National Green Tribunal
Banarasi Meher vs State Of Odisha Represented By The ... on 29 October, 2020
1
Item No. 01
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No. 11/2018/EZ
Banarasi Meher Appellant
Versus
State of Odisha & Ors. Respondent(s)
Date of hearing: 29.10.2020
Date of uploading on the website: 04.11.2020
CORAM: HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): Mr. Amitesh Banerjee, Senior Advocate
along with Ms. Paushali Banerjee and Mr.
Arun Patra, Advocates
For Respondent(s): Mr. Sailaza Nandan Das, Advocate for
Respondent No. 1.
Mr. Soumitra Mukherjjee, Advocate for
Respondent No. 3.
Mr. A.K. Panda, Senior Advocate along
with Mr. M. Paikaray, Advocate for
Respondent No. 5.
Mr. Gora Chand Roy Chowdhury,
Advocate for Respondent No. 6.
Mr. Ashok Prasad, Advocate for
Respondent No. 7.
Mr. Surendra Kumar, Advocate for
Respondent No. 8.
ORDER
1. This Appeal has primarily been directed against the order of the Odisha State Pollution Control Board (State PCB) dated 22/11/2018 issued against the Appellant directing 2 closure of the Appellant's country liquor manufacturing unit for operating without Consent to Operate. The order has been issued under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974, and under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981.
2. The principal contention raised by the Appellant to assail the order is that the State Board by the impugned order had wrongly categorized the Appellant's unit in the 'Orange' category of industries under Notification dated 02.11.2016 issued by the Board when the unit of the Appellant is only an Out-Still Liquor Shop Unit and not a country liquor distillery or a fermentation unit. Further the Appellant's Out-Still Liquor Shop is a Mahua Flower based liquor shop and, therefore, would not fall under either of the categories described in Clause 5(g) of the Schedule to the EIA Notification, 2006. Reference has been made to order dated 15.12.2016 passed in O.A. No. 124/2015/EZ where issue pertaining to Notification of revised categorization of industrial units as 'Red', 'Orange', 'Green' and 'White' was deliberated according to which fermentation industries including manufacture of 3 yeast, beer, distillation of Alcohol (extra neutral alcohol) having waste water discharge of more than 100 KLD has been brought under 'Red' category and, fermentation industry including manufacture of yeast, beer and distillation of alcohol (Extra Neutral Alcohol) having waste water discharge up to 100 KLD, under 'Orange' category. It is stated that by the said order, the State PCB had inter alia been directed to ascertain as to whether or not country made liquor manufacturing unit seeking consent is molasses based or cane juice/non- molasses based. It is contended that Out-Still Liquor unit of Mahua Flower is completely organic and does not involve addition and use of any chemical or any additives and is not a yeast based fermentation based process. Out-Still Shops do not fall under any of the categories or fermentation industry which has been classified as yeast, beer, distillation of alcohol (Extra Neutral Alcohol). Further reference has been made to the meaning of the 'Out-Still' provided in Rule 2(x) of the Odisha Excise Rules, 2017, by which it means a still in a licensed premises, other than a Distillery, in which country liquor is manufactured out of fermented Mahua Flower, subject to 4 the provisions of the Act and the rules and notifications made under the said Act.
3. It is contended that 'fermentation industry' including manufacture of yeast/beer, distillation of alcohol (Extra Neutral Alcohol) with waste water discharged up to 100 KLD is listed at Sl. No. 23 under the 'Orange' category as per Notification dated 02.11.2016 issued by the State PCB while bringing the distillery and fermentation industry within the consent management of the Board. According to the Appellant, such categorization is not applicable to the Out-Still Liquor Shop Unit of the Appellant as it is neither a Country Liquor Distillery nor a fermentation unit but is rather a Mahua Flower based Liquor Shop Unit. The Appellant contends that even according to the report dated 18.07.2018 submitted by the Inspecting Team of the Board, no hazardous waste is generated in Country Liquor manufacturing Units and, therefore, authorization under the Hazardous Waste and Other Wastes (Management and Trans-boundary Movement) Rules, 2016 may not be applicable.
4. Based primarily on the above grounds the Appellant seeks for a suitable direction against the order dated 5 17.11.2018 and the impugned order dated 20.11.2018 passed by the Board.
5. Vide order dated 04.02.2019 of the Tribunal, the Central Pollution Control Board (CPCB) and the State PCB were directed as follows:
"3. The CPCB in their affidavit shall also indicate on the various questions that have been set out in the order dated 02.08.2016 passed in O.A. No. 124/2015 extracted under para 5 of the O.A. This would be of assistance for us to decide the matter.
4. The State PCB in their turn shall inform us as to whether it has dealt with the question scientifically in terms of the guidelines prescribed by the CPCB while concluding that Out Still Liquor manufacturing units fall under the Orange Category."
6. The case was thereafter considered by the Tribunal on 06.09.2019 when it was observed as follows:
"1. In this appeal orders dated 22.11.2018 and 17.11.2018 passed by the Odisha Pollution Control Board have been assailed. By order dated 22.11.2018, outstill liquor shop unit of the appellant was directed to be closed on the ground that consent to operate had not been obtained from the State Pollution Control Board despite the fact that the unit falls under the 'Orange' category in the categorization of industries issued by the Odisha Pollution Control Board.
2. The grievance against the order dated 17.11.2018 is that the unit of the appellant has been brought within the small distillery (still capacity: 270 litres) under schedule 5
(g) of non-molasses based < 30 KLD.6
3. The primary contention raised in support of the appeal is that the outstill liquor manufacturing unit of the appellant is not a distillery but a small liquor manufacturing unit based on an organic substance which is mahua flower.
4. During the course of proceedings, we had called for a report from the CPCB who in its reply has stated that the outstill liquor manufacturing units from mahua flowers involves fermentation and steam distillation processes to extract ethyl alcohol from dried mahua flower. The spent slurry left in the vessel along with mahua flower needs to be disposed in an environmentally safe manner as the spent slurry contaminated with biological contamination imparts higher BoD & CoD values and the fermentation process tends to lower the PH values. It is further stated that the volume of effluent generated is very less compared to conventional molasses or grain based distilleries and the actual pollution load from such small scale units needs to be assessed by Odisha SPCB while categorizing such units and issuing consent to operate to such unit.
5. In the supplementary affidavit filed by the appellant, reference has been made to the proceedings of the Odisha State Pollution Control Board dated 30.08.2016 where in paragraph (iv) it has been recorded:
"The Pollution Index score of country Liquor unit is calculated to be 35 (Water-25 & Air - 10) which are normalized to 43.75 which is in the range of pollution index of 41-59 specified under Orange category as per the revised criteria of CPCB"
6. Mr. Amitesh Banerjee, Learned Senior Counsel appearing for the appellant submits that this finding which has been recorded above is erroneous and is not in accordance with the guidelines prescribed by the CPCB. Drawing our attention to table 'F-1' pertaining to water pollution scoring methodology, Mr. Banerjee submits 7 that outstill liquor manufacturing unit fall under category W16 with pollution score of 12 which provides for non-toxic polluted waste-water from those units which are:
Having the overall waste-water generation less than 10 kld and The pollutants are easily bio-
degradable having BoD below 200 mg/I which can be easily treated in a single stage ASP (antivated sludge process) based Effluent Treatment Plant.
And, therefore, the score ought to have been 12 and not 25 as indicated in the aforesaid finding of the State PCB. It is further, submitted that acknowledging that the air score against the air pollution to be 10, the Total Pollution Index Score after applying the formula prescribed under table F-4:
Calculation Sheet at Note -2, would therefore be 27.5 and such score according to Mr. Banerjee would bring the outstill liquor manufacturing units under 'green' category as provided under the executive summary of the final document on revised classification of industrial sectors under Red, Orange, Green and White Categories which indicate that according to the formula worked out all those industrial sectors having pollution index score of 21 to 40 would fall under the 'green' category.
7. Although, we are satisfied prima facie that there appears to be an error on the part of the State Pollution Control Board to categorize outstill liquor manufacturing units as falling under the 'orange' category having regard to the facts and circumstance stated above, we are of the view that an opportunity ought to be granted to the State Pollution Control Board to file an affidavit setting out the procedure which had been followed while arriving at the decision contained in the proceedings dated 30.08.2016 referred to earlier.
8. We may also note that by order dated 04.02.2019, the State Pollution Control 8 Board had been specifically directed to inform us as to whether the matter had been dealt with scientifically in terms of the guidelines prescribed by CPCB while concluding that outstill liquor manufacturing units fall under the 'orange' category. This order has still not been complied with. We, therefore, direct an affidavit be filed within one month."
7. On 30.10.2019, after considering the various affidavits filed by the CPCB and the State PCB referred to above, the Tribunal made the following further observations:
"1. In this case the question that has finally emerged for consideration is to whether the out still liquor manufacturing units fall within the 'Green' category or the 'Orange' category of the categorization of industries worked out by the Odisha Pollution Control Board (State PCB). We had heard this matter at some length on 06.09.2019 and in paragraph 6 of the order of that date, submissions made on behalf of the Appellant have been noted which are reproduced below:-
"6. Mr. Amitesh Banerjee, Learned Senior Counsel appearing for the appellant submits that this finding which has been recorded above is erroneous and is not in accordance with the guidelines prescribed by the CPCB. Drawing our attention to table 'F-1' pertaining to water pollution scoring methodology, Mr. Banerjee submits that outstill liquor manufacturing unit fall under category W16 with pollution score of 12 which provides for non-toxic polluted waste-water from those units which are:
Having the overall waste- water generation less than 10 kld and 9 The pollutants are easily bio-
degradable having BoD below 200 mg/I which can be easily treated in a single stage ASP (antivated sludge process) based Effluent Treatment Plant.
And, therefore, the score ought to have been 12 and not 25 as indicated in the aforesaid finding of the State PCB. It is further, submitted that acknowledging that the air score against the air pollution to be 10, the Total Pollution Index Score after applying the formula prescribed under table F-4: Calculation Sheet at Note-2, would therefore be 27.5 and such score according to Mr. Banerjee would bring the outstill liquor manufacturing units under 'green' category as provided under the executive summary of the final document on revised classification of industrial sectors under Red, Orange, Green and White Categories which indicate that according to the formula worked out all those industrial sectors having pollution index score of 21 to 40 would fall under the 'green' category."
2. In consideration of the above submissions, we had directed the State PCB to inform us as to whether the Board had arrived at the categorization scientifically in terms of the guidelines prescribed by the Central Pollution Control Board (CPCB) while concluding that the unit in question fall under the 'Orange' category.
3. Affidavits filed in terms of the above directions by the State PCB on 15.10.2019 in substance states that the categorization had been carried out as per the procedure laid down by the CPCB in the "Revised Classification of Industrial Sectors by CPCB dated 29.02.2016". It is further stated that the matter relating to categorization of liquor units were referred to an Internal 10 Committee of the Board consisting of Senior Scientists and Senior Engineers of the Board which, after considering the characteristics of the effluent generated by the country liquor units as appearing in Table F-1-Water Pollution Scoring Methodology under the CPCB guidelines concluded that it falls under category W-12 providing for non-toxic high strength of polluted waste water having BOD in the range of 1000-5000 mg/l which were biodegradable. It is further contended that the country liquor manufacturing units were found to be generating waste water less than 100 KLD. The BOD level was also found to be in excess of the one prescribed for W-12 category and generate odour falling within the score of 10 in Group A1G of the Table F-2: Air Pollution Score prescribed by the CPCB.
4. For all these reasons, inter alia, it is stated that the parameters that emerged indicated that the out still liquor manufacturing units fall within the W-12 category of the water pollution scoring methodology as well as other parameters relating to air pollution index.
5. In the additional affidavit filed by the State PCB, we find that reliance has been placed upon the analysis report of the water samples taken on 03.08.2016 which has been filed as Annexure R5/16 that also contains a table in respect of the location of sampling points and the content of pH, TSS, BOD, Oil and Grease along with prescribed standards. Under the location sampling, it has been stated as:
"OS shop effluent directly discharged on land without any treatment."
6. Report of inspection carried out on 17.07.2018, however, inter alia states as follows:
"(c) After cooking and condensation process is over, some liquid and mahua residues are left in the cooking vessel. This is transferred outside to filter out the liquid, called as 'spent wash', which has some liquor content 11 and is used in the fermentation barrels to facilitate the fermentation process. No spent wash was found to be thrown out in the above units.
(d) The mahua residue and husk ash are solid wastes generated in the units and are reportedly taken by farmers for using in cultivation.
(e) Wastewater is generated from periodical washing of the fermentation barrels, cooking vessel and the floors. It is estimated that such wastewater generation can be maximum 500 litres to 1000 litres per day in one unit. However, Dhanupali unit is bigger unit, where about 5000 to 6000 liters of wastewater is generated per day."
[Underling supplied]
7. Upon comparison, the two reports thus clearly appear to be contradictory. This is all the more so, when we take into consideration the submissions made on behalf of the Appellant reproduced above.
We also find it difficult to accept the submission made on behalf of the State PCB that categorization had been worked out based on the CPCB guidelines. The CPCB while issuing guidelines has only prescribed the standards to be followed with regard to categorization of industries leaving the specifics to be worked out by the State Boards. This is substantiated by the statement made on behalf of the CPCB in its affidavit, portions of which we may reproduce below:
"6. That, CPCB has not carried out independent assessment of such country liquor manufacturing units, as operated by the appellant, in the past and has not directly classified such type of industries into any category in the revised categorization.
xxx xxx xxx
12
18. That in view of the above
submissions, it is respectfully
submitted that CPCB has
developed the criteria for
categorization of industries and further directed/authorized SPCBs/PCCs to examine and take decision on any representation received/issues related to categorization of industries at their level by following the procedure elaborated in the directions issued by CPCB on 07.03.2016 (ANNEXURE-I). Odisha Pollution Control Board is the competent authority to examine the matter of categorization of the unit operated by the Appellant, under appropriate category based on the concept of Pollution Index."
8. After the matter was heard to a considerable extent today, the learned Senior Counsel for the State PCB submitted that a fresh assessment of the categorization of the out still units shall be made keeping in view the aforesaid facts and circumstances.
However, according to him unless the units are in operation, it would not be possible to do so.
9. We accordingly direct the State PCB to permit the Appellant unit to operate for at least 15 days, subject to the unit obtaining all the requisite permissions for the purpose and, after 15 days of its operation, the State PCB shall collect samples of the water and analyse those in terms of the parameters laid down for the purpose and then assess as to whether the unit would fall under the 'Green' or the 'Orange' Category.
10. Let the report be filed by the State PCB before the next date.
11. We make it clear that the State PCB shall carry out the exercise without being influenced by any other decision taken by it earlier or orders passed by this Tribunal." 13
8. It would thus appear from the above that according to the CPCB a revised categorization of identified 244 industrial sectors under 'Red', 'Orange', 'Green' and 'White' was finalized by the CPCB in consultation with the MoEF&CC and accordingly directions were issued to all the State PCBs/PPCs on 07.03.2016 under Section 18(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974, and under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 regarding harmonization of classification of industrial sectors. According to the CPCB, it had not carried out independent assessment of such country liquor manufacturing units as operated by the Appellant in the past and, had not directly classified such type of industries into any category in the revised categorization. Re-categorization exercise was taken up by the CPCB for only 244 indentified industrial sectors. For the left out/remaining sectors, the power was vested upon the concerned SPCB/PCC to carry out categorization in accordance with the revised criteria and guidelines. In so far as the Out-Still Liquor manufacturing from Mahua Flowers is concerned, it is stated that "as per the available literature and information from the Environmental Clearance issued to such units in 14 Odisha, Out-Still Liquor manufacturing from Mahua Flowers involves fermentation and steam distillation processes to extract ethyl alcohol from dried Mahua Flowers. The Mahua Flower is soaked in water at approximately 1:5 ratio and kept for 2-4 days for fermentation. The fermented slurry is fed to the distillation unit, which is generally a copper vessel with cover, kept on the earth made chulla. The slurry is then boiled for 4-6 hours to take out total alcohol along with steam and then the vapour of steam and alcohol are condensed through copper cooling coil dipped in cooling tower by exchanging the heat with water. Then the mixture of distilled water and ethanol is collected in the pot/jar. However, the spent slurry left in the vessel along with mahua flower needs to be disposed in a environment safe manner as the spent liquor shall be contaminated with biological contamination which imparts higher BOD & COD values and the fermentation process tends to lower the pH values. However, the volume of effluent generated is very less compared to conventional molasses or grain based distilleries and the actual pollution load from such small scale units needs to be assessed by State PCB while 15 categorizing such units and issuing 'Consent to Operate' to such units".
9. Further it is stated that the CPCB has developed the criteria for categorization of industries and directed the SPCBs/PCCs to examine and take decision on any representation received/issues related to categorization of industries at their level by following the procedure elaborated in the directions issued by CPCB on 07.03.2016. It is stated that the State PCB is the competent authority to examine the matter of categorization of the unit operated by the Appellant under appropriate category based on the concept of Pollution Index.
10. By filing a supplementary affidavit affirmed on 01.03.2019, the Appellant reiterated that the Country Liquor Units manufacture their product out of Mahua Flower would not fall under the 'Orange' category. In reply to this, the State PCB has stated that the order dated 17.11.2018 inter alia refusing the Appellant exemption from obtaining Consent to Operate was passed by the Board after affording opportunity of hearing to the 16 Appellant which was then followed by the impugned order dated 22.11.2018 as an outcome thereof.
11. Referring to the direction of the Tribunal issued vide order dated 04.12.2019, it is further stated by the State PCB as follows:
"8. That this Hon'ble Tribunal in their order dated 04.02.2019 passed in this Appeal have directed the Respondent Board as to whether the CPCB guidelines have been taken into consideration while concluding that out still liquor manufacturing units fall under the Orange category. The relevant para-4 of the said order is given below.
"4. The State PCB in their turn shall inform us as to whether it has dealt with the question scientifically in terms of the guidelines prescribed by the CPCB while conducting that Out Still Liquor manufacturing units fall under the Orange Category."
9. That this Hon'ble Tribunal in their order dated 02.08.2016 passed in O.A. No. 124/2015/EZ - Biranchi Narayan Mahapatra v. State of Odisha & Others have directed the Board to take necessary steps to ensure that all distilleries and fermentation units including country liquor manufacturing units in the State of Odisha are brought within its consent management as provided under the law.
In compliance to the said direction, the Board has constituted a Committee consisting of the Senior Level Officer in the cadre of Scientist and Engineers of this Board to recommend as to whether the country liquor manufacturing units shall be included under Red Category or Orange Category in terms of direction dated 07.06.016 of the CPCB and the said Committee through its proceedings 17 suggested that the country liquor manufacturing unit is recommended to be classified under Orange category and can be brought under consent administration of the Board. Copy of the said proceedings has been submitted before the Hon'ble NGT, EZB, Kolkata in the affidavit dated 03.09.2016.
10. That the said affidavit dated 03.09.2016 was also taken into consideration by the Hon'ble NGT in their order dated 08.09.2016.
11. That subsequently, in the affidavit dated 18.11.2016, the Board has submitted that through Office Order No. 15889 dated 31.10.2016, the Board has been pleased to notify the revised categorization of industrial units and the country liquor manufacturing units has been included in Sl. No. 23 of the Orange category in the list appended to the said Office order. The said Office order has been taken note of by the Hon'ble NGT in their order dated 15.12.2016 and the O.A. No. 124/2015/EZ has been disposed of."
12. For the aforesaid reasons amongst others, it is stated that Country Liquor Manufacturing Units are required to obtain consent from the State Board . It is further the contention of the Board that "the categorization of Country Liquor Manufacturing Units as Sl. No. 23 of Orange Category had been deliberated by the Committee constituted by the Board and on the basis of their recommendation the Country Liquor Manufacturing Units have been categorized under the Orange Category. The relevant portion of the said recommendation is given below: 18
(i) The Pollution index sources of Country Liquor Unit is calculated to be 35 (Water-25 & Air-10) which are normalized to 43.75 which is in the range of pollution index of 41-59 specified under Orange Category as per the revised criteria of CPCB.
(ii) Further, it has been mentioned in the revised classification index that in case the waste water discharge is less than 100 KLD it will come under Orange Category. The waste water discharge from the Country Liquor Unit is usually less than 100 KLD.
(iii) Considering the above two conditions, the Country Liquor Manufacturing Unit is recommended to be classified under Orange Category and can be brought under consent administration of the Board."
13. As already noted above, as a consequence of the affidavit filed by the CPCB referred to in the order dated 06.09.2019, the supplementary affidavit of the Appellant and the oral submissions of the learned Counsel for the 19 parties, the question for consideration that finally emerged was as to whether the Out-Still Manufacturing Units falls within the 'Green' category or the 'Orange' category of the categorization of industries identified by the State PCB as will appear from the order dated 30.10.2019. We have noted in the said order that there were certain inconsistencies with regard to the disposal of effluent as noted in the Analysis Report of the water samples taken on 03.08.2016 according to which it was stated that "O.S. shop effluent directly discharged on land without any treatment" and the one taken on 17.07.2018 as per which "no spent wash was found to be thrown out in the above units" and 'waste water is generated from periodical washing of the fermentation barrels, cooking vessel and the floors". After the matter was deliberated at some length, it was submitted on behalf of the State PCB that it would undertake a fresh assessment of the categorization of the Out-Still Units. In view of this, by order of the said date, the State PCB was directed to permit the Appellant Unit to operate for at least 15 days before collecting samples of the water for analysis in terms of the parameters laid down for the purpose and 20 then to assess as to whether the unit would fall under the 'Green' or the 'Orange' category.
14. Pursuant to the above direction, report was filed by the State PCB vide letter dated 21.09.2020 addressed to the Registrar, National Green Tribunal, Eastern Zone Bench at Kolkata, stating as follows:
"In compliance to the order dated 31.7.2020, the Board has allowed the appellant unit to operate for a period of 15 days vide Board's letter no. 1661 dated 01.09.2020. The appellant unit was inspected by the officials of the Regional Office, Rayagada of this Board on 11.09.2020 and found that the O.S. unit was under operation with country liquor production @ 112 lits on that day. Effluent sampling was carried out in presence of the licensee of the unit after serving statutory notice. The sample of effluent was analysed in the laboratory of the Regional Office, SPCB Board, Rayagada and the analysis report reveals that the parameter of BOD effluent is 2625 mg/l, which is one of the key parameters for categorizing the industrial units as per water pollution scoring methodology laid down by the CPCB. Further, although step has been taken for inspection of the Appellant unit on 15.09.2020 by the officials of the Board but sampling could not be possible since the unit was found under shut down and it is verified from the records that the unit has stopped distillation from 14.09.2020 at 6 PM.
Copy of letter dated 01.09.2020 allowing the unit to operate; copy of inspection report, copy of analysis report and copies of notices of inspection and sampling are enclosed and marked an annexure-1,2,3,4,5 and 6 respectively.
That apart, on the basis of the Analysis Report and as per the procedure laid down by CPCB, the matter was referred to the Chief Environment Engineer, SPC Board for categorization of the unit who has submitted a report concluding that 21 the appellant unit falls under 'Orange Category'. The detail note on the categorization of the unit is also enclosed for reference and marked as annexure-7."
15. The observations made in the inspection report submitted by the Regional Office of the State PCB, Rayagada inter alia as follows:
"SALIENT FEATURES OF THE OS UNIT Location At-Amthaguda, PO-Karlapat, Dist- of the unit Kalahandi (Inside the Karlapat Sanctuary) Capacity Out still capacity of 270 Litre/day.
of plant
Husk fired 1 no.
Bhati
Raw Mahua MGQ - 20 Qntls
materials Flower
(Unit has used
11.20 Qntls Mahua
Flower out of 15
Quintals
(Permitted) during
01.09.2020 to
14.09.2020 for
production of
country Liquor)
Production Country 1568 Litre
Liquor
(From 01.09.2020
to 14.09.2020).
STATUTORY CLEARANCE STATUS
In pursuance to order dated 31.07.2020 of Hon'ble NGT, Principal Bench, New Delhi, Temporary License was issued by the District Excise Office, Kalahandi to the unit for a period of 20 days i.e. 28.08.2020 to 16.09.2020 vide letter no. 793/Ex dated 28.08.2020 & subsequently Regional Office, State Pollution Control Board, Rayagada issued permission to the unit for a period of 15 days i.e. 01.09.2020 to 15.09.2020 vide letter no. 1661 dated 22 01.09.2020 for operation of the unit to collect effluent samples for the purpose of analysis and for assessment of the category of the unit.
PRODUCTION PROCESS The fermentation is carried out in drums/barrels by putting about 80 Kg of dried mahua flower/ Drum and added water to make a volume of about 200 litre and kept for 3 days for fermentation with seeding. After 3 days, a batch of about 40 to 50 Kg of fermented Mahua is fed into the Copper Vessel for cooking and distillation. Overall time requirement for cooking and Distillation of a batch is about 3 to 4 Hrs and about 55 to 60 lit/Batch of country liquor get produced from the process as informed.
OPERATIONAL STATUS It revealed form records of District Excise Department, Kalahandi that, Unit has started Mahua Flower fermentation activities from 01.09.2020 and liquor production from 03.09.2020.
The operational statuses of the plant during inspection are as follows:
i. An intermittent inspection was carried out on 11.09.2020 and it was found that the OS unit under operation with country Liquor production @112 lits on that day. Effluent sampling was carried out in presence of Sri Banarasi Meher, Licensee for analysis.
ii. Subsequently another inspection was carried out of 15.09.2020 and it was found that the OS unit under shut down. The unit has stopped distillation from 14.09.2020 at 6 PM as revealed from Excise records and unit has informed that die to surplus stock they stopped the production activities. So no sampling could be possible on 15.09.2020 23 POLLUTION POTENTIALITY OF THE UNIT I. Air Unit is having one Husk fired Bhati for cooking and Distillation purposes. About 60 to 80 Kg/Batch of Husk being used by the unit as fuel and normally Bhatti operates for 6 to 8 hrs in a day for production of about 112 lit of Country Liquor. The smoke from the Bhatti get directly emitted to air through a MS stack of height about 15 above GL. There were visible emissions from stack during visit on 11.09.2020. Mild odour problem also observed during visit.
II. Water Presently the water requirements of the unit are met from the Dug well provided close to the Bhatti. About 2 KL of water being used for fermentation, processes, washing and cleaning per Batch and about 1 KL/Batch is being used as cooling makeup. The cooling water gets recycled through cooling Tanks.
About 1 KL/Batch of effluent get generated from spent wash, washing and cleaning activities etc. from the plant which passes through a collection sump and finally discharged to earthen soak pit through a PVC pipe line without any treatment. It was observed that unit has procured one ETP and installation process was going on. III. Solid Wastes About 15 to 20 Kg/Batch of Husk ash being generated from the Husk fired Bhatti and about 15 Kg/Batch of Mahua flower residues being generated from the unit as solid waste. Ash and Mahua residues found dumped openly on land outside plant premises.
It revealed from analysis report that the effluent generated from OS unit w.r.t. BOD i.e. 2625 mg/l is coming under Non-toxic high strength polluted waste water having BOD in the range of 1000-5000 mg/L (W-12) based on Water Pollution Scoring methodology of CPCB. In view of above 24 necessary decision may be taken at Head Office level for categorization of the unit."
16. By filing an additional affidavit, the Appellant has objected to the above report of the State PCB alleging that on 11.09.2020, the Board had collected wrong samples as only spent wash was analysed as a result of which BOD level of 2625 which resulted in the unit falling in the 'Orange' category. It is contended that three samples had been drawn which comprised of one sample each of spent wash, waste water and liquor.
17. According to the Appellant, the Excise Department had sent a sample of waste water collected by the Department from the unit during the inspection and supplied it to M/s. R.V. Briggs Company Private Limited for analysis. In this regard reference has been made to letter dated 28.09.2020 written by the Superintendent of Excise, Kalahandi to the Member Senators, CPCB, Zonal Laboratory, Kolkata and a test report prepared by M/s. R.V. Briggs Company Private Limited.
18. We have heard learned Counsel for the parties and have examined the various pleadings and the documents filed by them. As already noted in the Appeal, the Appellant 25 essentially seeks to assail order of the State PCB dated 22.11.2018 directing closure of the Appellant's unit until Consent to Operate was obtained from the State PCB. As observed earlier the relief is being sought for on the ground that the Out-Still Liquor Manufacturing Unit of the Appellant is not a Country Liquor Distillery or a fermentation unit but is Mahua based liquor shop and, therefore, it was fallacious to bring the unit of the Appellant within the 'Orange' category of industries mentioned at Sl. No. 23 of the State PCB Notification dated 02.11.2016.
19. In order to determine the correctness of the finding of the State PCB giving rise to the impugned order dated 22.11.2018, a detailed exercise was undertaken by the Tribunal as would appear from the orders dated 06.09.2019 and 30.10.2019 reproduced earlier. By order dated 06.09.2019, the Board was directed to file an affidavit setting out the procedure which had been followed while arriving at a decision contained in the proceedings of the Board dated 30.08.2016. Further by order dated 04.02.2019 the State Board had been directed to inform as to whether the matter had been 26 dealt with scientifically in terms of the Guidelines prescribed by the CPCB in concluding that Out-Still Liquor Manufacturing Unit of the Appellant would fall under the 'Orange' category. In compliance to the above direction, an additional affidavit was filed by the State PCB which inter alia states as follows:
"5. That is humbly submitted that the criteria of categorization stipulated by CPCB in their modified direction dated 07.03.2016 is followed by all SPCBs. Accordingly, the categorization of country liquor units was referred to an Internal Committee consisting of Sr. Scientists and Sr. Engineers of the Respondent No. 5 Board.
The Committee considered the characteristic of effluent generated from the country liquor units operating in the State as per the guidelines of CPCB appeared in Table - F-1 - Water Pollution Scoring Methodology and it is observed that the country liquor manufacturing units fall under Category-W12, which provides that non-toxic high strength polluted waste- water having BOD in the range of 1000- 5000 mg/I and the pollutants are biodegradable. That apart most of the country liquor manufacturing units are found to be generating waste water less than 100 KLD.
Copy of Table F-1 of the CPCB Guidelines referred above and Sample Copies of Analysis Report dated 08.08.2016 in respect of M/s Dhanupalli O.S. Shop, Dhanupalli, Sambalpur and M/s Kenghati O.S. Shop in the district of Sambhalpur to this effect are annexed to this affidavit and marked as ANNEXURE-R5/15 AND ANNEXURE-R5/16 ( Colly.) respectively.
Both the reports reveal that the parameter of BOD is 2830.0 and 2230.0 respectively as against the range of 1000-5000 mg/I provided in W12 Category. Therefore, the water pollution score of 25 was considered 27 by the Board for country liquor manufacturing units.
6. That it is further humbly submitted that the country liquor manufacturing units generate odour which can be controlled by proper management of waste water and therefore air pollution score of 10 was considered as appeared in Group A1G of the Table F-2:Air Pollution Score prescribed by CPCB.
Copy of the said table is annexed to this affidavit and marked as ANNEXURE-R5/17.
7. That the CPCB in their guidelines appeared in Table F-4 has prescribed the calculation sheet. The formula appeared in Note 2 of the said Table was followed while calculating the pollution index score of the country liquor manufacturing units as under:
100 {25(W) + 10(A)}]/80 = 43.75 The aforesaid result of 43.75 has been mentioned in para-(iv) of the proceeding dated 30.08.2016 of the Committee for finalizing categorization of industries (Annexure-R5/5 of our Reply Affidavit.
A copy of Table F-4 prescribing the calculation sheet of the CPCB is annexed to this affidavit and marked as ANNEXURE- R5/18.
8. That the CPCB has also prescribed the range of pollution index for the purpose of categorization of industrial sectors, which are as follows:
Industrial Sectors having Pollution Index score of 60 and above-Red Category.
Industrial Sectors having Pollution Index score of 41 to 59-Orange Category.
Industrial Sectors having Pollution
Index score of 21 to 40-Green
Category.
28
Industrial Sectors having Pollution Index score incl. & upto 20-White Category.
9. That as the Pollution Index Score of country liquor manufacturing units by taking both the water and air score is calculated at Para-6 of the affidavit is 43.75, the same is falling under the Pollution Index Score of 41-59 and as such the Respondent No. 5 Board has categorized the country liquor manufacturing units under Orange Category.
10. That it is humbly submitted that the CPCB has also categorized the fermentation industry including manufacturer of yeast, beer, distillation of alcohol (extra neutral alcohol) under Sl. No. 27 of the list of Orange Category Industrial Sectors.
11. That the aforesaid facts indicated in the affidavit shows that the Board has followed the CPCB direction dated 07.03.2016 meticulously while categorizing the country liquor manufacturing units having waste water discharge of less than 100 KLD under Orange Category.
It is pertinent to mention here that all the country liquor manufacturing units adopt the same manufacturing process. Hence, all such units generate effluent of similar characteristics. It is also evident from the Analysis Report annexed with this affidavit that the BOD level in the effluent remains in the range of 2230-2830 mg/l. Since the above satisfies the condition of W12 of the water pollution scoring methodology prescribed by the CPCB, country liquor manufacturings are considered under orange category. This also does not fit with the condition of W16 of the water pollution scoring methodology prescribed by the CPCB as claimed by the petitioner since BOD level in the effluent of such units exceeds the upper limit of 200 mg/I to qualify under W-16.
Thus, the score which is based on the water pollutants present in the waste-water of the industrial processes is taken as 25." 29
20. We have already noted that when the matter was considered on 30.10.2019, fresh assessment of categorization of Out-Still Liquor Unit of the Appellant was permitted to be undertaken as prayed for on behalf of the State PCB. After having undertaken such exercise, the report reproduced above has been filed by the State PCB on 21.09.2020.
21. During the course of his arguments, the learned Senior Counsel appearing on behalf of the Appellant, strongly urged that the report was flawed as the Board had collected wrong sample comprising only of Spent Wash. This, according to him, was in violation of the order dated 31.10.2019 by which the Board had been directed to test samples of waste water and that this anomaly had resulted in the BOD level being shown at 2625.
22. Learned Senior Counsel on behalf of the State PCB on the other hand submitted that the samples that were collected was taken from outlet end of effluent collection sump which was connected to the soak pit and, therefore, it was incorrect to state that wrong sample had been collected. Officials of the Regional Office of the State PCB 30 were accompanied by officials of the District Excise Office, Kalahandi, and the samples were collected in presence of all including the Appellant. M/s. R.V. Briggs Company Private Limited, according to the learned Counsel for the State PCB, is a private entity to whom the Appellant had submitted his own sample which was in conflict with the request of the Excise Department made vide order dated 28.09.2020 addressed to the CPCB which actually had requested the samples to be tested at the CPCB Laboratory or at one which was a NABL Accredited Laboratory.
23. The question that falls for consideration is as to whether categorization of the Out-Still Liquor Manufacturing Unit of the Appellant under the 'Orange' category of the revised classification of industrial sectors vide State PCB Notification dated 02.11.2016, is correct or not. The only ground of substance raised by the Appellant to assert that it does not is that the Out-Still Liquor Shop of the Appellant is a Mahua Flower based Liquor Shop which does not involve addition and use of any chemical or additives like yeast, molasses, etc. This submission, in our considered opinion, does not appear to have much 31 force in as much as it is an admitted position that the unit is a small distillery falling under a small distillery1.
24. Even the Excise Rules referred to by the Appellant to emphasis on the meaning of (Out-Still) provides that "an Out-Still licensee distils in small capacities of stills. The process of distillation in Out-Still shop is quite indigenous and traditional". In other words, Out-Still Liquor Shop which is Mahua Flower also involves distillation of which the ultimate product is alcohol. The process followed for such production is distillation of naturally fermented Mahua flower.
25. The affidavits filed by the State PCB, relevant portions of which we have reproduced above, reveals that all relevant factors have been taken into consideration before arriving at the conclusion that the Out-Still Manufacturing Unit of the Appellant falls within the 'Orange' category. We may specifically refer to paragraphs 5, 9 and 11 of the additional affidavit of the State PCB affirmed on 27.09.2019 which we may not repeat having been reproduced earlier. As regards the controversy pertaining to the collection of samples during the inspection carried 1 Para 4(ii) 32 out by the State PCB on 11.09.2020, we find the stand of the Appellant to be quite erroneous as it was not just the spent wash that was collected for sampling as urged on behalf of the Appellant but also included effluent generated from the spent wash, washing and cleaning activities, etc. from the Plant. Undisputedly, the samples were taken from the outlet end of the effluent collection sump which was connected with the earthen soak pit. As would appear from the inspection report of the Regional Office of the State PCB, Rayagada, reproduced above, the effluent passes through a collection sump and gets finally discharged to soak pit through a PVC pipeline without treatment. Thus, it was appropriate for the Board to have collected the samples from the outlet end of the effluent collection sump. Testing sample of water alone, as the Appellant would contend, would not be the appropriate method to arrive at the correct opinion as to whether the unit would fall within any of the categories.
26. The points urged as regards the merits of the categorization of industrial units by the State PCB vide Notification dated 02.11.2016 is a subject matter which 33 would be alien to the present Appeal and, therefore, not necessary for the Tribunal to go into.
27. For the aforesaid reasons, we do not find any merit in the Appeal and is accordingly dismissed.
28. No order as to costs.
S.P. Wangdi, JM Saibal Dasgupta, EM 4th November, 2020 Appeal No. 11/2018/EZ avt