National Green Tribunal
Social Action For Environment And ... vs Union Of India on 5 October, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 19/2017
Social Action for Environment and Forest (SAFE) Appellant
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 29.09.2020
Date of uploading of order: 05.10.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
ORDER
1. This Appeal has been preferred against Environmental Clearance (EC) dated 30.03.2017 for "2x660 Coal based Khurja Super Thermal Power Project at Villages Dushhara Kherli, Jahanpur, Naiphal and Rukanpur in Khurja Taluk, Bulandshahr Distt. Uttar Pradesh by M/s THDC India Limited" granted by the Ministry of Environment, Forests and Climate Change (MoEF&CC), Government of India.
2. The appellant claims to be aggrieved as an environmental organization in the NCR. Substance of case of the appellant, as set out in the memo of appeal and presented during hearing is that the EC has been granted without consideration of environmental and social implications in highly polluted and water stressed area. The Expert Appraisal Committee (EAC) of the MoEF&CC failed to undertake detailed scrutiny as per Environment Impact Assessment (EIA) Notification of 1 2006. The project was considered for scoping on 12th -13th September 2006. Terms of Reference (ToR) for EIA report were communicated on 27.10.2011. Validity of ToR was extended from time to time. Draft EIA report was submitted by the project proponent on 30.03.2013. Public hearing was conducted on 01.08.2015, after more than two years thereof. No presentation was made on the EIA report during the public hearing. The project was considered for appraisal in the EAC meeting on 28.12.2016 and certain deficiencies were noticed. The next meeting took place on 14.02.2017 when the project was approved. There was no discussion about difference in the baseline data as per EIA report and subsequent clarification. The data was not reliable as higher values of air quality have been shown in the summer as against the winter. The project is within 10 km from Dadri Thermal Power Station and within 100 km from Delhi. It shares common air shades with Delhi. North India is facing air pollution which factors have not been considered by the EAC. National Electricity Plan is required to be prepared by the Central Electricity Authority and put in public domain. As per plan prepared under Section 3(4) of the Electricity Act, 2003, no capacity addition is required for the period from 2017-2022. The capacity addition required for the period from 2022-2027 is already under construction. The area is water stressed. Having a power plant will affect the requirement of water for essential uses such as agriculture and drinking. The EAC has not considered the impact on water. Impact on fly ash to be generated has also not been considered. Hydrological study has not been provided.
Feasibility of ZLD has not been demonstrated. There is no detailed water quality monitoring plan. Possibility of leachate has been wrongly mentioned as very low. There is no evaluation of impact on agriculture land. It is not mentioned how storm water will be managed. There is no 2 information for disposal of the Flue Gas Desulphurization sludge (FGD sludge) or gypsum generated from the FGD System.
3. The appeal was filed on 03.07.2017. Notice was issued on 06.07.2017. The affected parties mainly are the MoEF&CC and the project proponent. They have filed their replies. Reply of the MoEF&CC, Respondent No. 1 is that EC was granted based on recommendation of the EAC, after following due procedure and considering all relevant norms. Public hearing was duly conducted. EIA report was submitted by the project proponent first in 2013 which was revised and resubmitted on 16.05.2015. Public hearing was conducted soon thereafter. With regard to baseline data, clarification was submitted by the project proponent on 30.01.2017 to the effect that the first proposal was submitted three years after the collection of baseline data on account which second baseline data was collected, for revalidation. With regard to the air quality being better in winter, the matter was duly considered by the EAC. ZLD was duly demonstrated and will be implemented. Reply filed by the Respondent No. 3, Tehri Hydro Development Corporation India Limited (THDCIL), the project proponent is that the EIA report was initially submitted in the year 2013 but due to certain developments such as rerouting of the road, EIA report was revised in the year 2015 and public hearing was held as per norms after public notice in the newspapers. Presentation was made during the public hearing which was video-graphed. All significant points were mentioned therein. EIA consultants dealt with all the environmental aspects. The EIA/EMP study was conducted as per applicable guidelines and included relevant mitigation measures. The representatives of the public asked several questions which were duly answered. Minutes of the EAC show due application of mind. EIA report is a comprehensive report which was duly 3 updated as per ToRs. Coal linkage, water consumption, initial norms, air quality data aspects were duly addressed. Additional information/clarification was given on 30.01.2017. The project consultant M/s Mantec Consultant (P) Ltd. is a NABET accredited EIA Consultant and authorized to conduct EIA-EMP studies for Thermal Power Project. With regard to the air quality variation in April to June and in the period from July to September, explanation is:
"The strong and medium winds during April to June create turbulent conditions and local disturbances in the environment which causes frequent dust storm and hazy conditions. These dust storms and hazy conditions build up particulate matter levels in the ambient air, mostly constituting soil borne particles. During monsoon, mostly winds from east prevail. Most frequent rains wash down the air borne particulates and other pollutants generated and dispersed from the sources in the environment, therefore the period from July to September is cleaner period in the year. The winter months of are relatively much calm than other months. The prevailing calm conditions facilitate more stability to atmosphere and consequently slow dispersion of pollutants generated and help in build - up of pollutants in vicinity of the pollutant sources. Lower average mixing height in winter season results in less volume of troposphere available for mixing and hence higher SPM and RSPM concentrations (page no. 9-11 of Guidelines for Ambient Air Quality Monitoring issued by Central Pollution Control Board, April 2003)."
4. As regards the location of the project site, it is stated that CGCRI & Ahirpara stations lie at a distance of approx. 11.5 km from the proposed site. With regard to flowing of air from North-West and some time from West, it is stated as follows:
"The following is the inference:
The biomass burning has major contribution (29% for PM10 and 35% for PM2.5) to the PM at RHN. Biomass burning is prohibited in Delhi and not a common practice at a large scale. In all likelihood the biomass PM is contributed from CRB prevalent in Punjab and Haryana during this time of the year. The back trajectory analyses (Figure 4.3) also suggest that the CRB and other biomass emissions may be transported to Delhi from the States of Punjab and Haryana.
Vehicles contribute significantly to PM10 and PM2.5 (29% for PM and 35% for PM2.5) 4 The secondary particles contribute to PM10 (16%) and PM2.5 (19%). These particles are expected to source from precursor gases (SO2 and NOx) emitted from far distances. However, contribution of NOx from local sources, especially vehicles and power plants can also contribute to nitrates. For sulfates, the major contribution can be attributed to large power plants and refineries from long distance. The NW wind is expected to transport SO2 and transformed sulfates emitted from large power plants and refineries situated in the upwind of Delhi. The MSW burning contribution has surprised. The recent study by Nagpure et al. (2015) has estimated 190 to 246 tons/day of MSW burning (2-3% of MSW generated; 8390 tons/day). It is myth that MSW is not burned in Delhi. It is clearly seen that MSW burning is major source that contributes to PM10 and PM2.5. This emission is expected to be large from regions of economically lower strata of society which do not proper infrastructure for collection and disposal of solid waste.
Wind is flowing from NW and sometimes from West direction. The wind flow pattern is discussed in the EIA-EMP report. It is further pertinent to note that Khurja is situated in the South East of New Delhi. Prominent winds are flowing from North- West and West to South -East and East Direction. Hence, it can be inferred that wind is flowing from New Delhi towards Khurja rather than Khurja to New Delhi. Hence, possibility of transportation of air pollutants from Khurja STPP to New Delhi is negligible."
5. With regard to water, it is explained:
"The makeup water during operational phase, approx. 3265M3/hr will be met from Upper Ganga Canal. This much water shall be saved by UP Irrigation Department by reducing seepage losses of the canal. Seepage losses shall be controlled by providing a lining to the various distributaries/ minors of the Upper Ganga Canal system. The seepage water is a loss for canal discharge which remains unutilized and also it does not significantly contribute to the ground water. Hence, reducing the canal loss also helps in achieving more overall efficiency of the Upper Ganga Canal.
In EIA-EMP report, it is reported that the additional requirement of water for the Khurja STPP shall be met by lining of the canal. The cost of lining shall be borne by the THDCIL. It is estimated that due to lining of canal, 53 cusecs of water will be saved and that saved water shall be supplied to the STPP for meeting its water demands. Since, the water demand of the power project is met by minimizing losses currently occurring due to seepage/infiltration and hence it is estimated that, there will be no significant impact on the local water resources of the downstream communities."
"xxx xxx xxx 5
(b) concern raised on the lining of the canal is not well founded. It is submitted that seepage water is a loss for canal discharge, which remains unutilized. It is pertinent to mention that the proposal is for lining of distributaries and minors of canal and not the main Ganga canal. In EIA-EMP report, it is stated that the additional requirement of water for the plant shall be met by lining of the canal. The cost of lining shall be borne by the THDCIL. It is estimated that due to lining of canal, 53 cusecs of water will be saved and that saved water shall be supplied to Khurja STPP for meeting the water demand of power project.
Since, the water demand of the power project is met by minimizing losses currently occurring due to seepage / infiltration and hence, there will be no significant impact on the local water resources of the downstream communities.
Further, THDCIL has earmarked Rs. 1.5 Crore for implementing Rain Water Harvesting system in project area, which will contribute in recharging of the ground water. Also, under the proposed CSR- Community Development scheme for Khurja STPP, THDCIL proposed to undertake the following activities in the project affected areas: social forestry, tree plantation, rain water harvesting for ground water recharge, distributing solar lamps and LED bulbs, seminar/ conference/ awareness programme on sustainable development and for these THDCIL has embarked additional Rs. 2.4 Crore. It is believed that the cumulative effect of measures like rain water harvesting, social forestry, tree plantation will significantly contribute to recharging to ground water.
(c) The appellant's allegation that EIA Report does not talk about the impact of local water resources is not correct. Section 1.4.3 of Chapter 1 (Executive Summary) of EIA-EMP report of Khurja STPP explains the anticipated impacts of project on water quality and also explain the proposed mitigation measures to overcome the negative impacts on water quality. The second para of this section clearly states "Make-up water requirement during operation phase, approx. 3265 m3/hr (equivalent to 2.47m3/KWH), will be met from Upper Ganga Canal. Withdrawal of water from the canal would affect the downstream users. To meet the additional requirement of water, it is proposed to provide lining to the canal so as to minimize losses due to seepage / infiltration." In the public hearing also, representatives of THDCIL and EIA consultant have explained in depth the preventive measures proposed for mitigating negative impact of project on water quality.
(d) In reply to the concerns raised about the quality of water it is submitted that District Ground Water Brochure, Bulandshahar District, Uttar Pradesh (A.A.P: 2012-2013) reports that 33% of the water samples collected in Bulandshahar district has high concentration of NO3. That means 67% of water samples were also not mentioned in the report. Hence, it is not possible to ascertain samples of which locations have reported the higher values of NO3. Further it is also important to point out that the report is for the whole Bulandsahar District, which has an area of 4352 sq.km. and having 07 Tehsils, 16 blocks, 154 Nyaya 6 Panchayat, 889 Gram Sabha and 1246 villages. In the same report, it is also written that ground water is suitable for drinking and domestic use, which means that water quality parameters are within the permissible limit as reported in the IS-1050.
Hence, the Appellants, comments that "it is also unclear how the project proponent found all parameters in the water within limits when the report the Nitrate (33% of water samples collected from unconfined shallow aquifer in 2011 have high concentration of NO3 (>45 mg/l)" is unfounded and not based any scientific analyses. It is submitted that the casual comments made by the appellant on the EIA report are misleading."
6. The EIA also addressed the anticipated impacts during the construction and operation as well as the mitigation measures as follows:
"During construction phase During the construction phase site preparation (leveling, excavation etc.) and erection of structures will have temporary effect on the water quality of receiving water body. Flow of loose material (soil and construction material) into the drain, especially during monsoons will result in higher turbidity and suspended solids content. Domestic waste water generated from temporary toilets may cause contamination in water.
During Operation Phase The possible sources of waste water within the project site are:
-CT (Cooling Tower) System blow down
-Plant domestic
-Oily waste from oil storage areas
-Filter backwash from DM Plant
-Floor washing etc. Water quality of local water bodies can be affected by the discharge of liquid effluent from the plant in river. Ground water pollution can take place due the leachate from ash pond. Ground water pollution can take place due to leachate from storage of toxic waste. Sewage water generated may cause contamination in water.
However, the following mitigation measures have been proposed in Section 5.4 of the report Mitigation Measures During Construction Phase During site development necessary precautions will be taken, so that the runoff water from the site gets collected in sedimentation 7 tank for treatment. The treated water will be reused for construction purposes and for sprinkling on roads to control the dust.
The domestic waste water generated from temporary toilets used by the work force will be diverted to septic tank followed by soak pit. Therefore, impact on water quality due to proposed unit would be insignificant.
During Operational Phase The cooling tower shall be operated at >5COC to conserve water and to facilitate zero effluent discharge.
CT blow down would be utilized for meeting the requirement of ash handling system, Coal handling system (dust suppression). Excess blow down, if any, will be treated in the RO system and recycled.
There will be now waste water discharge from ash water pond or ash pond directly or any other effluent from the plant.
As per Section 4.3 of Chapter 4 of EIA Report, the ground water table varying from 3.65 to 5.20 m below the existing ground level at the locations of bore holes.
Even though adequate measures have been proposed to be implemented, however, it is pertinent to note that the project falls in Arnia Khurd block, which is a safe category as per the Report "District Ground water Brochure Bulandshahar District Uttar Pradesh."
Furthermore, it is stated in the EIA report that THDCIL shall provide artificial recharge techniques including Zero-discharge system and rain water harvesting system. The Zero Discharge concept discussed in the details at para 3.5.2 of Chapter - 3 of EIA Report.
As per the Environment (Protection) Amendment Rules, 2015, published in The Gazette of India on7th December, 2015, all thermal power plants to be installed from 1.1.2017, shall have to limit water consumption below 2.5 m3/MWH, and shall operate with zero effluent discharge. Under Zero Discharge system, the circulating cooling water system shall be optimized and operated at more than 5 cycles of concentration to conserve water. An effluent management scheme, consisting of collection, treatment, and recirculation of effluents shall be implemented in order to optimize the makeup water requirement as well as to maintain zero effluent discharge. This will result into operation of the plants with specific water consumption of 2.47 m3/KWH.
The liquid effluents shall be collected and treated/ recycled as per the following design philosophy, where the filter backwash water of PT Plant shall be collected and recycled back to the inlet of Clarifiers. The sludge from clarifiers of Water PT Plant shall be collected in a sump/ pit and shall be pumped to bottom ash slurry sump for disposal to bottom ash dyke. The waste effluents from neutralization pits of DM Plant and Condensate Polishing Plant shall be collected in the respective neutralization pits and neutralized before pumping to the Ash water tank.
8It is also proposed to install Re-circulating type Cooling Water (C.W.) system with cooling towers, with C. W. blow down from cold water side to ensure no thermal pollution.
CW system blow down shall be utilized quantitatively for FGD system, service water system, fly ash handling, bottom ash handling and coal dust suppression. The sludge from clarifier/tube settler shall be disposed of in bottom ash dyke along with bottom ash slutty. A coal particle settling pond shall be provided to remove coal particles from coal handling plant waste. Decanted water shall be pumped back to the coal dust suppression system.
Service water effluent collected from plant drains shall be led to a sump. From the sump the service water shall be pumped upto tube settler/ clarifier/OWS for treatment of suspended solids. Treated service water shall be sent back to service water tank to the extent possible for re-use."
7. With regard to ash disposal system, it is mentioned:
"xxx xxx xxx The plant shall have two different systems for ash disposal - conventional wet slurry disposal with ash water re-circulation for bottom ash and High Concentration Slurry Disposal (HCSD) for fly ash. HCSD system will require less quantity of water and there will be no effluent from the fly ash disposal site."
8. It is further stated that in the EIA-EMP of Khurja STPP, FGC equipped with LSFO system is proposed for the removal of SO2 from flue gas. Hence, a small amount of waste water shall be generated which shall be utilized in transportation of fly ash in slurry form. At EIA - EMP stage, it was difficult to assess the quantity of gypsum production and amount of wastewater generation from FGD operation. Same shall be finalized at the Detail Designing stage of FGD unit. Once quantification of gypsum production is done, the industry can be called upon for the utilization of Gypsum produced.
9. The project proponent has also annexed the EIA report of November 2016 dealing in detail with all environmental aspects. The record of EAC meetings has also been filed which shows detailed 9 consideration of all environmental issues. In the first meeting, the EAC observed as follows:
"xxx xxx xxx
(2.11.2). After detailed deliberations, Committee noted the
following observations:
i. The EIA prepared by Mantec Consultants (P) Ltd, is
not comprehensive. PP could not provide the quantity of fly ash generated and concrete disposal plan. All the maps and layouts provided in the EIA are not legible.
ii. A natural drain (Aligarh Nallah) is passing through the project site. Justification for diverting this nallah has not been provided. Hydrology report prepared by NIH, Roorkee and their recommendations have not been provided.
iii. It is observed that EIA which was submitted to the Ministry post public hearing and the EIA which has been circulated to EAC Members for meeting has some difference in baseline data. Baseline data for March-May, 2016 has also been collected in addition to October-December, 2012 and incorporated the same in the EIA. However, the same has not been clarified in the report, why additional base-line data has been provided.
iv. In the EIA, baseline data for NOx and SO2 results have been shown in the Ozone values. The whole EIA report has been prepared in qualitative manner.
v. Details of Quantitative Risk Assessment and credible failure scenarios for Hazardous Chemical containers such as Fuel Oil, Transformer Oil, Chlorine, etc. have not been provided in the ETA.
vi. Native and indigenous species have not been proposed in the ETA which shall be part of green belt development plan.
Committee noted that the proposal and can be re- considered after submission of additional information. Accordingly, the project has been deferred."
These aspects were duly addressed and thereafter in the second meeting, the matter was further considered as follows:
10"xxx xxx xxx (3.4.2) Project proponent (PP) vide their letter dated 30.01.2017 submitted the reply to the information sought by EAC. PP along with their environment consultant M/s Mantec Consultants Pvt. Ltd made the presentation inter-alia submitted the following:
i. Fly ash and bottom ash generation from the proposed project is 1.469 MTPA and 0.367 MTPA respectively. Bottom ash will be disposed-off with wet disposal or High Concentration Slurry Disposal (HCSD) system. Pneumatic conveying system shall be employed for conveying of flash and air pre-heater ash from ESP hoppers and air pre-heater hoppers in dry form. Ash water recirculation system shall be set up for reuse of decanted water from ash pond. Fly ash will be lifted by various cement industries and ready mix concrete manufacturers. LOI/EOI has been made with Adycon Infra Pvt. Ltd., Ficus E-Logic Pvt. Ltd., Mahesh Enterprises, Star Corporation, JK Lakshmi Cements, Ambuja Cements Ltd., Mangalam Cement Ltd., JK Cement Ltd and Ashtech (India) Pvt. Ltd. Company shall ensure 100% utilization of fly ash by fourth year.
ii. Natural drain Aligarh Nallah is proposed for diversion through the existing ditch along the side of existing NH- 91 which is passing through the sites Comprehensive hydrology study has been carried out by NIH Roorkee which includes study of local drainage pattern and modification of existing Aligarh drain. Existing cross-section of Aligarh drain is unable to carry design discharge. Hence modified lined trapezoidal cross section is recommended by NTH. The land development work within the plant site should be carried out to maintain the natural slope to facilitate the drainage in the area and divert any entry of excess water through plant boundary.
iii. Baseline data in the EIA has been corrected and revised. All maps in the EIA have been submitted in the legible form.
iv. Risk assessment along with failure scenarios and consequence analysis has been can-led out for the LDO, Transformer Oil, Hydrogen, Ammonia and Chlorine storages. Failure scenarios of 25 mm, 50 mm leak and catastrophic rupture in LDO & Transformer Oil storage tank, 10 mm leak and catastrophic rupture from Hydrogen cylinder and compressor, 2 trim leak from flange of chlorine tonner and 10 mm leak & catastrophic rupture from Ammonia bullet storage tank have been considered. Risk assessment is within acceptable region of HSE UK Register.
v. Native and indigenous species have been proposed for greenbelt development. Rs. 5 Crores have been earmarked for greenbelt development.
11vi. Public Hearing proceedings in English prepared by Uttar Pradesh Pollution Control Board have also been submitted.
(3.4.3). Committee after detailed deliberations recommended for grant of Environmental Clearance subject to following conditions:
i. Greenbelt development shall be developed in 400 acres with native and indigenous species to maintain 33% of the land green. Greenbelt plan shall be formulated in consultation with local Forest Department and submitted to the Ministry and its Regional Office for monitoring. The budget of Rs.5 Crores for greenbelt shall be accordingly revised in consultation with Forest Department. No herbs and shrubs shall be planned. Only tall seedlings shall be planted. Greenbelt development shall start during construction period.
ii. Hydrogen plant shall be shifted away from Uncha Gaon.
Minimum relocation of 500 m distance shall be maintained from the age. The layout inditing relocation of Hydrogen plant shall be submitted to the Ministry and its Regional Office.
iii. Need based assessment study shall be conducted for implementing CSR activities. Company shall provide Guest teachers to the surrounding Govt. Schools.
iv. Alternate technologies for Flyash utilisation such as road making using geo-polymers shall be explored in consultation with Director AMPRI, Bhopal/DG. Use of ash dyke shall be minimized.
v. Separate environmental clearance may be obtained for township construction under EIA Notification, 2006 and its amendments, as applicable."
10. When the matter came up for hearing on 13.12.2018, the Tribunal observed:
"One of the points for consideration during the hearing is the correctness of the Ambient Air Quality data furnished by the Project Proponent and relied upon by the Environment Impact Assessment Authority. A perusal of chart at page 185 shows PM2.5 value to be between 32 to 40 from October to December, 2012 and 32 to 45 from March to May, 2016. It is, however, not clear as to what is the source of the said data and how the same was verified by EAC. It is also not clear as to how the wind direction is to be taken to be favourable in the context of its impacts on NCT of Delhi, as suggested by project proponent. Further question is the downstream impact on the water which is said to be sourced from upper Gangetic canal.
A proper verified information on above aspects has to be looked into before this appeal is decided.12
Let an affidavit be filed by Ministry of Environment, Forest and Climate Change on above points, within three weeks from today."
11. Accordingly, the MoEF&CC filed its reply on 02.01.2019 and on the aspect considered by this Tribunal, it was stated:
"1 to 7. xxx xx xxx
8. It is submitted that the EIA report mentions the wind directions of the nearest Meteorological observatory located in Aligarh which is approximately 35 km SE from the project site. The secondary data obtained from Aligarh Observatory for the period 1961-1990, in the EIA report states that the pre-dominant wind directions are West (flowing from West towards East) North West (flowing from North West towards South East) during non-monsoon and East (flowing from East) during monsoon.
9. It is submitted that the primary wind data collected during October-December, 2012 and March - May, 2016 show the predominant winds in the Eastern (flowing from West) and South Eastern (flowing from North West) directions. Thus, the EAC has accepted the submission of Project proponent that the direction of the wind remains opposite to the NCR region and is therefore favorable.
10. It is submitted that Prediction of incremental Air Quality due to the proposed Project as per the EIA/EMP report mentions that the maximums incremental Ground Level Concentrations from the proposed project for parameters PM, NOx, SO2 are 1.15 ug/m3, 5.06ug/m3 and 4.06 ug/m3 respectively. The maximum ground level concentrations will disperse at a distance of 1.7 km from the project site in the downwind direction i.e. towards Eastern direction.
11. It is further submitted that the proposed power project is required to meet the revised emission standards for Thermal Power Plant notified vide dated 07.12.2015, i.e. at the source which include SO2 and NOx. To meet the pollution control norms, Project Proponent has to install Flue Gas Desulphurization System along with Electrostatic Precipitators and NOx control measures which will restrict the emissions prescribed below the limits.
12. It is submitted that water requirement for the project is 3,265 m3/hr which will be sourced from Upper Ganga canal located at 8 km NE of the project site. The Govt. of UP vide their letter dated
12.06.2014 has approved for drawl of 56 cusecs (Approximately 5403 m3/hr). It has been mentioned in the EIA report that the distributaries of the canal shall be lined to minimize the loss of water presently being incurred due to seepage and the water so saved will be utilized for the project. As the drawal of water is from the canal source, the downstream impacts for sustenance of aquatic life is not envisaged. However, if it were to be drawn from the main source, the impact due to drawl of water from 13 the main source and issues relating to sustenance of instream users would have been required."
12. The matter was thereafter considered on 28.02.2019 and an independent Expert Committee comprising Central Pollution Control Board (CPCB) and Indian Institute of Technology, Delhi (IIT Delhi) was constituted which gave its report dated 31.07.2019 addressing the apprehension of the appellant. The appellant, however, filed objections to the report on 02.11.2019 on which the Tribunal sought comments from the Committee which were furnished vide report dated 29.05.2020. The project proponent has filed response to the report dated 29.05.2020 on 15.07.2020. The appellant has filed further objections to the said report on 28.09.2020.
13. We have heard learned counsel for the appellant, the project proponent and the MoEF&CC. We have also heard learned counsel for CPCB and State of UP.
14. Main contention raised on behalf of the appellant is that that ambient air quality data is not on scientific basis and does not comply with the procedure laid down under Schedule VII of the Environment (Protection) Rules, 1986 and also in Technical EIA Guidance Manual for Thermal Power Plants of MoEF&CC. The sample size is small and insufficient to reach any conclusion. Monitoring has been considered only for two days in the end of January and February, 2020 which does not represent annual arithmetical mean of 104 measurements taken twice a week 24 hourly. The Committee should have collected 16 measurements in two months. The location should have been selected having regard to predominant downwind direction, population zone and villages in the vicinity. The Committee has, however, done monitoring at 14 selected sites without cross verification. Pollution levels of PM2.5 and PM10 are beyond prescribed standards. Thus, the data mentioned by the Committee is not reliable. No enquiry was conducted why ambient air levels have increased at certain locations. Khurja is located in upwind direction from Delhi and is one of the non-attainment cities. Water is sourced from canal which is to be lined up, adversely affecting the ground water recharge. The other source is from Upper Ganga Canal which is also not desirable.
15. As against the above, learned counsel for the project proponent and the MoEF&CC have submitted that the EC has been granted after considering all environmental aspects. The relevant data finds mention in the EIA report prepared by an accredited Consultant and has also been further explained and clarified. The EAC has given thorough consideration to all the environmental aspects, as shown from the minutes, already quoted above. This Tribunal constituted an independent Expert Committee comprising representative of CPCB and Professor Mukesh Khare of IIT Delhi (a well known expert in the field) which has given two reports. The first report of the Committee was filed on 23.05.2019. The Committee visited the site, collected the relevant data, studied the data of the air quality and water impact and concluded:
"5.0 Conclusion:
5.1 The range of 24-hour concentrations of PM2.5 as reported in the EIA study at the STPP monitoring/sampling locations are 32 - 48 µg/m3, respectively, in March to May 2016.
The range of 24-hour concentrations of PM2.5 as observed during May 7-11, 2019 is 36-171 µg/m3. Out of 4 Stations, ratio of PM2.5 concentration at 03 stations (Gwarauli, Jawal and Kuryawali villages) where ambient air quality monitoring was carried during EIA study in 2016 and 2019 is 2.02, 1.59 and 3.56 which are higher compared to PM2.5 levels of 2016 which is due to enhanced seasonal activities like wheat threshing, high summer winds etc. However, PM2.5, 15 concentration at Nagla sheku village (ratio: 1.08) was observed as comparable with 2016 data.
5.2 The predominant wind direction at the STPP project site is from NW to SE. The nearest Khurja town which is about 11 km in NW is in predominant upwind direction from the proposed project site. The NCT of Delhi which is about 85 km in NW is also in predominant upwind direction from the proposed project site.
5.3 The water requirement of 53 cusecs will be met from Upper Ganga Canal which according to detailed assessment by U.P Irrigation Department will be compensated by preventing seepage losses by lining works in Upper Ganga Canal and other canals so as not to affect water availability to farmers for irrigation.
5.4 The Committee is of the view that though PM2.5 concentrations are towards higher side compared to year 2016 EIA study, yet, the concentrations are within the prescribed standards i.e. 60 µa/m3 except at locations at Jawal and Kuryawali villages. This may be due to local activities and weather conditions."
16. In the second report furnished, in pursuance of order dated 19.12.2019, the Committee considered all the objections of the appellant.
Relevant extracts from the report are:
"1 to 3. xxx xx xxx
4. Comments on the objections submitted by the Appellant (in compliance to Hon'ble NGT order dated 04.11.2019) In Appeal No. 19/2017, Appellant, Social Action for Environment & Forest has filed objections on 02.11.2019. The comments on the same are as under:
Para 1-6: The averments in para1-6 mention about the previous directions of Hon'ble NGT dated 13.12.2018, 28.02.2019 and report of the Joint Committee submitted on 23.05.2019, needs no comments.
Para 7& 8: The averments mention about seasonal variation of data with respect to winter and summer as per scientific consensus. It is submitted that the PM2.5 data collected by this committee found higher PM2.5 concentration in winter compare to summer data ( para 4.0 of report) The PM2.5 data collected for winter 2020 (January 31- February 04, 2020) by the Committee are found to be 16 varying in the range of 94 & 143.6 µg/Nm3, 56.1 & 84.1µg/Nm3 , 94.5 & 129.9 µg/Nm3 and 139.8 & 165.6 µg/Nm3 at Gwarauli village, Jawal village, Nagla shaku and Khuryawali village/Bhogpur RF respectively.
Para 9 : The variation in PM2.5 values in EIA 2012 and 2016 and PM2.5 values observed during summer 2019 (May 7-11, 2019) and winter 2020 (January 31- February 04, 2020) by the Committee may be attributed to influence of seasonal local activities and climatic conditions.
Para 10: AAQ levels mainly influenced by seasonal and local activities including harvesting, threshing, domestic fuel burring, stubble burning and climatic conditions.
Para 11: The committee did not monitor AAQ at Khurja town.
Khurja town was considered only for verifying the wind directions with respect to the proposed site of STPP of THDC.
Para 12 & 13: As per the meteorological data monitored during summer 2019 and winter 2020, wind direction at the proposed site of STPP was from W and NW. AS Khurja town is in NW of the site, the proposed site was in downwind of Khurja Town.
Para 14-15: Needs no comments.
Para 16-17: As predominant wind direction is from NW to SE at the proposed site of STPP, emission from the proposed plant may not have severe impact on air quality of Khurja town which in up wind ( NW) direction from the proposed site. The study conducted by IIT Kanpur for Delhi in 2016 also suggests that predominant wind direction from NW to SE ( Annexure I).
Para18-20: Needs no comments Para 21-22: Details of the proposal of UP Irrigation Department, Government of Uttar Pradesh for lining of Bulandshahar Division Ganga Canal including names of Distributary with their length and wetted area to be lined as well already lined are given in Annexure II.
5. xxx xx xxx
6. xxx xx xxx 6.1 xxx xx xxx The analysis of all sets of data indicates that the nearest Khurja town which is in NW is in upwind direction from the proposed project site. NCT of Delhi which is in NW is also in upwind direction from the proposed project site.
xxx xx xxx
17
Comparison of data
Summer 2019 & Winter 2020
The maximum 24 hr concentration of PM2.5 observed in January 31 to February 04, 2020 (winter) are higher as compared to that monitored in May 7-11, 2019 (summer) at all four locations namely Gwarauli village, Jawal village, Nagla shaku and Khuryawali village/Bhogpur RF respectively. This is because of the reason that during winter month's dispersion of pollutants are lower than the summer due to adverse weather conditions such as low temperature, low wind speed and low mixing height. This is also as per the observation of the petitioner in this regard in para 07 on the submission made on November 02, 2019. In addition, the committee is of opinion that AAQ levels are of dynamic in nature and influenced by the local conditions and climatic conditions which should be considered while comparing EIA data of post monsoon 2012 & summer 2016 of the proposed project and the data collected by the committee.
7.0 Conclusion 7.1 The higher concentration of PM 2.5 in winter 2020 (January 31 - February 04, 2020) could be due to enhanced local activities and weather conditions (low wind, low ambient temperature and domestic fuel burning, particularly in morning hours) etc. 7.2 Wind direction at site is from NW to SE and W to E. The nearest Khurja town which is in NW and upwind direction from the proposed project site. NCT of Delhi which is in NW is also in upwind direction from the proposed project site."
17. Learned Counsel for the project proponent and the MoEF&CC further stated that the Thermal Power Plants with old technology are being phased out and the plants with new technology are being set up.
Present is a plant with new technology. It is wrong to state that the project is not required as there is no demand for the electricity. It is also pointed out that there are specific and general conditions in the EC to address the environmental concerns during as well as after setting up of the project. Learned counsel for the respondents have drawn our attention to the some of the specific and general conditions which will address the environmental concerns:
18"A. Specific Conditions:
(i) As per the Revised Tariff Policy notified by Ministry of Power vide dated 28.01.2016, project proponent shall explore the use of treated sewage water from the Sewage Treatment Plant of Municipality/ local bodies/ similar organization located within 50 km radius of the proposed power project to minimize the water drawl from the River Ganga.
(ii) xx xx xx (iii) Greenbelt development shall be developed in 400
acres with native and indigenous species to maintain 33% of the land green. Greenbelt plan shall be formulated in consultation with local Forest Department and submitted to the Ministry and its Regional Office for monitoring. The budget of Rs.5 Crores for greenbelt shall be accordingly revised in consultation with Forest Department. No herbs and shrubs shall be planned. Only tall seedlings shall be planted. Greenbelt development shall start during construction period.
(iv) Hydrogen plant shall be shifted away from Uncha Gaon. Minimum of 500 m distance shall be maintained from the village. The layout indicating relocation of Hydrogen plant shall be submitted to the Ministry and its Regional Office.
(v) xx xx xx (vi) Alternate technologies for Flyash utilization such as
road making using geo-polymers shall be explored in consultation with Director AMPRI, Bhopal/ DG-CSIR. Use of ash dyke shall be minimized.
(vii) xx xx xx
(viii) MoEF&CC Notification S.O. 3305(E) dated 7.12.2015 shall be implemented with respect to specific water consumption, zero liquid discharge and revised emission standards. The PM, SO 2 , NOx and Hg emissions shall not exceed 30 mg/Nm 3 , 100 mg/Nm3 , 100 mg/Nm3 and 0.03 mg/Nm 3 respectively. The specific water consumption shall not exceed 2.5 m3 /MWh and zero wastewater discharge shall be achieved.
(ix) MoEF&CC Notification G.S.R 02(E) dated 2.1.2014 regarding use of raw or-blended or beneficiated or washed coal with ash content not exceeding 34% shall be complied with, as applicable.
(x) MoEF&CC Notifications on flyash utilization S.O. 763(E) dated 14.09.1999, S.O. 979(E) dated 27.08.2003, S.O. 2804(E) dated 3.11.2009, S.O. 254(E) dated 25.01.2016 and subsequent amendments shall be complied with.
(xi) Necessary permission from Water Resource Department shall be obtained for diversion of diverting the Aligarh natural drain from the project site.
19(xii) xx xx xx (xiii) xx xx xx (xiv) A long term study of radio activity and heavy metals
contents on coal to be used shall be carried out through a reputed institute and results thereof analyzed every two year and reported along with monitoring reports. Thereafter mechanism for an in- built continuous monitoring for radio activity and heavy metals in coal and fly ash (including bottom ash) shall be put in place.
(xv) Online continuous monitoring system for stack emission, ambient air and effluent shall be installed. (xvi) High Efficiency Electrostatic Precipitators (ESPs) shall. be installed to ensure that particulate emission does not exceed 30 mg/Nm3 or as would be notified by the Ministry, whichever is stringent. Adequate dust extraction system such as cyclones/bag filters and water spray system in dusty areas such as in coal handling and ash handling points, transfer areas and other vulnerable dusty areas shall be provided along with an environment friendly sludge disposal system.
(xvii) Adequate dust extraction system such as cyclones/ bag filters and water spray system in dusty areas such as in coal handling and ash handling points, transfer areas and other vulnerable dusty areas shall be provided.
(xviii) Monitoring of surface water quantity and quality shall also be regularly conducted and records maintained. The monitored data shall be submitted to the Ministry regularly. Further, monitoring points shall be located between the plant and drainage in the direction of flow of ground water and records maintained. Monitoring for heavy metals in ground water shall also be undertaken and results/findings submitted along with half yearly monitoring report.
(xix) A well designed rain water harvesting system shall be put in place within six months, which shall comprise of rain water collection from the built up and open area in the plant premises and detailed record kept of the quantity of water harvested every year and its use.
(xx) xx xx xx (xxi) xx xx xx (xxii) Fly ash shall be collected in dry form and storage
facility (silos) shall be provided. Mercury and other heavy metals (As, Hg, Cr, Pb etc.) shall be monitored in the bottom ash. No ash shall be disposed off in low lying area.
(xxiii) No mine void filling will be undertaken as an option for ash utilization without adequate lining of mine with suitable media such that no leachate shall take place at any point of time. In case, the option of mine void filling is to be adopted, prior detailed study of 20 soil characteristics of the mine area shall be undertaken from an institute of repute and adequate clay lining shall be ascertained by the State Pollu tion Control Board and implementation done in close co- ordination with the State Pollution Control Board. (xxiv) Fugitive emission of fly ash (dry or wet) shall be controlled such that no agricultural or non- agricultural land is affected. Damage to any land shall be mitigated and suitable compensation provided in consultation with the local Panchayat. (xxv) Green Belt consisting of three tiers of plantations of native species all around plant and at least 50 m width shall be raised. Wherever 50 m width is not feasible a 20 m width shall be raised and adequate justification shall be submitted to the Ministry. Tree density shall not be less than 2500 per ha with survival rate not less than 80 %.
(xxvi) Green belt shall also be developed around the Ash Pond over and above the Green Belt around the plant boundary.
(xxvii) xx xx xx (xxviii) xx xx xx (xxix) xx xx xx B) General Conditions: (i) The treated effluents conforming to the prescribed
standards only shall be recirculated and reused within the plant. Arrangements shall be made that effluents and storm water do not get mixed.
(ii) A sewage treatment plant shall be provided (as applicable) and the treated sewage shall be used for raising greenbelt/plantation.
xx xx xx
(viii) Utilization of 100% Fly Ash generated shall be made from 4th year of operation. Status of implementation shall be reported to the Regional Office of the Ministry from time to time.
xx xx xx (xiv) The project proponent shall submit six monthly
reports on the status of the implementation of the stipulated environmental safeguards to MoEF&CC, its Regional Office, Central Pollution Control Board and State Pollution Control Board. The project proponent shall upload the status of compliance of the environmental clearance conditions on their website and update the same periodically and simultaneously send the same by email to the Regional Office, MoEF&CC.
21 xx xx xx
(xvi) Regional Office of the MoEF&CC will monitor the
implementation of the stipulated conditions. A complete set of documents including Environmental Impact Assessment Report and Environment Management Plan along with the additional information submitted from time to time shall be forwarded to the Regional Office for their use during monitoring. Project proponent will up-load the compliance status in their website and up -date the same from time to time at least six-monthly basis. Criteria pollutants levels including NO. (from stack & ambient air) shall be displayed at the main gate of the power plant.
xx xx xx (xviii) The project authorities shall inform the Regional Office as well as the Ministry regarding the date of financial closure and final approval of the project by the concerned authorities and the dates of start of land development work and commissioning of plant."
18. In view of above, it is clear that procedure laid down as per EIA notification of 2006 has been duly followed. Detailed EIA report has been prepared by an accredited consultant dealing with all environmental issues exhaustively. The public hearing was held as per norms and video graphed. In the first meeting, the EAC sought clarifications and did not accept the EIA report as it is. In the second meeting, the clarifications were duly evaluated. EAC comprises experts in the field. By way of precaution, the Tribunal required specific affidavit from the MoEFF&CC on issues raised during hearing. Further, a credible independent Committee was constituted by this Tribunal to visit the site and give its own report on the concerns in the appeal. Even after the said report, the Committee was asked to again look into the objections raised by the appellant. We have also duly considered the matter and are satisfied that the EC is compliant with procedure and evaluation of merits. The 22 concerns for air and water pollution have been duly addressed. We, thus, do not find any ground to interfere with the impugned EC.
19. However, we direct that all the EC conditions must be strictly complied with and duly monitored. Further, as regards general condition no. (viii) relating to utilization of 100% fly ash, requirement of 100% utilization only from fourth year of operation cannot be justified in view of Notification dated 27.01.2016 issued by the MoEF&CC under which 100% fly ash disposal has to be achieved by 31.12.2017. The said date cannot be extended. Even for the new projects, granting of more time will be in violation of the said Notification and fly ash disposal must be simultaneous with the generation (except for reasonable time leg of around six months during which it must be properly stored and handled). This Tribunal has already held so vide order dated 03.01.2019 in M.A. No. 1798/2018 in O.A. No. 117/2014, Shantanu Sharma v. UOI & Ors. wherein it was observed:
"3. We are of the view that the notification dated 25.01.2016 supersedes the notification dated 03.11.2009 or the EC dated 28.05.2010, being later and requirement to utilise fly ash by 31.12.2017 applies to units covered by 2009 notification or 2010 E.C. irrespective of date of commissioning. The earlier notification or EC conditions are subject to any notification which may be issued from time to time in exercise of power under Environment (Protection) Act, 1986. The notification dated 25.01.2016 reads the following amendments:
"1 to 4...xx.........................xx............................xx
5. The time period to comply with the above provisions by all concerned authorities is 31st December, 2017. The coal or lignite based thermal power plants shall comply with the above provision in addition to 100% utilization of fly ash generated by them before 31st December, 2017."
4. Key to understand the object of the notification dated 25.01.2016 is the recital in the notification dated 25.03.2015 inviting objections and suggestions to the notification which finally led to the notification dated 25.01.2016, proposing deadline of 31.12.2017 as the terminus point for requiring 100% utilization of fly ash. The said recital is as follows:
23"And whereas, it is observed that the thermal power plants are yet to achieve the target of hundred percent utilisation of fly ash and the unutilised fly ash quantum is continuously increasing; And whereas, it is observed that the construction agencies are not using fly ash and fly ash based products in their construction projects;
And whereas, it is felt that there is an urgent need to provide additional measures for utilization of fly ash and fly ash based products in the country; And whereas the issue has been examined by the Government of India in the Ministry of Environment and Forests and the Central Government is of the opinion that the said notification needs to be amended;"
Thus, the submission that the notification dated 25.01.2016 is not applicable to the units commissioned within less than five years prior to 31.12.2017 on account of 2009 notification or 2010 E.C. cannot be accepted.
5. We have also heard the learned counsel for Association of Power Producers, in view of the order passed by Hon'ble Supreme Court on 13.12.2018 in Diary No. 46100/2018 in the matter of Association of Power Producers v. Sandplast (India) Ltd. & Ors. The fact remains that applicants are covered by the notification issued by MoEF&CC on 25.01.2016 requiring the applicants and other thermal power plants to dispose of fly ash within the specified time. The said notification is not under challenge. In this view of the matter, we do not find any ground not to apply the directions of this Tribunal to similar power plants represented by the Association of Power Producers.
6. We thus, do not find any merit in these Misc. Applications and the same are accordingly dismissed."
Accordingly, the said condition will stand modified to the effect that 100% utilization of fly ash be ensured from the date of commissioning of the project itself.
The appeal is dismissed, subject to the observations and directions hereinabove.
Adarsh Kumar Goel, CP 24 S. P. Wangdi, JM Dr. Nagin Nanda, EM October 05, 2020 Appeal No. 19/2017 DV 25