National Green Tribunal
Khurshid Ahmed vs West Bengal Pollution Control Board on 19 July, 2023
Item No.05 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Appeal No.15/2023/EZ
In the matter of:
Khurshid Ahmed
S/o Lt. Luqman Ahmed
180/1, G. T. Road, P.O. & P.S. - Shibpur,
Howrah - 711102
.... Appellant(s)
Versus
The West Bengal Pollution Control Board
Through the Member Secretary,
Department of Environment,
Government of West Bengal,
Paribesh Bhawan Building,
10A, Block LA, Sector III,
Bidhannagar,
Kolkata - 700106
.... Respondent(s)
Date of hearing: 19.07.2023
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Appellant(s) : Mr. Prithvijoy Das, Advocate a/w
Ms. Ishani Ghoshal, Advocate
For Respondent(s) : Mr. Dipanjan Ghosh, Advocate a/w
Mr. Prithwish Basu, Advocate
ORDER
1. Heard the learned Counsel for the Appellant as well as the Counsel appearing for the West Bengal Pollution Control Board.
2. The Appellant in the present Appeal is seeking quashing of the Order dated 11.04.2023 passed by the West Bengal Pollution Control Board whereby the Appellant unit has been directed to be closed with immediate effect.
3. The Appellant is stated to be carrying on operation of collecting waste copper items which, when mixed with nitric acid, produces copper- 1 nitrate (sky blue colour liquid) and this liquid is then poured into a tank where waste iron is mixed with the liquid. It is stated that after sedimentation, pure copper is collected from the tank leaving behind the iron-nitrate solution and this iron-nitrate solution is then stated to be collected in large jars and sold to small scale industries for the purpose of weighting silks, tanning, fertilizers etc.
4. According to the Appellant, during inspection carried out by the West Bengal Pollution Control Board an orangish-yellow colour was observed at the point where the effluent discharges through Ramkrishna ferry ghat drain into the Hooghly river. When the drain was traced back for a distance of approx. 300 mtr., it was observed that it is an open channel prior to Foreshore Road and thereafter, there is an underground sewer line for rest of the distance till it meets the river.
5. It is stated that the area on both sides of the underground drain and sewer consists of mixed activities mainly by warehouses, industrial activities and some residences along with khatal. The land is stated to be owned by the Kolkata Port Trust and is being used for industrial activities.
6. It is stated that the State Board inspected some other units including the unit of the Appellant and found that all the units are operating in the area of Howrah Municipal Corporation without having any Consent to Establish (CTE) and Consent to Operate (CTO) of the State Board.
7. The Inspection Report of an inspection carried out by the State Pollution Control Board is contained in the impugned order of 11.04.2023 itself, copy of which has been filed as Annexure 'P-1' to the memo of Appeal. The Inspection Report reads as under:- 2
"Sl. Name & address of the Type of activity Remarks No. unit
1. M/s. Ambay The unit is The unit is operating Engineering located at engaged in since 10-12 years 5 no. Mollick Ghat fabrication of ago as informed by Road, P.O. & P.S.- aliminium ladders Shri Sukumar Das, Howrah, Pin-711101 and anodizing Manager of the unit.
aluminium channels. Some of the activities were going on during inspection.
2. M/s. Janbazar The unit is Aluminium located at 5 engaged in no. Mollick Ghat Road, fabrication of P.O. & P.S.-Howrah, aliminium ladders Pin-711101 and anodizing aluminium channels. During inspection the unit was closed under lock and key.
3. M/s. Salasar The unit is The unit is operating Aluminium located at engaged in since November 15 nos. Charaghat 2nd fabrication of 2022 as informed bye lane, Road, P.O. & aliminium ladders by Shri Sanjay P.S.-Howrah, Pin- and anodizing Pandey, Manager of 711101 aluminium the unit.
channels. Some of the activities were going on during inspection.
4. Unit run by Khurshid The unit is The unit is operating Ahmed located at 9 no. engaged in since 22-23 years Mollick Ghat Road, manufacturing of ago as informed by P.O. & P.S.-Howrah, copper materials. Shahnowaz Ahmed, Pin-711101 Some of the worker of the unit.
activities were
going on during
inspection.
5. Unit of Haji Jibrial The unit is The unit is operating
Ansari located at 1 no. engaged in since November
Mollick Ghat Road, manufacturing 2020 as informed
P.O. & P.S.-Howrah, pure copper from by Haji Jibrial
Pin-711101 waste copper Ansari, Proprietor of
materials. Some of the unit."
the activities were
going on during
inspection.
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8. As per the Inspection Report, the unit of the Appellant is operating since 22-23 years as informed by one Shahnowaz Ahmed, worker of the unit.
9. The impugned closure order mentions that all the units mentioned therein are operating in the Howrah Municipal Corporation area without Consent to Establish (CTE) and Consent to Operate (CTO) from the West Bengal State Pollution Control Board. None of the units have any Effluent Treatment Plant (ETP) or Air Pollution Control Device (APCD) including the Unit of the Appellant. It is also stated that the effluent generated by the unit is discharged directly to the Howrah Municipal Corporation drain which ultimately flows into the river Hooghly.
10. The impugned order also discloses that water samples were collected by the officials of West Bengal Pollution Control Board on 16.12.2022 from the discharge point of the drain to river Ganga and the result of the water samples shows gross failure with respect to pH and concentration of heavy metals.
11. The impugned order also discloses that the Technical Committee submitted its opinion that the unit falls in the Red Category of Industry (RCI) and is operating within the Howrah Municipal Corporation area in violation of the siting criteria of the State Pollution Control Board.
12. Mr. Prithvijoy Das, learned Counsel for the Appellant states that the Appellant unit has license duly issued by the Howrah Municipal Corporation on 13.07.2023 and valid upto 31.03.2024 for operating the unit in the name of M/s. Ahmed Copper Refinery, proprietor Mr. Khurshid Ahmed. Document to that effect has been passed on to the Tribunal by the learned Counsel for the Appellant.4
13. The learned Counsel for the Appellant further submitted that in the course of operation of his unit, there is absolutely no residue generated and no water wastage. However, the Report of the West Bengal Pollution Control Board and Water Analysis Report with regard to pH is contrary to the submission of the learned Counsel for the Appellant.
14. There is another aspect of the matter. Though the Counsel for the Appellant states that he has a license issued by the Howrah Municipal Corporation License Department to operate the unit, but the unit itself falls in the 'Red Category of Industry' (RCI). Question is, how was this unit allowed to function and operate within the Howrah Municipal Corporation area.
15. The extract of Red Category of industry as notified under the West Bengal Pollution Control Board Memo No. 1512/4A-18/2010 (Pt.I) dated 14.06.2016 reads as under:-
"LIST-A RED CATEGORY Sl.No. Activity 1 Isolated storage of hazardous chemicals (as per schedule of manufacturing, storage of hazardous chemicals rules, 1989 as amended) 2 Automobile manufacturing (integrated facilities) and heavy engineering including ship building (with investment on plant and machinery >10 crores) 3 Industries engaged in recycling / reprocessing / recovery / reuse of Hazardous Waste under schedule iv of HW (M, H & TBM) rules, 2008 - Items namely - Spent cleared metal catalyst containing copper, Spent cleared metal catalyst containing zinc 4 Manufacturing of lubricating oils, grease and petroleum based products 5 DG Set of capacity>5 MVA 6 Industrial carbon including electrodes and graphite blocks, activated carbon, carbon black 7 Lead acid battery manufacturing (excluding assembling and charging of lead -
acid battery in micro scale) 8 Phosphate rock processing plant (including grinding) 9 Power generation plant (including Waste to Energy plants >15 MW capacity which attract provisions of EIA Notification, 2006 as amended) [except Wind and Solar renewable power plants of all capacities and Mini Hydel power plant of capacity<25 MW] (Other than Thermal Power Plants) 5 10 Industries engaged in recycling / reprocessing / recovery / reuse of Hazardous Waste under schedule-IV of HW (M, H& TBM) Rules, 2008 - Items namely - Spent catalyst containing nickel, cadmium, Zinc, copper, arsenic, vanadium and cobalt 11 Processes involving chlorinated hydrocarbons [including rigid PVC pipe manufacturing] 12 Sugar (excluding Khandsari) 13 Fibre glass production and processing (excluding moulding) [including glass wool and rock wool production, manufacturing of mica based electrical insulating products using thinners/solvents] 14 Fire crackers manufacturing and bulk storage facilities 15 Industries engaged in recycling / reprocessing / recovery / reuse of Hazardous Waste under schedule iv of HW (M, H & TBM) rules, 2008 - Items namely - Dismantlers Recycling Plants -- Components of waste electrical and electronic assembles comprising accumulators and other batteries included on list A, mercury-switches, activated glass cullets from cathode-ray tubes and other activated glass and PCB-capacitors, or any other component contaminated with Schedule 2 constituents (e.g. cadmium, mercury, lead, polychlorinated biphenyl) to an extent that they exhibit hazard characteristics indicated in part C of this Schedule.
16 Milk processes and dairy products (integrated project) 17 Phosphorous and its compounds 18 Pulp & Paper (waste paper based without bleaching process to manufacture Kraft paper) 19 Coke making, liquefaction, coal tar distillation or fuel gas making 20 Manufacturing of explosives, detonators, fuses including management and handling activities [including manufacturing of safety match] 21 Manufacturing of paints varnishes, pigments and intermediate (excluding blending / mixing) 22 Organic Chemicals manufacturing [including phenolic products, rubber chemicals] 23 Airports and Commercial Air Strips (waste water generation >100 KLD.) 24 Asbestos and asbestos based industries 25 Basic chemicals and electro chemicals and its derivatives including manufacturing of acid 26 Cement 27 Chlorates, per-chlorates & peroxides 28 Chlorine, fluorine, bromine, iodine and their compounds 29 Dyes and Dye-Intermediates 30 Health-care Establishment (as defined in BMW Rules) for waste water generation >100 KLD or with incinerator or both 31 Hotels (3 star and above) and hotels having ≥100 rooms or waste-water generation ≥100 KLD 32 Industries engaged in recycling / reprocessing / recovery / reuse of Hazardous Waste under schedule iv of HW (M, H & TBM) rules, 2008 - Items namely - Lead acid battery plates and other lead scrap / ashes / residues not covered under Batteries (Management and Handling) Rules, 2001. [* Battery scrap, namely: Lead battery plates covered by ISRI, Code word "Rails" Battery lugs covered by 6 ISRI, Code word "Rakes". Scrap drained / dry while intact, lead batteries covered by ISRI, Code word "rains"
33 Industries engaged in recycling / reprocessing / recovery / reuse of Hazardous Waste under schedule iv of HW (M, H & TBM) rules, 2008 - Items namely - Integrated Recycling Plants -- Components of waste electrical and electronic assembles comprising accumulators and other batteries included on list A, mercury - switches, activated glass cullets from cathode -ray tubes and other activated glass and PCB -capacitors, or any other component contaminated with Schedule 2 constituents (e.g. cadmium, mercury, lead, polychlorinated biphenyl) to an extent that they exhibit hazard characteristics indicated in part C of this Schedule 34 Manufacturing of glue and gelatin [excluding glue from starch and including manufacturing of synthetic adhesives, shellac processing, rubber based adhesives, industrial adhesives using paraffin wax and resin powder (for polishing leather goods, shoes etc.)] 35 Mining and ore beneficiation 36 Nuclear power plant 37 Pesticides (technical) (excluding formulation) 38 Photographic film and its chemicals 39 Railway locomotive work shop / Integrated road transport workshop / service centers having waste-water generation ≥100 KLD 40 Yarn / Textile processing involving any effluent / emission generating processes including bleaching, dyeing, printing and colouring [including composite woolen mill, dewaxing of raw wool and raw silk, manufacturing of woolen blanket from woolen fibre] 41 Chlor Alkali 42 Ship Breaking Industries 43 Oil and gas extraction including CBM (offshore & on-shore extraction through drilling wells) 44 Industry or process involving metal surface treatment or process such as pickling / electroplating / paint stripping / heat treatment using cyanide bath / phosphating or finishing and anodizing / enamellings / galvanizing 45 Tanneries 46 Ports and harbour, jetties and dredging operations 47 Synthetic fibers including rayon, tyre cord, polyester filament yarn [including natural fibre, raw wool, raw silk, cellophane paper, cellulose nitrate] 48 Thermal Power Plants 49 Slaughter house (as per notification S.O.270 (E) dated 26.03.2001) and meat processing industries, bone mill, processing of animal horn, hoofs and other body parts 50 Aluminium Smelter 51 Copper Smelter 52 Fertilizer (basic) (excluding formulation / granulation / blending only) 53 Iron & Steel (involving processing from ore / integrated steel plants) and or Sponge Iron units 54 Pulp & Paper (waste paper based units with bleaching process to manufacture writing & printing paper) 55 Zinc Smelter 7 56 Oil Refinery (Mineral Oil or Petro Refineries) 57 Petrochemicals Manufacturing (including processing of Emulsions of oil and water) 58 Pharmaceuticals (Basic Drugs) and related R & D 59 Pulp & Paper (Large-Agro & wood), Small Pulp & Paper (agro based-wheat straw / rice husk) [including straw board, grey board, duplex board and de-inking, bleaching activity] 60 Distillery (molasses / grain / yeast based) including Fermentation industry with waste water generation ≥100 KLD (including blending, bottling of alcoholic products with waste water generation ≥100 KLD) 61 Ceramic, Refractories having coal consumption ≥12 MT / day 62 Common treatment and disposal facilities (CETP, TSDF, E-waste recycling, CBMWTF, effluent conveyance project, incinerators, solvent / acid recovery plant, MSW sanitary landfill sites, STP) 63 Ferrous and Non-ferrous metal extraction >1 MT/hr involving different furnaces through melting, refining, reprocessing, casting and alloy making and including metal extraction from Lead [including gold and silver smithy using greater than 1.0 litre sulfuric acid / nitric acid per month, forging with coal fired boilers and smelting, lead, zinc and other metals] 64 Industrial estates / parks / complexes / areas / export processing zones / SEZs / biotech parks (For Red Category member industries) 65 Industry or process involving foundry operations(foundries having capacity ≥5 MT/hr and requiring coal / coke consumption ≥500 kg/hr) 66 Manufacturing of glass (bulb, lamp, optical lens etc.) using coal / wood fired kiln including manufacturing of lead glass 67 Parboiled rice mills (Waste Water generation ≥100 KLD or fuel ≥12 MTD or both) 68 Synthetic detergents and soaps (excluding formulation) waste water generation ≥100 KLD 69 Vegetable oils including solvent extraction and refinery / hydrogenated oils having waste water generation ≥100 KLD.
70 Non-alcoholic beverage (soft drink) and bottling of non-alcoholic products with waste water generation ≥100 KLD 71 Building and construction projects >20,000 sq.mtr. built up area (waste water generation ≥100 KLD) 72 Cleaning / washing of old PVC and MS drums using mineral turpentine oil, kerosene oil and water 73 Steel and steel products using various furnaces like blast furnaces / open hearth furnace / induction furnace / arc furnace / submerged arc furnace / basic oxygen furnace [industries attracting EIA (Notification) 2006 as amended] 74 Any industry / industrial activity (irrespective of category), having solid fuel fired boiler / Thermic Fluid Heater (TFH) irrespective of capacity or oil / gas fired boiler >5 TPH Note:-
a) Any industry / industrial activity which is not covered in category lists, having coal fired boiler with steam generation capacity >5 TPH, will be considered under Red category subject to approval by the categorisation committee of the Board.
b) Any industry / industrial activity using solid fuel (coal / wood / husk etc.) fired boiler / TFH irrespective of capacity and oil / gas fired boiler >5 TPH will be considered under Red category.
c) Capacity of boilers / furnace / kiln / oven / DG set etc. in any unit refers to the cumulative capacity of all such respective items.
d) For activities attracting EIA notification, Environmental Clearance is mandatory followed by 'Consent to Establish' and 'Consent to Operate' of the Board.8
e) Detailed information for selection of specific nature of activity under industry category is available in the EMIS of the Board for facilitating project proponents."
16. The other aspect in the case is that the unit-in-question, the Appellant's unit does not have Consent to Establish (CTE) or Consent to Operate (CTO) and has been operating for 22-23 years though the impugned order mentions that no Effluent Treatment Plant (ETP) was found at the site.
17. For reasons aforesaid, we do not find any illegality or infirmity in the impugned order of closure dated 11.04.2023.
18. This case raises serious issues namely with regard to granting of license to operate a Red Category Industry (RCI) within the Howrah Municipal Corporation which is strictly prohibited. Either the officials concerned of the Howrah Municipal Corporation who are granting license are ignorant and not apprised of the rules or are operating hand in glove with the violating industries including the Appellant Unit herein.
19. Needless to say the West Bengal Pollution Control Board shall initiate criminal prosecution against the officer/officers concerned who have issued the license to the Appellant to operate a Red Category industry within the Howrah Municipal Corporation.
20. The West Bengal Pollution Control Board is also directed to compute environmental compensation against the Appellant Unit after giving him due notice, indicating the methodology of computation and inviting his objections to the same, if any, and shall thereafter determine the final environmental compensation and proceed to recover the same from the Appellant in accordance with law within two months.
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21. With the aforesaid directions, the Appeal No.15/2023/EZ is dismissed.
22. Interlocutory Applications, if any, stand disposed of accordingly.
23. There shall be no orders as to costs.
.....................................
B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM July 19, 2023, Appeal No.15/2023/EZ SKB 10