National Green Tribunal
Dinesh Prasad Chaurasia vs State Of Bihar on 11 July, 2022
Item No.1 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
Original Application No.181/2022
(By Video Conferencing)
Dinesh Prasad Chaurasia & Ors Applicants
Versus
State of Bihar Respondent
Date of hearing: 11.07.2022
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: None.
ORDER
1. The grievances in the present letter petition sent by Mr. Dinesh Prasad Chaurasia and other residents of Village Narsanda, P.O/P.S Kanti, District Muzaffarpur, Bihar are that fly ash is being dumped and effluent is being discharged by Kanti Bijlee Utpadan Nigam Ltd. (KBUNL), of NTPC on adjoining agricultural land in village Narsanda causing flooding of farmers private land and making the same infertile. No crops could be cultivated there and fruit bearing trees on land near fly ash dyke have also dried.
2. Vide order dated 19.04.2022, this Tribunal constituted Joint Committee comprising of Central Pollution Control Board, Regional Office of MoEF&CC, Ranchi, State PCB and District Magistrate, Muzaffarpur, Bihar and directed the same to submit factual and action taken report within two months.
13. In compliance of the order the Bihar State Pollution Control Board vides its letter dated 28.04.2022 fixed meeting of the joint committee on 05.05.2022. In the meeting it was decided that the site visit to look in to the grievances of the applicant will be done on 19.05.2022 to ascertain factual position regarding alleged flooding of private land of farmers, making them infertile, damage to crops and fruit bearing trees on land near fly ash dyke of KBUNL and officials from concerned departments like Agriculture, Irrigation, Animal & Fisheries Resources, Local Body and Circle Officer of the area would also be present on the day of visit.
Accordingly, the Joint Committee visited the site on 19.05.2022 and has submitted report vide email dated 29.06.2022. The relevant parts of the report are reproduced as under:-
" Discription of Site:
M/s Kanti Bijali Utpadan Nigam Limited is an unit of M/s National Thermal Plan Corporation (NTPC), Kanti, Muzaffarpur has established 3-numbers of Fly-Ash Dykes & 1-number of Fly-Ash Pond in the north-south area between village: Narsanda & Kanti, PO+PS: Kanti, District: Muzaffarpur. The village Narsanda is situated in the east side of fly-ash dyke No-1 & 2, while Ward no - 8 is situated in the south & Ward No -- 7 in the west of village -- Kanti from the Fly-ash Pond. The fly-ash is found in practice to store, loading, unloading and transportation outside the fly-ash Dykes & fly-ash Pondon vehicles regularly.
Factual Status The Joint Committee visited the fly-ash Dykes and found that:-
1. The Fly-Ash Dykes were not fenced.
2. Paved roads were not constructed & the vehicles were in practice to travel on the dusty path full of fly-ash on soiled roads.
3. Permanent water sprinkling arrangements on Dykes & around the soiled roads of Dyke & Pond were not established.
4. The loading/unloading of vehicle with dry-fly-ash instead of wet- fly-ash were found not in practice.
5. Covering of loaded fly-ash and keeping free-board on the vehicles were found not in practice.
6. The mechanism for washing tyres of the vehicles going outside the Dykes and Pond have not established.2
7. The old canal passing near the Dyke no - 1, was not visible, causing erosion of soil and discharge of fly-ash mixing with rain water.
8. Tree plantation around outside the soiled roads not planted and not developed green belt around the Dykes and Pond.
So, it is possibility & may cause for the scattering & emission of fly- ash outside the, Dykes & Pond due to storm & rain water, damage to environment, soil & the crops of agriculture land. The old canal was not in existence due the soil erosion and discharge of fly-ash during rainy season as stated by the complainants and local villagers.
Villagers Statements:
1. Shri Kari Sah, S/o Chaturbhuj Sah, Kanti, Muzaffarpur:-
The unit is discharging wet-fly-ash through 4 numbers of pipelines, from the south of Dykes. The water comes out from the wet fly-ash of the Dykes and flow on the agriculture land, causing damage to soil and crops of agriculture land.
2. Sri Rajesh Prasad, S/o Late Falli Bhagat Narsanda, Muzaffarpur:-
The raiyati land in the east side damaged due to mixing with fly- ash during raining season to discharge of fly ash mixing with rain water.
3. Sri Pankaj Kumar, S/o Sro Jay Narayan Chaurasia, Narsanda, Muzaffarpur:-
The Old canal covered with soil and fly -ash mixing with rain water and disappeared its existence. So, discharge of rain water into river or other low land area is not functioning properly, causing water logging on agriculture land and contamination of fertile soil with fly-ash.
Findings of Departments
1. Circle Officer, Kanti, Muzaffarpur:
(Lettter Ref. No. 1091 dated - 16.06.2022) The land outside the fly-ash Dykes in the north side is not using by the NTPC. So, it is clear that the NTPC is using his own lands for the storage purpose of fly-ash.
2. District Husbandry Officer, Muzaffarpur:
(Letter Ref. No: 1209, Dated - 10.06.2022) Trace of fly-ash has been found in some agriculture lands. It may damage to the health of animals in long run.
3. Executive Engineer, Flood Control Division, Muzaffarpur:
(Letter Ref. No. 663, dated:- 09.06.2022) 3 The upper layer of dry fly-ash in the summer season, causing emission fly ash with wind and may spread nearer agriculture land and may contaminate the fertile soil. He suggested that water sprinkling arrangement on ash Dykes shall be provided to minimize the emission of fly-ash. Water may be used for sprinkling from the River Budhi Gandak. This river is situated only 1.0 KM from the Dykes.
4. District Fishery Officer, Muzaffarpur:
(Letter Ref. No. 624, dated 09.06.2022) The ponds of fishery are 1.0 KM away from the said Fly- ash Dykes. So, there is no damage to fisheries due to emission of fly-ash.
5. District Agriculture Officer, Muzaffarpur:
(Letter Ref. No. 624, Dated 09.06.2022) The water logging in the agriculture lands are due to rain water in the season and may damage to crops and orchard. The crops and orchard have not been seen healthy in this area due to emission of fly-ash and rain water flow mixing with fly ash and water logging during the rainy season.
Action Taken Report In similar complaints received from the village and others earlier for violation of environmental laws, the unit was directed to submit Bank Guarantee of Rs. 5,00 crores and accordingly submitted the same in compliance to the Board's Letter No. Ref No. 3607 dated 21.08.2020.
The State Board issued a Direction again vide Ref. No. 1857 dated 20.06.2022 To submit a "Time-Line-Program" to comply with the directions in the form of "an affidavit" "within 15 days" and submit progress report with evidence quarterly to the Board as mentioned below:
"STOP ACTIVITIES FOR STORAGE/ LOADING/UNLOADING/ TRANSPORTATION OF FLY-ASH FROM THE FLY-ASH DYKES FROM IMMEDIATE EFFECT.
Or SUBMIT A TIME LINE PROGRAM WITHIN 15 DAYS TO AND SUBMISSION OF PROGRESS REPORT QUARTERLY FROM TODAY FOR THE COMPLIANCE CONDITIONS AS FOLLOWS:
a. Construction of Fencing wall around the ash Dykes. b. Establishment of permanent pipeline for water sprinkling arrangement around the road and the Fly-Ash Dykes. c. Construction of Paved road around the Dykes to suppress fugitive emission during Transportation of Vehicles. d. Ensure loading and unloading of wet fly ash from the dykes instead of Dry fly ash.4
e. Ensure to allow the loading of vehicles with free Board and covering of material properly and after cleaning tyres before transportation outside from the dykes. f. Development of Green belt side-by-side around the dykes.
Fly Ash Pond
a) Establishment of Permanent Pipeline for water sprinkling arrangement around the road and the Fly-Ash Ponds.
b) Construction of Paved road around the Pond to suppress fugitive emission during Transportation.
c) Ensure loading and unloading of Wet Fly Ash from the dykes instead of Dry Fly Ash.
d) Ensure to allow the loading of vehicles with free Board and covering of materials properly and after cleaning of tyres for transportation.
e) Development of Green belt side by side around the road around the pond.
And In addition to the above directions, ensure water sprinkling arrangement in every 6 hrs in a day on the road, Dykes and the pond area and ensure the loading/unloading of vehicles will be conducted with wet-fly-ash instead of dry-fly-ash from immediate effect.
Failing which the Bank Guarantee shall be forfeited without granting any further opportunity. "
4. Similar allegations were made in O.A. no. 272 of 2019 titled as Satyanarayan Sahni vs State of Bihar that pollution was being caused by fly ash dump set up by thermal power plant at Village Kanti Nagar, District Muzaffarpur, Bihar causing damage to the public health, animal health and ecology in the area. Vide order dated 16.04.2019 this Tribunal directed the District Magistrate, Muzaffarpur and Bihar State Pollution Control Board to look into the matter and take appropriate action in accordance with law and furnish a factual and action taken report in the matter within two months.
5. Accordingly, a report was filed by the State PCB on 21.12.2019 finding deficiencies in handling of the fly ash by the Thermal Power Plants in question. The observations were:-5
"(ii) During inspection, all the four units of the thermal power plant under Stage - I & II, have at present, three ash-ponds of which two ash ponds in use since 1985 with no standard scientific design, take care of all the ash-slurry. The third pond called as ash-dyke, is under construction and is proposed to take care of the ash-slurry from all the said four units of stage- I & II. The ash, at present, being deposited in the said ash-pond nos. 1 & 2 occasionally breach and allow ash-slurry to the adjacent village named Kothiya. Further, for the purpose of ongoing construction of ash-dyke, trucks & lorries ply through the embankment of ash-
pond nos. 1 & 2, creating air pollution from the dryash on the ground and surface. Especially during loading and unloading of fly-ash and movement of the lorries for the purpose of transportation of dry ash to the ash-dyke, under construction, dust rises, creating Air Pollution for the resident in the vicinity. As against the allegation that the required sprinkling of water to suppress dust, was not done, a vehicle for the purpose of sprinkling water could be seen on the job around the ash- pond/ash-dyke. However, the villagers contended that water prinkling was not done regularly;
(iii) As against the contention that the transportation of fly-ash was not done in the covered vehicle, flyash could be seen during inspection under transportation in covered vehicle;
(iv) During inspection at 5 - 6 locations, fly-ash could be seen dumped near ash-pond no. 2, adjacent to the Kothiya village. Upon query, the management of the plant informed that the local people take out the ash-slurry from the ash-pond and dump the same on the bank, so as to dry it and store it. The wet-ash dumped on the site subsequently becomes dry, and when wind blows, rises as dust causing Air Pollution in the vicinity. Locals, however, refrained from giving any comment on that;
(v) As regards incidence of diseases like Cancer, TB to the villagers and death of animals including damage to the crop, the inspecting team contacted one, Dr. U.K. Chaudhary, Incharge, Primary Health Centre, Kanti and Dr. Ashok Kumar, Incharge, Veterinary Hospital, Kanti, who did not affirm in favour of the applicant's allegation. However, the concerned veterinary doctor informed that; in September, 2018, six animals died, but due to the complications relating to pregnancy and in respect of which records are also available;
(vi) As regards crops and plants getting affected adversely due to the pollution from ash ponds, no such sign or symptom were visible. However, the Board requested the Secretary, Agriculture Department, Govt. of Bihar and Secretary, PHED, Govt. of Bihar, vide the Board's letter nos. 7295, dated 12.12.2019 and 7251, dated 12.12.2019, respectively, to arrange for conduction of test on the effects of the activities of thermal power plant in the radius of 10 kilometer on agriculture and also to test at least two samples collected from each panchayat areas in the radius of 10 kilometer for obtaining analytical results in respect of heavy metals. Both the departments have been requested to supply their 6 respective results to the Board so as to report the same further to the Hon'ble Tribunal;
(vii) The allegation of the applicant with regard to pollution of water and resultant adverse effect on the crops and land were also inspected and looked into. After detailed discussions with the management of the plant and physical inspection of the locations, under reference, it was gathered that the thermal power plant, which is required to maintain Zero Liquid Discharge (ZLD), fails to arrest industrial discharge from mixing with the storm water in rainy season. The overflow reaches the lands, in question, causing concern of the people. The facility for the separation of industrial and storm - water drain is inadequate. The problem, under reference, can be taken care of once the management had foolproof system.
In addition to the said discharges in the rainy season, the incidence of seepage from the toe-line of the ash-pond, could be seen, as the existing two ash-ponds in the working condition are not perfectly designed, and therefore, in the near future, when the third pond i.e. ash-dyke becomes operational in the coming 5 - 6 months time, the problem may be solved. After detailed inspection by the team, certain recommendations were made to address the problem:-
(a) To ensure regular sprinkling of water on peripheral road upon which heavy vehicles ply;
(b) To ensure transportation of fly-ash/ soil by covered vehicle;
(c) To ensure fencing, lighting and adequate security around the ash-pond/ dyke;
(d) To ensure test of ground water and water from hand-
pump about heavy metals from some government organization (accredited lab);
(e) To ensure construction of toe-drain and peripheral drain around ash-pond/dyke to stop seepage of water into framers' field and also to ensure that there is no breach of ashpond/dyke in the rainy season;
(f) To ensure green belt around the peripheral drain by plantation wherever space is available;
(g) To ensure adequate maintenance of 'discharge pipeline rotation', so that discharge - pipeline in the ash-water recirculation system could remain leakage proof; and
(h) To ensure compliance of the conditions imposed in the environmental clearance/ CTO and directions given by the Central Pollution Control Board and State Pollution Control Board.
5. That subsequent to the inspection on 06.12.2019 - 07.12.2019, M/s. Kanti Bijlee Utpadan Nigam Limited, Kanti Unit, Muzaffarpur has been served with a Proposed Direction under section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and section 31Aof the Air (Prevention and Control of Pollution) Act, 1981, proposing thereunder environmental compensation in light of the findings during inspection by the Board."
76. In the above said case this Tribunal vide its order dated 03.02.2020 directed the District Magistrate, Muzaffarpur, and State PCB to take appropriate action in accordance with law. Order dated 03.02.2020 reads as under:-
"1. A report was sought from District Magistrate, Muzaffarpur and Bihar State Pollution Control Board with reference to the allegation of pollution being caused by fly ash dump set up by thermal power plant at Village Kanti Nagar, District Muzaffarpur, Bihar causing damage to the public health, animal health and ecology in the area.
2. The matter was thereafter considered in the light of report dated 21.12.2019 indicating deficiencies in handling of the fly ash by M/s. Kanti Bijlee Utpadan Nigam Limited, Kanti Unit, Muzaffarpur (KBUNL). The Tribunal directed further remedial action and filing of status report.
3. Accordingly, a status report has been filed by the State PCB on 16.07.2020, mentioning the steps taken including the shortening of timeline for performance of certain jobs, in the interest of the 2 environment. The State PCB, to secure performance has sought bank guarantee of Rs. 5 crores.
4. In view of above, let further action be taken by the KBUNL which may be overseen by the State PCB. The application is disposed of. A copy of this order be forwarded to M/s. Kanti Bijlee Utpadan Nigam Limited, Kanti Unit, Muzaffarpur and the State PCB by e- mail for compliance."
7. Mr. S. Chandrasekar, Member Secretary, Bihar State Pollution Control Board has summarized action taken in compliance of order dated 16.04.2019 in Factual and Action Taken Report submitted on behalf of Bihar State Pollution Control Board in the present case as under:-
"1. That in view of the orders passed by the Hon'ble Tribunal, the State Board along with representatives of the District Administration inspected the unit and ash pond of M/S KBUNL on 06.12.2019 and 07.12.2019, in presence of representatives/officers of M/S KBUNL and the local residents including the complainant.
2. That in the said inspection, inter-alia, it was found that the conditions subject to which CTO was granted to M/S KBUNL were not being complied and also the 'Environmental Clearance' conditions were not being complied. Some of the violations were found are reproduced hereunder: - i. Adequate facility for the maintenance of ash-ponds was not provided, as only one water sprinkling vehicle was seen sprinkling water in insufficient manner; ii. Ash-slurry was found dumped outside the ash-pond and was left to dry; iii. Facility for the management of the seepage water from ashpond was not developed; iv. There was no peripheral drain around the ash-pond to save from breachs; v. There was no separate storm water and industrial waste water drain; vi. There 8 have been cases of breach earlier; and vii. There was lack of security arrangement for the ash-ponds like fencing, lighting, guards, etc. to safeguard the ash-ponds from any tampering and any unforeseen mis-happening.
3. That in view of the aforesaid violations 'Proposed Direction' as contained in Memo No. 7310, dated 19.12.2019, was issued, by the Chairman of the State Board in exercise of powers conferred by Section 31A of the Air Act and Section 33A of the Water Act, and served upon 5 M/S KBUNL wherein measures for arresting the pollution being caused were proposed and M/S KBUNL was given an opportunity to file its objections (if any) as to why the Board shall not direct M/S KBUNL to implement/take the said measures in a time bound manner. Further, in the said 'Proposed Direction' M/S KBUNL was also directed to showcause as to why 'Environmental Compensation' shall not be imposed for the aforesaid violations.
4. That M/S KBUNL filed its reply vide letter no. KBUNL/MTPS/42706, dated 31.12.2019, in which they have admitted the fact of inspection and have also admitted the violations and deficiencies as pointed/noted by the inspecting team.
5. That the timelines proposed by M/S KBUNL in their reply for implementing/taking the measures as proposed by the State Board, were not acceptable to the State Board and accordingly a meeting was convened on 28.01.2020 between the State Board and Officials of M/S KBUNL at the State Board Office at Patna on the issue of timelines proposed by M/S KBUNL. That on the said meeting revised timelines were prepared mutually and M/S KBUNL agreed to implement the said timelines.
6. That in view of the aforesaid, the State Board accepted the reply filed by M/S KBUNL and allowed the request of M/S KBUNL to relinquish M/S KBUNL from imposing 'Environmental Compensation'.
7. That, however, since M/S KBUNL had miserably failed to comply with the Consent conditions; 'Environmental Clearance' conditions; directions of the State Board and also other important compliances required by the Central Government's notification the Chairman of the State Board in discharge of his duties and functions directed M/S KBUNL, vide its letter dated 25.02.2020, to furnish a bank/performance guarantee of Rs. 5 crores to ensure compliance/implementation of the work/measures as per timeline mutually agreed and undertaken by M/S KBUNL vide its letter dated 30.01.2020.
8. That M/S KBUNL vides its letter dated 29.02.2020 requested the State Board to not take bank/performance guarantee. However, the State Board did not find the prayer made by M/S KBUNL justifiable 7 considering the human health at stake and directed the appellant to furnish bank/performance guarantee to ensure that the works are carried out as per the timelines mutually agreed.
9. That to the surprise of the State Board M/S KBUNL made a representation for extending the mutually agreed timelines and vide its letter dated 21.05.2020 and 02.07.2020 submitted a fresh timeline for completion of work.
10. That since M/S KBUNL had not furnished bank/performance guarantee the State Board vide its letter dated 21.08.2020 9 informed M/S KBUNL that their plea for revised/extended time-line may only be considered after furnishing bank/performance guarantee.
11. That M/S KBUNL submitted bank/performance guarantee and accordingly the revised timelines proposed was accepted.
12. That M/S KBUNL feeling aggrieved by the State Board action of taking bank/performance guarantee filed statutory appeal which came to be registered as Appeal No. 10 of 2020, which was dismissed by the appellate authority.
13. That in view of findings of site visit and earlier action taken by State Board M/S KBUNL has been directed to complete the work and submit an affidavit suggesting time line as to when the work will be completed and in the event of failure to meet the time lines suggested earlier the State Board will forfeit the Bank Guarantee of Rs. 5 crores."
8. In the present case it is established by the Joint Committee report that the fly-ash dyke were not fenced; paved roads were not constructed due to which dust was getting suspended in air due to vehicular movement; dry fly-ash were being loaded on trucks whereas wet fly-ash is to be loaded to prevent emission; the old canal lying adjoining to the dyke has become defunct due to which during rainy season the storm water gets stagnated and consequently, the storm water, mixed with fly-ash enters into adjoining private lands of the farmers. Letter dated 09.06.2022 of the District Agriculture Officer, Muzaffarpur also substantiates that due to flooding of storm water mixed with fly-ash, crops have been damaged. It is also evident from the factual and action taken report that the Project Proponent- M/s Kanti Bijali Utpadan Nigam Ltd., Kanti, Muzaffarpur is not complying conditions stipulated in the environmental clearance and Consent to Operate the project. Show Cause notices were issued to the Project Proponent but no remedial measures have been taken by State PCB except obtaining of bank guarantee of Rs. 5 crores from the Project Proponent for compliance with the environmental clearance and Consent to Operate conditions. Further it appears from the report that specific timelines given by the Project Proponent for such compliance have not been adhered/complied so far.
109. Right to clean and healthy environment is a fundamental right within the fold of Article 21 of the constitution of India as held in M. C Mehta V/s Union of India, AIR 1987 SC 1086 and AIR 1987 SC 965 and the same cannot be allowed to be violated by administrative neglect or inefficiency or financial constraints, lack of budget etc.
10. Let Notice of the present proceedings be issued to Project Proponent- KBUNL requiring it to file its reply by giving detailed response to the allegations made in the application and findings/observations made in the Factual and Action Taken Report within two months. The Registry is directed to issue notice and get the same served on the Project Proponent- KBUNL by taking requisite steps for this purpose.
11. In view of the facts and circumstance of the case, we also consider personal appearance of the Director (O) NTPC & Chairman, KBUNL and the Member Secretary, Bihar State Pollution Control Board on the next date of hearing to be essential for producing the relevant documents regarding compliance with environmental norms and assisting this Tribunal in just and proper adjudication of the questions involved in the case.
12. The State PCB is also directed to take further remedial action in accordance with law by following due process and also file its further action taken report within two months by e-mail at judicial-
[email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.
List the matter for further consideration on 22.09.2022.
11A copy of this order along with copy of the application be forwarded to Project Proponent- KBUNL, Director (O) NTPC & Chairman, KBUNL and the Member Secretary, Bihar State Pollution Control Board by Email for requisite compliance.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM July 11, 2022 O.A. No. 181/2022 AG 12