National Green Tribunal
Subhender vs Ankita Sinha on 8 November, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
ORIGINAL APPLICATION NO. 612/2022
IN THE MATTER OF:
SUBHENDER
S/o Mr. Ram Pal,
Village-Sutana, District-Panipat,
State of Haryana
...Applicant
Verses
1. STATE OF HARYANA
Through Chief Secretary,
Government of Haryana, 4th Floor,
Haryana Civil Secretariat,
Sector-1, Chandigarh
2. HARYANA STATE POLLUTION CONTROL BOARD
C-11, Sector- 6, Panchkula,
Haryana-134109
3. DEPUTY COMMISSIONER, PANIPAT
Secretariat Block, Sector-6, HUDA,
Panipat, Haryana-132103
4. M/S PANIPAT THERMAL POWER STATION
(Project Proponent)
Village Assan Kala, Khukhrana,
Jattal, Untla, Sutana, Panipat,
Haryana-132105
...Respondent(s)
COUNSELS FOR APPLICANT:
None
COUNSELS FOR RESPONDENT(S):
Mr. Rahul Khurana, Advocate for respondent no. 2
Mr. Rajat Sangwan, Advocate for respondent no. 4 (through VC)
CORAM:
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
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RESERVED ON: JULY 11, 2024
PRONOUNCED ON: NOVEMBER 08, 2024
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. Subhender S/o Ram Pal, resident of Village-Sutana, District Panipat, State of Haryana sent a letter petition dated 21.02.2022, taking cognizance whereof, Tribunal in exercise of suo-moto jurisdiction in view of law laid down by Supreme Court in Municipal Corporation of Greater Mumbai vs. Ankita Sinha, (2022) 13 SCC 401 registered it as Original Application (hereinafter referred to as 'OA') under Sections 14 and 15 of National Green Tribunal (hereinafter referred to as 'NGT Act, 2010').
2. Complainant had stated that Thermal Power Plant namely 'Tau Devi Lal Panipat Thermal Power Station' (hereinafter referred to as 'PTPS') is situated at village Khukhrana, District Panipat. It uses coal as fuel for generation of electricity. Fly ash obtained in the process of generation of electricity as residue was dumped in nearby area. During peak summer season, fly ash particles spread over the nearby villages Sutana, Jatal, Khukhrana, Untla, Aasan etc. making serious breathing problems and trouble to the passersby and the residents. In the evening of 20th May, 2022, there was heavy wind due to which fly ash entered the houses of villagers and created health problems. Besides, the fly ash particles also create chances of accident on the road by making visibility difficult. Animals are suffering due to fly ash as it has adverse impact on ambient air quality and contaminate ground water.
3. Tribunal's Order dated 22.09.2022: Tribunal took cognizance of above complaint on 22.09.2022. However, it found appropriate to obtain a factual report and thus constituted a Joint Committee comprising Central 2 Pollution Control Board (hereinafter referred to as 'CPCB'), Haryana State Pollution Control Board (hereinafter referred to as 'HSPCB') and Deputy Commissioner, Panipat. The said Committee was directed to submit Report within one month.
Interim Report dated 16.01.2023 by Joint Committee:
4. In compliance to the order dated 22.09.2022, an interim Report dated 16.01.2023 (page/4) was submitted by Joint Committee through Regional Officer, HSPCB, Panipat. Joint Committee visited the site on 16.01.2023. Committee reported that PTPS comprised of 08 units i.e., 04 no. of units of 110 MW, 02 no. of unit of 210 MW and 02 no. of unit of 250 MW. Four units of 110 MW capacity have already been dismantled in 2015. One no. of unit of 210 MW has been phased out and yet to be dismantled. Presently 03 no. of units i.e., one unit of 210 MW and 02 units of 250 MW are operating to generate electricity. Fly ash generated from the plant is stored in fly ash Silos and loaded into Bilkers/Tankers with the help of closed telescopic chutes to prevent fugitive emissions and directly transported to cement industries. Bottom ash generated from the plant is mixed with water and transferred to ash pond area with the help of pumps after making slurry. PTPS has 03 no. of ash ponds called 'ash dykes' namely A, B and C in which bottom ash is transferred from different units of PTPS. Details submitted by proponent in this regard are as under:
Ash Area in Ash Storage Ash stored Ash stored Dyke Acres Capacity (in (in Lakhs (in Lakhs Lakhs Metric Metric Metric Tonnes) in Tonnes) as Tonnes) 2018 on 01.01.2023 A 575 283 246 112 B 160 45 41 22 C 172 58 45 15 386 332 149 3
5. For transportation of ash, approximately 700 heavy earth movers (carrying capacity 20-35 tonnes) are plying in the ash dyke and its connected roads. Traffic movement of heavy earth movers causing dust resuspension needs to be handled precisely to control emissions in environment. Presently, ash is being lifted from dyke A and C only.
6. Joint Committee sought following information from proponent to assess impact of pollution due to ash handling from ash dykes on environment and public health in nearby villages:
"i. The drawings of the Ash Dykes of Panipat Thermal Power Plant (PTPP).
ii. Layout of the Ash Dykes w.r.t Poer Plant and nearby villages. iii. Last EIA report of the project of the year 2004. iv. Power generation data since the year 2018.
v. Coal Consumption data since the year 2018.
vi. Ash generation data since the year 2018 vi. Ash utilization data since the year 2018.
viii. Ambient air quality monitoring data for the last twelve months. ix. Water consumption data for the water used, for sprinkling in Ash Dykes.
x. The details of the Medical Check up Camps organized by PTPP in the nearby villages and the outcome of the same w.r.t diseases identified during medical check-up.
xi. The Time Bound Action plan of PTPP for lifting of the complete ash from Ash Dykes.
xii. Analysis report of the Coal used PTPP including ash content and heavy metals."
7. Report further said that similar matter was taken in OA 581/2016, Residents of Gram Panchayat Panchayat Jatal, District Sonipat vs. State of Haryana, wherein the question of impact on environment and public health of the villagers was examined. On the directions of HSPCB, proponent is undertaking monitoring of the studying area by engaging Shri Ram Institute of Industrial Research, Delhi, for the period of 28.12.2022 to 05.01.2023, with regard to following:
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"• Ambient Air quality monitoring in the study area from 8 locations, for the parameters relevant to thermal power plant ash against the control sample, to establish the impact on the air quality.
• Ground water sampling, various bore-wells from 5 locations, up-
stream and down-stream of the Panipat Thermal Power Plant Ash Dyke. The water quality parameters alongwith other parameters relevant to thermal power plant ash to be analysed in EPA/NABL approved Laboratory.
• Sampling of agriculture Soil of the study area from 5 locations to determine the accumulation of contaminants in the soil over a period of time, by irrigation with contaminated water and deposition of ash over a period of time."
8. Joint Committee desired to make use of analysis data of the above- mentioned samples and, therefore two months' further time was prayed to submit final report.
9. Tribunal after considering the interim report on 20.01.2023 found it appropriate to implead following as respondents:
(i) State of Haryana through Chief Secretary, Government of Haryana,
(ii) Haryana State Pollution Control Board,
(iii) Deputy Commissioner, Panipat, and
(iv) M/s Panipat Thermal Power Station (hereinafter referred to as 'project proponent/PTPS').
Report dated 10.04.2023 by Joint Committee:
10. Joint Committee submitted its Report dated 10.04.2023 vide e-mail dated 11.04.2023 through Regional Officer, HSPCB, Panipat. It analyzed the results of ambient air quality monitoring for the following periods:
i. 29.12.2022 to 30.12.2022
ii. 30.12.2022 to 31.12.2022
iii. 31.12.2022 to 01.01.2023
iv. 02.01.2023 to 03.01.2023
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v. 03.01.2023 to 04.01.2023
vi. 04.01.2023 to 05.01.2023
11. The above monitoring was conducted at 05 locations i.e., GD Goenka School, Jattal (Panipat) at rear lawn, Maharishi Kashyap Govt. Polytechnic, Jattal (Panipat) near Parking Area, Field Hostel PTPS Colony and Govt. Sr. Sec School Sutana (Panipat) at near main gate during the period of 29.12.2022 to 01.01.2023. On remaining two period, monitoring was conducted at the following places:
(i) DAV School, PTPS Colony (Panipat)
(ii) Bal Vikas School, Jattal, Panipat,
(iii) Govt. Sr. Sec. School, Jattal (Panipat), and
(iv) Atal Seva Kendra, Sutana Panipat
12. The conclusion drawn by Committee is that parameters of PM10 and PM2.5 were found exceeding the National Ambient Air Quality Standards (hereinafter referred to as 'NAAQ Standards') at all the locations. PM10 concentration was ranging between 155-432 ug/m3 (against the standard of 100 ug/m3) and PM2.5 concentration was found ranging between 66-275 ug/m3 (against the standards of 60 ug/m3).
13. Report also said that PM10 concentration in villages located in the vicinity of PTPS is much higher in comparison to Continuous Ambient Air Quality Monitoring Station (hereinafter referred to as 'CAAQMS') located at Sector 18, Panipat.
14. Further, out of 08 locations monitored by Joint Committee, Nickel concentration in the ambient air was found exceeding at 02 locations, 6 Benzene concentration was found exceeding at 04 locations and Benzo (a) Pyrene (BaP) concentration was found exceeding at 01 location.
15. The inference drawn by Joint Committee in respect of ambient air quality monitoring are as under:
"The results of the parameters PM10 and PM2.5 were found to be exceeding the NAAQ Standards, at all the locations, with PM10 concentration ranging between 155-432 ug/m3 (against the standard of 100 ug/m3) and PM2.5 concentration ranging between 66-275 ug/m3 (against the standards of 60 ug/m3). A comparison of PM10, conc. in the ambient air at the locations in the vicinity of Panipat Thermal Power Plant monitored by Joint Committee, was also made with the Continuous Ambient Air Quality Monitoring Station located at HSVP Office, Sector 18, Panipat, CAAQM station at Forest Office Jattal Road Panipat and CAAQM station at Police Line, GT Road Panipat. It was observed that PM10 conc. in the villages located at the vicinity of PTPP is much higher (155-432 ug/m3 vs. 70- 273 ug/m3, 68-394 ug/m3 and 20-282 ug/m3) in comparison to CAQMS data located at Sector 18, Panipat, CAAQM station at Forest Office Jattal Road Panipat and CAAQM station at Police Line, GT Road Panipat. Similarly, PM2.5 conc. was also higher 66-275 ug/m3 vs. 13-75 ug/m3) at the locations in the vicinity of PTPP in comparison to CAAQMS located at Sector 18, Panipat. However PM 2.5 is not installed at CAAQM station at Forest Office Jattal Road Panipat and CAAQM station at Police Line, GT Road Panipat therefore comparison was made with only CAAQM station located at Sector-18, Panipat.
Out of 8 locations monitored by the Joint Committee, Nickel concentration in the ambient air was found to be exceeding at 02 locations ranging between 27-30 ng/m3 (24 hr) against the standard of annual average 20ng/m3 Benzene concentration in the ambient air was found to be exceeding at 04 no of locations ranging between 6.2-8.7 ug/m3 (24hr) against the standard of annual average 5ug/m3.
Benzo (a) Pyrene (BaP) concentration in the ambient air, was also found to be exceeding at 01 locations out of 08 locations monitored by the Joint Committee with concentration ranging having conc of 1.1 ng/m3 (24hr) against the standard of annual average 1ng/m3."
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16. Joint Committee also examined impact on ground water quality by collecting samples at 05 locations from various borewell upstream and downstream of PTPS ash dyke. Micro biological parameters (total coliform) were found exceeding in one borewell out of 07 monitored by Joint Committee.
17. Impact on agriculture soil was examined and Joint Committee said as under:
"It was observed from the analysis of soil that the concentration of nickel and zinc is on higher side, if compared with the target values of these heavy metals as recommended by WHO. This also indicates the impact on soil due to unscientific disposal and management of ash by PTPS."
18. PTPS submitted an Action Plan for disposal of entire ash stored in ash dykes vide memo dated 01.03.2023 and the action plan submitted by it for disposal of ash was as under:
"1. The present quantity of the Ash stored in the ash dykes of the PTPS is as under:
Sr.No. Ash Dyke Quantity of Ash stored on 28.02.2023 (in lakh MT) 1 Ash Dyke-A 103 2 Ash Dyke- B 22 3 Ash Dyke- C 12 Total 137
2. The details of MOUs signed with MIS Shree Cement, NHAI and Sate PWD for lifting of the ash are as below:
Sr. Name of the Quantity of Quantity Quantity to No. Project ash Lifted till be Lifted required for 28.02.2023 (in Lakh MT) the project (in Lakh MT) (in Lakh MT) 1 Shree Cement 183.5 3.12 180.38 village-khukrana Panipat 8 2 NHAI 251.9 58.52 193.38 3 State PWD 46.64 17.36 29.28 4 Total 482.04 79 403.04 The demand of the ash is about 403 Lakh MT against the available quantity of 137 Lakh MT in ash dykes. The above estimates suggest that the accumulated and generated ash would be utilized in a span of three years as the present rate of lifting is also estimated to be order of 2,0000 MT/Day."
19. Joint Committee also examined compliance status with conditions of Consent to Operate and Environmental Clearance (hereinafter referred to as 'EC') and found that PTPS was not complying direction no. 42 dated 17.09.2021 of Commission for Air Quality Management in National Capital Region and adjoining areas regarding co-firing of biomass based Pellets, Torrefied Pellets/Briquettes (with focus on paddy straw) with Coal (up to 5-10%) in the power plants through a continuous and uninterrupted supply chain and to take all necessary steps to ensure that co-firing of biomass pellets in Thermal Power Plants begins without any delay. With regard to accident on road in the nearby area of PTPS ash dyke, the data of 2021, 2022 and some part of 2023 was given as under by Joint Committee:
Year No. of accident occurred 2021 05 2022 03 2023 till 03.03.2023 00
20. In the light of the findings and observations of Joint Committee, it made recommendations in para 3.0, as under:
"3.0. Recommendations:
1. It is pertinent to mentioned that same matter has already been undertaken before the Hon'ble NGT New Delhi in OA No. 581/2019; Residents of Gram Panchayat Jatal, District Panipat Applicant Versus State of Haryana Respondent, is related to 9 pollution caused in the nearby villages, during management of fly ash by Panipat Thermal Power Plant and a Joint Committee of CPCB and HSPCB is assessing the damage caused to the Environment and Public Health in the area. Joint committee in OA no. 581/2019 is conducting the detailed monitoring to collect the extensive data required for quantification of the affected area and the quantitative damage caused to the environment and Public health by involving subject experts, so as to prepare the remediation plan.
2. PTPS shall provide tyre washing facility of the ash carrying earth movers/ vehicles before reaching on the Panipat Assandh Road, city roads and other village road so that ash shall not come on the road and to avoid dust re-suspension
3. PTPS shall make an extensive water sprinkling plan in the ash dykes area and also along the transportation path within the Ash dykes area to prevent the maximum possible ash emissions and submit the copy of the same to CPCB and HSPCB.
4. PTPS shall install Online Cameras on all the exits of Ash dykes so that continuous surveillance of the Ash carrying vehicles can be done and any uncovered vehicle shall not ply on the roads.
5. PTPS shall comply with the action plan submitted for lifting of the entire ash from the dykes and also submit fortnightly report to HSPCB regarding the lifting of the ash as per action plan."
Reply dated 20.04.2023 filed by Deputy Commissioner, Panipat on behalf of respondents 1 and 3:
21. It refers to Joint Committee Report and said that the issue in question is to be governed by Expert Body like CPCB and HSPCB. Reply dated 20.04.2023 filed by Chief Engineer/PTPS:
22. Another reply dated 20.04.2023 was filed by Chief Engineer/PTPS wherein he submitted an action plan for disposal of entire pond ash stored in the ash dykes wherein quantity of ash stored in ash dykes as on 28.02.2023 is same as was mentioned in Joint Committee Report dated 10.04.2023. However, PTPS stated that it has signed MOUs with M/s 10 Shree Cement, NHAI and State PWD for lifting of the ash and details thereof are given as under:
"2. The details of MOUs signed with M/s Shree Cement and NHAI for lifting of the ash are as below:
Sr. Name of the Quantity Quantity Quantity to No. Project Allocated Lifted till be Lifted (in Lakh MT) 28.02.2023 (in Lakh MT) (in Lakh MT) 1 Shree Cement 183.5 3.12 180.38 2 DAK Pkg-1 66 17.34 48.66 3 DAK Pkg-2 38.5 6.82 31.68 4 DAK Pkg-3 55 3.97 51.03 5 DAK Pkg-4 66 30.39 35.61 6 Gohana Sonepat 26.84 15.30 11.54 Road 7 Barwasni Road 19.8 2.06 17.74 8 NH-44 widening 26.4 0 26.4 Total 482.04 79 403.04
23. The reply further said that presently 20000 MT/day, ash is being lifted from ash dykes by above proponents since August 2022. Entire pond ash stored in ash dykes will be utilized completely within 03 years tentatively since demand of ash is about 403 lakh MT against the available quantity of 137 lakh MT in ash dykes. The note given in the reply at sl. no.
3 and 4 reads as under:
"3. Presently, 20000 MT/ day of ash is being lifted from the ash dykes by above mentioned projects proponents since Aug 2022.
4. From the above data it is submitted that the entire pond ash stored in the ash dykes will be utilized completely within 3 years tentatively because the demand of the ash is about 403 Lakh MT against the available quantity of 137 Lakh MT in ash dykes."
24. The above reply was considered by Tribunal on 21.04.2023 and it observed that PTPS has not given any response to the observations/recommendations made by Joint Committee. Therefore, it 11 should file an additional reply with action plan for remedial measures with requisite details regarding budgetary allocation, works to be implemented, agency for execution of work and timelines for taking up remedial action. Reply dated 31.05.2023 by Respondent 4:
25. Reply dated 31.05.2023 was filed by respondent 4 giving remarks in respect of observations and recommendations made by Joint Committee as under:
Sr. Recommendations of the Joint Remarks No. Committee 1 It is pertinent to mention that same The Joint Committee is matter has already been undertaken already carrying out before the Hon'ble NGT New Delhi in OA the assessment. No. 581/2019; Residents of Gram Panchayat Jatal, District Panipat Applicant Versus State of Haryana Respondent, is related to pollution caused in the nearby villages, during management of fly ash by Panipat Thermal Power Plant and a Joint Committee of CPCB and HSPCB is assessing the damage caused to the Environment and Public Health in the area. Joint committee in OA no.
581/2019 is conducting the detailed monitoring to collect the extensive data required for quantification of the affected area and the quantitative damage caused to the environment and Public health by involving subject experts, so as to prepare the remediation plan.
2 PTPS shall provide tyre washing facility Tyre Washing of the ash carrying earth movers/ Facility will be vehicles before reaching on the Panipat installed shortly Assandh Road, city roads and other village road so that ash shall not come on the road and to avoid dust re-suspension.
3 PTPS shall make an extensive water Sprinklers will be sprinkling plan in the ash dykes area installed all along and also along the transportation path the transportation 12 within the Ash dykes area to prevent the path and inside the maximum possible ash emissions and dyke area shortly. submit the copy of the same to CPCB and HSPCB.
4 PTPS shall install Online Cameras on all Stand-alone cameras the exits of Ash dykes so that continuous are already installed surveillance of the Ash carrying vehicles at all the exits.
can be done and any uncovered vehicle However, Online
shall not ply on the roads. cameras will be
installed by
shortly.
5 PTPS shall comply with the action plan Fortnightly report is
submitted for lifting of the entire ash being sent to HSPCB from the dykes and also submit on regular basis. fortnightly report to HSPCB regarding the lifting of the ash as per action plan.
26. It is also said that for remedial action, PTPS is taking assistance of experts from Guru Jambheshwar University of Science and Technology, Hisar and some time was sought to submit action plan for taking remedial measures.
Reply dated 29.07.2023 filed by respondent 4:
27. Thereafter, a further reply dated 29.07.2023 was filed by Chief Engineer, PTPS giving remarks in respect of the recommendations made by Joint Committee in its report, slightly revised action plan for disposal of pond ash stored in ash dykes which shows change in increase in the quantity of ash stored in ash dykes as on 30.06.2023, and other remedial steps, as under:
A) Recommendations made in the report of the Joint Committee at Page no. 17:
Sr. Recommendations/observations of Remarks No. the Joint Committee 13 1 It is pertinent to mention that same The Joint Committee is matter has already been undertaken Already carrying out the before the Hon'ble NGT New Delhi in assessment.
OA No. 581/2019; Residents of Gram Panchayat Jatal, District Panipat Applicant Versus State of Haryana Respondent, is related to Pollution caused in the nearby villages, during management of fly ash by Panipat Thermal Power Plant and a Joint Committee of CPCB and HSPCB is assessing the damage caused to the Environment and Public Health in the area. Joint committee in OA no. 581/2019 is conducting the detailed monitoring to collect the extensive data required for quantification of the affected area and the quantitative damage caused to the environment and Public health by involving subject experts, so as to prepare the remediation plan.
(Page No. 17 of the Joint Committee report) 2 PTPS shall provide tyre washing Tyre Washing Facility facility of the ash carrying earth has been installed. movers/vehicles before reaching on (Pictures have been the Panipat Assandh Road, city attached for Ready roads and other village road so that reference as Annexure-
ash shall not come on the road and A)
to avoid dust re-suspension.
(Page No. 17 of the Joint Committee
report)
3 PTPS shall make an extensive water Sprinklers have been
sprinkling plan in the ash dykes installed all along the
area and also along the transportation path and
transportation path within the Ash Inside the dyke area.
dykes area to prevent the maximum (Pictures have been
possible ash emissions and submit attached for ready
the copy of the same to CPCB and reference as Annexure-
HSPCB. (Page No. 17 of the Joint B)
Committee report)
4 PTPS shall install Online Cameras on Stand-alone cameras are all the exits of Ash dykes so that Already installed at all continuous surveillance of the Ash the exits. However, 14 carrying vehicles can be done and feasibility of any uncovered vehicle shall not ply installing Online on the roads. (Page No. 17 of the cameras is being Joint Committee report explored keeping in view the remote location of the ash dykes.
5 PTPS shall comply with the action Fortnightly report is plan submitted for lifting of the entire being sent to HSPCB on ash from the dykes and also submit regular basis through fortnightly report to HSPCB emails.
regarding the lifting of the ash as per action plan.
(Page No. 17 of the Joint Committee report) B) Action Plan for disposal of pond ash stored in the ash dykes (Page no. 12 of Report of the Joint Committee):
1. The present quantity of the Ash stored in the ash dykes of the PTPS is as under:
Sr. No. Ash Dyke Quantity of Ash stored on
30.06.2023 (in Lakh MT)
1 Ash Dyke-A 96
2 Ash Dyke- B 22
3 Ash Dyke- C 5
Total 123
2. The details of MOUs signed with M/s Shree Cement and NHAI for lifting of the ash are as below:
Sr. Name of the Quantity Quantity Quantity to No. Project Allocated Lifted be Lifted (in Lakh MT) till (in Lakh 30.06.2023 MT) (in Lakh MT) 1 Shree Cement 183.5 4.41 180.38 2 DAK Pkg-1 66 21.89 44.11 3 DAK Pkg-2 38.5 9.56 28.94 4 DAK Pkg-3 55 4.45 50.55 5 DAK Pkg-4 66 32.74 33.26 Gohana Sonepat 6 26.84 18.16 8.68 Road
7. Barwasni Road 19.8 3.02 16.78 8 NH-44 widening 26.4 0 26.4 Total 482.04 94.23 387.81 15
3. Presently, 10000-20000 MT per day of ash is being lifted from the ash dykes by above mentioned projects proponents since Aug 2022. From the above data it is submitted that the entire pond ash stored in the ash dykes will be utilized completely within 3 years (tentatively) because the demand of the ash is about 388 Lakh MT against the available quantity of 123 Lakh MT in ash dykes.
C) Compliance status of the conditions of Consent to Operate and Environmental Clearance (Page no. 14 of Report of the Joint Committee):
Observation of Joint Committee:
PTPS is not complying with the direction no. 42 dated 17.09.2021 of Commission for Air Quality Management in National Capital Region and adjoining areas, regarding the co-firing of biomass based Pellets, Torrefied Pellets/Briquettes (with focus on paddy straw) with Coal (up to 5-10%) in the power plants through a continuous and uninterrupted supply chain and to take all necessary steps to ensure that co-firing of biomass pellets in Thermal Power Plants begins without any delay.
Reply of PTPS:
In view of revised Biomass Policy dated 08.10.2021 and Model Contract dated 02.03.2022 issued by Ministry of Power, fresh tender was floated on 29.03.2022 for procurement of 19.3 Lakh MT Torrified Biomass Pellets for co-firing in HPGCL Thermal Power Plants for a period of seven (7) years. The work has been awarded to M/s Beyond Drilling and Exploration Private Limited, Faridabad. Accordingly, Purchase order has been issued to the firm on 10.05.2023 (Copy of the Purchase Order has been attached as Annexure-C). As per provisions of the tender, the Firm shall start delivery of material within 270 days from the date of issuance of Lol/ Purchase Order. Out of total quantity i.e. 19.3 L MT, PTPS will utilize around 5 L MT of biomass at a total cost of Rs 476. 38 Cores (inclusive of GST) during next 7 years.
D) Measures adopted to control fly ash (Page no. 17 of Report of Joint Committee):
i) The lifting of pond ash has been stopped during day time hours (from 07 AM to 07 PM) w.e.f 13.06.2023. The timings have been restricted further (from 07 AM to 09 PM) w.e.f 29.07.2023 in pursuance of the orders issued by Deputy Commissioner Panipat during District Road Safety Committee meeting held on 07.07.2023. A copy of the letter in this regard has been attached 16 as Annexure-D.
ii) The approach roads (non-metallic) to ash dykes of PTPS have been laid with mill reject to mitigate the dust re-suspension due to vehicular movements. (Pictures attached as Annexure-E).
iii) Strict instructions have been issued to the pond ash lifters (National Highway Authority of India and M/s Shree Cement Limited) for following all the environmental norms while lifting pond ash from the ash dykes of PTPS. A copy of the correspondences done by PTPS with all the pond ash lifters is attached as Annexure-F. As per the MoUs (Memorandum of Understanding) signed by PTPS with the pond ash lifters, they are primarily responsible for following all the environmental norms. A copy of one of the MoUs has been attached as Annexure-G. This has been reiterated by MoEF&CC (Ministry of Environment, Forest & Climate Change) in its notification dated 31.12.2021 also.
iv) PTPS is going to develop a tree line on the ash bunds of the ash dyke towards village Jattal and Village Sutana. Matter is being actively taken up with the Forest Department for providing the saplings.
v) The vehicles carrying pond ash are being properly covered with tarpaulin covers to avoid any spillage. The vehicles which are found violating the environmental norms are being banned for lifting pond ash from the ash dykes of PTPS.
vi) Regular water sprinkling is being done on the Panipat-Jind Road, approach roads of ash dyke (non-metallic) and inside the dyke area as well.
E) Action plan for taking up remedial measures (as per Para no. 7 & 8 of Hon'ble NGT order dated 21.04.2023):
As per the directions of Hon'ble NGT, Respondent No. 4 (PTPS) has sought assistance of experts from IIT Roorkee. PTPS has placed work order (copy placed as Annexure-I) for preliminary site visit of the experts for understanding the background and site conditions before submitting the detailed remedial action plan. Dr. V. Bhanu Prakash (Associate Professor, Department of Civil Engineering, IIT Roorkee) and Mr. Jatinder Singh Kamyotra (Ex-Member Secretary, CPCB) visited PTPS on 12.07.2023 & 13.07.2023. The Preliminary site visit report of the experts is awaited. The experts visited the sampling locations from where samples of air and ground water were collected. They have asked for more details related to sampling procedures followed by Shriram Institute of Industrial Research for in-depth analysis of the sampling 17 results especially non-conformities/deviations and for suggesting remedial measures."
28. Tribunal's Order dated 06.09.2023: Tribunal vide order dated
06.09.2023 directed respondent 4 i.e., PTPS to file additional reply giving details of generation and disposal of fly ash including legacy fly ash during last 03 years, plantation carried out, utilisation of land reclaimed with disposal of legacy fly ash, CER activities undertaken and action plan with specific timelines for complete disposal of legacy fly ash. Reply dated 06.11.2023 filed by Respondent 4:
29. Pursuant to the above order, Chief Engineer, PTPS filed reply dated 06.11.2023 wherein details of ash generation data, ash disposal data including legacy fly ash for last 03 financial years were given as under:
Sr. Financial Total Ash Total Ash utilized Total Ash utilized No. Year Generated (Lakh MT) (%) (Lakh MT) Total Ash Legacy Total Legacy Utilization Ash Ash Ash including utilized Utilized Utilized legacy (LMT) including (%) ash (LMT) legacy ash (%) 1 2020-21 3.23 32.35 29.12 999.30 901.54 2 2021-22 7.55 82.51 74.96 1092.10 992.84 3 2022-23 12.77 64.48 51.71 504.98 404.93 4 2023-24 6.08 20.37 14.29 334.69 235.03 upto Sept
30. Respondent 4 also referred to Ministry of Environment, Forest and Climate Change (hereinafter referred to as 'MoEF&CC') Gazette Notification dated 31.12.2021 and said as under:
"As per MoEF&CC gazette notification dated 31.12.2021, every coal based thermal power plant shall be responsible to utilize 100 18 percent (fly ash and bottom ash) generated during that year, however, in no case shall utilization fall below 80 percent in any year, and the thermal power plant shall achieve average ash utilization of 100 percent in a three years cycle. As evident from the above table, the legacy ash utilization in last three financial years is ranging from 900 to 400 percent. Further, the legacy ash was 350 L MT as on 01.04.2016 which has been reduced to 118 L MT, as on 30.09.2023 within a time span of 7 years & 6 months."
31. On the issue of plantation, utilisation of land reclaimed, CER activities and action plan for disposal of pond ash stored in ash dykes, respondent 4 replied as under:
"B) Plantation carried out:
Total number of trees planted by PTPS (HPGCL) till date is around 98000 of various species like Neem, Arjun, Jamun, Peepal, Siris, halasina, Kigelia etc. Plantation drive is being organized at different times of the year in & around the plant area.
C) Utilization of land reclaimed with disposal of legacy fly ash:
S.No. Ash Ash Area Quantity of Proposed use Dyke Disposal (in Ash stored after disposal of acres) as on legacy ash 30.09.2023 1 A Unit 1 to 5 600 95.11 Solar Plant 2 B Unit-6 100 21.82 For ash disposal of Unit-6 3 C Unit- 7 & 8 100 1.67 For ash disposal of Unit-7 & 8 Presently, pond ash is being lifted simultaneously from all the three ash dykes of PTPS, Panipat. It is proposed that after disposal of pond ash from Ash dyke-A, a solar plant will be installed over this area.
Ash dyke-B & C will be kept for disposal of Unit-6 and Unit 7 & 8 respectively.
D) CER (Corporate Environmental Responsibilities KSR (Corporate Social Responsibilities) undertaken:
1) Renovation work of the building of Govt. Sanskriti Primary School, Village Jattal (Panipat) has been carried out in the financial year 2022-23 with financial implication of Rs. 80 Lekhs.19
2) Technical training to the students of ITI (Industrial Training Institutes) is being provided under skill development apprenticeship program. Around Rs 1.05 Crores have been spent by PTPS (HPGCL) for this activity in last three financial years. The expenditure details are as under:
S. No. Financial Year Expenditure carried out 1 2020-21 Rs 48,17,215/-
2 2021-22 Rs 44,22,049/-
3 2022-23 Rs 12,89,333/-
Total Rs 1.05,28,597/-
3) Regular medical health check-up camps for the residents of the neighbouring villages are organized.
E) Action Plan for disposal of pond ash stored In the ash dykes with specific Timelines:
1. The details of MOUs signed with M/s Shree Cement and NHAI for lifting of the ash are as below:
Sr. Name of the Quantity Quantity Quantity Completion No. Project Allocated Lifted till to be date (in LMT) 30.09.2023 Lifted (in *LMT) ( in LMT) 1 Shree 160.5 3.61 156.39 05.06.2030 Cement 2 Shree 23.5 1.66 21.84 14.04.2027 Cement 3 DAK Pkg-1 66 22.18 43.82 17.02.2024 4 DAK Pkg-2 38.5 11.56 26.94 17.02.2024 5 DAK Pkg-3 55 4.45 50.55 17.02.2024 6 DAK Pkg-4 66 32.76 33.24 06.07.2023 7 Gohana- 26.84 19.69 7.15 04.02.2024 Sonepat 8 Bawana- 19.8 3.90 15.9 22.03.2024 Barwasni 9 NH-44 26.4 0 26.4 24.05.2023 widening Total 482.04 99.81 382.23
2. As per MoEF&CC gazette notification dated 31.12.2021, the legacy ash is to be utilized progressively by the thermal power plants in such a manner that the utilization of legacy ash shall be completed within ten years from the date of publication 20 (31.12.2021) i.e. till 30.12.2031. Presently, 8000-10000 MT per day of ash is being lifted from the ash dykes by above mentioned projects proponents since Aug 2022.
3. From the above data it is submitted that the entire pond ash stored in the ash dykes will be utilized completely within 3-4 years because the demand of the ash is about 382 Lakh MT against the available quantity of 118 Lakh MT in ash dykes
32. Tribunal's Order dated 08.11.2023: The above reply was considered by Tribunal on 08.11.2023. It observed that respondent 4 has not disclosed as to how much plantation it was required to carry out and actually carried out in terms of conditions of EC with details of area, number of trees, survival of rate and density of plantation. For expenditure of CER activities, Tribunal found that amount spent for renovation of a Govt. Primary School and training of ITI students which benefited educational activities of limited number of students but resulted in no benefit to the residents of locality who were suffering from adverse impact of environmental pollution due to storage of fly ash. Respondent 4, therefore, was directed to file a further additional reply. Additional Reply dated 18.03.2024 by Respondent 4:
33. Pursuant thereto, respondent 4 filed additional reply dated 18.03.2024 giving details of plantation etc. as under:
"A) Area Brought Under Plantation:
As per Environmental clearance (EC) issued by Ministry of Environment & Forest (MoEF), GOI vide memo no. J-13011/2002- IA.II (T) dated 23.08.2002, a greenbelt covering an area of 44 hectare should be developed around construction yard, plant boundary, ash disposal area etc. ensuring a tree density of 1500-2000 trees per hectare.
Reply: A topographic & cadastrat survey have been got done to find out the exact area under plantation. As per the survey report, 42 hectare of land is under plantation inside the plant area and 21 1.38 hectare of land is under plantation inside the colony area. The report is attached as Annexure-A. PTPS has planned for further plantation in 7 hectares near the ash dyke area and 7 hectares inside the plant area in co-ordination with the forest department of Haryana in Financial year 2024-25 starting June/July 2024.
B) Species planted, density & survival rate:
As per EC dated 23.08.2002, an area of 44 ha was to be brought under plantation with a density of around 1500-2000 trees per ha.
Reply: The total number of trees planted by PTPS (HPGCL) till date is around 98000 number tentatively. However, PTPS is carrying out tree census (Annexure-B) in a phased manner, to find out the exact number of trees and tree density, Various species like Neem, Arjun, Jamun, Peepal, Sins, halasina, Kigelia etc. have been planted. No historical data is available for calculating the survival rate.
C) Action plan for further plantation:
i) Forest department has been approached for development of
a green belt on a vacant land of around 17.5 acres (7 hectare) near the ash dyke area and 17.5 acres (7 hectares) inside the plant area. Forest department has carried out the field survey and has submitted the budgetary offer (Rs 1.90 Crores) for both creation & maintenance (1 year+3 years) of the green belt. The plantation drive has been scheduled from June/July 2024. Total 15,400 trees of different species will be planted. (Annexure-C)
ii) PTPS has developed a nursery on pilot basis. Different varieties of flower seedlings and tree saplings are propagated for further transplantation at different locations in the station. (Annexure-D)."
34. On the question CER/CSR, respondent 4 stated that it is required to spend at least 2% of average net profits of the company made during immediately preceding financial years. The net profit in 2021-22 was in negative though in 2022-23, it was positive but average net profit was - 494.29 Crores still it spent Rs. 5.13 lakhs till 29.02.2024 in 2023-24 as SCR expenditure, besides what it had already spent for renovation of 22 Government School and for technical training to ITI students, disclosed earlier.
35. Tribunal's Order dated 21.03.2024: On 21.03.2024, when the matter was taken by Tribunal, an officer of PTPS appeared and informed about agreement made by respondent 4 regarding disposal of fly ash and requested for some time to place the relevant material on record which was granted.
Reply dated 19.04.2024 by Chief Engineer, PTPS (Respondent 4):
36. Chief Engineer, PTPS submitted its reply dated 19.04.2024 wherein details of ash generation and disposal including legacy ash in the last 04 years was mentioned as under:
Total Ash utilized Total Ash utilized
(Lakh MT) (%)
Sr.No. Financial Total Ash Total Ash Legacy Total Legacy
Year Generated Utilization Ash Ash Ash
(Lakh MT) including utilized Utilized Utilized
legacy (LMT) including (%)
ash (LMT) legacy
ash
(%)
1 2020-21 3.23 32.35 29.12 999.30 901.54
2 2021-22 7.55 82.51 74.96 1092.10 992.84
3 2022-23 12.77 64.48 51.71 504.98 404.93
4 2023-24 10.61 34.89 24.28 328.76 228.84
37. It also referred to the MoEF&CC's Gazette Notification dated 31.12.2021 and said that legacy ash was 350 lakhs MT as on 01.04.2016 which has got reduced to 108 lakhs MT as on 31.03.2024 i.e., within a time span of 08 years. The remaining legacy ash is required to be utilised progressively in terms of the Gazette Notification dated 31.12.2021 and 10 23 years from the date of publication i.e., 30.12.2021. Action plan for disposal of pond ash stored in ash dykes, reads as under:
"Action Plan for disposal of pond ash stored in the ash dykes:
The details of sales orders signed by PTPS for lifting of the ash are as below:
Sr. Name of the Quantity Quantity Quantity to be
No. Project Allocated Lifted till Lifted
( in LMT) 31.03.2024 ( in LMT)
( in LMT)
1 Shree 160 4.15 155.85
Cement
2 Shree 23.5 2.31 21.16
Cement
3 Tomer 1.50 0.00 1.50
Enterprises
Total 185 6.46 178.51
Presently, around 2000 MT of pond ash per day is being lifted from the ash dykes by above mentioned projects proponents.
PTPS has recently issued sales order (Annexure-A) to M/s Tomer Enterprises. Bhiwani for sale of 1.5 L MT on paid basis (Rs 152 per MT plus GST extra). Further. PTPS is in process of signing a MoU (Annexure-B) with NHAI (PIU-Ambala) for supplying 10 Lakh MT of pond ash on paid basis (Rs 136.80 per MT plus GST extra). The period of supply shall be 2 years or till the allocated quantity is lifted, whichever is earlier. From the above data, it is submitted that the entire pond ash stored in the ash dykes will be utilized completely within 3-4 years because the demand of the ash is about 178 Lakh MT against the available quantity of 108 Lakh MT in ash dykes."
Reply dated 17.05.2024 filed by Respondent 4:
38. Copy of the reply dated 19.04.2024 was again filed along with letter dated 17.05.2024 hence we are not repeating.
39. Tribunal's Order dated 24.05.2024: Reply dated 17.05.2024 was considered by Tribunal on 24.05.2024 and it observed that in the financial year 2021-2022, ash utilization was to the extent of 82.51 L MT, but 24 thereafter, in next 02 financial years, it had reduced and substantially reduced in the financial year 2023-24. Tribunal enquired from Counsel appearing for PTPS reason for reduction of utilization in the financial year 2022-23 and 2023-24 for which he sought time to seek instructions which was granted.
Reply dated 29.05.2024 filed by Respondent 4:
40. In the reply dated 29.05.2024, proponent sought to explain the above reduction and utilization in 2022-23 and 2023-24 as under:
"1. The legacy ash utilization reduced from 82.51 Lakh MT in FY 2021-22 to 64.48 Lakh MT in FY 2022-23 and 34.89 Lakh MT in 2023-24, mainly due to following reasons:
i. During the meeting of District Road Safety Committee held on 07.07.2023, District Administration, Panipat directed PTPS to allow the lifting of pond ash by NHAI concessionaires during night hours only i.e. from 09 PM to 07 AM (10 hours daily) which significantly affected the daily lifting quantity of legacy ash from ash dykes of PTPS during the FY 2023-24. Minutes of meeting are placed at Annexure-A. ii. The total height of the ash dykes of PTPS ranges from 12 metres to 19 metres. During the initial phases of ash evacuation (in FY 2021-22) by NHAI concessionaires, it was easier for the loaded trucks to transport the ash and the turn-around time was less but as the depth increased gradually due to ash evacuation the transportation process slowed down and turn-around time increased which significantly affected the daily lifting quantity of legacy ash from ash dykes of PTPS during the FY 2023-24.
iii. PTPS signed 9 MoUs with NHAI for early utilization of legacy ash. The MoUs were signed in Nov 2020, March 2021, April 2021, July 2021 and February/March 2022 with a completion period of 24 months. The NHAI concessionaires lifted maximum quantity during FY 2021-22 and FY 2022-23. Most of the MoUs expired during FY 2023-24 (1 MoUs in July 2023, 4 MoUs in Feb 2024 and 2 MoUs in March 2024) which significantly affected the lifting of legacy ash in this financial year.25
iv. PTPS has three operational units. Unit 6 is of 210 Megawatt and Unit 7 & 8 is of 250 Megawatt each. 20 percent of the ash generated is discharged in the ash dykes through slurry (ash plus water) formation. Pond ash lifting is done simultaneously with slurry discharge process by channelizing the slurry to other area of the dyke. Slurry covers a large portion of the ash dyke area at any point of time. Due to less demand during the FY 2021-22, Units remained under shutdown for more than half of the year, which enabled the lifters to lift the pond ash from a larger area of the ash dyke and at a faster pace in comparison to FY 2022-23, when the demand of electricity increased post- COVID resulting into continuous discharge of slurry for considerable period of time. Plant Load Factor (percentage) of PTPS during last three years is as shown below:
Sr. No. FY 2021-22 FY 2022-23
PLF (%) 44.29 78.13
v. PTPS stopped the lifting of pond ash by the lifters if they are found violating the guidelines issued by Hon'ble NGT from time to time like installation of tyre washing facilities, installation of CCTVs, permanent water sprinklers on transportation path etc. PTPS stopped the lifting from 08.09.2023 to 25.09.2023 (Annexure-B) due to non-compliance of the norms by NHAI concessionaire."
41. Proponent further submitted reply with regard to action plan for disposal of pond ash stored in ash dykes, pollution control measures adopted by it during lifting of pond ash from ash dykes, area brought under plantation and action plan for further plantation by stating as under:
"2. Action Plan for disposal of pond ash stored in the ash dykes:
The details of sales orders signed by PTPS for lifting of the ash are as below:
Sr. Name of the Quantity Quantity Quantity to be
No. Project Allocated Lifted till Lifted
(in LMT) 31.03.2024 (in LMT)
(in LMT)
26
1 Shree 160 4.15 155.85
Cement
2 Shree 23.5 2.31 21.16
Cement
3 Tomer 1.50 0.00 1.50
Enterprises
Total 185 6.46 178.51
Presently, around 2000 MT of pond ash per day is being lifted from the ash dykes by above mentioned projects proponents. PTPS has recently issued sales order (Annexure-C) to M/s Tomer Enterprises, Bhiwani for sale of 1.5L MT on paid basis (Rs 152 per MT plus GST extra). Further, PTPS is in process of signing a MoU (Annexure-D) with NHAI (PIU-Ambala) for supplying 10 Lakh MT of pond ash on paid basis (Rs 136.80 per MT plus GST extra). The period of supply shall be 2 years or till the allocated quantity is lifted, whichever is earlier. From the above data, it is submitted that the entire pond ash stored in the ash dykes will be utilized completely within 3-4 years because the demand of the ash is about 178 Lakh MT against the available quantity of 108 Lakh MT in ash dykes.
3. Pollution controlling measure adopted by PTPS during lifting of pond ash from ash dyke:
i) The approach roads (non-metallic) to ash dykes of PTPS have been laid with mill reject to mitigate the dust re-suspension due to vehicular movements. (Pictures attached as Annexure- E).
ii) PTPS is going to develop a green belt (17.5 acres) adjacent to ash dykes towards nearby villages.
iii) The vehicles carrying pond ash are being properly covered with tarpaulin covers to avoid any spillage. The vehicles which are found violating the environmental norms are being banned for lifting pond ash from the ash dykes of PTPS.
iv) Regular water sprinkling is being done on the Panipat-
Jind Road, approach roads of ash dyke (non-metallic) and inside the dyke area as well through tankers and permanent sprinklers (Annexure-F).
v) Tyre Washing Facility has been installed (Annexure-G).
vi) CCTVs have been installed for regular monitoring of trucks deployed for lifting of pond ash (Annexure-H).
4. Area brought under plantation:
A topographic & cadastral survey have been got done to find out the exact area under plantation. As per the survey report, around 27 42 hectare of land is under plantation. The report is attached as Annexure-I. The total number of trees planted by PTPS (HPGCL) till date is around 98000 tentatively. However, PTPS is carrying out tree census to find out the exact number of trees and tree density.
Till date, around 40,000 trees have been counted. Various species like Neem, Arjun, Jamun, Peepal, Siris, halasina, Kigelia etc. have been planted. No historical data is available for calculating the survival rate.
5. Action plan for further plantation:
i) Forest department was requested to carry out field visit for plantation in the vacant land and submit the budgetary offer accordingly. DFO, Panipat visited PTPS along with her team on 12.03.2024 and submitted the budgetary offer on 18.03.2024 (Annexure-J). The total financial implication shall be Rs 2.68 Crores for the green belts to be developed on around 35 acres of land by planting around 15,400 trees during the FY 2024-25.
ii) PTPS has developed a nursery on pilot basis (Annexure-K).
Different varieties of flower seedlings and tree saplings are propagated for further transplantation at different locations in the station."
Reply dated 09.07.2024 by respondent 4:
42. Respondent 4 has further filed reply dated 09.07.2024 again containing its stand in regard to action plan for disposal of pond ash stored in ash dyke; ash generation and disposal data in the last 02 financial years and legacy ash utilization reduction in 02 financial years i.e., 2022-23 and 2023-24 and has said as under:
"1. Action Plan for disposal of pond ash stored in the ash dykes:
The details of sales orders signed by PTPS for lifting of the ash are as below:
Sr. Name of the Quantity Quantity Quantity to be
No. Project Allocated Lifted till Lifted
(in LMT) 31.05.2024 (in LMT)
(in LMT)
1 Shree 160.0 4.15 155.85
Cement
28
2 Shree 23.50 3.31 20.16
Cement
3 Tomer 1.50 0.00 1.50
Enterprises
4 M/s H.G. 10.0 0.00 10.0
Karnal
Ringh Road
Pvt. Ltd.
Total 195.0 6.46 188.54
PTPS has issued sales order (Annexure-A) on 05.07.2024 to M/s H.G. Karnal Ring Road Pvt. Ltd. for sale of 10 Lakh MT. The period of supply shall be 2 years or till the allocated quantity is lifted, whichever is earlier.
2. Ash generation data and ash disposal data including legacy ash for last three financial years is as under:
Sr.No. Financial Total Ash Total Ash utilized Total Ash utilized Year Generated (Lakh MT) (%) (Lakh MT) Total Ash Legacy Total Legacy Utilization Ash Ash Ash including utilized Utilized Utilized legacy (LMT) including (%) ash (LMT) legacy ash (%) 1 2021-22 7.55 82.51 74.96 1092.10 992.84 2 2022-23 12.77 64.48 51.71 504.98 404.93 3 2023-24 10.61 34.89 24.26 328.76 228.84
3. The legacy ash utilization reduced from 82.51 Lakh MT in FY 2021-22 to 64,48 Lakh MT In FY 2022-23 and 34.89 Lakh MT In 2023-24, mainly due to following reasons i. During the meeting of District Road Safety Committee held on 07.07.2023, District Administration, Panipat directed PTPS to allow the lifting of pond ash by NHAI concessionaires only during night hours i.e., from 09 PM to 07 AM (10 hours daily) which significantly affected the daily lifting quantity of legacy ash from ash dykes of PTPS during the FY 2023-24. Month-wise legacy ash utilization, before & after imposition of this restriction was as given below:
S.No. Month Legacy ash utilized (Lakh MT)
1 May 2023 4.81
2 June 2023 3.88
29
3 July 2023 1.73
ii. The total height of the ash dykes of PTPS ranges from 12 metres to 19 metres. The lifting of ash is done through open trucks covered with tarpaulin covers. During the initial phases of ash evacuation (in FY 2021-22) by NHAI concessionaires, it was easier for the loaded trucks to transport the ash but as the depth increased gradually due to evacuation the transportation process slowed down which significantly affected the daily lifting quantity of legacy ash from ash dykes of PTPS during the FY 2023-24.
iii. PTPS signed 9 MoUs with NHAI for early utilization of legacy ash.
The MoUs were signed in Nov 2020, March 2021, April 2021, July 2021 and February/March 2022 with a completion period of 24 months. The NHAI concessionaires lifted maximum quantity during the initial stages of project construction i.e. FY 2021-22 and FY 2022-23.
iv. PTPS has three operational units. Unit 6 is of 210 Megawatt and Unit 7 & 8 is of 250 Megawatt each. 20 percent of the ash generated is discharged in the ash dykes through slurry (ash plus water) formation. Pond ash lifting is done simultaneously with slurry discharge process by channelizing the slurry to other area of the dyke. Due to less demand during the FY 2021-22, Units remained under shutdown for more than half of the period, which enabled the lifters to lift the pond ash from a larger area of the ash dyke and at a faster pace in comparison to FY 2022-23, when the demand of electricity increased post-COVID resulting into continuous discharge of slurry for considerable period of time.
Plant Load Factor (percentage) of PTPS during last three years is as shown below:
Sr. No. FY 2021-22 FY 2022-23
PLF (%) 44.29 78.13
Further, as per MoEF&CC gazette notification dated 31.12.2021, every coal based thermal power plant shall be responsible to utilize 100 percent (fly ash and bottom ash) generated during that year, however, in no case shall utilization fall below 80 percent in any year, and the thermal power plant shall achieve average ash utilization of 100 percent in a three years cycle. As per MoEF&CC gazelle notification dated 31.12.2021, the legacy ash is to be utilized progressively by the thermal power plants in such a manner that the utilization of legacy ash shall be completed within ten years from the date of publication (31.12.2021) i.e. till 30.12 2031.
30
It is submitted that the entire pond ash stored in the ash dykes will be utilized completely within 2-3 years because the demand of the ash is about 188.54 Lakh MT against the available quantity of 108 Lakh MT in ash dykes."
43. Learned Counsel for proponent i.e., respondent 4 stated that broadly all the recommendations made by Joint Committee in para 3.0 of its Report dated 10.04.2023 have been complied with. For disposal of pond ash stored in ash dykes, effective steps have been taken and it shall be completely utilised in next 02 to 03 years, since available quantity is now reduced to 108 lakhs MT though demand of ash is very high.
44. Per contra, Counsel for HSPCB ambient air quality as also agriculture soil examined by Joint Committee has been found to be adversely affected due to presence of metals etc. which shows that air and soil both have been polluted effectively due to non-handling of ash effectively by the proponent and, therefore, it is liable to pay environmental compensation by application of principle of 'Polluter Pays' not only for past violations but also for future till the entire pond ash stored in ash dykes is cleared/disposed scientifically.
45. We have heard Learned Counsel for the parties and perused the record.
46. Joint Committee Report dated 10.04.2023 shows that ambient air quality was monitored for different periods from December 2022 to January 2023 at different locations and the conclusion drawn by Committee was that parameters of PM10 and PM2.5 were exceeding NAAQ standards at all the locations. In the nearby villages also, PM10 concentration was found much higher in comparison to CAAQMS located at Sector 18, Panipat. Further, out of 08 locations monitored by Joint 31 Committee, Nickel concentration was found exceeding prescribed limits at 02 locations, Benzene concentration was found exceeding at 04 locations and Benzo (a) Pyrene (BaP) concentration was also found exceeding at 01 location. In the agriculture soil examination, Joint Committee found that concentration of Nickel and Zinc was on higher side which shows unscientific disposal and management of ash by PTPS.
47. Respondent 4 in reply to the above findings of Joint Committee has not placed anything on record to contradict the said findings and, therefore, we have no reason but to accept the said findings and Report dated 10.04.2023 of Joint Committee.
48. With regard to past violations and damage caused to environment for the years 2018-19 and 2019-20, this Tribunal had already issued directions in OA 581/2016 (supra) directing HSPCB, CPCB and District Magistrate to take remedial action for preventing further pollution, assess and recover compensation for past violations in accordance with law.
49. These proceedings have been initiated vide Tribunal's order dated 22.09.2022 and at least for the period of October 2022 to 30.06.2024, the issue of environmental compensation on account of damage caused to environment by respondent 4 has to be examined in the present matter.
50. We are informed that the process to assess extent of damage caused to environment and computation of environmental compensation is still pending before the authorities concerned pursuant to Tribunal's order dated 18.01.2022 in OA 581/2016 (supra). We do not appreciate any reason for such delay for computation of environmental compensation when damage to environment is writ large and evident from the documents 32 on record. It also cannot be doubted that principle of 'Polluter Pays' is attracted on the facts of the present case where due to non-handling of fly ash scientifically by respondent 4, environment has been degraded and damaged causing air pollution and soil contamination which ultimately leads to ground water contamination etc.
51. For such violations on the part of respondent 4, in our view, by application of principle of 'Polluter Pays', as held by Supreme Court in various authorities and also in view of the mandate under Section 20 of NGT Act, 2010 where this Tribunal has to comply principle of 'Polluter Pays', the violator is liable to pay environmental compensation for damage caused to environment by violating environmental laws and norms.
52. When environment is damaged on account of act of anyone, on account of illegal activities which are in violation of environmental laws and norms, such violator is liable to share the cost which may be incurred for remediation and rejuvenation of damaged environment. Supreme Court on this aspect has categorically said that the violator is liable to share cost which may be required for remediation of environment which is damaged on account of illegal activity of such violator. For this purpose, Supreme Court has recognized the principle of 'Polluter Pays'.
53. This Principle was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996) 3 SCC 212. Certain industries producing assets were dumping their waste. Even untreated waste water was allowed to flow freely polluting atmosphere and sub-terrain supply of water which ultimately caused darkening and dirtiness of wells and the streams water rendering it unfit for human consumption. Certain environmentalists' organizations broadly 33 alleging severe damage to villager's health, filed a Writ petition as PIL in 1989 before Supreme Court. By that time, some of the units were already closed. Referring to Article 48-A in Directive Principles of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavour to protect and improve environment and to safeguard the forest and wildlife of the country. One of the fundamental duties of citizens is to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creature. Where a Proponent has established its commercial unit and operate contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it fails, a judicial forum can direct it to act in accordance with law.
54. Referring to Oleum Gas leak case, i.e., M.C. Mehta vs. Union of India, (1987) 1 SCC 395, Court observed in para 58 that the constitution bench held that enterprise must be held strictly liable for causing such harm as a part of social cost of carrying on the hazardous or inherently dangerous activity. Hazardous or inherently harmful activities for private profits can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of carrying on of such hazardous or inherently dangerous activity, regardless of whether it is carried on carefully or not.
55. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India, (1995) 3 SCC 77, wherein concerned Pollution Control Board identified about 22 industries responsible for causing pollution by discharge of their effluent and a 34 direction was issued by Court observing that they were responsible to compensate the farmers. It was the duty of State Government to ensure that this amount was recovered from the industries and paid to the farmers. In para 67 of the judgment, Court said that the question of liability of respondent units to defray the costs of remedial measures can also be looked into from another angle which has now come to be accepted universally as a sound principle, for example, 'Polluter Pays' principle. On this aspect, Court further observed as under:
"67. ...The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The 'Polluter Pays' principle was promoted by the Organization for Economic Co- operation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialized society. Since then, there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.
Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme ([1987] OJC 328/1) makes it clear that the cost of preventing and eliminating nuisances must in principle be borne by the polluter', and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventative action; the need for environmental damage to be rectified at source; and that the polluter should pay."35
56. Court further said that according to the above principle of 'Polluter Pays', responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 of EP Act, 1986 empower Central Government to give directions and take measures for giving effect to this principle. Court further said:
"...In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment [Protection] Act, 1986. It is, of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."
57. The above principle has been followed in Vellore Citizen Welfare Forum vs. Union of India, 1996 (5) SCC 647. In para 25, direction no. 2 reads as under:
2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays"
principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.
58. In Bittu Sehgal and Another vs. Union of India & Others, (2001) 9 SCC 181, referring the earlier judgments, Supreme Court has said that 'Precautionary Principle' and 'Polluter Pays Principle' have been accepted as part of the law of the land.
59. In Research Foundation for Science vs. Union of India & Ors., 36 (2005) 13 SCC 186, in para 26 and 29, Court, on 'Polluter Pays' Principle, has said as under:
"26. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter-pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.
29. The polluter-pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case."
60. In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Others, (2006) 6 SCC 371, principle of 'Polluter Pays' has been explained in detail referring to the earlier judgments in Indian Council for Enviro-Legal Action vs. Union of India (supra) and Vellore Citizen Welfare Forum (supra).
61. Even this Tribunal under Section 20 of NGT Act, 2010 has been empowered to decide matters by applying the principle of 'Sustainable Development', 'Precautionary Principle' and principle of 'Polluter Pays'.
62. In view of the discussions made above, we are of the view that environmental compensation may be computed, payable by respondent 4, on the present balanced fly ash in ash dykes i.e., 108 lakhs MT (10800000 tonnes) by computing compensation at the rate of One Paisa/tonne/day. 37 Computation of environmental compensation for 639 days i.e., from 01.10.2022 to 30.06.2024, thus, would be:
10800000 Tonnes × 639 days × Rs.0.01 = Rs.69031200/-.
63. We accordingly hold that respondent 4 - PTPS is liable to pay Rs.
6,90,31,200/- towards environmental compensation for the period from October 2022 to 30.06.2024 for causing damage to environment on account of unscientific handling, management and disposal of fly ash.
64. Respondent 4 has taken a stand that the entire quantity of ash lying in ash dykes i.e., 108 lakh MT shall be scientifically disposed within 02 to 03 years. We direct it to abide by the above timeline and dispose of fly ash completely positively by 31.07.2027.
65. However, for subsequent period i.e., from 1st July, 2024 and onwards, till disposal of fly ash, HSPCB shall compute environmental compensation on six monthly basis, on reduced quantity of fly ash, in the manner we have computed above, after giving opportunity to proponent and recover from respondent 4.
66. With regard to plantation i.e., development of green belt, respondent 4 has stated that 98000 trees have been planted tentatively but the exact number of trees alive could not be ascertained. It is mentioned in the action plan submitted by respondent 4 that no historical data is available for calculating survival rate. Mere plantation of trees without ensuring its survival is neither an effective step for plantation nor serve any purpose for protection of environment. We, accordingly, direct respondent 4 to develop green belt in the prescribed area by not only planting trees of various species but also by ensuring their survival in next five years. Steps 38 for plantation shall be undertaken by PTPS in consultation with Divisional Forest Officer, Panipat.
67. HSPCB shall ensure compliance of the above directions and submit six monthly compliance Reports with Registrar General of this Tribunal.
68. With the above directions, this application is disposed of.
SUDHIR AGARWAL, JUDICIAL MEMBER DR. AFROZ AHMAD, EXPERT MEMBER November 08, 2024 Original Application No.612/2022 R 39