Babubhai Ramubhai Saini vs Gujarat Pollution Control Board on 10 March, 2022

[Cites 5, Cited by 4]

National Green Tribunal

Babubhai Ramubhai Saini vs Gujarat Pollution Control Board on 10 March, 2022

1. This common order will dispose of M.A. Nos. 15/2021 and 16/2021 filed by Radhe Renewable Energy Development Pvt. Ltd and M/s Lichi Ceramic as both the applications are identical. Both applications have been filed in the light of order of the Hon'ble Supreme Court dated 20.11.2020 in SLP No. 6474-6476/2019, M/s Radhe Renewable Energy Development Pvt. Ltd. & Anr. v. The State of Gujarat & Ors. in proceedings against order of this Tribunal dated 26.3.2019 in the main OA, as follows:-

"We have heard learned counsel for parties.

We are not inclined to interfere with the impugned order(s) under Article 136 of the Constitution of India.

We, however, feel that if in the perspective of the petitioners there is a better technology available for coal gasifiers which meets the muster of environmental norms they may approach the National Green Tribunal for reference to the committee constituted by the Board.

The special leave petitions are accordingly dismissed."

2. It will suffice to refer to M.A. 15/2021. Prayers therein are:-

"(A) That this Hon'ble Tribunal may be pleased to refer the technology of modified Type-D gasifiers developed by the Applicant to an appropriate Committee for evaluation whether or not this coal gasifier technology meets the muster of environmental norms;

(B) That this Hon'ble Tribunal may be pleased to direct an appropriate Committee to render a report about the performance of modified Type-D coal gasifiers developed by the Applicant installed in ceramic manufacturing units with reference to the compliance with the environmental norms;

(C) That this Hon'ble Tribunal may be pleased to direct the Gujarat Pollution Control Board and all other agencies involved in implementation of the Pollution Control laws and norms, to allow use of modified Type-D coal gasifiers developed by the Applicant, by ceramic goods manufacturers in the event the report of the Committee constituted by this Hon'ble Tribunal confirmed that such coal gasifiers/technology meets the muster of the environmental norms."

Background

3. We may brief background of the issue giving rise to the application.

This Tribunal dealt with a group of complaints first filed in 2014-2015 and then in the year 2017 against the pollution caused in Morbi town of Gujarat on account of the operation of Ceramic, Silicate and Frit industries. Directions were sought to close the coal based gasifiers used by industrial units in and around the town of Morbi and ensure that the said industries follow terms of 'Consent of Consolidated Authorization' (CCA) by the Gujarat State Pollution Control Board (GSPCB) and the 2 directions of the Central Pollution Control Board (CPCB) vide letter dated 21.06.2014.

4. Vide order dated 08.09.2015, the Tribunal held that there was unabated pollution and instead of coal gasifiers, LNG or CNG was required to be used so as to prevent pollution. The Tribunal also constituted an Expert Committee of CPCB, GPCB and Head of Department (HoD), Environment Engineering Department of M.S. University, Baroda to suggest parameters for coal gasifiers compliant with the standards. C.A. No. 584/2016 filed against the said order before the Hon'ble Supreme Court was disposed of on 16.01.2017, with liberty to the Applicants in the present M.A. to approach this Tribunal to seek reconsideration of order dated 8.9.2015.

5. The matter was against considered by the Tribunal on 24.04.2017.

An Expert Committee was constituted to look into the matter. The Committee gave its report in October, 2017 which was considered on 14.11.2017. The Tribunal found the report to be inadequate and while directing the Expert Committee to file a fresh report, the Tribunal direct GPCB to take action against the erring units. Ceramic industries using type B gasifiers in violation of consent terms were directed to be closed, pending further consideration in respect of the projects using C, D, E gasifiers.

Order of NGT dated 26.3.2019

6. The matter was finally considered by the Tribunal on 26.03.2019, in the light of report filed in February, 2018. The Tribunal considered the contention that coal gasifiers had since improved with zero percent air pollution discharge. The plea was opposed by the original applicant by submitting that coal gasification was a dangerous process wherein highly 3 carcinogenic wastes are generated. Daily coal tar generation in Morbi was found to be 8 lakh kg per day which could cancer of lungs as per study of the International Agency for Research on Cancer (IARC), part of World Health Organization (WHO). The GPCB submitted that coal gasifiers did cause pollution but a trial could be given to consider whether the activity could be allowed. It was found that GPCB had given permission for trial run which resulted in huge air pollution as shown by air quality status as follows:-

"Ambient Air Quality Status:

As per National Green Tribunal committee report average ambient air quality (7 Stations) monitored PM10 = 552.66 µg/m3, PM2.5 = 289.61 µg / m3, SO2 = 152.81 µg /m3. Compared to that, Average ambient air quality monitored (4 Stations) in last 3 months (Aug- 18 to Nov-

18) is PM10 = 199.1 µg /m3, PM2.5 = 60.6 µg /m3. Though not meeting with standards, This shows improvement in air quality of Morbi-Wankner Region."

(The data pertains period from August to November, 2018, after the trial run of Type G gasifiers were conducted)

7. On due consideration of the matter, the Tribunal held that coal gasifiers were no longer viable in view of data of high level of pollution which was dangerous to health. The Tribunal referred to report of February, 2018, submitted by GPCB, CPCB and NEERI and report of CPCB dated 05.01.2019 which are quoted below for ready reference:-

Report of the Committee dated February, 2018 "Chapter 6 Conclusions and Recommendations 6.0 Introduction This chapter presents the conclusions and recommendations based on the study at Morbi - Wankaner industrial area, environmental monitoring, inspection of ceramic industries, gasifiers and discussion with different stakeholders.

6.1 Examination /Evaluation of Gasifier Technologies Type 'A': There are 13 type 'A' gasifiers were found during the inspection by the committee. These gasifiers were not in operation. Some of them were not in operation since long, however, some gasifiers were found with wastewater and tar which shows these gasifiers were operational in immediate past. Since, this type of gasifiers are not permitted, GPCB must ensure that all type 'A' gasifier should be dismantled.

Type 'B': Earlier expert committee (2014) suggested that type 'B' gasifier can be permitted to operate if the wastewater generated during gas cleaning / condensation is recycled back to the gasifier shell by the use of evaporator. Accordingly, GPCB granted amended CTE / CCA for the operation of type 'B' gasifiers. However, this committee finds that type 'B' gasifier cannot be operated by recycling condensate wastewater in the gasifier shell as the condensate wastewater generated is in excess of the required moisture for shift reaction. This is the reason, almost all type 'B' gasifier operators illegally discharge wastewater either through open drain, in low lying areas, abandoned mines etc. and /or steam release to atmosphere. During the inspection of industries, it was found that there are 71 gasifiers that operate evaporator and feed wastewater steam inside the gasifier shell. This can only be a temporary phenomenon as complete wastewater cannot be fed on continuous basis. These gasifiers can discharge condensate wastewater outside the premises illegally and it is not possible for GPCB to keep track of the wastewater generated and its recycle. An argument put forth is that the evaporator operates only for a few hour and feed the complete steam inside the gasifier shell. Such argument does not stand as the condensate wastewater generation is a continuous process and even if intermediate tanks of very large capacity is built, all will get filled at some instance during the operation of gasifier. Therefore, this committee recommends that all gasifier of type 'B' must be shut down immediately, dismantled safely. Type 'C': Condensate wastewater with indirect cooling and Tar (Wet ESP) is stated to be recycled into gasifier shell by heating it at high temperature in the Tar reformer. The recycling operation is carried out on the premises that the moisture fed inside the gasifier shell will be the stoichiometric requirement of amount of coal tar recycled. The coal tar generated itself is an emulsion of water and coal tar due to its collection mechanism (Wet ESP). The moisture content of coal tar should be sufficient to take part in the shift reaction and any additional moisture may not be needed. The condensate wastewater will be recycled again in the subsequent condensation and this in turn will accumulate the wastewater in the gasifier system as happens in the case of type 'B' gasifier. Thus, after a few days of operation, type 'C' gasifier will generate and accumulate condensate wastewater, which does not have economical treatment option, and therefore its management will always be major issue. Generation of condensate wastewater and coal tar is not recommended. Type 'D': This is hot gasifier and does not allow condensation of moisture up to kiln. The entire 5 moisture is fed in the kiln. Since this is a hot gasifier, coal tar does not get condensed and is fed directly to the kiln. This was evident from the colour of the flame, which was yellow / orange. A clean producer gas gives blue flame. Raw gas cleaning through road metal/aggregates (kapachi) filter generates large quantity of exposed/used aggregate filter media. Huge quantum of Filter media coated with tar and coal dust whose disposal may be another environmental issue. High molecular weight (class 5) coal tar gets condensed just before the kiln burner and gets solidified as soon as its moisture is evaporated. Solid coal tar cannot be fed from the bottom of the shell. If solid coal tar is fed from the top, it gets vaporized and again reappear in the raw synthetic gas thereby accumulating coal tar in each successive cycles. Type D' gasifier will have the problem of solid coal tar and disposal of large quantity of used contaminated aggregates. Generation of coal tar and contaminated filter media (aggregate) from gasifier is not recommended.

Type 'E': is based on down draft and agro based fuel where no cooling and cleaning of gas is required and therefore no wastewater and tar generation. Bio-mass based fuel does not generate heavy hydrocarbon, and therefore Tar, which is heavy hydrocarbon is not formed. Steam is not added in the gasifier, instead moisture of bio-mass is considered sufficient for H2 formation. Due to very low amount of moisture feed, wastewater is not generated.

Even if condensate wastewater and coal tar is generated from gasifiers in small amount in Morbi -- Wankaner Industrial cluster, its cumulative impact on the ecosystem is very severe as there are very large number of ceramic industries exists. Management and handling of wastewater and hazardous waste (coal tar) from all industries together exceeds the assimilative capacity of the region and therefore any gasifier generating condensate wastewater and coal tar should not be permitted. Instead of further experimenting with older moving coal bed gasifiers (currently existing in Morbi), advanced fluidized bad gasifier should be designed along with all pollution control device for meeting the clean energy demands in Morbi region.

Till a cleaner technology for synthetic gas generation is demonstrated, ceramic industries having gasifiers may opt for PNG. Natural gas grid /pipe connections are already established in area and most of industries are having connections.

6.2 Environmental Status of Morbi - Wankaner Area The general ambience of Morbi -- Wakaner industrial cluster is smell of half burnt coal, VOC, SO2 and poor visibility due to dust and smog. The committee visited different areas along the roads of Morbi - Wankaner and collected sample of surface and ground water. It was observed that most of the storm water drains in the industrial area are carrying condensate wastewater (brown colour) and vitrified tile polishing wastewater (white colour). All these storm water drains join some 6 natural drains and finally meets Kalindri and Bela river in the region. Many low lying areas along the road and nearby abandoned mines contain condensate wastewater, which is disposed illegally. Further travel to inner part of the industrial area showed the very poor industrial solid waste management practice. Wherever open space is found along the river, solid waste, broken tiles, ceramics, polishing sludge etc. are disposed haphazardly. Overall visual experience of the industrial area is that Morbi industrial area is highly polluted and is an economic zone only to create wealth from mother earth (clay, coal) but belongs to none. Though the visible water colour suggest that it is polluted, a scientific approach require its analysis in laboratory, and therefore, to quantify the level of pollution samples of air and water were collected from field and analysed in the laboratory. Water analysis result suggest that the discharged wastewater is highly polluted. The ambient air samples collected by the committee and analysed in CPCB (RD, Vadodara) laboratory shows very high & alarming level of PM10, and PM2.5 and SO2 pollution indicating uncontrolled emission from spray drier, ceramic kiln without any flue gas treatment. The concentration of PM10, and PM25and SO2 are exceeding many time more than the National Ambient Air Quality Standards (NAAQS) except two locations for SO2. The concentrations of pollutants are also more due to high industrial density having almost same nature of industrial activities in the Morbi area. This warrants immediate preparation of air action plan and its implementation including proper /adequate pollution control technology for spray dryers, tiles polishing units, restriction & control on haphazard disposal of solid waste (broken tiles, polishing dust, coal ash), improvement in road conditions etc. The pollution control technology primarily demands use of clean technology for coal gasifier, which will eliminate condensate wastewater and coal tar generation followed by scrubbing of dust, SO2 from spray drier and installation of flue gas treatment (scrubber) for removal of Sulphur from burning of synthetic gas in ceramic kiln. The groundwater analysis results shows contamination (high COD) at some bore wells which needs to be further investigated through state level ground water board /authority. Recently, it is informed that brownish color ground water is observed in bore well.

As per Medium term measures given by Expert Committee (Govt. of Gujarat) 2014, a study of spray dryer was to be conducted, from pollution view point, which shall incorporate survey related to the existing air pollution control devices, ascertaining the adequacy of installed system and suggesting addition /alterations to fulfil the prescribed norms within six months by environment departments of Engineering /Technical 7 Institutes and respective Industrial Associations should bear the cost of the study. However, no action is visible at site and the status quo of pollution discharge is maintained.

6.3 Industrial visits and compliance aspects Ease of handling waste leads to its categorization based on physical state i.e. solid, liquid and gaseous. At Morbi, ceramic industries are generating and discharging waste in all the three states. Solid waste are visible and can be managed if space for its disposal is provided and the existing solid waste management rules are followed. Coal tar generated in gasifier is illegally used in combustion activity thereby causing air pollution as in the entire Morbi industrial area. While using coal tar in combustion, air pollution control device are not installed, thereby releasing pollutant in the atmosphere. There are several emission points like, spray drier, kiln emission, evaporator emission etc. Therefore, the issue of air pollution in Morbi is very serious and alarming. Liquid waste i.e. mostly condensate wastewater from gasifier and polishing waste from vitrified tiles are not disposed after treatment. In fact the condensate wastewater from gasifier cannot be treated economically and therefore the technology of gasifier needs to be upgraded so as not to generate wastewater and tar. Previous committee (expert committee -2014) has suggested some modifications in the existing coal gasifiers including recycling the condensate wastewater through evaporator to achieve zero liquid discharge. Accordingly, GPCB provided amended CCA for such gasifiers, which is presently termed as Type E' gasifier. Another committee (NGT 2015), recommended for excess wastewater (after evaporation) to be incinerated which is part of notification published by GPCB in August 2017, but till date the industries are not sending excess wastewater to any common incineration facility for disposal of wastewater and common incineration facility not developed. However, it is found that such measures do not solve the wastewater problem and therefore this committee recommends to overrule any such provision of wastewater recycling in the moving bed coal gasifier (up-draft existing gasifiers) and incineration of excess wastewater.

In total, 432 industries visited, 411 industries were found to have coal gasifier and the remaining 21 were using PNG for operating the ceramic industry. There are 384 Type 'B' gasifiers visited, 69 gasifiers are without CCA & therefore illegal and 315 with valid CCA. Out of 384 type 'B' gasifier, 130 gasifiers were not operational and 254 gasifiers were operational where 2 does not have evaporator installed, 96 were not operating evaporator, and 85 were releasing steam of evaporator in to the atmosphere (more than 50 % operational evaporator). There are 73 type 'B' gasifiers that have provision/practicing direct scrubbing of raw synthetic 8 gas by addition of water pipe line/recirculation line. There are 133 gasifiers that have contaminated cooling water and 32 gasifiers were found to be discharging wastewater inside/outside the premises. All these actions make them non-compliant.

71 industries have exhibited recycling of condensate wastewater in the gasifier shell during the visit of committee members, however, it is not possible to continue such practice for long time due to reasons as elaborated in Chap-2. Therefore, the compliance condition stipulated by the GPCB based on the earlier committee's recommendations is not maintainable and should be cancelled. Regarding management of coal tar generated from coal gasifier, there is large gap between coal tar generation and its authorized use as fuel. A very large quantity of coal tar is illegally used as fuel. By & large, storage, handling & transportation of coal tar is not as per HWM Rules.

There are other difficulties /issues by the industries in handling present coal gasifiers like small scale operations, local suppliers /manufactures of gasifiers without proper Material of Construction (MoCs), without proper operational control, leakages of tar /wastewater, fugitive emissions /smell from open wastewater /tar tanks in the area, industries casual approach for operation of gasifiers, large number of industries /gasifiers in limited area concentrating pollution /safety risks, enforcement difficulties i.e. day to day check on illegal operations not possible with limited manpower and local interferences. Further, other non- compliances observed during industry visits which are elaborated in (chapter-5).

All type 'B' coal gasifiers should be shut down immediately and dismantled, irrespective of whether it is complying with the consent condition or not. The plant premises should be cleared of wastewater and tar, else it should be considered as violation. The summary of industrial visits with observations is submitted to GPCB. Action should be initiated by GPCB on industries that are operating illegally in the Industrial area of Morbi as per orders (dated 24.07.2017 & 14.11.207) of Hon'ble NGT, Pune. Majority of gasifiers including almost all type-B gasifier with valid CCA visited by the teams and made observations/conclusions and further visits may not influence the observations/conclusion in any way as the issues related to type-B gasifiers are similar in nature. GPCB should further identify all such gasifiers (with CCA & without CCA) and shut them down.

Initiation by the gasifier operators on incineration of wastewater or its bio-chemical treatment should not be considered as a reason for permitting them to operate it further.

Most of the medium term measures (to be taken up by Ceramic Industries Association) mentioned in the recommendations of the expert committee of Govt. of 9 Gujarat (2014) such as Spray dryer study (adequacy for spray dryers, suggestions on addition/alterations to meet norms etc.), implementation of suggested additions/alteration to APCD by member industries within three months, solid waste management, improvement of roads to improve the ambient air quality etc. by industry association(s) are yet to be fulfilled. As per the information provided by the GPCB, five industrial accidents reported in last two years related to gasifier and therefore safety aspects needs to be seriously considered by concerned department. Till clean technology gasifier demonstrated, available PNG may be used to avoid any environmental issues/damage which are being created due to mismanagement, illegal disposal of tar and wastewater generated from existing gasifiers.

New advance fluidized bed clean technology gasifiers that does not generate condensate wastewater and tar should be encouraged. Such gasifier should be approved for its material of fabrication, all temperature and pressure measuring gadgets, automated monitoring and control system by Directorate of Industrial Safety & Health (DISH) for authorized installation in Morbi.

Report of CPCB dated 05.01.2019 "The Committee (NGT Committee 2017) recommended for closure/dismantling of type-A & B type of gasifiers. Type-C, Type-D and Type-E gasifiers were given trial run permission by GPCB during the visits of the committee. As there is generation of waste water and coal tar in case of Type-C and issues of tar recycling, generation & disposal of huge amount of contaminated/ exhausted filter (aggregates) media in case of Type-D gasifier, these gasifiers are not recommended by 10 Committee. Regarding, Type-E gasifier though, its pollution potential is negligible, its output performance is inadequate to generate required heat for long kiln.

Even if condensate wastewater and coal tar is generated from gasifiers in small amount in Morbi-Wankaner Industrial cluster, its cumulative impact on the ecosystem is very severe as there are very large number of ceramic industries exists. Management and handling of wastewater and hazardous waste (coal tar) from all industries together exceeds the capacity of the region as evident from monitoring results of water bodies & ambient air and therefore any gasifier generating condensate wastewater and coal tar should not be permitted. Instead of further experimenting with older moving coal bed gasifiers (currently existing in Morbi), advanced fluidized bed gasifier should be designed along with all pollution control devices for meeting the clean energy demands in Morbi region.

Till a cleaner technology for synthetic gas generation is demonstrated, ceramic industries having gasifier may opt for PNG. Natural gas grid/pipe connections are already established in the area and most of the industries are having connections. The ambient air quality of the Morbi-Wankaner ceramic industrial area was with high and alarming levels of PM1o, PM2.5, 502. The concentrations of these pollutants are exceeding many times more than the National Ambient Air Quality Standards (NAAQS). Particulate Matters (PM) emission primarily from spray dryers, use of coal & tar (illegal) in Hot air generator, and also due to handling of raw materials such as coal, different types of clay, poor road condition and vehicular movement. SO2 from spray drier (coal fired Hot air generators), and use of synthetic gas in ceramic kiln, evaporators. The groundwater analysis results show contamination (high COD) at some bore wells which needs to be further investigated through state level ground water board /authority. Recently, it is informed that brownish color ground water is observed in bore well. As per Medium term measures given by Expert Committee (Govt. of Gujarat) 2014, a study of spray dryer was to be conducted, from pollution view point, which shall incorporate survey related to the existing air pollution control devices, ascertaining the adequacy of installed system and suggesting addition /alterations to fulfil the prescribed norms within six months by environment departments of Engineering /Technical Institutes and respective Industrial Associations should bear the cost of the study. However, no action is visible at site and the status quo of pollution discharge is maintained.

There is urgent need to provide adequate air pollution control devices to all the sources of air emission including spray driers, coal/clay handling systems with proper roads and solid waste management.

A meeting was convened by CPCB on 31.05.2018 to discuss the pollution matter relating to ceramic industries using coal gasifiers in Morbi-Wakaner areas of Gujarat among CPCB & GPCB. In the meeting it was discussed & recorded that as the Senior Scientists of GPCB and CPCB were part of the Committee 11 (NGT Committee 2017), there is no question of disagreeing with any of the observations/recommendations made by the said Committee. It implies that GPCB 'has to implement the recommendation of the said Committee and considering the gravity of problem in the Morbi-Wakaner. It was informed by GPCB that consent to the Units is issued with condition to achieve the ZLD as per the recommendations of Committee earlier constituted by the Gujarat Govt. Strict action against the Units with Type A gasifier has been initiated leading to closure. Action is being taken in respect of Type B gasifier that do not meet the ZLD conditions as per the NGT order dated 14.11.2017. GPCB further informed that they have carried out fresh survey of industrial Units in compliance of an order passed by the Hon'ble High Court of Gujarat and submitted the report to the Court. Considering that (a) the NGT Committee 2017 has recommended to use for PNG for such time till a cleaner technology for synthetic gas generation is demonstrated; (b) the natural gas grid /pipe connections are already established in the area; and

(c) most of industries are having connections, GPCB was requested to take steps to implement the recommendation of using PNG."

8. On consideration of the above, the Tribunal held that all gasifiers could not be allowed when there was high level of air pollution in the area dangerous to health and environment. Observations of the Tribunal are:-

"1to20..xxx................................xxx....................................xxx

21. In view of the above, it is clear that coal gasifiers are no longer viable. Inspection by GPCB shows high level of air pollution which is dangerous for health and environment. 'Sustainable Development' and 'Precautionary' principles are to be upheld.

22. Purpose of economic development in any region is to provide opportunities for improved living by removing poverty and unemployment. While industrial development invariably creates more jobs in any region, such development has to be sustainable and compliant with the norms of environment. In absence of this awakening or tendency for monitoring, industrialization has led to environmental degradation on account of industrial pollution. It is imperative to ensure that steps are taken to check such pollution to uphold statutory norms. Adequate and effective pollution control methods are necessary.

23. We may also note that as per data compiled by the CPCB Morbi-Wankaner is one of the polluted industrial clusters. Vide order dated 13.12.2018 in Original Application No. 1038/2018, this Tribunal considered the subject matter of critically polluted industrial clusters and directed preparation of action plans by the respective States for remedying the situation.

24. Even though, this area is polluted but not 'critically polluted', the same may not be covered by the said order, but the fact remains that there is high amount of pollution as shown by the latest report of the GPCB quoted above in para no. 13. PM10 is equal to 552.66 and PM2.5 is equal to 289.61. Stringent measures are, thus, required in the interest of protection of environment and public health.

25. Accordingly, we allow the applications and direct the GPCB to close all coal gasifiers industries and units operating with the help of coal gasifiers without prejudice to such units switching over to non-coal gasifiers or PNG or technology consistent with the above report. The GPCB must initiate immediate steps for prosecution of the industries which have operated in violation of law and recover compensation for causing damage to the environment and public health. This amount may be assessed by a Committee with representatives of CPCB, GPCB and NEERI. The CPCB will be the nodal agency for coordination and compliance. The Committee may suggest restoration plan.

26. The Committee may give its report within one month by e-mail at [email protected].

27. The Committee may take into account the cost of reversing the damage caused and also the amount to be recovered which will operate as deterrent and render any polluting activity non-profitable.

28. To oversee the execution of this order by the GPCB, we appoint an Oversight Committee headed by Justice B.C. Patel, former Chief Justice of Delhi High Court and former Judge of Gujarat High Court who is already heading an Oversight Committee constituted by this Tribunal vide order dated 16.01.2019 in O.A. 606/2018. He will also be assisted by a representative of CPCB. The GPCB will provide all logistics to Justice Patel. Any person concerned with execution of this order will be at liberty to represent to the said Oversight Committee."

Order of Gujrat High Court dated 19.11.2019

9. The applicant approached the Gujrat High Court by way of Civil Appeal No. 6756 of 2019 which was disposed of on 19.11.2019 inter-alia stating as follows:-

"16. Thus, the experts have made themselves abundantly clear that the use of coal gasifiers of any type should be discontinued at any cost. The experts have also made themselves very clear that the Ceramic Industries should switchover to a cleaner technology and should opt for natural gas, i.e., the PNG. In the report, it has been clearly stated that the natural gas grid/pipelines are already laid and made functional in the area and most of the Ceramic 13 Industries have opted for gas connections. If that be so, then why an exception should be carved out for the writ applicants of the Special Civil Applications Nos. 6757 of 2019 and 6774 of 2019 respectively.

17. We fail to understand why are they insisting for coal gasifiers may be with an advanced technology. We take judicial notice of the fact that Morbi and the surrounding area was a hell sometime back, and the Ceramic Industries, using the coal gasifiers, are solely responsible for creating this hell. As days were passing by, situation was getting more and more worst. The situation was so grim that the issue had to be taken up with the National Green Tribunal and it is only after intervention of the National Green Tribunal and passing of various orders, that steps came to be taken by the GPCB to restrain the Ceramic Industries from using the coal gasifiers. The coal gasifier of any type, be it with a better technology, is not at all advisable. It will lead to further problems. With great difficulty and with lot of efforts, the situation has been brought in control. Even, as on date, the air quality is very poor. The menace of coal gasifiers have not only created air pollution but has also contaminated the soil to such an extent that the underground water has also become contaminated."

Order of Hon'ble Supreme Court dated 20.11.2020

10. The SLPs against the order of NGT dated 26.3.2019 and order of Gujrat High Court have been dealt with by common order dated 20.11.2020 which has already been quoted above. While SLPs have been dismissed, the petitioners before the Hon'ble Supreme Court (now applicants in MA) have been allowed to approach this Tribunal if in their perspective better technology is available for coal gasifiers, meeting the environmental norms, seeking a reference by the Tribunal to the Committee constituted by the Board.

Case of the Applicants in the MAs

11. The applicants have submitted that better technology for coal gasifiers is available which meets the environmental norms and therefore reference be made to the Committee constituted by the Board. Additonal prayers have also been made beyond the scope of order of Hon'ble 14 Supreme Court and contrary to the findings of this Tribunal and the Gujrat High Court against which SLPs have been dismissed.

12. The grounds set out in the application seeking direction for referring the technology proposed by the applicant to an Expert Committee are:-

"3.4 Subsequent to the said report, the Petitioner undertook further research and development and ultimately sorted out the two problems reported in the said report. The new technology i.e. (Modified Operation of Type-D) of gasifier that no longer had such two problems, has been tested and verified by the LD College of Engineering, Gujarat Energy Research and Management Institute ('GERMI'), Gandhinagar and Pandit Deen Dayal Petroleum University ('PDPU'), Gandhinagar, and the reports of these three agencies confirmed that there were no problems at all in the new gasifiers technology developed by the Petitioner. Accordingly, the Petitioner made a representation dated 30.07.2018, to the CPCB, GPCB, NEERI and also the Member Secretary of the GPCB, with copies of the reports of the above three agencies/institutions, and requested for final permission for long term utilization of the modified Tyde-D gasifiers Technology in Morbi Ceramic Cluster. The Petitioner filed a further affidavit dated 13.08.2018, before the NGT, and explained the problems referred to by the Expert Committee in the report of February, 2018. The Petitioner also approached for directions to GPCB and any other appropriate authority to verify the technology developed by them. An interlocutory application came to be filed by the Petitioner on 25.02.2019, before the NGT. In this application also, the Petitioner has prayed for directions to CPCB/GPCB for examination and evaluation of the modified gas technology by the Petitioner in respect of Type-D gasifiers. However, although the exercise of evaluation was started by the concerned authorities such GPCB/CPCB, it came to an abrupt end. Instead of the GPCB giving a trial run and examining the technology of the Petitioner, which is a modified Type-D gasifier, which takes care of all the problems that were reported in the report of February, 2018, the Hon'ble NGT has disposed of the Original Application No. 20/2017, by an order dated 06.03.2019, and as far as the applications of the Petitioner are concerned, the same are not dealt with and the NGT has stated that the same are not maintainable in view of Section 14 and 15 of the NGT Act. At the same time the NGT has passed an order disposing of the application of the Res. 4 and directing the GPCB to close all coal gasifier industries and units operating with the help of coal gasifiers without prejudice to such units switching over to non-coal gasifiers or PNG or technology consistent with the above report. It further directed that the GPCB must initiate immediate steps for prosecution of the industries which have violated the law and recover 15 compensation for causing damage to the environment and public health. It may be noted that technology of the Petitioner has not been evaluated despite the specific stand of the GPCB itself, which is at para 12 of the order dated 6.3.2019 of the Learned NGT, stating that, "Learned Counsel for the GPCB submitted that while it will be difficult for him to state that the coal gasifiers are not causing pollution as found by the Committee, the improved technology may be given further trial and to the extent any particular activity is found to be compliant with the norms, such activity may be allowed to be continued."

Thus the present proceedings raises a peculiar situation where although an alleged wrong, in terms, of polluting the environment, committed by employing a particular equipment/ machinery, can be prevented and remedied by employing new technology and a different type/version of the said machinery/ equipment, yet no full evaluation and examination has yet been done of the same by the Concerned authorities to allow use of such machinery, and instead action is being taken prohibiting use of all versions of such machinery, resulting in a colossal loss bordering on wiping out an entire industry of small scale manufacturers. 80% of the country's output of ceramic tiles comes from the Morbi area. As a result of the action taken and contemplated, around 925 ceramic units (as per affidavit of Gujarat Pollution Control Board itself) have closed down since 12.3.2019. More will be forced to follow suit, resulting in unemployment of approximately sixty thousand workers, loss of production worth Rs.5,600 crores (approximately per annum), loss of exports and consequent foreign exchange earnings of Rs. 20 to 40 crores (approximately) annually, and investment of about Rs. 3150 crores lying idle.

4. GOVT OF INDIA ENCOURAGING COAL GASIFICATION AND GIVING IT A MAJOR PUSH The Coal-Gasification Technology is technology which is used widely and has been around for a very long period of time. The Coal Gasification Technology is continuously developing for over 250 years with development of industries and betterment of environment. The direct combustion of coal and wood is a very ancient concept to get fuel or energy, either for home or for industries. It is a commonly known fact that the direct combustion of coal is polluting atmosphere, so the developing of Europe, Russia and the U.S.A. have focused to produce syn- gas from coal through coal gasification and its combustion to get clean energy and replacing day-by-day direct combustion of coal through coal gasification. At the present time, a number of Coal-Gasification Technologies are available and are continuously developing for better efficiency and better environment. At present, the coal gasification is the backbone of industries for energy security, environment protection and to make India self-sufficient in energy demand. This is the reason why the Hon'ble Prime Minister of India, Shri Narendra Modi, 16 recently declared a special policy for coal gasification in the context of the 'Atmanirbhar Bharat Mission'. Many industrial groups in India have recently declared to make investments for coal gasification. The copies of some of the articles regarding the major push being given to coal gasification projects, and some of the coal gasification projects coming up in India and worldwide is annexed hereto and marked as ANNEXURE A-24.

The major use of coal gasification technology worldwide is in:

(i) Power Sector (instead of direct combustion of coal, developing countries prefer gasification in their coal base power plants to reduce air pollution).

(ii) Steel plants (for heating and melting of steel and iron ore)

(iii) Ceramic plants (for heating end backing of tiles).

(iv) Chemical and pharma sector (for heating as well as to get CO2 and other gas)

(v) Fertilizer plants (for heating as well as to get CO2 and other gas). It may be noted that if in the ceramic industries in Morbi, if Modified Type-D Gasifires are installed in place of the gasifires using imported LPG/LNG, then there would be a major cost saving, and which is an important factor in saving small scale industries and making their operations economically viable. Only a few large corporations can afford LPG/LNG based technologies, and as a result the non-use of coal gasifiers will only benefit these large corporations, at the expense of small scale manufacturers. A copy of the chart showing the cost-saving calculations is annexed hereto and marked as ANNEXURE A-25.

At the launch of commercial coal mining, the Hon'ble Prime Minister, in his address dated 25.09.2020, has in fact stated that by gasification of coal, the environment will also benefit and that the government has targeted to gasify around 100 million tonnes of coal by 2030. A transcript of the said address of the Hon'ble Prime Minister is annexed hereto and marked as ANNEXURE A-26.

5. It is in this background that the applicants are now, preferring the present application before this Hon'ble Tribunal for a reference to the appropriate Committee for evaluation and examination/verification of the better technology of coal gasifier; namely, modified Type-D gasifier technology, developed by the applicant herein. The modified Type-D gasifier technology developed by the applicant is a better technology than what was verified and examined by the Committee that rendered the third report in February, 2018; and it is the claim of the applicant herein that this better technology developed by the applicant for modification of Type- D gasifier meets with all the environmental norms, and causes no pollution whatsoever. The two concerns expressed by the Committee while rendering the third report in February, 2018 (as regards generation of coal tar and contaminated filter 17 media-aggregates) have been taken care of, and solid coal tar as well as contaminated filter media (aggregate) no longer come out of this better gasification technology developed by the applicant, and consequently not requiring disposal of any such solid coal tar and contaminated filter media-aggregates.

7. The user industries, who are using the gasifiers made by the Applicant, also claim that better technology of modified Type-D coal gasifier developed by the Applicant was being used by them for generation of synthetic gas upon using coal as fuel and no pollution whatsoever was generated in their industries because the better technology of coal gasifiers is "a zero discharge" coal gasification; and the performance of such better technology of coal gasification had been verified and examined also by the GPCB for a limited period during May 2018 to February, 2019, and no issues including that of generation of solid coal tar and used contaminated aggregates were found by them. The claim of the said user industries therefore is that the stand of the GPCB before this Hon'ble Tribunal for giving further trial to the improved technology and allowing such activity to continue if found to be compliant with the norms was vindicated, and further trial for verification of the improved technology ought not to be closed without coming to a final conclusion about the performance of such improved technology i.e. the modified Type-D gasification technology being employed by them.

By virtue of order and directions of this Hon'ble Tribunal made on 6 March, 2019 the use of coal gasifiers is discontinued, and the GPCB has also issued orders and directions thereby:

closing down coal gasifiers in the factories/industries at Morbi and Vankaner. But the better technology for coal gasification, namely, modified Type-D gasifiers already installed in the user units could be verified for evaluation of the actual performance of such technology, because modified Type-D gasifiers installed in units of these applicants could be made functional within a very short time. For evaluation of performance of this better technology, the coal gasifiers with improved technology could be monitored for a reasonable period that may deemed fit by the Committee, and the performance of this better technology for coal gasifiers could thus be evaluated, within a very short time. The applicants submit that modified Type-D coal gasifiers of the Applicant installed in the user industries/units are in functional condition (though actually not operational), and therefore a reference may be made to the appropriate Committee for evaluation of such coal gasifier technology lying installed in Units of Applicant no. 2 to 6, who are before this Hon'ble Tribunal."

Consideration of the Issue and further orders

13. We have heard Ms. Meenakshi Arora, learned Senior Counsel appearing for the applicant in M.A.s and Ms. Manisha Lavkumar, learned Senior Counsel appearing for the GPCB.

14. Ms. Arora submitted that new technology does not use aggregates but uses hard coal which goes back into system and is combustible.

Ministry of Coal is focusing on coal gasification to produce methanol fertilizer. In his speech dated 26.09.2019 while addressing a business gathering in the Bloomberg Global Business Forum, the Prime Minister stated that India being third largest coal reserves had to use coal gasification technology. No effluents are generated in the process. Ms. Lavkumar, learned Senior Advocate for the GPCB submitted that pursuant to order of this Tribunal, most of the industries have already shifted to natural gas for which pipelines are available and reintroduction of coal gasifiers will play havoc with the lives of the people in the area. Since moving bed technology is per se polluting, there is no occasion to try the same again. Modified technology relied upon has already been examined and found not viable in the report of the Committee submitted in February, 2018 which was considered by the Tribunal. Gujarat High Court has also looked into the matter and taken judicial notice of the fact that the area in question is highly polluted and even better technology will not improve the situation. Natural gas pipeline had already been made functional in the area to which most of the units had shifted. Thus, the applicant in MAs are not relying on any technology post orders of this Tribunal, Gujarat High Court or Supreme Court but the same old which was placed for consideration and rejected earlier. It is submitted that the environmental law is governed by the Precautionary principle where only proved environmentally benign activity can be allowed. None can play with lives of the people by experiments. Reference of any technology by this Tribunal to any Committee can only be on satisfaction of the same being clearly environmentally benign. Present technology is not such and has potential 19 for huge air pollution which the area cannot sustain without loss to health and lives of the inhabitants, even if it may mean some financial gain to the applicants in MAs.

Analysis, Finding and Order

15. Having given our due consideration, we do not find that any case is made out for recording a finding by this Tribunal that technology now suggested meets the muster of environmental norms. There is no clear evidence that the technology will be environmentally benign and will not cause pollution even with the changes suggested. As per 'Precautionary' principle, reverse burden is on the applicants in M.A.s to demonstrate that this activity is environmentally benign. There is no scope for any direction by this Tribunal unless such burden is discharged. Order of this Tribunal is not expected to be mechanical particularly when the matter has already been examined by this Tribunal, the Gujrat High Court and the Hon'ble Supreme Court. If there is scientific uncertainty, proposed technology cannot be directed to be considered by this Tribunal. There is nothing to show that parameters will be met even by changes suggested. Academic study, de hors orders of this Tribunal stands on different footing. Any user of technology has to take responsibility so that if pollution is found, he can be held accountable.

16. We also do not find any relevance to the material about use of coal as such. The Tribunal has only dealt with the use of coal gasifiers in situation where air quality is beyond norms and not the general issue of use of coal as a fuel or source of energy.

17. We accordingly dismiss these applications.

18. It is made clear that in view of dismissal of SLP further action needs to be taken in terms of order of this Tribunal dated 06.03.2021 to recover cost of reversing damage and compensation from the identified polluters for the past violations on Polluter Pays principle.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM March 10, 2022 M. A. No. 15/2021 & 16/2021 IN O.A. No. 20/2017(WZ) A 21

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