using the amount of compensation recovered from the 4th respondent as directed above. If that amount is not sufficient, then Page 64 of 68 the excess amount has to be recovered from the 4th respondent by the Kerala State Pollution Control Board in accordance with law.
e) The 4th respondent is directed to abide by the directions issued by the Tribunal in co-operation with the Kerala State Pollution Control Board and the Central Pollution Control Board in carrying out the remediation process based on the further study (if any) to be conducted as directed by this Tribunal.
f) If any further waste to be removed from the premises, the same has to be removed by the 4th Respondent within 3 (Three) months as directed by the State Pollution Control Board and if it is not done by the 4th Respondent, the same is directed to be removed by the State Pollution Control Board and the amount incurred for the same can be recovered from the 4th Respondent.
57. The points are answered accordingly.
58. In the result, the Original Application is allowed in part and disposed of with following directions:-
(i) The contention of the 4th respondent that they are not highly polluting industry and they are not liable to pay compensation, as no damage has been caused to the environment on account of their activities is rejected and the 4th respondent is liable to pay compensation for the damage caused to the environment, but the quantum of compensation can be quantified after giving opportunity to the 4th respondent as directed by this Tribunal in the earlier paragraphs.
(ii) The Kerala State Pollution Control Board is directed to issue a show cause notice under Section 5 of the Environment (Protection) Act, 1986, giving an opportunity to the 4th respondent to show cause as to why the quantum of compensation assessed by the Joint Committee appointed by this Tribunal should not be imposed and after giving Page 65 of 68 them an opportunity for filing their objections, the Kerala State Pollution Control Board is directed to pass final order against the 4th respondent on the quantum of compensation and action in this regard has to be completed within a period of four months.
(iii) The right of the 4th respondent to challenge the quantum of compensation imposed, based on the final orders to be passed by the Kerala State Pollution Control Board as directed by this Tribunal before the appropriate forum under Section 5 A of the Environment (Protection) Act, 1986 r/w Section 16 of the National Green Tribunal Act, 2010 is left open. If any amount has been spent by the 6th Respondent for removing the plastic waste dumped in their premises and the amount of Bank Guarantee furnished and forfeited, the State Pollution Control Board is also directed to adjust towards the compensation payable by the 4th Respondent and this will have to be considered by the Board while assessing the environmental compensation payable by the 4th Respondent.
(iv) The Central Pollution Control Board and the State Pollution Control Board are directed to conduct a study regarding the process of remediation to be done to make the site contamination free and the expenses for conducting such study has to be met from the environmental compensation recovered from the 4th Respondent and the nature of remediation process has to be carried out by the 4th respondent under the supervision of the Kerala State Pollution Control Board and the Central Pollution Control Board by using the amount of compensation recovered from the 4th respondent as directed above. If that amount is not sufficient, then the excess amount has to be recovered from the 4th respondent by the Kerala State Pollution Control Board in accordance with law.Page 66 of 68
(v) The 4th respondent is directed to abide by the directions issued by the Tribunal in co-operation with the Kerala State Pollution Control Board and the Central Pollution Control Board in carrying out the remediation process based on the further study (if any) to be conducted as directed by this Tribunal.
(vi) If any further waste to be removed from the premises, the same has to be removed by the 4th Respondent within 3 (Three) months as directed by the State Pollution Control Board and if it is not done by the 4th Respondent, the same is directed to be removed by the State Pollution Control Board and the amount incurred for the same can be recovered from the 4th Respondent.
(vii) Considering the circumstances, parties are directed to bear their respective cost in the Original Application.
(viii) The Registry is directed to communicate this order to the Central Pollution Control Board (both New Delhi and Integrated Regional Office, Bangalore) and the Kerala State Pollution Control Board for their information and compliance of the direction.
(ix) The Kerala State Pollution Control Board is directed to file a periodical report before this Tribunal regarding the further action to be taken in pursuance to the directions of this Tribunal and the completion of the remediation process once in Six months, till the entire remediation process is completed.
(x) As and when such report is filed, the Registry is directed to place the same before the Bench for consideration and also for issuing necessary further directions (if any) required in this regard.Page 67 of 68
59. With the above observations and directions, this Original Application is disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.262/2017 (SZ) 07th July, 2022. Mn.
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