Prafulla Samantara vs Union Of India on 20 March, 2023

[Cites 11, Cited by 0]

National Green Tribunal

Prafulla Samantara vs Union Of India on 20 March, 2023

1. Issue involved in this batch of appeals is validity of Environmental Clearances (EC) dated 11.4.2022 and 12.4.2022 to two interconnected projects - integrated steel plant (with cement and power plants) and a jetty project near Paradeep Port in Orissa mainly on the ground that appraisal conducted by the Expert Appraisal Committee is procedurally as well as substantively erroneous and detrimental to the environment inter alia for the reason that water will be sourced from the river which is source of water supply to the inhabitants, apart from adding pollution to the already polluted area, result in reducing forest cover and affect flora and fauna in eco sensitive area. Identical project was earlier proposed by POSCO Company which did not proceed due to objections.

2. This Tribunal considered the EC to the Posco project in Appeal No. 8/2011 filed by the present appellant vide judgment dated 30.03.2012 and inter alia commented upon adverse impacts particularly those highlighted by Ms. Meena Gupta, former Secretary, Environment. It was particularly mentioned that water supply source to the downstream will be seriously impacted affecting the drinking water sources. The said issues do not find any particular consideration in the EAC deliberations.

3. Conclusion and recommendations from the report of Ms. Meena Gupta1 are reproduced below for ready reference:

"Conclusions and Recommendations Forest Rights Act

1. Since the area is not a Scheduled Area and there are hardly any STs living there, the possibility of ST forest dwellers being present is unlikely. However it is possible that there are other traditional forest dwellers in the area, and that they have genuine documents to prove cultivation and dependence on forest land for more than 75 years. To not give them an opportunity to have their claims recognised just because they might not have participated (due to reasons of conflict, or any other reason) in an exercise done once in the past, would be against the principles of natural justice.

2. The exercise of inviting claims from the villagers of the 8 project affected villages for recognition of forest rights should be undertaken afresh. A limit of time (3 months as spelt out in the FR Rules) should be fixed for the GS to invite claims and no extension should be given since this is the second time around that the exercise is being done. Thereafter the SDLC and DLC should meet and take a final decision in the matter.

3. The State Govt revenue and forest departments should extend all help to enable the exercise to be successfully executed. Efforts should also be made to assess the genuineness of the documents through scientific tests.

4. The handing over of land to POSCO should be taken up only once this exercise is completed and once it is known who are the forest rights holders in the area, and what is the nature of the forest rights.

5. If however, it is found that the community forest rights recognised over the land do not permit the diversion of the land, other adjacent land may have to be thought of, or portions of the forest land may have to be excluded from the land proposed to be given to POSCO.

6. This fresh exercise proposed may delay the diversion of forest land for the POSCO project by some months, and may modify the extent of land to be given to POSCO, but it will, in the end, be a just and fair action.

Resettlement and Rehabilitation

6. Resettlement and rehabilitation have not yet started.

However details of persons who should get rehabilitation benefits, and rates of the different components of the package are being discussed at the RPDAC meetings by the project affected. The transparency is a positive factor.

7. Overall the R & R package seems to be acceptable. There appears to be a general satisfaction with the rehabilitation package among those who are not opposed to the project.

8. It appears that a large number of fishermen who may have rights in the area have got left out. The State Govt needs to 1 https://forestrightsact.files.wordpress.com/2016/04/dissenting_report_meena_gupta.pdf 3 verify whether such rights exist or not, and compensate them if they do.

9. Landless agricultural and other labourers have not been included in the list of affected persons and no benefits have been given to them (except for those working in betel vine cultivation and those compensated for their homesteads on government land). Since landless workers are people at the bottom of the heap, it is not enough to relocate them. They need to be compensated for their loss of livelihood.

10. Finally, as the socio economic survey of XIMB mentions, 'displacement amounts to uprooting them from their soil that belonged to them for generations, which can be psychologically a traumatic event. This requires lot of empathy while handling the process of shifting and relocation.' We would like the State Govt to bear this in mind and engage non-governmental and community based organisations who have worked with people, to help in the process of relocation, so as to make the relocation less traumatic.

Environment and CRZ Clearances

1. It would be advisable for the MOEF to ask the EAC to look at the whole issue of water supply to the POSCO plant again, with a view to suggesting altered or additional conditions relating to water supply.

2. The MOEF should ask the EAC to assess whether additional conditions need to be imposed on projects proposed to be established in Paradeep to prevent the area from tipping over from a 'severely polluted' area into the 'critically polluted' area category.

3. MOEF should take a policy decision that in large projects like POSCO where MOUs are signed for large capacities and up-scaling is to be done within a few years, the EIA right from the beginning, should be assessed for the full capacity and EC granted on this basis.

4. The MOEF needs to take a view that in future it will be mandatory for large projects like POSCO which have several components to submit a Comprehensive EIA rather than a Rapid EIA when EC is applied for.

5. It is understood that POSCO has, in the meanwhile prepared a comprehensive EIA. It would be worthwhile for the EAC to examine this comprehensive EIA to see whether any new and important aspects have emerged.

6. Orissa proposes to have a large number of ports along its coast and this is a cause for concern. EIA when done for one port at a time (or for one project at a time) is not able to assess the total impact on the environment. The MOEF may consider getting a Strategic Environmental Impact Assessment (SEIA) done of the existing and proposed ports on the Orissa coast, so that future projects can be assessed on this basis.

7. MOEF should study the matter of the establishment of the captive port afresh through a Comprehensive EIA and impose additional conditions, where necessary, to protect the environment.

8. POSCO should be asked to re-draw their plan of the port and the steel plant to be CRZ compliant. The MOEF and the Govt of Orissa should be vigilant to ensure that the CRZ restrictions are followed."

4. All the three Appeals involve common question. Appeal Nos. 21 and 27/2022/EZ are against EC dated 11.4.2022 to the "Greenfield Integrated Steel Plant (the ISP project) of capacity of 13.2 MTPA crude steel with l0 MTPA Cement grinding unit & 900 MW Captive Power Plant (the ISP project) which is part of an interlinked project for setting up of an All-

weather, Multi cargo, Greenfield Captive Jetty(ies) of handling capacity of 52 MTPA at Jatadhari Muhan River, near Paradeep Port, Jagatsinghpur District, Odisha (the jetty project) for which Environmental Clearance was granted on 12.4.2022 i.e. one day after the ISP project. EC for jetty project is subject matter of Appeal No. 22/2022/EZ.

5. Out of two appeals against the ISP project, Appeal No. 21/2022/EZ is within time while Appeal No. 27/2022/EZ is barred by limitation. IA No. 04/2023/EZ has been filed for condonation of delay which is less than 60 days. Since matter has to be considered on merits in Appeal No. 21/2022/EZ, in the interest of justice, we condone the delay in filing the Appeal No.27/2022.

Case of the appellants

6. It will suffice to refer to the record of Appeal No.21.2022. Case of the appellants is that the ISP project is Category A project falling in the category of "3(a) Metallurgical Industries (Ferrous and Non-ferrous)" under the EIA Notification, 2006. It is on low lying land which is prone to flooding. The land requirement for the proposed plant is 1206 ha. Of this 1206 ha, 136.47 ha is a non-forest land whereas 1069.53 ha is forest land. The 5 existence of sand dunes, mangroves and mud flats has also been recorded in the project site.

7. JSW Utkal Steel Limited made an application vide online proposal dated l3/08/2018 along with the application in prescribed format (Form-l) for grant of EC in terms of EIA notification dated 14.9.2006. The project was granted the ToRs on 19.03.2019 pursuant to decision of the 4th meeting of Expert Appraisal Committee held during 20-22nd Feb, 2019.

Public consultation for the project was held on 20.12.2019. Sketchy EIA report was placed before the public which was later substantially overhauled and changed.

8. Project was considered in 32nd meeting of the reconstituted EAC (Industry-I) held on 15th to 17th March 2021 which was deferred and again taken up in thirty sixth (36th) meeting of Re-Constituted Expert Appraisal Committee (REAC) held on 18- l9th May, 2021. EAC suggested further studies and sought additional information. Minutes of EAC are:-

"36.8. 22 In view of the foregoing and after deliberations, the Committee recommended to return the proposal in its present form lo address the shortcomings as enumerated above."

"44.8.26 In view of the foregoing and after deliberations, the Committee recommended to return the proposal in its present form to address the shortcomings as enumerated at para no 11 14.8.25. With respect to the public representations listed at point no. c (xix), the Committee recommended to seek the views of Odisha Pollution Control Board and the project proponent."

9. Further studies sought were:-

"i. LTL/HTL Demarcation and CRZ Mapping Study by NCSCM, Chennai (MoEFCC, Govt. of India) ii. Marine Biodiversity Impact Assessment and Management Plan by CSIR-NIO, Mumbai.

iii. Risk Analysis and Disaster Management Plan by WAPCOS Ltd.

(Govt. of India Undertaking).

iv. Met-oceanic (Wave, Current, Tide) and Geophysical (Bathymetry, Sub-bottom profile) Survey by M/s Indomer Coastal Hydraulics (P) Ltd.

v. Geotechnical survey was carried out by M/s COMACOE, V. Mumbai.

vi. Mathematical Model Studies (marine discharge of treated wastewater; storm water management; Shoreline studies) by M/s. DHI India Ltd.

vii. Traffic Management Study by M/s. M N Dastur & Company (P) Ltd. [MND] viii. Navigation Simulation Study by HR Wallingford, UK.

ix. Sodar studies for assessing the mixing heights in the proposed project area by MND X. SIA study carried out by Starr Organization, Bhubaneswar."

10. EAC made following recommendations:-

"In view of the foregoing and after deliberations, the Committee deferred the consideration of the proposal and sough following additional information from the proponent for further consideration of the proposal.

i. Land acquisition details for the proposed project as per MoEF&CC Office Memorandum dated 7/10/2014 along with the requisite supporting documents shall be submitted.

ii. Revised plant layout indicating the exclusion of north eastern portion situated towards High Tide Line and sand dunes existence.

iii. There is patch of forest land exist between the jetty and ISP plant site. The details of the said forest area and its conservation measures to be adopted shall be submitted.

iv. Interlock control measures to be provided on dredging machines to maintain turbidity level within limits has not been provided.

v. Reason for high fluorine and phenol content in sea water shall be submitted.

vi. Factual report from Regional Office of the MoEF&CC shall be submitted regarding the construction of roads and disturbance to sand dunes caused if any at the project site, as stated in the public representation dated 27.1.2022, shall be submitted.

vii. Details of the court cases pending pertaining to the proposal under consideration along with its present status shall be submitted.

viii. Action plan for reuse of water recovered from iron ore slurry shall be submitted.

ix. Details of 1.3 lacs trees proposed to be felled down and the compensatory afforestation measures to be adopted shall be submitted.

x. An undertaking in a non-juridical stamp paper shall be submitted by the proponent stating that no construction activities related to the ISP project will be undertaken in the CRZ area."

11. According to the appellants, Common EIA report in question is dated November 2021 and January 2022, while the public hearing was held in December 2019. Thus, it is impossible for the said common EIA to have been before the Public during the public consultation. However, the EAC did not raise any queries about the same.

12. The project was thereafter taken up in the Fifty Third (53rd; meeting of Re-Constituted Expert Appraisal Committee (REAC) held on l0-11th February, 2022 when the re-constituted EAC recommended EC in the said meeting.

13. Main ground for challenge to the EC is that the project being integrated project, cumulative impact assessment (CIA) is required which was not done prior to public consultation. The project design, impact assessment and baseline information changed thereafter. Grant of EC without considering adverse impact on environment is illegal as held in (2014) I SCC 769, Alaknanda Hydro Power Company Ltd. V Anuj Joshi and Ors. and Hanuman Laxman Aroskar v. Union of India, (2019) 15 SCC 401.

Preliminary order of NGT and stand of opposite parties

14. Appeal No. 21/2022/EZ came up for hearing on 01.08.2022. Notice was issued to the PP and also other respondents including, the MoEF&CC and Odisha State PCB who have filed their respective replies.

15. Stand of the PP is that appraisal was duly conducted. EAC asked for clarifications which were furnished. The same are not required to be part of the public hearing. Additional studies were included in common EIA report as per standard practice. There is no contradiction in the original EIA report and final EIA report. Clarifications do not in any manner change the substance of the project. The project design, baseline data and impact assessment remain the same. Procedure laid down in EIA Notification dated 14.09.2006 allows giving of clarifications with reference to the observations of the EAC. All material disclosures were made at the time of public hearing on December 20, 2019. There was common EIA for the entire project. Executive summary of the common EIA report was given to the State PCB and made available to other officers of the Orissa State which were uploaded on the State PCB website. Integrated EIA report addresses cumulative impact of ISP and captive jetty. The project cost is Rs. 65,000 Crores. Studies mentioned in the ToR were included in the EIA report but additional studies were matter of clarification as per standard practice. The project will benefit Central Government and State Government to the extent of more than Rs. 5000 Crores over 13 years by way of taxes and generating employment for 15000 workers in the different phases of construction and operation. 12000 workers will be employed and 45000 will get indirect employment. Steel complex will be hub for other ancillary activities. Captive power plant can be part of ISP and is to be considered part of metallurgical industries. Impact of power generation has been included in the study.

Cement plant is merely grinding and mixing of utilized waste which will add value to the product. ISP is 12 km. and not half a km from Paradeep Port. R&R plan is based on public hearing. SIA has been carried out and provision has been made for rehabilitation of families likely to be displaced and also for their medical treatment and also increasing business and employment opportunity. Land owners have given consent to handover the 9 land. With regard to sourcing of water, Orissa Government has allocated 10000 cum/hr of water at Jobra barrage after considering the data of the said barrage for 14 years. The demand of water at Jobra is 10% of the lean season discharge. 80% of water is drained into Bay of Bengal from different canals. Water desalination plant is not viable to avoid rover water. There is no scarcity of water in coastal region of Orrisa. Invocative measures are taken in the projects are: dry system in place of wet system, cascaded use of second grade water.

16. The stand of the State PCB is that public hearing was held on 20.12.2019 as per applicable norms.

17. Stand of the MoEF&CC is that EC has been granted on the recommendations of the EAC which is compliant with all the requirements.

Consideration by the Tribunal

18. We have considered the rival submissions and perused the record.

Preliminary objection to constitution of Bench

19. At the outset, learned counsel for the appellants submitted that the Bench has not been constituted as per proviso to Section 4(4) (c) of the NGT Act requiring number of Judicial and Expert Members to be equal which is mandatory. It is submitted that in Talli Gram Panchayat v. Union of India, 2022 SCC OnLine SC 902, it was held that a Single member could not hold the Bench. On parity of reasoning, equal number requirement may also be held to be mandatory.

20. We find it difficult to accept the submission. Judgment relied upon is distinguishable. Issue whether a Single Member Bench can deal with the matter is different from number of members in the Bench. Similar contention was rejected in recent order of the Tribunal dated 14.02.2023 10 in OA Nos. 32/2022/EZ, Dakshinbanga Matsyajibi Forum vs. State of West Bengal & Ors. and 52/2022/EZ, Avishek Paul Chowdhury & Ors. vs. State of West Bengal & Ors. Accordingly, the objection is rejected.

On merits

21. Learned Counsel for the appellant submitted that the proposal was deferred/ returned for want of information and adequate studies including, impact of use of water from Mahanadi on account of scarcity of water in the area in 4 EAC meetings - 17.03.2021, 19.05.2021, 14.09.2021 and 28.01.2021 but the same proposal was recommended in fifth meeting on 10-11 Feb 2022 without any express reason. Cumulative impact assessment was not conducted prior to the public hearing. Significant issues of viability of drawing water from Mahanadi river and area being located close to the critically polluted area and there being no adequate justification for additional jetty close to a pre-existing big port within 500 mtrs have been wrongly ignored. The area was wrongly taken to be 13 while as per EAC site visit, it was noted that the IOCL refinery which is within Paradeep industrial area is at a distance of 375 mtrs. EAC report does not take into account impact of critically polluted area in the vicinity of the proposed project.

22. The SIA has been conducted later and was not part of public hearing.

The observation with regard to scarcity of water can be seen in the minutes of the meeting dated 18.05.2021. The recommendation accepting the contra stand of the PP is not based on independent evaluation.

23. It was submitted that as per document annexed to the addendum EIA report of September, 2021 filed by the PP with regard to development of All Weather, Multi-cargo, greenfield, Captive Jetty (ies) for handling capacity 52 MTPA in Jatadhari Muhan River, Dist. Jagatsinghpur, Odisha, 11 there is a document 'detailed assessment and explanation be submitted on why jetties/other port facilities of Paradip Port, which is located at a distance of 12 km, cannot be used for the JSW project' wherein explanation of the PP is as follows:-

"5.0 Comparative suggesting a separate Captive Facility for ISP 4.1 Remarks on the Paradip Port Usage The foregoing discussions indicate that the Paradip Port, which is one of the 12 Major Ports of India, would be seriously limited for space after the current expansion of creation of the Western Dock. Most of the port BOOT dock (newest one), which has no berth being developed on PPP, one for the Iron Ore Export and One for Coal import, capacity of both the terminals is limited to 10 MTPA. The second basin Known as the Eastern Dock has the ADB berths which handles the Thermal Coal for Tamil Nadu power plants on the face and East Quay Coal Terminal being developed for Coal Export by JSW on the west face. In the Third and the last of the existing basins, known as the Central Dock, has two multipurpose bulk terminal are semi-mechanized and the last one is developed for Pellet export by M/s Essar. On the Western face, fertilizer and other similar cargo is handled. The next basin is the proposed Western Dock, for handling bulk and other cargos is under development. The last basin besides small basin for boat repair, locates the Oil Jetty and Clean cargo berth.

Hence, since, all the berths are limited for the capacity and storage area, further development may not be a possibility, as would be addition of the new cargos from the JSW ISP. Same time, the additional area, adjacent to the berth would also not be available for the necessary cargo logistics. Besides these two vital factors, the following table lists the other reasons wh·1ch further emphasizes the inadequacy of the Paradip for the cargo handling of the proposed JSW ISP (Table 1.0)."

Table 1.0: Proposed Captive Jetty(ies) facility vis-à-vis existing Pradip Port S. No. Particulars Proposed Captive Jetty (ies) Pradip Port A. Vessel Related Activity 01 Berthing Priority Decided based on best inventory control First Come First and raw material management serve basis.

02. Port maintenance Timely dredging (maintenance) increases Based on fixed plans productivity. and long tender process

03. Size of vessel Based on economy of scale design, Based on fixed plans, maintenance and construction could be the Paradip Port is taken up. still not capable of handling cape size vessels which is a requirement for coal import.

04. Provision of Provision of better channel, tugs and Based on long term infrastructure Nav-Aids aimed at better performance. plans lacking flexibility.

05. Operational Quick decision making and working to a Operational Rigidity.

flexibility systemic plan for optimum use of resources.

B. Cargo Related Activity

01. RMHS Located along the ISP and hence no Separate RMHS for separate RMHS for Steel Plant. Steel Plant doubling the resources.

02. Inventory Just in time concept of management of Management resources accepted globally to remain competitive and

03. Handling and Stackyard can be suitably planned for Based on availability storage optimal use of capital and operating and affected by other expenses. users.

04. Freedom of Planning could be innovative and based Dictated by other planning on the requirements of the ISP factors.

C. Economies of Scale 01 Larger Parcel Size Facilities can be suited to the bigger Work on fixed vessels and upgraded based on need. principles dictated by rigid regulations 02 High Capacity Resource optimization by actual time- Work on rigid Equipments mot on study of the system principles.

03         Flexibility      in   Can improve as one operates.                  Principles fixed for a
           Operation                                                           particular duration
                                                                               (BOOT Period)

D. Technilogy Mechanization and Environment 01 Technology Better Technology begets better efficiency Defined Technology and faster turnaround with no flexibility 02 Mechanization Better mechanization can increase Work to the ideas of productivity leading to saving in logistical the Port authorities. cost.

03 Environment With integrated control could implement Responsible for better environmental practices. cumulative effects. E. Unified Administration and Tax Optimization 01 Administration Both the ISP and the Port under the State ISP under the State Government Government and port under Central government 02 Period The port lasts till the ISP lasts Valid for a fixed period and uncertainty afterwards 03 Problem Can be carried out by one authority Dual authority often Resolution leading to confusion and harassment.

04 Tax Incentive Tax holiday by State to promote Tax incentive not investment in the State available at Major Port operations.

      F. Other Factors necessitating the need
01        Slurry pipeline     Slurry pipeline to be brought to the plant       Slurry pipeline may
                              site as the other cargo.                         not be welcomed,
                                                                               hence handling at
                                                                               different locations.
02         Distance              Along the ISP                                 12 Km away from the
                                                                               ISP.
03         Operation   and       Optimal use of energy and investments         High energy cost for
           Maintenance                                                         conveyance from long
                                                                               distance.
04         Sabotage              Safe as inside the confines of ISP            Long          distance
                                 boundary.                                     conveyance       would
                                                                               entail pilferage and
                                                                               sabotage.
05.        Flexibility           Exists till the ISP operates                  For fixed period and
                                                                               uncertain        future
                                                                               beyond the lease
                                                                               period.

                                                                                            13

24. Our attention has also been drawn to article published in the issue of 'Current Science' dated 10.03.2023 published by Current Science in collaboration with Indian Academy of Sciences article titled 'Quantification of shoreline changes along the entire Indian coast using Indian Remote Sensing satellite images of 2004-06 and 2014-16' which mentions that shoreline in Orissa is eroding to the extent of 32% inter alia on account of coastal constructions. Net land loss in Orissa is to the extent of -77.8 hectares. Erosion is threat to ecology as well as economy.

EAC proceedings

25. We may now quote the observations from four meetings prior to the meeting in which EC was recommended.

1st Meeting dated 17.03.2021 "32.16.4 In view of the request made by the project proponent, the Committee accepted the request of the project proponent to withdraw the proposal in its present form"

2nd Meeting dated 18 - 19th May, 2021 "36.8.21 The Committee noted the following deficiencies in the proposal submitted by the proponent.

xxx ...................................xxx.......................xxx xliii. Impact of thermal discharge into sea and mechanism to control the Delta T within 5 Degree C have not been furnished.

xliv The following aspects have not been addressed in the EIA report.

a. Study on shoreline changes.

b. Plan for Marine environmental conservation. c. Study on grain size analysis d. Assessment of the impact of the project on the local fishing community in terms of economic losses and suggestions for mitigation and R&R e. Oil spill management plan 14 xlv Action plan to implement the recommendations of the Shore Line Study conducted by NCSCM shall be submitted.

xlvi Action plan for Continuous Monitoring of the impact on coastal environment should be included in the scope of monitoring.

Recommendations of the Committee 44.7.8 In view of the foregoing and after deliberations, the Committee recommended to return the proposal in its present form. Further, the Committee also recommended to seek clarification from Odisha Pollution Control Board regarding the trial run CTO permission given by them for enhancement of pellet plant capacity from 0.69 to 0.85 MTPA."

xxx ............................................xxx...........................xxx Observations of the Committee held during 18-19th May, 2021 44.8.21 The Committee noted the following deficiencies in the proposal submitted by the proponent.

xxx ................................xxx........................xxx iv. Water is proposed to be drawn from Jobra Barrage of Mahanadi River 87 km from site. Water is a scarce commodity in that area and PP has not explored the possibility of desalination of sea water for process use in the plant. CGWA have declared that there is very little water available in Mahanadi during lean season. GW abstraction shall not be permitted. The committee advised to look into another source of water for the plant.

v. A large reservoir is proposed to be constructed outside the plant boundary to receive fresh water from barrage. Capacity details, location of reservoir, land requirement and status of land acquisition for the same have not been furnished.

xxx ................................xxx........................xxx xvii. R&R Plan based on Public Hearing, SIA and as per Odisha Governments R&R Plan preparation Guidelines has not been furnished.

xxx ................................xxx........................xxx xxix Explanation as to why PM, SO2 and NOx emission loads are so high in the area has not been furnished.

xxx ................................xxx........................xxx 15 xxxi Impact of sea water withdrawal for desalination and once through application shall be furnished.

xxx ................................xxx........................xxx xxxvii Specific details for control of SO2 and NOx emissions from the proposed complex are not available.

xliv. The following aspects have not been addressed in the EIA report.

a. Study on shoreline changes.

b. Plan for Marine environmental conservation. c. Study on grain size analysis d. Assessment of the impact of the project on the local fishing community in terms of economic losses and suggestions for mitigation and R&R e. Oil spill management plan xlv. Action plan to implement the recommendations of the Shore Line Study conducted by NCSCM shall be submitted.

xlvi. Action plan for Continuous Monitoring of the impact on coastal environment should be included in the scope of monitoring.

Recommendations of the Committee held during 18-19th May, 2021 44.8.22 In view of the foregoing and after deliberations, the Committee recommended to return the proposal in its present form to address the shortcomings as enumerated above."

3rd Meeting dated 13th - 14th September, 2021 "44.8.23 M/s. JSW Utkal Steel Limited has made an online application vide proposal no. IA/OR/IND/74396/2018 dated 02/09/2021. Subsequently, the proposal was considered by REAC in its 44th meeting held on 13th - 14th September, 2021.

44.8.24 During this period, EAC and Ministry was in receipt of following representations:

S. No.             Date                          Issues raised
   1.      10/09/2021             Re-conduct of public hearing as per the
                                   procedure established by the EIA

notification, 2006 after making relevant information available to the villagers in their local language.

 Prior consent from Gram Sabha.

 Lack of integrated EIA report  Incomplete public hearing notices 16

2. 11/09/2021  Incomplete and unlawful public hearing held on 20/12/2019.

 EIA Report has not justified the environmental and social impacts.

 Environmental impacts due to the project.

 Expressed concerns in the reply provided by

3. 12/09/2021 the project proponent on the observations made by the Expert Appraisal Committee (Industry- I) in the meeting held on 19th May, 2021.

 Written representations received in favour of project during Public Consultations are

4. 13/09/2021 fabricated.

 Livelihood of the locals likely to be affected.

Observations of the Committee 44.8.25 The Committee observed the following:

a. Common EIA report submitted through PARIVESH and presentation made before the EAC does not have concurrence from WAPCOS, the EIA consultant for Jetty to incorporate their data in Common EIA prepared by M/s. M.N. Dastur & Co. This is a violation of NABET clause of Plagiarism. Team members details from WAPCOS have also not been included in the Common EIA report. b. Cumulative impact assessment is not available on Jetty EIA report uploaded on PARIVESH due to steel plant and that of steel plant due to Jetty in the ER report.

c. PP submitted point wise reply to the observations made by the EAC in its meeting held on 18-19th May, 2021. The shortfalls observed in the submission made by PP are summarized as below:

i. xxx ................................xxx........................xxx ii. 27 million cum dredged sand shall be used to raise the plant level by 6.5 meter. Scheme to dispose balance sand and the sand recovered during annual maintenance dredging shall be disposed offshore at two locations in the ocean. The mechanism to control turbidity due to the dredging in the area has not been furnished.

iii. Comprehensive drainage study of the area has not been done. It is simply mentioned that there are two streams passing through the property in Northern and Southern side of the plot. These streams shall be diverted and merged with the peripheral drain designed to carry cyclonic run off. No details related to the quantity of approximate drainage in the catchment, the size of diverted drains and peripheral drain that would handle this run off have not been furnished as 17 required under comprehensive study asked by EAC in its meeting held on 18-19th May, 2021.

iv. Currently 80 % of the Jobra Dam water is drained into the sea as reported by PP. Proposed plant shall draw 98.1 Cusec water from Jobra (PP says), which will reduce the drainage into sea by maximum 10 %. Hence sea water desalination has not been considered from commercial viability point of view and also due to high power cost and its implication on climate change.

Detailed report validating this claim that 80 % water is drained into sea has not been submitted. Also, the above claim by PP that enough water is available needs to be confirmed by Authorities managing water in the state. No calculations are available on the cost of desalination vs the CAPEX and OPEX of water withdrawal from Jobra Barrage.

xxx ................................xxx........................xxx viii. Physical targets of EMPs for socio economic development as per OM of 30th Sept 2020 to be completed @ 196.05 Cr in 4 years have been given. However, EAC recommended to complete in three years. Accordingly, revised action needs to be submitted.

xxx ................................xxx........................xxx xiv. Plant runoff water shall be treated for TSS and Oil and Grease. The capacity of the treatment plant based on worst case cyclonic scenario has not been furnished. xxx ................................xxx........................xxx xviii. Impact of thermal discharge into sea and mechanism to control the Delta T within 5 Degree C has been furnished. Details of scientific study carried out in this regard to be submitted.

xix. EAC taken note of the public representations received as referred at para 44.8.24.

Recommendations of the Committee 44.8.26 In view of the foregoing and after deliberations, the Committee recommended to return the proposal in its present from to address the observations enumerated at para no. 44.8.25. With respect to the public representations listed at point no. c (xix), the Committee recommended to seek the views of Odisha Pollution Control Board and the project proponent."

4th Meeting dated 28.01.2022 "Observations of the Committee 52.9.29 The Committee noted the following:

iv. As per the communication received from Odisha State Pollution Control Board, the Common EIA Report as 18 prepared by JSW USL has been received by the Board along with the summary for both the projects (in English & local language, Odia). The public hearing for the project was conduce as per the procedure prescribed in the EIA Notification, 2006.

v. There are 142 PAFs and R&R shall be carried out as approved R&R plan.

viii. About 30 Million Cum of river bed shall be dredged for navigation of cargo and 27 M Cum of this shall be used to raise the plant site level by 6.5 M. Remaining material and also the material dredged during regular maintenance of the Jetty shall be disposed offshore at sites identified through modelling.

xii. Shoreline changes shall be studied throughout the project period and suitable measures shall be taken to maintain it as per action plan recommended by NCSCM.

xiv. On perusal of the plant layout, north eastern portion of the layout is very close to the High Tide Line which needs to be revisited. Further, the sand dunes needs to be indicated on the plant layout.

xvii. The EAC deliberated upon the reply furnished by the proponent on the public representations. It is noted that in one of the representations it is stated that project proponent is making roads and the sand dunes exist at the site are being disturbed. The factual status in this regard needs to be obtained from Regional Office of the MoEF&CC.

Recommendations of the Committee 52.9.30 In view of the foregoing and after deliberations, the Committee deferred the consideration of the proposal and sough following additional information from the proponent for further consideration of the proposal.

i. Land acquisition details for the proposed project as per MoEF&CC Office Memorandum dated 7/10/2014 along with the requisite supporting documents shall be submitted.

ii. Revised plant layout indicating the exclusion of north eastern portion situated towards High Tide Line and sand dunes existence.

iii. There is patch of forest land exist between the jetty and ISP plant site. The details of the said forest area and its conservation measures to be adopted shall be submitted. iv. Interlock control measures to be provided on dredging machines to maintain turbidity level within limits has not been provided.

v. Reason for high fluorine and phenol content in sea water shall be submitted.

vi. Factual report from Regional Office of the MoEF&CC shall be submitted regarding the construction of roads and disturbance to sand dunes caused if any at the project site, as stated in the public representation dated 27.1.2022, shall be submitted.

vii. Details of the court cases pending pertaining to the proposal under consideration along with its present status shall be submitted.

viii. Action plan for reuse of water recovered from iron ore slurry shall be submitted.

ix. Details of 1.3 lacs trees proposed to be felled down and the compensatory afforestation measures to be adopted shall be submitted.

53RD Meeting dated 10 - 11th February, 2022 "Recommendations of the Committee 53.13.35. ln view of the foregoing and after detailed deliberations, the committee recommended the instant proposal for grant of Environment Clearance under provision of EIA Notification, 2006 subject to the stipulation of specific conditions and general conditions as per the Ministry's Office Memorandum No. 22- 34/2018-lll dated 9/8/201 8 based on project specific requirements:"

26. In pursuance of above recommendations, impugned ECs have been granted on 11.04.2022 and 12.04.2022 as mentioned earlier.

Our Comments about deliberation in the EAC Minutes

27. From the above, it is seen that common EIA report has not been placed in public domain before public consultation. The same was placed on record only in January, 2022. Public consultation took place on 20.12.2019. This fact has been noted in the meeting of the EAC dated 27th

- 28th January, 2022 but no discussion is shown to have been taken place, as shown below:

"52.9.24 It was appraised to the EAC during meeting, that a report was submitted by Odisha Pollution Control Board on 11/10/2021 on public representations and response of PP on 28/09/2021 on public representation given as below:

Report of Odisha Pollution Control Board on public representation and response of Project proponent:



     S      Representation     Comment of OPCB dated      Response made by PP
     No         points             11/10/2021              dated 28/09/2021

 1         Representation dated 10/09/2021

 xx        xxx               xxx                 xxx    xxx        xxx
 2         Representation dated 11/09/2021

                                                                                20
  i.    integrated EIA was not    Board after receipt of    The report was prepared by
       made available prior      Common EIA Report         NABET accredited
       public hearing.           along with EIA reports    consultant (M.N. Dastur &
                                 of ISP & Captive          Company Private Ltd.
                                 Jetties, public hearing   Kolkata)
                                 was conducted by the
                                 Board.                    The baseline environmental
                                                           data have been collected by
                                                           NABL       &     MoEF&CC
                                                           recognized/accredited
                                                           laboratory. So the question
                                                           of false, misleading and
                                                           Incomplete cata does not
                                                           arise.

xxx ..........................................xxx..........................................xxx 52.9.25 M/s. JSW Utkal Steel Limited made reply to the observation made by EAC meeting held on 13-14th September, 2021 given as below:

Sl.

                        Observations of EAC                   Response of PP
          No.

         1.      Common EIA report submitted
                 through     PARIVESH      and
                 presentation made before the
                 EAC does not have concurrence
                                                    1. WAPCOS has given a NOC vide
                 from     WAPCOS,    the   EIA
                                                    letter    WAP/ENVT/2021/158
                 consultant    for  Jetty    to
                                                    dated 30/09/2021
                 incorporate their data in
                 Common EIA prepared by M/s.
                                                    2. Name of WAPCOS Personnel
                 M.N. Dastur & Co. This is a
                                                    who worked for the Jetty project is
                 violation of NABET clause of
                                                    included in Common EIA.
                 Plagiarism. Team members'
                 details from WAPCOS have
                 also not been included in the
                 Common EIA report.

28. Minutes of the meeting dated 28.01.2022 also shows that additional studies were required to be undertaken. Thus, public consultation held on 20.12.2019 was not effective. The additional studies required to be undertaken are on significant aspects as shown from the minutes of the meeting reproduced below:

"52.9.26 Details of the additional studies carried out as a part of the Environmental Impact Assessment (ElA)/ EMP study, the various studies undertaken are as follows;

i. LTL/HTL Demarcation and CRZ Mapping Study by NCSCM, Chennai (MoEFCC, Govt. of India).

ii. Marine Biodiversity Impact Assessment and Management Plan by CSIR-NIO, Mumbai.

iii. Risk Analysis and Disaster Management Plan by WAPCOS Ltd. (Govt. of India Undertaking). iv. Met-oceanic (Wave, Current, Tide) and Geophysical (Bathymetry, Sub-bottom profile) Survey by IWs Indomer Coastal Hydraulics (P) Ltd.

v. Geotechnical survey was carried out by M/s COMACOE, Mumbai.

vi. Mathematical Model Studies (marine discharge of treated wastewater; storm water management; Shoreline studies) by M/s. DHI India Ltd.

vii. Traffic Management Study by M/s. M N Dastur & Company (P) Ltd. [MND] viii. Navigation Simulation Study by HR Wallingford.

UK.

ix. Sodar studies for assessing the mixing heights in the proposed project area by MND x. SIA study carried out by Starr Organization, Bhubaneswar."

29. It is further clear from the Form 1 that the information about polluted industrial area has not been given and the distance of the said are from the project noted above at the time of site visit as recorded in the minutes of the meeting dated 20th - 22nd February, 2019 is reproduced below:

"ii. Refinery of M/s. Indian Oil Corporation Limited is located at o distance of 375m from the proposed plant site."

30. The Minutes of the meeting dated 18th - 19th May, 2021 note that social impact assessment study has not been undertaken till then.

Relevant observation is reproduced below:

"xvii. R&R Plan based on Public Hearing, SIA and as per Odisha Governments R&R Plan preparation Guidelines has not been furnished."

31. The response of the PP as noted in the minutes of the meeting dated 27th - 28th January, 2022 is that SIA was not required. Relevant extracts from the minutes of the meeting are reproduced below:

"SIA Study for EIA

1. The agency STARR SIA is a prerequisite for acquisition (Society for training of private land under the Land 22 action research & Acquisition Act 2013 read along with rehabilitation) that Orissa Rules, 2016. So far as the carried the SIA JSW USL is concerned, the extent of study is not a private land is 2.26 acre which will registered agency be purchased directly. So, there is no requirement of SIA. However, the Honorable members wanted to know the demographic and socio-

economic scenario of the project area for which STARR was engaged.

Nonetheless, this is an accredited agency of the Nabakushna Choudhury Institute to conduct SIA.

Subsequent to the issuance of proclamation, Xavier Institute of Management has been asked to carry out the socio-economic survey as warranted under Odisha R & R Policy. The District Collector has approved the agency to do the same. "

Contentions of opposite parties

32. As against above, learned Counsel for the PP and MoEF&CC submitted that recommendation of EAC dated 10-11 Feb 2022 is after satisfaction of all relevant issues. Public hearing was proper. There is no adverse impact of taking water from Mahanadi. Paradeep port is at a distance of 12 kms. Common EIA was already on record before public hearing. Project involves huge investment and is beneficial for economy and employment which should not be delayed.

Consideration of rival contentions

33. Before considering the rival contentions, we may refer to the observations of the Hon'ble Supreme Court Supreme Court as to when appraisal by EAC will be vitiated. Such factors include failure of the PP to disclose entire relevant material, failure of factoring in all relevant features in EIA report, failure to provide all information during public consultation, failure of EAC to undertake detailed scrutiny of all relevant aspects. It will 23 suffice to refer to observations in Hanuman Laxman Aroskar v. Union of India, (2019) 15 SCC 401:

"82. The failure on part of a project proponent to disclose material information in Form 1 as stipulated under the 2006 Notification has a cascading effect on the salient objective which underlies the 2006 Notification. The 2006 Notification represents an independent code with the avowed objective of balancing the development agenda with the protection of the environment. An applicant cannot claim an EC, under the 2006 Notification, based on substantial or proportionate compliance with the terms stipulated in the notification. The terms of the notification lay down strict standards that must be complied with by an applicant seeking an EC for a proposed project. The burden of establishing environmental compliance rests on a project proponent who intends to bring about a change in the existing state of the environment. Whereas, in the present case, there has thus been a patent failure on the part of the project proponent to make mandatory disclosures stipulated in Form 1 under the 2006 Notification, that must have consequences in law. There can be no gambles with the environment: a "heads I win, tails you lose"

approach is simply unacceptable; unacceptable if we are to preserve environmental governance under the rule of law

92. In deducing the impact of a proposed activity on an ESZ, it is not sufficient to take recourse to a generic assessment of a proposed activity on the ecology of the study area. The EIA report must factor in those specific features which make an area ecologically sensitive. These would encompass all aspects of environmental concern which render the area ecologically sensitive. This would include wetlands, water sources, water bodies, coastal zones, biospheres, mountains and forests. The vulnerabilities of each of them must be studied as distinctive components together with a holistic analysis of their existence in a chain of biodiversity. Where an area is ecologically sensitive because of the presence of flora or fauna requiring protection, that must be specifically adverted to and studied. The deficiency of the EIA report emanates from its failure to notice that the purpose of the study was not only to determine whether the project site is ecologically sensitive. Confining itself to this aspect, the EIA report failed to consider a crucial and relevant consideration.

110. The importance of public consultation is underscored by the 2006 Notification. Public consultation, as it states, is "the process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view to take into account all the material concerns in the project or activity design as appropriate". This postulates two elements. They have both, an intrinsic and an instrumental character. The intrinsic character of public consultation is that there is a value in seeking the views of those in the local area as well as beyond, who have a plausible stake in the project or activity. Public consultation is a process which is designed to hear the voices of those communities which would be affected by the activity. They may be affected in terms of the air 24 which they breathe, the water which they drink or use to irrigate their lands, the disruption of local habitats, and the denudation of environmental ecosystems which define their existence and sustain their livelihoods.

111. Public consultation involves a process of confidence building by giving an important role to those who have a plausible stake. It also recognises that apart from the knowledge which is provided by science and technology, local communities have an innate knowledge of the environment. The knowledge of local communities is transmitted by aural and visual traditions through generations. By recognising that they are significant stakeholders, the consultation process seeks to preserve participation as an important facet of governance based on the rule of law. Participation protects the intrinsic value of inclusion.

118. Appraisal by EAC is structured and defined by the 2006 Notification. The process of appraisal is defined to mean "a detailed scrutiny" by EAC of the application and other documents like EIA report and the outcome of the public consultation, including the public hearing proceedings, submitted by the applicant to the regulatory authority for the grant of an EC.

127. EAC is an expert body. It must speak in the manner of an expert. Its remit is to apply itself to every relevant aspect of the project bearing upon the environment. It is not bound by the analysis which is conducted in the EIA report. It is duty-bound to analyse the EIA report. Where it finds it deficient it can adopt such modalities which, in its expert decision-making capacity, are required. The reasons which are furnished by EAC constitute a live link between its processes and the outcome of its adjudicatory function. In the absence of cogent reasons, the process by its very nature, together with the outcome stands vitiated."

34. In G. Sundarrajan v. Union of India, (2013) 6 SCC 620, it was observed that sustainable development principle cannot be ignored. Relevant observations referring to earlier judgements are:

"In Intellectuals Forum v. State of A.P., it has been held that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What is required to be prescribed is the principle of sustainable development and find a balance between the developmental needs and the environmental degradation.

238.2. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, while dealing with the concept of sustainable development and planned development vis-à-vis Article 21 of the Constitution, a two-Judge Bench has opined thus: (SCC p.

521) 25 "251. It is often felt that in the process of encouraging development the environment gets sidelined. However, with major threats to the environment, such as climate change, depletion of natural resources, the eutrophication* of water systems and biodiversity and global warming, the need to protect the environment has become a priority. At the same time, it is also necessary to promote development. The harmonisation of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs.

Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs."

238.3. In M.C. Mehta v. Union of India, while stating about sustainable development and the needs of the present without compromising the ability of the future generation to meet their own needs, this Court has expressed thus: (SCC pp. 166-67, para 46) "46. ... The definition of 'sustainable development' which Brundtland gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. In Narmada Bachao Andolan v. Union of India, this Court observed that sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's' test. [See Chairman Barton: The Status of the Precautionary Principle in Australia (Vol. 22, 1998, Harv. Envtt. Law Review, p. 509 at p. 549-A) as referred to in para 28 in A.P. Pollution Control Board v. Prof. M.V. Nayudu]"

In Tirupur Dyeing Factory Owners Assn. v. Noyyal River Ayacutdars Protection Assn., while dealing with the concept of sustainable development, the Court has observed as under: (SCC p. 747, para 26) "26. The concept of 'sustainable development' has been explained that it covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs. It means the development, that can take place and which can be sustained by nature/ecology with or without mitigation. Therefore, in such matters, the required standard is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's' test. The development of the industries, irrigation resources and power projects are necessary to improve employment opportunities 26 and generation of revenue, therefore, cannot be ignored. In such eventuality, a balance has to be struck for the reason that if the activity is allowed to go on, there may be irreparable damage to the environment and there may be irreparable damage to the economic interest. A similar view has been reiterated by this Court in T.N. Godavarman Thirumulpad (104) v. Union of India46 and M.C. Mehta v. Union of India."

238.5. In T.N. Godavarman Thirumulpad v. Union of India, this Court observed that: (SCC p. 628, para 35) "35. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship."

238.6. In Narmada Bachao Andolan v. Union of India, a three-Judge Bench, while dealing with the public projects and policies, has opined that the court does not become the approving authority of such policies. Thereafter, the Bench observed thus: (SCC p. 763, para 234) "234. ... Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government."

239. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasised on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development"

Conclusion

35. On due consideration, we are of the opinion that recommendation of the EAC without express consideration of following issues are vitiated A) Cumulative EIA saw the light of the day for the first time after the public hearing B) Permissibility of sourcing water from Mahanadi when drinking water is scarce has not been duly evaluated. The observation with regard to scarcity of water can be seen in the minutes of the meeting dated 18.05.2021. The recommendation accepting 27 the contra stand of the PP is not based on independent evaluation.

C) Jetty is located within 500 meters of the Paradeep Port which is unnecessary as opined in the report submitted by Ms. Meena Gupta earlier.

D) Paradeep is polluted industrial area.

E) The SIA has been conducted later and was not part of public hearing.

F) The project by Posco was abandoned and was adversely commented upon by this Tribunal vide order dated 30.03.2012 in Appeal No. 8/2011 which aspect has not been examined. G) Conditions stipulated in the EC granted to POSCO will have to be considered, in case ECs are to be granted.

36. We are conscious that the project involves huge investment. At the same time, principle of sustainable development cannot be ignored. Apart from significant issue of public hearing, important issue of location of the project close to polluted area, jetty being unnecessarily close to an established port, huge water being taken from the river which may affect drinking water needs and flow of the river are important issues which need express consideration.

37. Matter will need fresh appraisal by the EAC by reasoned consideration and fresh decision by MoEF&CC.

38. Accordingly, we allow these appeals and remit the matter to the MoEF&CC for fresh appraisal and decision by MoEF&CC in the light of above observations which may take place within three months. Till such decision, ECs will remain suspended.

All pending IAs will also stand disposed of.

A copy of this order be forwarded to MoEF&CC by e-mail for compliance.

Adarsh Kumar Goel, CP 28 Sudhir Agarwal, JM B. Amit Sthalekar, JM Dr. A. Senthil Vel, EM March 20, 2023 Appeal No. 21/2022/EZ I.A. No. 167/2022/EZ & other connected matters AB+DV 29

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