National Green Tribunal
Meenava Thanthai K.R. Selvaraj Kumar ... vs The Chief Secretary Government Of Tamil ... on 20 May, 2019
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No. 03-05
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 08/2016 (SZ)
And
Original Application No. 152/2016 (SZ)
And
Original Application No. 198/2016 (SZ)
R.Ravimaran Applicant(s)
Versus
Union of India. Respondent(s)
and
Meenava Thanthai Applicant(s)
Versus
The Chief Secretary, Govt. of
Tamil Nadu & Ors. Respondent(s)
and
Meenava Thanthai Applicant(s)
Versus
The State of Tamil Nadu & Ors. Respondent(s)
Date of hearing: 20.05.2019
CORAM : HON'BLE. MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
In Original Application No. 08/2016 (SZ)
For Applicant(s): Mr. A Yogeshwaran, Advocate
For Respondent (s): Mr. G M Syed Narullah Sheriff advocate for
Respondent No. 1.
Mr. Abdul Saleem, advocate and Mr. S. Sarawanan,
advocate for Respondent No. 2 & 3
In Original Application No. 152/2016 (SZ)
For Applicant(s): Mr. K. Mageshwaran, Advocate
For Respondent (s): Ms. M.E. Sarashwathy advocate for Mr. R.
Thirunavukarasu, advocate
In Original Application No. 198/2016 (SZ)
For Applicant(s): Mr. K. Nageshwaran, Advocate
For Respondent (s): Mr. Abdul Saleem, advocate and Mr. S. Sarawanan,
advocate for Respondent No. 11 & 12
ORDER
1. These Applications were filled by the persons affected by the operation of Respondent No. 3 North Chennai Thermal Power Station at 1 Athipattu, Thiruvallur, District. According to the applicant the said Power Station is located on the Katupalli-Ennore Island and between the island and main land is covered with expansive backwaters and Kosastalairar river drains into the backwaters. The Buckingam canal is a deeper channel cutting through this backwaters. The backwaters is contiguous to the Pulicat Lagoon system. The backwaters referred to as Paraval in Tamil along with the Ennore Creek and the Pulicat lagoon is of great ecologically importance and serves as flood sink. Reclaiming this wetland by filling with fly ash and dredged material, according to the applicant, will adversely affect a large portion of North Chennai. Since in time of high flooding and cyclone. This expansive water spread is essential for reducing the impact of flooding in Manali Industrial Area and Residential areas.
2. The Unit of Respondents No. 3 started its commissioning between 1994 and 1996 with capacity of 600 MW units. Thereafter it has been expanded from time to time. The power plant is dumping ash slurry into Buckingham Canal and the backwaters for several years. Though it was brought into notice of the Pollution Control Board several times, no action was taken in this regard. According to the applicant, the ash generated by the Thermal Power Plant (fly ash and bottom ash) are serious pollutants apart from containing metals like Nickel, Cadmum, Antimony, Arsenic, Chromium, Lead, Mercury etc. As per the environmental clearance granted to such units, there is a responsibility caused on the Thermal Power Plant to utilise and dispose of the fly ash in a scientific manner without causing pollution in that area but that is being violated by the unit in this case. On account of unscientific manner in which fly ash is being handled by the unit, it affects not only the area within which the unit is situated but also affect the entire area and extends upto the mangroves situated in the CRZ I.
3. These applications are being filed seeking the following reliefs: 2
Interim Reliefs
1. Direct closure of the 2nd Respondent run 3rd respondent Thermal Power plant for the illegal dumping of ash into the Buckingham canal and backwater
2. Direct respondent 1, 5, 6 to ensure immediate stoppage of discharge of ash from the 3rd Respondent into the canal and the backwater
3. Direct Respondents 1, 2, 3, 5, 6, 7, 8 to immediately clean up the canal and remove the ash illegally dumped into the canal.
4. Injunct the 4th Respondent, its agent, contractors etc from dumping soil or any material in the Bukingham Canal or any water body.
5. Direct the respondents 4, 5, 6, 7 and 8 to immediately remove the illegally dumped soil in the Buckingham canal at athipattu and restore status quo ante.
6. Pass such order or orders as may be necessary in the facts and circumstances of the case and thus render justice.
Prayer A. Direct closure of the 2nd respondent run 3rd respondent Thermal power plant for the illegal dumping of ash into the Buckingham canal.
B. Respondent 1 to commission a study into the damage caused by the 2nd and 3rd respondents by continued dumping of ash into the environment.
C. Direct the 2nd, 3rd and 4th respondent to pay compensation for the environmental harm caused.
D. Direct respondent No.8 to maintain the canal and the backwaters free of any filling in or encroachment E. Direct respondents 1,5,6 to maintain the Buckingham Canal, Creek, Kosasthalayar and backwaters free of contamination or pollution.
F. And pass such further order or orders as may be fit, proper and necessary in the facts and circumstances of the case and thus render justice.
4. After considering the report dated 02.08.2017 submitted by the advocate commissioner in this regard, this Tribunal by order dated 04.08.2017 had come to a conclusion that vast extent to ash is settled in water bodies affecting the environment and ecology and 3 TANGEDCO has not taken effective steps for proper disposal of ash for all these years. From the report made by the advocate commissioner it is noted that the mangroves are being affected and it cause serious concern for the ecology of the area. So in order to ascertain the factual and also the remediation method to be adopted following terms of reference have been formulated by the Tribunal:
1. Location of ash ponds, their storage capacity, present storage levels, their present condition and steps taken to avoid leakage and consequent pollution from the ash ponds.
2. Quantity of fly ash generated by both the units from the beginning of the production in the units, present quantity stored in the ash ponds and quantity utilized duly verifying the records.
3. Unaccounted quantity of fly ash.
4. Quantity of fly lash that leaked/discharged/dumped into the water bodies and present approximate quantity lying in the water bodies.
5. Environmental impacts resulting from the leakage/discharge/dumping of fly ash on the following:
Effect on flora and fauna and local biodiversity including Mangroves Effect on rare and endangered species, if any Reduction in species diversity, habitat loss Transformation of natural landscape Effect on human health Effect on use of land and resources for traditional purposes by local community Pollution of the water bodies i.e. rivers/streams/canals Effect on ground water Effect on hydrology in the area and it's surroundings Percolation of hazardous materials from the fly ash and consequent damage to the soil and land degradation
6. Social and economic impact if any, on the local fishermen community 4
7. Method of Restitution/remediation, technology to be adopted time required approximate cost involved to restore the environment
8. Any afforestation is required to be undertaken in the affected areas, if so species, methodology extent of area and technique.
9. Present position of transport of fly ash slurry and condition of the pipelines transporting fly ash and action taken by the TANGEDCO in preventing leakage and replacing the pipelines.
10. Implementation of MoEF & CC Notification dated 14th September, 1999 amended in 2003, 2009 and 2016 on utilization of fly lash with present position with full particulars.
5. Thereafter this Tribunal constituted a Committee consisting of the following persons.
1) Dr. Sultan Ahmed Ismail, Director, Ecoscience Research Foundation, Chennai. (Mobile No.9384898358)
2) Dr. Narasimhan, Retired Professor of Madras Christian College, Tambaram and Expert in bio diversity. (Mobile No.9840231967)
3) Dr. Balaji Narasimhan, Professor, IIT, Madras, Department of Hydrology.(Mobile No.9962466161)
4) Mr. K. Elangovan, Executive Engineer, PWD (WRD), Chennai (Mobile No.7299712746) and directed the committee to submit its report.
6. The committee had submitted its report which is filed on 14th December, 2017 wherein they have noted serious irregularities in managing the fly ash situation in that unit and also its impact on ecology. They also came to the conclusion that the sample taken from the Kosastalaiar River, the backwater and the secondary pond contained elevated level of several toxic metals and noted as follows:
"The sample from secondary fly ash pond contained elevated levels of Barlum, Sulphide (as Hydrogen Sulphide), Copper, 5 Maganese, Mercury, Cadmium, Lead, Zinc, Molybdenum and Nickel.
Both borewell samples taken from Seppakkam, the village west of the Ash Pond, were severly contaminated with the following heavy metals - Copper, Maganese, Cadmium, Mercury, Selenium, Lead, Chromium and Nickel. One of the samples was additionally contaminated with Molybdenum. These metals were found at levels in excess of Indian drinking water standards.
Kosasthalal River samples were more contaminated than even legally permitted treated effluent quality. All 5 samples taken from Kosasthalal River had Lead, Mercury, Selenlum and Arsenic in excess of standards for discharge of environment pollutants into inland water bodies 2 out of 5 samples had above standards levels of Zinc and 1 out of 5 had Manganese in excess of standard for discharge into water bodies.
Backwater samples too were more contaminated that even legally permitted treated effluent quality. All 5 samples that mercury levels in excess of standards for discharge of environmental pollutants into inland water bodies 4 out of 5 Lead and Copper levels in excess of prescribed standards. 3 out of 5 had above standard levels of Manganese 2 out of 5 had above standard levels of Arsenic and Selenium, 1 out 5 had above standard levels of Nickel and Zinc.
River water samples taken far from the flyash spread area too were contaminated but to a lesser extent and with fewer metals. 2 out of 3 samples had mercury in excess of standards for discharge of environmental Pollutants into inland water bodies 1 out of 3 samples had Copper and Lead in excess of standards."
They also noted several deficiencies in managing the fly ash in the unit and also its effect on the water bodies and surrounding. They also opined that detail study will have to be done for the purpose of assessing the damage caused to the environment and also the remedial measures to be resorted to will be done. 6
7. This report was considered by the Bench in the order dated 21st December, 2017, where it is observed as follows:
"The learned counsel appearing for the applicant submitted that some interim order is warranted, as the report submitted by the Experts discloses a very serious environmental problem which has to be addressed ugently. The learned counsel pointed out that the report shows that heavy metals including Chromium and Mercury are detected not only in the river water and underground water but also even in the vegetables planted in the households. It is submitted that in such circumstances, when the report shows that the even the drinking water is contaminated with heavy metals like Mercury and Chromium, a direction is to be issued to supply drinking water to the nearby residents. The learned counsel also argued that the existing ash ponds are constructed without proper lining and as a result it is contaminating the land and the ground water and if the fly ash removed from the area is dumped in the existing pond, it would aggravate the position. The learned counsel also argued that Kosathalaiyar Main River which is reported to be heavily silted need to be desilted to enable free flow of water and a direction is to be issued to that effect. It was also submitted that respondents 2 and 3 are to be directed to construct adhoc ash ponds with required lining.
Mr. Abdul Saleem, the learned counsel appearing for respondents 2 and 3 submitted that they intend to get analysis of the water, including the ground water alone from another laboratory and also the fly ash, as the presence of the heavy metals noted in the report is not correct and in any case presence of heavy metals is not due to the activity of the respondents 2 and 3 alone as it is also caused by the nearby polluting industries. The learned counsel also submitted that a proposal is being sent to the government to use the fly ash in preparing bricks, making it mandatory to use such bricks in all government buildings. The learned counsel also submitted that drinking water is to be supplied by the local civic bodies and in any case the pollution is not caused solely by the respondents 2 and 3. The learned counsel also submitted that there is sufficient space in the existing ash pond to enable the deposit of the fly ash which would be removed from the area.7
On going through the report submitted by the Experts, it is seen that there is high contamination of heavy metals, not only in the water collected but even on the fish and vegetables. As against the prescribed standard of Mercury viz., 0.01 mg/l, the river water sample analysis of Kosasthalaiyar River shows that presence of Mercury was 23.18 mg/l, 29.1 mg/l, 18.19 mg/l, 22.11 mg/l and 18.18 mg/l. So also presence of Mercury detected in the samples collected from the backwater shows the percentages as 30.28 mg/l, 16.55 mg/l, 24.66 mg/l, 24.99 mg/l and 22.18 mg/l. The river water samples analysis also shows that presence of Mercury detected are 16.95 mg/l and 18.11 mg/l. The fly ash sample analysis also shows that 3 out of 20 samples contained Selenium and all the samples contained Copper with maximum concentration of 40.18 and 13 out of 20 fly ash samples contained Chromium with a maximum recorded concentration of 13.71 mg/kg, as against the prescribed standard of 2 mg/l. 6 out of 20 samples contained Cadmium, with a maximum recorded concentration of 0.54 mg/kg as against the prescribed standard of 2 mg/l. 6 out of 20 samples contained Lead with the maximum recorded concentration of 6.61 mg/kg, as against the prescribed standard of 0.1 mg/l. Even the analysis of fish, crab and prawn establish the presence of alarming percentage of heavy metals. All the 5 samples of home grown vegetables also found presence of Chromium and Lead. Chromium levels ranging from 1.12 to 5.56 mg/kg. It is thus clear that even the ground water there is not fit for consumption. It would be dangerous to consume such highly contaminated water. In such circumstances, some arrangement necessarily has to be made with regard to the drinking water. Though the learned counsel appearing for the respondents 2 and 3 submits that pollution is not caused by the respondents and as per the report of the Board, there are more than 1,000 industries, included in the „red‟ category operating there causing pollution and it is the duty of the local body to supply the drinking water.
Considering the fact that the main pollutant is the fly ash produced by the respondents 2 and 3, the principle of ‟polluter pays" shall necessarily to be applied with regard to supply of drinking water to the people of the locality. The people of the 8 area cannot be directed to drink contaminated water and suffer the consequences, which would adversely affect not only the existing generation but also the future generations to come.
In such circumstances, the respondents 2 and 3 are directed to provide sufficient drinking water to all the nearby residents, if the local bodies are not supplying sufficient drinking water to them. It is made clear that the water to be supplied should be of drinking water, quality and every household should be supplied with drinking water, in case there is no supply of sufficient quantity of potable drinking water by the local body. It is made clear from the report and the admitted facts that the existing ash pond is not lined. In such circumstances, adding further fly ash removed from the area into that pond would only aggravate the position. The respondents 2 and 3 are directed to provide properly lined ash pond on adhoc or permanent basis, so that the fly ash to be removed could be accommodated there. Even if the government mandates that the fly ash is to be used for all brickmanufacturing units and such bricks shall be used for construction of all government buildings, it will take time and till then they are to be stored also. In such circumstances, respondents 2 and 3 shall provide ash pond permanent or adhoc with proper lining. The report also shows that the Kosasthalaiyar River Main Channel is heavily silted with fly ash and that is to be desilted for free flow of water. The respondents 2 and 3 are directed to dredge the Kosasthalaiyar Main Channel to remove the fly ash with the aid of respondent no.8. The respondent no.8 shall take steps to desilt the fly ash at the expense of respondents 2 and 3. It is also made clear that once the fly ash is dredged, its removal shall be by the respondents 2 and 3 and it shall be kept in a ash pond with proper lining.
The report also shows that the workers engaged in the removal of fly ash, pursuant to the order of this Tribunal, continue to work without adequate respiratory or dermal protection. It is also suggested that considering the fact that most of the workers are young men with life ahead, exposure could seriously harm their economic prospects and lifespan. The learned counsel appearing for the respondents 2 and 3, on instructions from the officers present, submitted that 9 sufficient protection is provided. But admittedly no dermal protection is provided. The respondents 2 and 3 are therefore directed to provide all the required protection to the workers both respiratory and dermal, who remove the fly ash, as otherwise it would cause danger to their life. The respondents 2 and 3 are also directed to take steps to remediate, based on the findings in the report, after conducting proper study."
8. According to the applicants, the situation has not improved and no remediation methods have been taken by the polluting unit to remediate the situation as well. There is an direction in the order dated 21.12.2017 directing the Respondents No. 2 & 3 to take steps to remediate based on the finding for the report after conducing proper studies. They were also directed to resort to process of replacing the existing ash pipelines as well.
9. So far no further report has been filed in this case either by the Pollution Control Board or by the Project Proponent regarding further action taken in respect of the present status of disposal of fly ash generated in that unit, remedial measures taken to restore the damage caused to the environment etc.
10. So under such circumstances in order to dispose of the case, we feel it necessary to get the present status and also a study to be conducted by an expert body regarding the present status, the manner in which the fly ash is being disposed of by the polluting unit and assessment of the damage caused to the environment in that area & its surrounding area and remedial measures to be taken for restoring the damage caused to the environment. So in order to exercise this aspect, we constitute a committee of:
1. Central Pollution Control Board
2. IIT Chennai
3. Tamil Nadu Pollution Control Board 10 The above Committee shall inspect the unit and ascertain the present status of the unit in respect of fly ash disposal, the damage caused to the environment, to the area in question and its surrounding, cost of restitution and assess the damage caused to the environment on account of illegal act committed by the above unit. The committee shall also consider the earlier report submitted by another expert committee appointed by the Tribunal for the purpose of guidance for doing the exercise in the manner in which it has to be done directed by us in this order. The expense of conducting the study has to be met by polluting unit, the power plant in this case and they shall also give all logistic support to the members of the Committee in conducting the inspection and preparation of the report. The CPCB is at liberty to co-opt any other expert person where they feel necessary for the purpose of complying the direction of this Tribunal in assessing the compensation and also for course of remedial measures for restoration of damage caused to the environment. The CPCB may direct the project proponent to deposit probable expense which they anticipate for conducting the inspection and submit the report. If such direction is given, they are directed to deposit the amount within a week of receipt of such direction with them.
11. The applicant is at liberty to submit his points or suggestion to be noted by the Committee in this regard. The Committee shall consider those points also and address the same in the Report. The committee shall complete this exercise and submit a report to the Tribunal within a period of three months from today. TNPCB shall be the nodal agency for coordination of the inspection and other aspects.
12. The Committee shall send the report to this Tribunal by email within a period of three months as directed above.
13. The Registry is directed to communicate this order to the concerned officials mentioned above.
11
14. List this matter on 11th September, 2019, for consideration of the report.
K. Ramakrishnan, JM Dr. Nagin Nanda, EM May 20, 2019 O.A. No. 76/2015 (SZ) 12