National Green Tribunal
Manoj Kumar Dehury S/O Durbadala Dehury vs State Of Orissa Through Principal ... on 28 August, 2020
Items No. 01-02
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 04/2020/EZ
(I.A. No. 36 /2020)
With
Original Application No. 134/2017/EZ
(M.A. No. 334/2017)
Udit Jagat Applicant(s)
Versus
Union of India &Ors Respondent(s)
With
Manoj Kumar Dehury Applicant(s)
Versus
State of Odisha &Ors. Respondent(s)
Date of hearing: 28.08.2020
Date of uploading on the website: 08.09.2020
CORAM: HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Mr. Siddhartha Mitra, Senior
Advocate a/w Mr. Arindam Ghosh
and Mr. SamikKanti Chakraborty,
Advocates (in item no. 1).
For Respondents(s): Mr. Debasish Ghosh, Advocate for
Respondent No.1.
Mr. Soubghya Ketan Nayak, AGA
for Respondent No. 2 &7.
Mr. N.C. Bihani and Mrs. Papiya
Banerjee Bihani, Advocates for
Respondent No. 3.
Mr. Gora Chand Roy Choudhury,
Advocate for Respondent No. 5
1
Mr. Sanjay Upadhya a/w Ms.
Amrita Pandey, Mr. Fizza Zaidi, Mr.
Kaushik Chakraborty and Mr. Salik
Safique, Advocates for Respondent
No. 6.
(In Item No. 2)
Mr. Somyajit Pani, Advocate for
Respondents No. 1 & 3.
Mr. Dipanjan Ghosh, Advocate for
Respondent No. 2.
Mr. Gora Chand Roy Chowdhury,
Advocate for MOEF&CC and
SEIAA, Odisha
Mr. Sanjay Upadhyay a/w Ms.
Amrita Pandey, Mr. Kaushik
Chakraborty and Mr. Salik
Shafique, Advocates for
Respondent No. 7
ORDER
1. These two cases are taken up together as common questions arise for determination and can be disposed off together by this order.
2. We may take up O.A. No. 04 /2020 first as the case has been keenly contested by the parties. The Applicant challenges the Consent to Operate dated 15.03.2019 issued by the Odisha State Pollution Control Board (PCB), the Respondent No. 3, in favour of the Respondent No. 6, M/ s. Sobha Chemical Industries Private Limited for running a 'Coal Tar distillation unit' to manufacture 84,000 MT/ annum coal tar pitch and its by-products at village Jammal, P.O. 2 Gadigaon, Kolabira, district Jharsuguda, Odisha, despite there being default on the part of the said respondent to obtain the Environmental Clearance (EC) as required under the Environmental Impact Assessment (EIA) Notification, 2006 dated 14.09.2006 (hereinafter referred to as "EIA Notification, 2006") read with amendment thereto dated 25.06.2014.
3. The Applicant is a resident of Gudhiali, district Jharsuguda, Odisha, who is effected by the pollution and environmental damage caused by the industrial unit in question and is, therefore, a victim of such pollution and environmental damage.
4. Consent to Establish was granted by the State PCB to the respondent vide Office Memorandum dated 24.08.2013 followed by a Consent to Operate more than two years later, i.e., on 29.12.2015, which was renewed on 27.03.2018. Blended crude coal tar was to be utilized in the process of manufacture of coal tar pitch by using horizontal distillation technology. The Coal Tar distillation plant would produce the following; 3
"
Serial No. Product Capacity
1. Coal Tar Pitch 24,000TP
A
2. Creosote Oil 24,000TP
A
3. Coal tar of Various 10,000
grade TPA
4. Naphthalene of 1200 TPA
various grade
5. Melting Pitch 24,000
TPA
6. Carbolic Products 800 TPA "
5. The proposed unit was planned to produce Coal Tar Pitch and its by-products such as Creosote Oil, Coal Tar of various grades, Naphthalene of various grades, Melting Pitch and Carbolic Products in the said unit.
6. It is contended that Coal Tar pitch is a black viscous residue that remains after distillation of coal tar and can only be produced by processing coal tar. This process occurs by heating coal tar (the raw material used to produce coal tar pitch) in a still. As the temperature in the still increases, various constituents (or distillates) are removed from the coal tar and sold to customers for use in the manufacture of industrial and consumer products. The various constituents removed from the coal tar include "light oils"
(e.g., benzene, toluene, xylene and naphthalene), 4 "middle oils" (e.g., carbolic acid), "heavy oils"
(e.g., creosote) and anthracene oil. The remaining residue is known as "coal tar pitch." Coal tar pitch is a distinct product from the raw material coal tar and other coal tar distillates, such as creosote.
7. The by-products like hazardous substances such as used oil, lube oils and other substances referred to above can only be produced by Coal Tar processing and not by mere melting of coal tar.
8. It is stated that in coal tar processing plants, the coal tar is obtained by cooling the gas that is farmed during the destructive distillation of coal to approximately ambient temperature. The fractional distillation procedure opted by the coal tar industries deal with volatile gases like tar, Sulphur and ammonia. The resultant coal tar pitch, which is obtained upon distillation, is a harmful substance which can have life threatening damage to the human body upon inappropriate exposure. If appropriate steps are not taken, then exposure to coal tar pitch could 5 also lead to skin cancer and may also damage the respiratory system.
9. By an amendment brought to the EIA Notification, 2006 vide MoEF&CC Notification dated 25.06.2014 Coal Tar processing units were included under item 4(b) thereby bringing the activity within the EIA regime and the necessity to obtain prior EC for running such units. Referring to the audited financial statements of Respondent No. 6 for the financial years ending 01.04.2013 to 31.03.2018, it 1s stated that the construction of the industrial unit was not complete till 31.03.2015 in respect of all other infrastructure other than the factory itself. As per the Applicant, therefore, the industrial unit was not constructed till 31.03.2015 but was partially completed between 01.04.2015 and 31.03.2015 and the operation of the unit had not been commenced. Thus, it is contended that the unit would fall within the purview of the amendment to the EIA Notification dated 25.06.2014 requiring it to obtain EC. The industrial unit had applied for EC vide letter dated 04.09.2015 before the State Level Environment Impact 6 Assessment Authority (SEIAA), Odisha but was withdrawn on 16.09.2015 by an application dated 08.01.2016 after having obtained Consent to Operate from the State PCB on 29.12.2015.
10. As per the Applicant, the Consent to Operate could not have been granted without the respondent unit obtaining EC in terms of the amendment dated 25.06.2014 to the EIA Notification, 2006. The State PCB had directed the Respondent No. 6 vide letter dated 31.03.2016 to seek clarification from the MoEF&CC as to whether EC would be necessary before the unit could go into operation. However, the unit without doing so had gone ahead and commenced with the operation of the unit causing severe air and water pollution due to production of harmful chemicals due to lack of precautions and mitigation measures to offset those making the residents vulnerable to various diseases. It is further stated that the residents residing in the periphery of the industry have been complaining of nausea, restlessness and breathing problem as a result of air pollution caused by emission of harmful chemical 7 substance. The odour emitted by the unit has been the cause of cardiac diseases being suffered by some of the residents.
11. Based upon above essential facts and circumstances the Applicant has inter alia prayed for the following:
"(a) Quash and or set aside the Consent to Operate dated 15th March 2019 and/or any further consent to operate being issued to the respondent no. 6 during the pendency of the instant application;
(b)Respondent no. 3 be directed not to issue any consent to operate to the respondent no. 6 till the pendency of this application;
(c)Order the immediate closure of the Respondent No. 6's Unit at Jammal Village, P.0- Gadigaon, Kolabira, Jharsuguda District;
(d)Stay the operation of the Respondent No. 6's Unit at Jammal Village, P.0-
GadigaonKolabira, Jharsuguda District;
(e) Pending the hearing and final disposal of the present application, stay the Consent to Operate dated 15thMarch 2019, 29thDecember 2015 and 27th March 2018;
(f) Direct the Respondent to obtain Environment Clearance as per the EIA 2006 dated 14th September 2006 as amended by the notification dated 25th June 2014 which mandates prior environmental clearance for all the coal tar processing units;
(g) Stay of operation of the Unit of the Respondent No. 6 at JammalVillage, P.0- Gadigaon, Kolabira, Jharsuguda District till the Respondent No. 6 is granted the Environment Clearance as per the EIA 2006 dated 14th September 2006 as amended by the notification dated 25th June 2014;
(h) Order an independent enquiry and investigation into the affairs of the said Unit of the Respondent No. 6 located at Jammal Village, P.0-Gadigaon, Kolabira, Jharsuguda District;
8
(i)Direct the Respondents Nos. 1 to 5 to take immediate action against the Respondent No, 6;
(j) Exemplary penalty to be imposed on the Respondent No. 6 for deliberately suppressing material facts and to try operating a unit without a valid environment clearance;"
12. By order dated 27.01.2020, the Respondent No. 3, the State PCB and the SEIAA, Odisha were directed to inspect the unit in question, examine the questions raised in the application and to submit a report. Inspection report thus filed reads as follows:
"The following observations were made during the inspection.
M/s. Shobha Chemical Industries Pvt. Ltd., AtJammal, P.O: Gudigaon in the District of Jharsuguda is a coal tar processing unit.
The industry has obtained No Objection Certificate from the Sarpanch, Kelandamal GP prior to establishment of the coal tar processing unit vide letter no. 55 on dated 23.01.2013.
The unit has been registered under DIC as a small scale industry vi des letterentrepreneurship memorandum no.210021200152 date 11.01.2013.
Industry has been accorded Consent to Establish from Regional Office, SPC Board, Sambalpur uide letter No.3044, dtd.24.08.2013 for production of Coal Tar Pitch - 24,000 TPA, Creosote Oil - 24,000 TPA, Coal Tar of various grade -10,000 TPA, Naphthalene of various grade - 1,200 TPA, Melting of Pitch -24,000 TPA and Carbolic Products - 1,200 TPA.
Unit has obtained CTO from Regional Office, SPC Board, Jharsuguda vide letter No. 375/INDV-CON-195, dtd.15.03.2019 for production of above mentioned products which is valid up to 31.03.2020 Industry has obtained authorization for generation, storage, transport, reuse, recycling, recovery, pre-processing, co-9
processing, utilization, treatment, disposal or any other use of hazardous or other wastes or both up to 31.03.2023 from Head Office, SPC Board, Bhubaneswar vide letter No.5003, dtd.21.04.2018 for Used or Spent Oil-0.002 KL/A and Tarry residues and still bottoms from distillation - 1.2 TPA.
Regarding EC matter, during the establishment year (i.e. year 2013) of said Coal tar processing factory, the same was not coming under the purview of EIA Notification, 2006 for seeking environmental clearance. EIA notification, 2006 was further amended by GOJ on 25.06.2014 in which coal tar processing units have been included for EC.
SPC Board, Odisha has granted CTE in favor of the Coal Tar Processing Unit (i.e. M/s Shova Chemical) on dtd. 24.08.2013 which is much before the EIA notification amendment dtd. 25.06.2014.
Head Office of the SPC Board, Odisha vide its letter no. 19806, dtd. 22.15.2015 clarified about non-applicability of EC for the said unit.
The proponent has started the construction work of their plant before 31.03.2014 which is mentioned in the expenditure statements of audit report of the financial year 2013-14 i.e. expenditure for capital work-in progress and Rs. 197,018.00(in the year 2013), Rs. 12,861,136.47(in the year 2014) and Rs. 21,370,386.01(2015).
The MOEF & CC, Govt. of India issued amended EIA Notification on dtd.25th June 2014 which stipulates "Environmental Clearance is required for the Coal tar Industry from 25th June 2014 onwards". It means the coal tar industry which have already consent to establish from the SPC Board and started construction work before 25th June 2014 do not require EC as per amended EIA Notification 25th June 2014. M/s Shobha Chemical Industries Pvt. Limited started their construction before the date of amended notification. So, EC is not required for M/s Shobha Chemical Industries Pvt. Limited as it has already started construction work before 25th June 2014 and not changed their production capacity/ place also thereafter.
Pollution control measures adopted:
Major raw material required by the unit consists of Crude Coal tar various grades, Coal tar pitches various grades, Coal tar partially distilled, Naphthalene oils, Light 10 & Heavy Creosote oils various grades, Crude Benzol, Still bottom oil, Anthracene oil.
The industry has provided separate MS tanks and sheds for the storage of said raw material and products.
Industry has installed a common stack/chimney connected to the distillation vessels of both the sheds. Industry has provided gas catchers to control leakage of products I fumes / gasses in the process of distillation. Major parts of the work zone areas have been concreted. Boundary wall has been provided around the unit. The unit has undertaken some plantation inside its plant premises Internal drain with collection pit have provided for channelization and collection of runoff waste water and floor washing generated from work zone area. The same is being routed to ETP for further treatment.
Unit has provided an ETP for the treatment of wastewater (i.e. condensate waste water, runoff waste water, floor washing from work zone area, etc.) generated from the coal tar processing unit. Treated water is reused in the process for cooling or for gardening purpose.
Industry has provided septic tank followed by soak pit for discharge of domestic effluent generated inside the plant premises The unit has provided the static board for display of environmental information with respect to Air, Water and Hazardous waste.
13. The report was considered by the Tribunal in the order dated 18.06.2020 and, by referring to the said report, it was observed as under:-
4. As will appear from the above, on the crucial question regarding EC, it has been observed that when the coal-tar processing factory was established in the year 2013, such activity did not fall within the purview of the EIA Notification, 2006 and, therefore, no EC was necessary. It was only after the notification was amended on 25.06.2014 that coal-tar processing unit was included in the Schedule to the EIA Notification 2006 requiring the project proponents to obtain EC. As per the report, if a coal-tar industry which had the necessary Consent to Establish and had commenced its construction before 25.06.2014, no EC was required as per the EIA Notification, 2006 as amended on 25.06.2014. Such was the case in respect of M/s. Shobha Chemical 11 Industries Private Limited as it had started its construction before the EIA Notification, 2006 was amended on 25.06.2014 and its production capacity/place had not been changed. According to the report, Consent to Establish had been granted by the State PCB on 24.08.2013 and Consent to Operate on 15.03.2019 which is valid up to 31.03.2020.
5. In the affidavit by which the aforesaid report was placed, the State PCB has averred that O.A. No. 134/2017/EZ in the matter of Manoj Kumar Dehury&Ors. vs. State of Odisha & others which is pending consideration before the Tribunal involves similar questions as in the present case
6. The substance of the joint inspection report of the State PCB and the SEIAA Odisha, is that after obtaining Consent to Establish on 24.08.2013, the industrial unit had commenced with its construction but its actual commercial activity of manufacturing of Coal Tar Pitch, Creosote Oil, Coal Tar of various grade, Napthalene of various grade, Melting of Pitch and Carbolic Products had commenced only after Consent to Operate was granted on 15.03.2019. In other words, the unit had not commenced with its actual commercial operation before the grant of Consent to Operate as without such Consent, it could not have been done.
7. In a separate affidavit filed on behalf of the SEIAA, we note the following specific statements:-
"5. That, in compliance of the direction dtd. 27.01.2020 of the Hon'ble Tribunal, it is humbly submitted that the Joint inspection team consisting of representative of State PCB & representative of SEIAA, Odisha have carried out the inspection of the industrial unit on dt. 18.02.2020 and verified the factual records of the coal tar distillation unit. On verification of the records, it was observed that the coal tar distillation unit was accorded Consent to Establish from Regional Office, SPCB, Sambalpur vide letter no. 3044 dated 24.08.2013 prior to insertion of entry 4(b) (ii) to the EIA Notification, 2006 vide amendment dated 25.06.2014 bringing the unit within the purview of EIA regime SPC Board, Odisha has granted CTE in favour of the Coal Tar Processing Unit (i.e. M/s. Sobha Chemical Industries Private Limited) on dtd. 24.08.2013 which is much before the EIA notification amendment dtd. 25.06.014. Further, the unit has 12 also obtained CTO from Regional Office, SOC Board, Jharsuguda vide letter No. 375/JND-V-CON-195, dtd. 15.03.2019 for production of abovementioned products which is valid up to 31.03.2020. the detailed copy of the joint report in compliance to order dt. 27.01.2020 is annexed to this affidavit and marked as Annexure-1 for remedy reference.
6. That, it is humbly submitted before the Hon'ble Court that since this Item 4 (b) (ii) "Coaltar processing units" has been interposed on 25.06.014 in the Schedule, amended EIA Notification of 2006, it follows that from this date of Notification i.e., from Z5.06.Z014, EC is a mandatory requirement for this industry. However, the petitioner industry has failed to apply for EC so far (He had filed an online EC application on 16.09.2015 before SEIAA, Odisha which he subsequently withdrew on date 08.01.2016). Although he has obtained consent to establish and consent to operate from the competent authority that does not absolve him of the statutory requirement to also apply for EC for the industry, and also be guided by EC conditions."
8. These statements are in clear digression from what was stated in the report in as much as the view of SEIAA is that obtaining Consent to Establish and Consent to Operate from the Competent Authority does not absolve the respondent industry from its responsibility to obtain statutorily mandated EC. The stand of the SEIAA is categorical to the extent that after the insertion of entry 4(b)(ii) to the EIA Notification, 2006 vide amendment dated 25.06.2014, units involved in coal-tar distillation would require prior EC. Thus, according to the SEIAA the Industry had filled online application for EC on 16.09.2015 but had withdrawn it on 08.01.2016.
9. Paragraph 2 of the EIA Notification, 2006 prescribes that the following projects or activities shall require prior EC from the concerned regulatory authorities-
(i). All new projects or activities listed in the Schedule to this notification;
(ii). Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities 13 which cross the threshold limits given in Schedule, after expansion or modernization;
(iii). Any change in product - mix in an existing manufacturing unit included in Schedule beyond the specified range."
10. The question for consideration thus is as to whether a unit which had begun its construction activity prior to the amendment on 25.06.2014 but had commenced its commercial operation only after the date of the amendment would fall within the, meaning of Clause 4 (b)(ii) of the Schedule to the EIA Notification, 2006 as amended on 25.06.2014, i.e., whether it is a new project or activity. As noted already, according to the SEIAA, the answer to this is in the affirmative."
14. In the affidavit dated 20.03.2020 filed by the Respondent No. 6, the industrial unit in question, it is primarily contended that amendment to the EIA Notification dated 25.06.2014 was not applicable to the unit as it was enforceable prospectively. It is asserted that Consent to Establish was obtained by the unit on 24.08.2013 which was before the amendment to the EIA Notification dated 25.06.2014 and under paragraph 2 of the EIA Notification, 2006, prior EC is required before establishment of the industrial unit and not before obtaining Consent to Operate. According to the Applicant, Consent to Establish had been obtained by the project Proponent before proceeding with the construction/establishment of the project and 14 after it is established, application has to be filed seeking for Consent to Operate. Consent to Operate has already been granted by the State PCB after it was satisfied that the conditions prescribed under Consent to Establish had been fully complied. Referring to order dated 18.06.2020 in this case, it is contended that the affidavits filed on behalf of the SEIAA, Odisha and the joint inspection of the State PCB and the SEIAA, Odisha contain diverse views. The view of the SEIAA, Odisha, that the unit was not absolved of the necessity of seeking EC for the industry when in the joint report of the State PCB and the SEIAA, it was stated to the contrary. According to the Applicant, it was unclear as to how it could be held by the SEIAA that the amendment to the EIA Notification was applicable to the unit.
15. Earlier to the reply filed on 20.03.2020, the Respondent No. 6 had filed another affidavit on 16.03.2020 which substantially contained the very averments contained in the later affidavit. Stressing on the point that the amendment to EIA Notification dated 25.06.2014 is applicable 15 prospectively, it is contended that in Anil Kumar Nanda &Anr. V. MoEF&Ors1., the Tribunal by order dated 17.10.2014 had categorically held that the Notification was prospective in nature.
16. It is further urged that a statute is presumed to be prospective until held to be retrospective either expressly or by necessary implication as laid down in the case of State of Punjab vs. Bhajan Kaur &Ors.2
17. Above is the factual position set out in the various affidavits which are relevant for a decision in the case.
18. Upon perusal of the affidavits filed by the parties, we find that the primary question to be considered in the present case is as to whether the amendment to the EIA Notification, 2006 vide order dated 25.06.2014 would be applicable to an industrial unit which had been granted Environmental Clearance (EC) but could not commence before date of the 1O.A No. 173/2013 2AIR 2008 SC 2276 16 amendment. This will be apparent from paragraph 11 of the order dated 18.06.2020. As the stand of MoEF&CC was felt essential to be obtained as it was the one which had issued the Notifications in question, affidavit was called for from the Ministry vide order dated 18.06.2020 which was filed on 18.08.2020, relevant portion of which is reproduced below:
"8. It is humbly submitted that at the time when respondent no. 5 was granted the Consent to Establish by Odisha State Pollution Control Board vide dated 24.08.2013 prior Environmental Clearance (EC) was not required for Coal Tar processing unit. The amended Notification dated 25.06.2014 is reproduced herein as under:
Project or activity Category with Condition threshold limit if any A B (1) (2) (3) (4) (5) 4 Materials Processing 4(b) (i) Coke oven >2,50,000 < General plants tonnes/ 2,50,000 Conditions
(ii) Coal tar annum and > shall apply processing 25000 unit tonnes/a nnum All Projects A copy of the Notification dated 25.06.2014 is annexed herewith as Annexure - 1.
9. It is humbly submitted that later the Ministry of Environment, Forest and Climate Change (MoEF&CC) has amended the EIA Notification, 2006 on 25.06.2014, by inserting entry 4(b) after entry 4(a) of the Schedule to the Notification providing that Environmental Clearance (EC) under EIA Notification. None is required for Coke Oven Plants and Coal Tar Processing Units. The amended Notification dated 25.06.2014 is reproduced herein as under:
10. It is humbly submitted that the said project/activity i.e., Coal Tar distillation 17 unit which comes under Coal Tar processing unit carried by M/ s. Shobha Chemical Industries Private Limited (Respondent No. 6) had the Consent to Establish by Odisha State Pollution Control Board, but failed to obtain Consent to Operate prior to the amendment in the Notification of 25.06.2014 in EIA Notification, 2006.
11. It is humbly submitted that all the units which obtained the Consent to Operate and started production before the said Notification dated 25.06.2014, does not attract the provisions contained in EIA Notification, 2006 and prior Environmental Clearance (EC) was not required. However, in case of any modernization/expansion/ product mix change etc., after the said notification dated 25.06.2014, prior EC is required and shall attract the provisions of EIA Notification, 2006.
12. It is submitted that the instant project/activity Le, Coal Tar processing unit of M/ s. Shobha Chemical Industries Private Limited is within the purview of the EIA Notification, 2006 i.e. after the said amendment in the Notification dated 25.06.2014, and prior Environmental Clearance is required from the concerned Regulatory Authority."
19. For convenience, relevant portion of the amendment to the EIA Notification dated 25.06.2014 is reads as under:
S.O. 1599(E).-In exercise of the powers conferred by Subsection (1) and clause (v) of Sub-section (2) of Section 3 of the Environment (Protection) Act, 1986(29 of 1986) read with sub-rulef 4) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby makes the following further amendments to the notification of the Government of India , in the Ministry of Environment and Forests number S.0.1533(E), dated the 14th September, 2006 after having dispensed with the requirement of notice under clause
(a) of sub-rule (3) of rule 5 of the said rule, in public interest, namely:-
I. In the said notification, in the Schedule,- ............
(iv) for Item 4(b) and the entries relating thereto, the following item and entries shall be substituted, namely:-18
'4{b) {i) Coke oven ~2,50,000 <2,50,000 General plants tonees/ and condition annum ~2,50,000 shall tonees apply.";
/annum
All
(ii) Coaltar - projects
processing
units
......."
20. In their arguments, the learned Counsel for the Applicant reiterated the averments contained in the application and emphasized that the industrial unit had commenced only with construction works of the project on the strength of the Consent to Establish dated 24.08.2013 and had commenced operation only after it had obtained Consent to Operate on 29.12.2015 from the State PCB, i.e., after the amendment to the EIA Notification dated 25.06.2014 had been published. Under such circumstances, it was imperative for the respondent industrial unit to have first obtained EC before it commenced its operations.
21. Learned Counsel for the Respondent No. 6 on the other hand, strongly urged that the amendment to the EIA Notification did not apply to the unit as it had obtained the Consent to Establish on 24.08.2013 which had 19 a validity of five years and had obtained Consent to Operate on 29.12.2015 within the period of validity of Consent to Establish. The amendment to the EIA Notification did not apply to the unit such as the Applicant, as it had prospective effect as held in Anil Kumar (supra) by the Tribunal. According to the learned Counsel, if the contention of the Applicant is to be accepted as correct, it would render the requirement of prior EC otiose and would be in conflict with earlier decision of the Tribunal. Referring to the stand of the MoEF&CC in its affidavit filed on 18.08.2020, it was stated that an affidavit cannot override statutory provision set out in the amendment to the EIA Notification dated 25.06.2014. Such a preposition according to the learned Counsel would be contrary to the various decisions of the Hon'ble Supreme Court and that of the Tribunal whereby retrospective effect of its rules/ statutes was held to be impermissible.
The affidavit, as per him, is neither supported by any Notification statutorily issued nor by any other statutory provision.
20
22. We have heard the learned Counsel for the parties and have examined various affidavits, the EIA Notification, 2006, the amendment thereto dated 25.06.2014 and the various decisions referred to by them. It is undisputed that the industrial unit had not commenced with the manufacturing process before it obtained the Consent to Operate on 29.12.2015 and that the amendment to the EIA Notification was issued on 25.06.2014. There can be no dispute that the amendment would be applicable prospectively. The categorical stand taken by the SIEAA, Odisha as well as the MoEF&CC in their affidavit is that in the case of industrial units such as the Applicant, it is necessary required to obtain EC as the Consent to Operate had been obtained after the date of the amendment. In other words the unit was yet to operate and pollution would result only after industrial units begin to operate.
23. Upon careful consideration of the case, we are inclined to accept the stand taken by the MoEF&CC as concededly the industrial unit, Respondent No. 6, had commenced with the 21 works related to the establishment of the unit on the basis of Consent to Establish dated 24.08.2013 but during the validity period of five years of the Consent to Establish, amendment to the EIA Notification, 2006 was published bringing manufacture of coal tar within the purview of the EIA Notification requiring such units to obtain EC as required there under.
24. It is an admitted position that the unit had commenced with its operation only in the year 2015 on the strength of Consent to Operate granted on 29.12.2015. According to the Applicant, the amendment to the EIA Notification had no application to the respondent unit which had a period of five years as per the Consent to Establish dated 24.08.2013 to seek Consent to Operate and that, in any case, the amendment to the EIA Notification was enforceable prospectively. We, however, find that such argument does not appear to have much force even when we consider General Condition 7 of the Consent to Establish dated 24.08.2013 which reads as under:
22
"7. The Industry is to comply to the provzswns of Environment Protection Act, 1986 and the Rules made there under with the amendments made from time to time such as the Hazardous Waste (Management &Handling) Rules, 1989, Hazardous Chemical Rules/Manufacturers, Storage and Import of Hazardous Chemicals Rules, 1989 etc. and amendment made thereunder. The industry is also to comply to the provision of Public Liability Insurance Act, 1991. If applicable."
[underling supplied]
25. As would be evident from above, the Consent to Establish was granted to the industry subject to compliance of the provisions of the Environment Protection Act, 1986 and the rules made there- under with amendments made from time to time.
26. This would squarely bring the amendment to the EIA Notification, 2006 dated 25.06.2014 including the other rules referred to in Clause 7 as illustrations, within the sweep of the said Clause 7 of the Consent to Establish rendering the submission of the learned Counsel to be incorrect.
27. Section 27 (2) of Water (Prevention and control of Pollution) Act, 1974 vests the State Pollution Control Board with the power of review of Consent to Operate granted to any industry. For convenience we may reproduce below section 25 (2):-
23
" (2) A State Board may from time to time review-
(a) Any condition imposed under section 25 or section 26 and may serve on the person to whom a consent under section 25 or section 26 is granted a notice making any reasonable variation of or revoking any such condition;
(b) The refusal of any consent referred to in sub-
section (1) of section 25 or section 26 or the grant of such consent without any condition, and may make such orders as it deems fit.
(3) Any condition imposed under section 25 or section 26 shall be subject to any variation made under sub-section (2) and shall continue in force until revoked under that sub-section."
28. Having regard to the above provision, the State Pollution Control Board was also obliged to exercise the power of revocation of Consent to Operate granted in favour of the Respondent no.
6. However, we find that instead of doing so, it had directed the respondent industry to seek clarification from MoEF as noted earlier.
29. The decision in Anil Kumar (supra) cited on behalf of the Respondent unit does not lay down the proposition that amendment to the EIA Notification, 2006 dated 25.06.2014 would be applicable prospectively under all circumstances. In that case, firstly the Consent to Operate had already been granted with validity up to 2014 24 after which was extended till 31.03.2015. In other words, the unit was already in operation when the amendment to the EIA Notification was issued on 25.06.2014. Paragraph 2 of the order dated 17.10.2014 in Anil Kumar (supra) would indicate that the MoEF&CC had filed a communication of the Ministry dated 02.09.2014 addressed to its counsel clarifying the position regarding the scope of Clause 5(f) of the schedule to the EIA Notification. It would also indicate that the question in controversy was as to whether coal tar manufacturing would fall under Clause 5(f) of the EIA Notification, 2006, or not. It was clarified that "as per amended EIA Notification, 2006 dated 25.06.2014 coal tar processing units fall under item 4(ii) in the schedule to the EIA Notification, 2006 and not under 5(f)." It was then observed that "application for coal tar processing units were prospective in nature." It is thus clear that while it has been clarified that coal tar processing units fall under item no. 4(ii) in the schedule to the EIA Notification, 2006, the provision was prospective in nature. In our considered opinion, 25 prospective application of the amendment as observed in Anil Kumar (supra) is the position that would prevail generally but would not include all circumstances that would fall within the purview of "prospective in nature". A new industry dealing with coal tar processing after 25.06.2014 would no doubt require to obtain EC and those established and in operation prior to that date certainly would not. However, this cannot be the position in respect of those units which were in the process of establishment after obtaining the Consent to Establish prior to the date of the amendment to the EIA Notification and had commenced only after the said date after obtaining Consent to Operate. In the present case, the industrial unit had obtained Consent to Operate on 4th September, 2015 i.e., after more than 15 months after the date of amendment. We are of the firm view that this circumstance would require the Respondent industrial unit to obtain prior Environmental Clearance as the Respondent unit had not commenced with its operation, a circumstance that would fall within the purview of the term 26 "prospective in nature."
30. Environment Impact Assessment (EIA) is a tool by which the probable effects of development activities on the environment are prevented or minimized. It provides for an opportunity to make such modification or formalize scheme to mitigate adverse environmental consequence. The amendment to the EIA Notification, 2006 dated 25.06.2014 was brought about on the basis of studies carried out by the Experts on the pollution potential of industrial units such as the one in question. Obviously the coal tar processing units were brought within the EIA regime in view of its potential to cause heavy pollution to air and water resulting in adverse impact to the environment, assessment of which was felt essential in accordance with the procedure laid down in the EIA Notification, 2006 before commencement of such units by making the General Conditions thereof applicable. Undeniably, impact of such unit during both the construction phase and the operational phase, would be substantial requiring necessary EIA studies and mitigation 27 measures as per the precautionary principle and the principle of sustainable development.
31. It was, no doubt, argued by learned Counsel for the Respondent no. 6 that no notification or orders or circular had been issued by the MoEF to clarify the circumstance in which the amendment notification would apply. We, however, do not find this submission to be acceptable as the Respondent unit appears to be aware of the legal requirement as we find that the Respondent No. 6, though had submitted an online application for grant of EC on 16.09.2015, it was quite curiously withdrawn vide letter dated 08.01.2016 when it was under
consideration of the SEIAA, Odisha and, had surprisingly obtained Consent to Operate on 15.03.2015. Remarkably also, the State PCB by letter dated 31.03.2016 directed the respondent unit to seek clarification from the MoEF&CC as to whether EC was applicable to it by virtue of the amendment to the EIA Notification dated 25.06.2014 and further conveying that until such clarification was obtained, the application submitted by the unit for authorization would be 28 treated as incomplete and could not be considered. No such clarification has been placed by the respondent unit giving rise to a reasonable inference that such clarification had not at all been obtained by the unit. It is also of relevance to note that the amendment to the EIA notification dated 25.06.2014 was brought out just about seven months after the Consent to Establish dated 24.08.2013 when work on the establishment of the project had only begun.
32. For the aforesaid reasons, we are of the view that since the Respondent no. 6 industry had not commenced with its manufacturing process and had not obtained the Consent to Operate before the amendment to the EIA Notification, 2006 was brought about on 25.06.2014, it was necessary for it to have obtained prior EC.
33. Having held as above, the next question that would arise would be on the consequence of such finding.
34. We find from the application that there are 29 substantially the following prayers which have been made:-
(a) To quash and or set aside the Consent to Operate dated 15th March 2019 and/or any further consent to operate being issued to the respondent no. 6 during the pendency of the instant application.
(b) Respondent no. 3 be directed not to issue any consent to operate to the respondent no. 6 till the pendency of this application.
(c) Order the immediate closure of the Respondent No. 6's unit at Jammal Village, P.O-Gadigaon, Kolabira, Jharsuguda District.
(d) Direct the Respondent to obtain Environment Clearance as per the EIA 2006 dated 14th September 2006 as amended by the notification dated 25th June 2014 which mandates prior environmental clearance for all the coal tar processing units.
(e) Stay of operation of the unit of the Respondent No. 6 at Jammal village, P.O- Gadigaon, Kolabira, Jharsuguda District till the Respondent No. 6 is granted the Environmental Clearance as per the EIA 2006 dated 14th September 2006 as amended by the notification dated 25th June 2014.
35. Prayer (a) appears to have been become infructuous as the period of validity of the Consent to Operate which was upto 31.03.2020 has already expired. We are not aware as to 30 whether any further consent to operate has been granted.
36. Having considered the facts and circumstances, we, are of the view that it is necessary for the respondent industry to obtain Environment Clearance before a fresh consent to operate is granted. We accordingly direct so. In the event it has already been granted, the consent to operate shall be suspended and the industrial unit cease to operate forthwith. The unit shall be permitted to operate only after environmental clearance and fresh consent to operate are obtained.
37. Considering the fact that the industrial unit had commenced with its operations without first obtaining the EC as required under the EIA Notification, 2006 as amended vide amendment dated 25.06.2014, it can reasonably be assumed that considerable damage has been caused to the environment due to air and water pollution as well as the health of the people of the village. We, therefore, constitute a Committee comprising of Experts/ Senior Scientist from (i) the Regional Office of the 31 MoEF&CC at Bhubaneswar; (ii) the Central Pollution Control Board (CPCB); (iii) State PCB and, (iv) District Magistrate, Jharsuguda, Odisha, which shall (a) assess the damage caused to the environment and ecology; (b) assess the Environmental Compensation; (c) cost of restoration of the environment and, and submit a report.
The State PCB shall be the nodal agency for coordination and providing logistic support.
38. While carrying out the exercise the Committee shall give an opportunity to the Respondent No. 6 to place its views and an opportunity of hearing.
39. In the result, the application is allowed and is accordingly stand disposed off.
40. However, compliance report of the directions contained in this order shall be transmitted to the Tribunal by email on [email protected] after six months.
41. A copy of this order be transmitted forthwith to 32 each of the members of the committee referred to in paragraph 37 above.
S.P. Wangdi, JM Dr. Nagin Nanda, EM 08th September, 2020 O.A. No. 04 /2020 /EZ with O.A. No. 134/2017 /EZ avt 33