National Green Tribunal
Son Kunwar vs Ministry Of Environment Forest And ... on 21 February, 2023
Item No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 65/2022(CZ)
Son Kunwar & Ors. Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of completion of hearing and reserving of order : 03.02.2023
Date of uploading of order on website : 21.02.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Ms. Aishwarya Sarkar, Adv.
For Respondent(s) : Mr. P.C. Sen, Sr. Adv.
Mr. Rohit Sharma, Adv.
Mr. Shivanshu Singh, Adv.
Mr. Yadvendra Yadav, Adv.
Mr. Om Shankar Shrivastava, Adv.
Ms. Parul Bhadoria, Adv.
ORDER
1. The present original application has been filed with the following prayers:
a) Direct the district administration to assess the compensation for the damage caused to the crops, degradation of the agricultural land of the farmers and thereby direct the M/s BALCO to pay the same to the applicants and direct M/s BALCO to pay as per the polluter pay principle towards environmental compensation of suitable amount, commensurate to the annual turnover of the industry, for the restoration of the quality of environment and compensate the applicants for 1 living in poor quality environment which was solely caused due to non compliance and ignorant approach of M/s BALCO towards the environmental laws.
b) Direct, M/s BALCO to develop a methodology of developing a green belt with three rows of trees of broad leaves particularly above and around the ash dyke, along the periphery of the plant premises and cooling tower of the TPP to prevent fly ash emissions generated by the industry within a stipulated time.
Also a green buffer of appropriate width between coal handling area and boundary wall of the industry towards predominant wind direction within a stipulated time and direct CECB to issue necessary directions to M/s BALCO to dispose of legacy fly ash within stipulated time and utilize 100% of fly ash for various usages as mentioned in the notification dated September 14, 1999, as amended vide notification dated August 27, 2003 and further amended on November, 03, 2009, January 25, 2016 and December 31,2021.
c) Direct M/s BALCO to comply with conditions as mentioned in the environmental clearance dated September 14, 2007 as granted to M.s BALCO by MoEF, permission to establish dated September, 25, 2007 and conditions as mentioned in consent to operate dated January 14, 2015 and direct M/s BALCO to install Flue-gas Desulfurization (FGD) within stipulated time.
2. The contention of the applicant is that the pollution in the village of Rogbahari and neighboring villages has reached the level of severity owing to M/s BALCO blatant violation of the rules and norms stipulated in the Environment Clearance letter dated 14.08.2007 granted by MoEF & CC to M/s BALCO for the 1200 MW TPP, Conditions mentioned in the 2 amendment dated 17.02.2016 to the said EC which particularly state that a green belt is to be mandatorily developed along the periphery of the plant premises, ash dyke and cooling tower being managed and operated by M/s BALCO was violated. It is further pertinent to mention that M/s BALCO has completely failed in meeting the norms stipulated in permission to establish vide letter dated 25.09.2007 granted for the 1200 MW TPP and further, conditions stipulated in the Consent to Operate letter dated 14.01.2015 granted u/s Air (Prevention and Control of Pollution) Act, 1981 for the 1200 MW TPP. The said failure has resulted in severe air pollution causing nuisance and degrading the quality of air, water and severely impacting the flora and fauna of the subject area. It is important to note that M/s BALCO has been dumping fly ash openly in the subject area for having no space left in the already existing ash dyke since the same are overburdened and filled to its brim. The trucks or hyva carrying the fly ash as well as heaps of fly ash dumped in the open grounds remains uncovered leading to absolute menace since the pollution caused from the flying of ash is impacting the health of the inhabitants and animals and general quality of life. M/s BALCO has also failed in installing a flue gas desulphurization pant and thereby it is in complete disregard to MoEF & CC notification dated 07.12.2015 which specifies new emission norms for TTPs.
3. The matter was taken up by this Tribunal on 12.09.2022 and the notices were issued to the respondent to submit the reply. Reply by respondent nos. 1, 2, 4 and 5 has been filed. We have heard learned counsel for the parties and perused the record.
4. Learned Counsel for the applicant has argued that grant of EC by MoEF&C, grant of permission to establish by CECB, grant of consent to operate by CECB and no objection certificate to raise the height of the 3 ash dyke of the TPPs is required and mandatory and M/s BALCO has obtained all the aforesaid permissions and sanctions but the core conditions of which the instant complaint is being made have been violated by M/s BALCO with regard to utilization of fly ash and the bottom ash and its disposal. It is further argued that M/s BALCO has miserably failed in preventing the breach of fly ash slurry from the ash dyke of the TPPs. In fact, it is important to mention that the fly ash slurry is intermittently released in water from time to time affecting the flora, fauna and causing damage to land and irrigation activities of the applicants. That the pollution has reached a level of severity in the village of Rogbahari because the fly ash from the ash dyke has become air borne which in turn in causing havoc. On the point of plantation and developing the Greenbelt in an around the ash dyke and along the periphery of the TPPs and the cooling tower the Project Proponent failed to develop the Greenbelt.
5. It is argued that M/s BALCO claims to have developed a green belt (which is actually is a natural forest) in an area of 268.79 ha which is about 33.33% of the total project area. It is further claimed to have planted, though in reality it has not carried out any plantation let alone a green belt therefore, the aforementioned claims of plantation as being made by M/s BALCO in nothing but a mere fiction.
6. The actual need of green belt plantation is along the periphery of the plant premises, around and above the ash dyke, boundary of the cooling tower to prevent the air pollution. It is a fact that the green belt will act as an effective pollution sink only within the tolerance limits of constituent specified broad leaves trees. It is important to mention that when primary pollutants are taken care of, formation of secondary pollutants will not reach menacing proportions. 4
7. Learned counsel for the respondent no 1 MoEF&CC has argued that under the provisions of the EIA Notification, 2006, commencement of new projects or activities or the expansion or modernization of existing projects or activities listed in the schedule to the said notification entailing capacity addition with change in process and/or technology shall be undertaken in any part of India, as applicable, only after receipt of the prior Environmental Clearance from the Central Government (for Category "A" projects) or as the case may be, by the State Level Environment Impact Assessment Authority (SEIAA) (for Category „B‟ projects).
8. It is further argued that similar matter was raised before the Principal Bench of this Tribunal in O.A No. 188/2022 and the Tribunal constituted a Joint Committee to submit the factual and action taken report with regard to disposal of fly ash dyke, plantation and the committee submitted the report covering all those points which were raised before the Tribunal and the Tribunal passed the order as follows:-
1. Grievance in this application is that Bharat Aluminium Company Ltd. (BALCO) is illegally dumping hazardous red mud waste in and around Korba town and covering the same by soil in violation of environmental norms. Red mud, generated during manufacturing of aluminium, contains toxic elements- fluoride, sodium, calcium, lithium, phosphorus, iron, manganese, silica, titanium, zinc, beryllium, caustic, sodium hydroxide etc., requires safe disposal on secure land fill site. After commencement of production in the Year 1974-
1975 in the plant having 1 lakh Ton capacity, red mud waste was kept in 6/7 big tanks. After taking over management, Vedanta Group increased the plant capacity from 1 lakh Tonnes to 5.7 Tonnes. Illegal dumping of red mud waste in and around Korba town causes degradation of soil and 5 contaminates groundwater making the same unfit for use and also poses serious risk to lives and health of inhabitants. Prescribed SOP is also not being followed in disposal of fly ash which also spreads over entire Korba town aggravating environmental pollution.
2. Vide order dated 20.04.2022, the Tribunal constituted a joint Committee of the MoEF&CC, CPCB, CGWA, State PCB, and District Magistrate, Korba to undertake visit to the site and furnish a factual and action taken report in response to the grievance mentioned above.
3. Report of the joint Committee dated 29.06.2022 has been filed after undertaking visit to the site. Compliance status has been mentioned in the report. The Committee has found that BALCO has stopped production of alumina since September, 2009. Red mud already generated has been stored in red mud ponds as per EC conditions. No illegal dumping of red mud is taking place. Ground water meets the norms. There was no complaint of soil degradation. Ambient Air Quality is also as per norms. Stack emission monitoring mechanism is set up. SO2 norms exceed prescribed limits for which FGD is to be installed by 31.12.2023. Fly ash disposal is taking place in low lying areas. Dyke plantation has commenced. The Committee has recommended requisite plantation, liquidating the legacy fly ash/more piezometers around fly ash dykes and monitoring of fluoride emissions. Relevant extracts from the reports are:-
―Issue No. 01: Bharat Aluminium Company Ltd. (BALCO) is illegally dumping hazardous red mud waste in and around Korba town and covering the same by soil in violation of environmental norms.
i. M/s BALCO, Korba was established in the year 1965 and started production from 1973 with a capacity of 1 LTPA Soderberg Smelter and 2 LTPA Alumina Plant from 1973-74 to 2009-10.
6 However, BALCO's new Smelter with prebaked technology and 540 MW Power Plant has also started from the year 2005-06.
ii. The Alumina plant was operated to produce Alumina from bauxite through Bayer's Process (Annexure-III), which was used as raw material in Aluminium metal production. Red mud was generated from Alumina plant, which is considered as waste material of alumina plant and disposed in to a total number of 7 red mud ponds constructed near the plant premises. iii. These red mud ponds were operated till 2009, as BALCO stopped the production of Alumina from September 2009 due to closure of Soderberg smelter plant and quality of Alumina powder produced by this plant was not adequate for new pre baked smelters. Therefore, industry stopped Alumina plant and bringing Alumina from Domestic and imported markets for production of Aluminium through pre baked smelters.
iv. As per the records submitted by the industry to the joint committee it has been observed that a total quantity of 61.87 lakh MT Red mud has been generated during the period 1973- 2010. v. During the visit the industry has informed to the committee that Alumina Plant is not in operation since 24th September 2009. Project Authority has informed about the closure of unit to the CECB vide letter dated 23.09.2013 and copy of the same is enclosed as (Annexure-IV). M/s BALCO officials and other staff informed that before the closure of the Alumina unit industry used to collect the Red Mud in 7 Red Mud ponds. These Red Mud Ponds are converted into Ash dykes as per the Environment Clearance granted to industry for installation of power plants 540MW and 1200 MW by the Ministry of Environment, 7 Forest and Climate change Govt. of India.
(Annexure-V). Design of conversion of red mud ponds to Ash dyke has been prepared by Dr. Umesh Dayal Retd. Prof., IIT Kanpur.
Accordingly, NOC's have been granted by CECB and the copies of NOC's are attached as (Annexure- VI).
vi. The committee visited the red mud ponds area on 1st June 2022 and it has been observed that red mud ponds are converted to Ash dyke. No excavation of red mud area has been observed. vii. As requested by the applicant the committee revisited the red mud ponds area on 2nd June, 2022 and the applicant unable to show the committee about the excavated area and the areas/locations where the red mud is being dumped illegally by the industry.
Issue No. 02: Illegally dumping hazardous red mud waste in and around Korba town causing degradation of soil and also poses serious risk to lives and health of inhabitants, Air and water pollution deteriorates the environmental quality:
i. The committee observed that there is no illegal dumping of hazardous red mud waste in and around Korba town.
ii. During the discussions with the applicant at the Regional Office, Korba, Chhattisgarh applicant requested to visit one dumping site (Khasra No.1194/6, 1194/3, 1112/2, 1112/4, 1194/6, 1193, 1203/1, 1203/2, 1194/7, 1202/2, 1202/3, 1120/2, 1120/3, 1191/1 kha, 1191/3, 1206, 1194/2, 1195/1, 1112/3, 1070/17, 1031, 1102/6 1158/4, 1162/1gh, 1159/4, 1161/1/ka, 1162/1B, 1121, 1190/1, 1190/2, 1191/4, 8 1194/1, 1196/4, 1162/1tr, 1119/2, 1119/5, 116/7/1, 1167/2, 1070/19, 1070/20, 1070/21, 1070/23, 1070/27, 1070/28, 1029/29. Total Rakba-22.38 Acre., where the industry has illegally dumped the red mud waste.
iii. Accordingly, the committed visited the said site along with the applicant and no red mud or any hazardous waste has been found on the day of visit (Fig.no.-2) The committee has collected the following information for confirmation of the facts:
1. Ground and surface water quality monitoring:
A total number of 18 water samples were collected from different water resources such as Hand pump (11), Borewell (2), Nallah (4) and Hasdeo River (1) located in the vicinity of the area.
Table-I. Sampling locations along with their source (annexure-VII) S. District Location lat Long Source Date of NO.
collection
1 Korba Village- 22.4053 82.7357 Hand 01-06-22
Parsabhatha Pump
2 Korba Village-Rogbahari 22.4219 82.7443 Hand 01-06-22
Pump
3 Korba Belgirinallha up 22.4092 82.7575 Nalla 01-06-22
stream
4 Korba Belgirinallha down 22.3998 82.7119 Nalla 02-06-22
stream
5 Korba Dengurnallhadown 22.3777 82.7278 Nalla 02-06-22
stream
6 Korba Lalghat 22.3896 82.7457 Hand 02-06-22
Pump
7 Korba Dengurnallhaup 22.3858 82.7510 Nalla 02-06-22
stream
8 Korba Village- 22.3293 82.7760 Hand 02-06-22
Salihabhatha Pump
9
9 Korba Village-Bhaisma 22.2680 82.7761 Hand 02-06-22
Pump
10 Korba Village-Kukricholi 22.2766 82.7466 Hand 03-06-22
11 Korba Down stream near 22.2758 82.7345 Hasdeo 03-06-22
UrgaVillage,Korba River
12 Korba Village-Naktikhar 22.3430 82.7726 Hand 03-06-22
Pump
13 Korba Village-Risdi 22.3672 82.7623 Hand 03-06-22
Pump
14 Korba Rampur Korba 22.3679 82.7466 Borewell 03-06-22
15 Korba Village-Dader 22.3407 82.7441 Hand 03-06-22
Pump
16 Korba Village-Kharmora 22.3550 82.7484 Borewell 02-06-22
17 Korba Village-Dumardih 22.4067 82.7892 Hand 02-06-22
Pump
Table-II
Analytical Results of Basic Parameters in the water samples collected from the Korba area (Annexure-VII) Sr. Location PH EC CO3 HCO3 Cl NO3 SO4 F TH Ca Mg Na µS/cm mg/l mg/l mg/l mg/l mg/l mg/ mg mg mg/ mg l /l /l l /l 1 Parsabhatha 6.91 557 0 291 18 0.0 12.7 0.28 135 40 8.4 74.72 2 Rogbahari 7.42 430 0 87 42 70.4 24.9 0.15 150 32 16.8 37.56 3 Belgirinallha 7.03 112 0 43 11 0.0 7.1 0.01 50 14 3.6 2.69 up stream 4 Belgirinallha 7.64 311 0 118 18 1.4 46.6 0.39 100 24 9.6 34.05 down stream 5 Dengurnallha 6.79 173 0 56 18 1.0 20.3 1.09 60 16 4.8 10.83 down stream 6 Lalghat 6.77 227 0 118 18 6.3 6.8 0.02 100 30 6 10.62 7 Dengurnallha 7.04 116 0 50 11 0.2 13.8 0.1 45 8 6 4.05 up stream 8 Salihabhatha 7.21 238 0 93 21 25.6 5.5 0.29 95 32 3.6 8.75 9 Bhaisma 7.14 1076 0 298 91 49.8 65.2 0.56 315 42 50.4 98.69 10 Kukricholi 6.87 1496 0 409 151 21.0 94.7 0.02 325 64 39.6 179 11 Downstream 7.21 193 0 81 11 2.4 26.2 0.23 80 20 7.2 7.86 Nr Urga Village 12 Naktikhar 7.05 143 0 74 11 0.0 5.6 0.05 75 22 4.8 1.61 13 Risdi 7.62 244 0 50 25 27.4 17.0 0.08 55 18 2.4 23.25 14 Korba 7.53 69 0 12 11 6.8 4.1 0.08 25 4 3.6 2.09 15 Dader 7.21 315 0 37 49 51.4 4.1 0.07 65 20 3.6 35.65 16 Kharmora 7.06 67 0 19 7 9.0 2.8 0.08 20 6 1.2 2.24 17 Dumardih 7.49 140 0 81 11 0.0 3.8 0.05 55 12 6 2.01 18 Village-Risda 7.06 572 0 118 63 71.4 13.1 0.07 235 42 31.2 14 10 Table-III Analytical Results of heavy metals in the water samples collected from Korba area (Annexure-VII) Sr. Location Pb Fe Mn Cu Cr (mg/l) (mg/l) (mg (mg/l) (mg/l) 1 Parsabhatha 0 ND 0.018 /l) ND ND 2 Rogbahari 0 0.29 0.018 ND ND 3 Belgirinallha 0 0.13 0.005 ND ND 4 Belgirinallha down 0 ND 0.083 ND ND up stream stream 5 Dengurnallha down 0 ND 0.135 ND ND 6 stream Lalghat 0 ND 0.148 ND ND 7 Dengurnallhaup stream 0 0.06 0.148 ND ND 8 Salihabhatha 0 1.98 0.33 ND ND 9 Bhaisma 0 1.73 0.291 ND ND 10 Kukricholi 0 ND 0.109 ND ND 11 Downstream Nr 0 ND 0.109 ND ND Urga Village 12 Naktikhar 0 4.95 0.005 ND ND 13 Risdi 0 1.035 0.369 ND ND 14 Korba 0 ND 0.135 ND ND 15 Dader 0 0.161 0.356 ND ND 16 Kharmora 0 0.126 0.044 ND ND 17 Dumardih 0 2.014 0.057 ND ND 18 Village-Risda 0 ND 0.538 ND ND
a) The results of the chemical analysis of all the 18 water samples collected from the Balco, Korba area, were compared to the Drinking Water Standards as prescribed by the Bureau of Indian Standards (2012).
b) The monitoring results of basic parameters are well within the acceptable limit as per the BIS standard.
c) As far as Fluoride contamination is concerned, all the samples are within the acceptable limits of BIS, i.e. below 1.5 mg/lit.
d) High nitrate concentration (45 mg/l) was recorded in Rogbahari, Bhaisma, Dadar and Risda areas.
e) Copper, Zinc, Chromium, and Lead were recorded within the BIS prescribed limits of drinking water. 11
1. Information from Agricultural Department:
a) During visit the committee has requested the agriculture department Govt of Chhattisgarh at Korba to provide the copy of report if any study conducted on soil degradation in and around Korba area.
b) In reply to committee's request, the agriculture department has informed that due to no compliant about soil degradation, the department has not carried out any such study (Annexure-VIII).
2. Information from State Health Department
a) The reports obtained from the CMHO, Korba Chhattisgarh in not inline with the issues raised by the applicant in the petition (Annexure-IX).
3. Ambient air quality monitoring:
a ) Ambient air quality monitoring was carried out at 4 locations for 24 hours for PM10, PM2.5, SO2&NOx in the villages around BALCO plant.
b ) A total number of 04 ambient air quality monitoring stations were installed and monitoring was carried out for 24-hour basis and assessed the day and night air quality of the area. The value at all monitoring locations were found within the NAAQS. The concentration of primary gaseous pollutants i.e. PM10, PM2.5, SO2 & NOx were found within the limit(Annexure-X) c ) The industry has installed one Continuous Ambient Air Quality Station (CAAQMS) at Balco Plant Parsabhata gate and it was found operational during visit. The CAAQMS data for the period 01.06.2022 to 03.06.2022 were also collected and analysed and it was observed that the CAAQMS 12 data showing that the all the parameter are within the NAAQM standards the same was places as (Annexure-XI).
4. Stack Emission monitoring:
a) The major source of air pollution is from power plant and smelters. The major stacks are FTP stacks in smelters and power plant stacks. The stack emission monitoring has been conducted at all the operational stacks for consented parameters i.e. PM, NOx and SO2.
b) In BALCO plant, there are total 24 major process stacks out of those 20 stacks have been found operational remaining stacks were under scheduled maintenance during visit and monitoring has been conducted all the operational during the joint committee visit.
c) At the time of visit, 540 MW Power plant U#1, U#2 and 1200 MW Power plant U#2, U#4 were not in operation due to scheduled maintenance and other exigencies. The details of non-operational units at the time of visit are enclosed as (Annexure-XII).
d) Stack emission monitoring report obtained from Regional Office, Korba Chhattisgarh has been analysed and it was observed that for the 540 MW stack PM and NOx are with in the prescribed limits and SO2 has been reported 1024 mg/Nm3 and 1124 mg/Nm3 for unit #3 and Unit #4 respectively which clearly indicated that the SO2 norms has been exceeds the prescribed limits i.e. 600 mg/Nm3 (Annexure- XIII).
e) In the case of 1200 MW plant similar trends has been observed the SO2 values for Unit#1 and Unit #3 are 980 mg/Nm3 and 1040 mg/Nm3 respectively it was also clearly indicated that the SO2 norms has been exceeds the prescribed limits i.e. 600 mg/Nm3 (Annexure-XIV).13
f) As per CPCB guidelines and EC Industry shall install OCEMS in all the existing stacks. During the visit the same has been verified and it was observed that OCEMS has been installed by the Project authorities in all the existing stacks.
g) The OCEMS data of 1200 MW plant stacks and 540 MW stacks has been observed for the period 1st - 3rd June, 2022 and it was also clearly indicted that that the SO2 norms has been exceeds the prescribed limits i.e. 600 mg/Nm3 (Annexure-XV)
h) As per CPCB guidelines all the power plants shall install the FGD units in their respective plants to control the SO2 emission levels by 31.12.2023 (Annexure-XVI)
i) However, on the day of visit work related to installation FGD unit was not observed. Project authorities didn't provide any time line for installing the same.
Issue no. 3: Prescribed SOP is not being followed in disposal of fly ash As per the information provided by the industry that total coal consumption of the unit is 28000 Metric Tons per Day for 1740MW power generation (Including 1200 MW and 540 MW Power plants). The average ash content in the coal is approx. 40% accordingly 11200 Metric Tons per Day ash will be generated for disposal. The unit has provided following systems for handling of fly ash and bottom ash.
a) Bottom ash disposal system: In order to Environment friendly disposal of bottom ash up to ash pond the unit has installed High Concentration Slurry Disposal (HSCD) system. Installation resulting into reduction in water consumption and increasing the capacity utilization of ash ponds. The unit has 14 installed 04 no. of HCSD in 1200 MW and 02 no. of HCSD in 540 MW Power plant with the capacity of 315m3/Hr and 208m3/Hr respectively.
b) High Concentration Slurry Disposal (HCSD): HCSD system comprises of controlled and monitored feeding system for fly ash & bottom ash followed by a homogenous mixing in an adequately designed Agitator Retention Tank and further pumping to disposal area through the piston diaphragm / hydraulic piston pumps. Conventional lean slurry disposal system and ash water recovery system have some limitations and/ or disadvantages such as huge amount of water wastage, groundwater contamination, potential ash pond collapse, vast land required for ash dykes, higher costs for ash pond construction and higher power consumption. Therefore, unlike of lean system M/s BALCO has adopted HCSD system which has much more advantages above lean slurry system and for its state of art technology.
c) Fly ash handling system: The unit has provided Hybrid system consisting of ESP and bag filters for controlling the air pollution from the thermal power plants. The dry fly ash has been collected in 08 No. of Silo's with the capacity of 1000 MT each has been provided for dry ash disposal through bulkers and same is send to cement plant and brick manufacturing unit. The fly ash generation and utilization details for the last 3 year is given below:
Table - IV Fly Ash Utilization Details (Annexure-VII) Power 2019-20 2020-21 2021-22 Plant Generatio Utilization Generatio Utilization Generation Utilization n n 1200 1,884,373 1,905,694 2,214,681 2,306,720 2,139,353 2,826,834 MW (101.13%) (104.16%) (132.14%) 540 984,636 988,511 929,897 957,948 994,800 1,207,713 15 MW (100.39%) 103.02%) (121.40%) 270 Ash not generated as the plant is under temporary shutdown/ suspension MW from December 2015.
Note: All the values are in MT.
It can be analysed from the above that industry is utilising 100 % fly ash from last three financial years.
However, the industry didn't provide the timeline frame for utilisation of legacy as (in percentage of Annual ash) as per the Fly ash notification dated 31.12.2021 issued by the Ministry of Environment, Forest and Climate Change.
As per Environmental Clearance issued by the MoEF & CC vide letter no. J-11011/123/2007-IA. II (I) dated 22.04.2022 wherein specific condition xiv. states that ―Legacy ash stocks of 18.2 Million tons shall be liquidated by December 2024. The vehicles carrying as from dyke shall use tarpaulin covers. No additional ash pond shall be developed for ash disposal.‖
d) Disposal of fly ash in low lying areas:
The committee has visited the places mentioned in newspaper clippings (petition copy) as well as 14 places out of 23 places. The committee found that in 9 places dumping of approved quantity of fly ash is completed and soil covering has been done. The status of ash disposal in all the 14 low lying areas are summarized in below table.16
Table - V. Details of fly ash dumped in Low Lying areas (Annexure-XVIII) S. Name of Name of Latitud Longitude Khasra No. Permission Permitte Present No. industry Low- Lying e (in Acre/ Hect.) Letter No. d status Area and Date Quantity in MT M/s Balco Aluminium Company Village - Approved Ltr.No.-131 Limited, Tarda, Khasra 1093/1, Quantity is 22.2757 dated - 20,00,000 1 540+1200 Thesil 82.734546 Total Rakba-4.10 dumped & soil 87 27/05/202 MT MW Kartala, Hect. covering 0 TPP, Balco dist korba has been done Nagar, Dist-
Korba(C.G.) Khasra - 118/3, M/s Balco Rakba-
Aluminium 1.10 Acre,
Approved
Company Village - Kh.No.-225/3,
Ltr.No.-251 quantityis
Limited, Barbuspur, Rakba-320/3,
22.2979 dated - 82,680 dumped & soil
2 540+1200 Tehsil- 82.71945 320/5,
17 11/06/202 MT covering
MW Korba, Dist- 320/8, 322/7
0 has been
TPP, Balco Korba , Rakba- 1.46
done
Nagar, Dist- Acre Total
Korba(C.G.) RakbaArea -
2.56 Acre
3 M/s Balco Village - 22.2979 82.71945 Khasra - 241/1 , Ltr.No.-655 42,000 Approved
Aluminium Barbuspur, 17 TotalArea - 4.28 dated - MT Quantity
Company Tehsil- Acre 02/09/202 is
Limited, Korba, Dist- 0 dumped & soil
540+1200 Korba covering
MW has been
TPP, Balco done
Nagar, Dist-
Korba(C.G.)
M/sBalco Khasra No.-69/1,
Aluminium 69/2,
Approved
Company Village - 11.617 Hect. and Ltr.No.-
quantityis
Limited, Barbuspur, Rakba- 1517
22.2957 1,15,000 dumped & soil
4 540+1200 Tehsil- 82.722908 244/1,244/2, dated -
52 MT covering
MW Korba, Dist- 319/3 Rakba- 23/02/202
has been
TPP,Balco Korba 0.972 Hect. Total 1
done
Nagar, Dist- Rakba-12.589
Korba(C.G.) Hect..
5 M/sBalco Village - 22.2904 82.738513 Khasra No.- Ltr.No.-01 30,000 Approved
Aluminium Barbuspur, 6 .184/2, dated - MT Quantity
Company Tehsil- 220/7and 01/04/202 is dumped &
Limited, Korba, Dist- 184/10, 1 soil covering
540+1200 Korba Rakba- has been
MW 0.991hect, done
TPP, Balco 0.024
Nagar, Dist- hect,0.441hect.
Korba(C.G.) Total Rakba-
0.756
Hect.
M/sBalco Khasra No.-
Aluminium .74/8, 114/3/2,
Approved
Company Village - 114/6,
Ltr.No.-42 quantity
Limited, Barbuspur, 117/8,169/4,18
22.2963 dated - 1,50,000 is dumped &
6 540+1200 Tehsil- 82.729394 4/7,202/3,
34 21/05/202 MT soil covering
MW Korba, Dist- 314/4, 342/2,
1 has been
TPP,Balco Korba 344/6
done
Nagar, Dist- Total Rakba-
Korba(C.G.) 3.914 Hect.
17
M/s Balco
Aluminium
Company Letter.No.-
Limited, 383 Approved
Khasra No.-. Quantity
540+1200 Village - dated -
416/1, 417, is dumped &
Dhongdarha 16/08/202
MW 22.2658 419/3, 636/4, 5,00,000 soil covering
7 , Tehsil- 82.835632 1 and Letter
51 Total MT has been
TPP, Balco Kartala No. 790
rakba - 4.569 done
Dist-Korba dated
Nagar, Dist- hect.
02/12/202
1
Korba(C.G.)
8 M/s Balco Village - 22.3302 82.776990 Khasra No.-. Ltr.No.- 90,000 Approved
Aluminium Naktikhar 32 235, 237/2, 498 dated MT quantity is
Company Tehsil- 246, 252/2, - dumped &
Limited, Korba, 245/2, 286, soil covering
540+1200 Dist-Korba 797/31, 952, 16/09/20 has been
MW TPP, 955, 957, 958, 21 done
Balco 959/2, Total
Nagar, Dist- Rakba-4.596
Korba(C.G.) hect.,
Khasra
No.1194/6,
1194/3,1112/2, 1112/4, 1194/6, 1193, 1203/1, 1203/2, 119 1202/3, 1120/2, 1120/3, M/s Balco Village 1191/1[k,
- 1191/3, 9 Aluminium Urga Company 1206, Tehsil- 1194/2,1195/1, 1112/3, Limited, Korba, Ltr.No.- 3,00,000 Approved 22.2607 540+1200 Dist-Korba 89 82.724249 1070/17 622 MW TPP, Total Rakba - MT 8.87 Acre and dated- Quantity Balco Nagar, Dist Khasra No. is dumped & 21/10/20 Korba(C.G.) 1031, 1102/6 21 soil covering 1158/4,1162 hasbeen /1159/4, done 1161/1/d2, 1162/1B, 1162/1121, 1190/1,1190 /2,1191/4, 1194/1,1196 /4,1162/1=, 1119/2, 1119/5, 116/7/1, 1167/2, 1070/19,107 0/20,1070/2 1,1070/23, 1070/27,107 0/28, 1029/29 Total Rakba-
13.51 ½ Acre. Total Rakba-22.38 Acre., 18 M/s Balco Alumi nium Gram Approved Compa ny Panchyat Ltr.No.-
Khasra No.-. 783 quantity
Limited, - Katbitla, 6/1, 38//1 3,00,000 is dumped &
22.2498
10 82.689097 dated -
Tehsil- 54 Total rakba- 5.2 MT soil covering
540+1200
MW Korba, Hect. 01/12/20
hasbeen
Dist- 21
TPP, Balco Korba done
Nagar, Dist-
Korba(C.G.)
11 M/s Balco Village - 22.2971 82.737829 Khasra No. 6/4, Ltr.No.-
6/5, 25,000 Approved
27 1279 MT Quantity
Aluminium Kurudih 6/6, 6/7 Total dated -
is dumped
Company (Barbuspur Rakba- 0.47 11/03/20
) Acre 22 & soil
Limited,
540+1200 Tehsil- covering
MW Korba,
Dist- hasbeen
TPP, Balco Korba
done
Nagar, Dist-
Korba(C.G.)
M/s Balco Khasra No. 21,
Alumi Village - 23, 34/1,
nium 34/3, 38,42/4,
Kukrich
Compa
oli Ltr.No.-62
ny 43/1,43/2
(Bhaism Dumping
a), Rakba 4.963 5,00,000
Limited, 22.2780 dated -
12 Naktikh 82.746998 Hect. And of fly ash is
75
540+1200 ar Khasra No. 22/04/20 MT under process
MW Tehsil- 261/1 Rakba- 22
TPP, Balco Korba, 2.630 Hect.
Dist- Total Rakba-7.593
Nagar, Dist- Korba
Korba(C.G.) Hect.
M/s Balco
Aluminium
Company Village - Khasra No.
Ltr.No.-88 Dumping
667/3 and
Limited, Nonbirra
22.2612 dated - 1,00,000 of fly ash
13 540+1200 Tehsil- 82.815404 680/2d
86
MW Kartala, 11/03/20 MT
Total Rakba-2.122
is under
Dist- 22 process
TPP, Balco Korba Hect
Nagar, Dist-
Korba(C.G.)
M/s Lanco Village - Ltr.No.-
Risda 724/1,726/1, 726/4,
1094726/5, 727/4, 727/5,
10,00,00 Dumping
Amarkant 22.3823
14 ak Power Tehsil- - 0
82.746415 728 and 729/2, dated Total of fly ash is
97
Ltd, 600 Korba, Rakba- 8.43
MT under process
Acre 28/01/20
MW TPP, Dist-
22
Vi Korba
19
ll-
Patadhi,
Dist-
Korba(C.G.)
Regional officer, Korba, Chhattisgarh has issued the letter to M/s. BALCO for submitted the compliance on monthly basis as per SOP issued by the CPCB and SPCB (Annexure -XIX).
Issue no. 4:Plantation was not carried out as per permission i. It has been observed that ample green belt was observed during the field visit. Plantation has been observed around all along the boundary of the plant and inside the plant and town ship area also. ii. Plantation work has been just started in the Ash Dyke number 3 and it was informed by the PP that plantation will be started in ash dyke number 1 and 5. iii. ―A Report on Monitoring and Evaluation of Plantation‖ at BALCO by NAV Aastha Jan Vikas Seva Samiti submitted by PP has been analyzed and it was observed that actual plantation was done on 575 acres out of 1973 and it was also stated that as per EC/CTE/CTO condition the targeted plantation has been completed in all units of BALCO, Korba and the survival percentage of plantation done by BALCO, BALCO Nagar, Dist. Korba, Chhattisgarh is about 80.10% whch is outstanding performance by the company (Annexure-XX) iv. However, Industry got expansion for Aluminum Smelter from 5.75 LTPA to 10.85 LTPA for which Environmental Clearance was issued by the MoEF & CC vide letter no. J-11011/123/2007-IA. II(I) dated 22.04.2022 wherein specific condition xxi. States 20 that ―Three tier Green Belt shall be developed in a time frame of one year covering 33% of total area with native species all among the periphery of the project site of adequate width and tree density shall not be less than 2500 per ha. Survival rate of green belt developed shall be monitored on periodic basis to ensure that damaged plants area replaced with new plants in the subsequent years GB action plan is given as below (Annexure -XXI).
S. Details Total Existi On- Action Plan: Total Total Species
No area ng Going Green Cover Green Green Proposed
Planta Planta Proposed up to cover- cover
(In ha) tion tion FY 24 (in ha) (in ha) - (%)
Area Area
(In ha) (in ha) FY FY FY
23
22 24
1. Integrated 383.63 97.72 0.81 5.0 5.85 17.40 126.8 Karanj,
Aluminum
Smelter Neem,
Pipal,
Sal,
Sarai,
Arjun,
2. Ash Dyke 151.75 8.87 - 6 10 9.24 34.11
Sagori,
3. Township 263.04 126.49 6.84 2 2 2 139.33 33% Banyan,
land Sisoo,
Rai
4. Balance 301.49 20.94 7.12 10 10 15 63.06 n
other land tree,
Gulmoh
Total 1099.91 254.02 14.77 23 27.85 43.64 363.28 ar,
Area Mahua,
Badam
etc.
Action Taken:
1. The constitution of district level Fly ash committee for district Korba has been completed and an order also issued in this regard on dated 07.06.2022 (Annexure-XXII ) Conclusions:
a) The joint committee individually has visited the red mud ponds area on 1st June 2022 and on 2nd June, 2022 along with applicant and it has been observed that red mud ponds are converted to Ash dyke, no excavation of red mud area has been observed and areas/locations 21 were the red mud is being dumped illegally by the industry was not found.
b) The ground water monitoring results of basic parameters are well within the acceptable limit as per the BIS standard.
c) As far as Fluoride contamination is concerned, all the samples are within the acceptable limits of BIS, i.e. below 1.5 mg/lit.
d) The agriculture department has informed that due to no compliant about soil degradation, the department has not carried out any such study.
e) The reports obtained from the CMHO, Korba Chhattisgarh is not in line with the issues raised by the applicant in the petition.
f) The ambient air quality parameters monitored at all monitoring locations were found within the NAAQS.
The concentration of primary gaseous pollutants i.e. PM10, PM2.5, SO2& NOx were found within the limit.
g) The SO2 concentrations in stacks of 1200 MW power plant and 540 MW po wer plant has exceeds the prescribed limits 600 mg/Nm3.
h) The industry is utilising 100 % fly ash from last three financial years.
i) The industry didn't provide the timeline frame for utilisation of legacy as (in percentage of Annual ash) as per the Fly ash n o t if i c a t i o n dated 31.12.2021 issued by the M in i s t r y of Environment, Forest and Climate Change.
j) It has been observed that ample green belt was observed during the field visit. Plantation has been observed around all along the boundary of the plant and inside the plant and town ship area also. 22 However, as per EC condition 33% green belt shall be developed by the industry by F.Y 2023-24 as committed.
Recommendations:
As co mmitte d by the Pro jec t au thor ities to under take take plantation in 363.27 Ha by F.Y 2024 as per EC condition and the co mpliance status shall be sub mitted on quarterly b as is to respective authorities.
L e g ac y as h s to c k 1 8 . 2 mil l io n to n s s h al l b e l iq u id a te d by December, 2024 for which the district level Fly Ash committee may take the time frame line and execution plan of the same. To install more number of piezometers around the fly ash dykes to check the ground water quality. As the major emissions are fluoride from the pot room roof, the sampling frequency should be increased, and sampling is done at multiple locations.‖
4. In view of above, further remedial action be taken in terms of recommendations. Safety measures be taken for the dyke and preventing air pollution, liquidating legacy ash stock, conducting risk assessment of all ponds, timely installation of FGD and co mplying norms of SO2 emissions. Though red mud is reported to have been stored in fly ash p o n d s in te r ms of th e E C c o n d i t io n s , s te p s s h o u l d b e tak e n f o r its s tab il iz atio n . S in ce th ere d o n o t ap pe ar to be an y g u id el in es o n the s u b j e c t , w e d i r e c t C P C B to lay d o wn appropriate guidelines on stabilization of red mud within one month. The same be served on the PP and its copy forwarded to the Registrar General of this Tribunal by e -mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the 23 form of Image PDF. The PP may ensure strict compliance of the guidelines which may be overseen by the State PCB.
The application is disposed of.‖
9. Learned Counsel for the applicant has argued that the compliance of the conditions are not regularly monitored by the Responded No. 2 Chhattisgarh Environmental Conservation Board and in reply thereof Learned Counsel for the CECB has submitted that Environmental Clearance dated 14.08.2007 was issued in favor of BALCO (Respondent no.
4) for 1200 Mega Watt Thermal Power Plant at Village Risda, Tehsil Korba, District Korba by MoEF&CC (Respondent no. 1), thereafter the answering respondent issued Consent to Establish dated 25.09.2007 and CTO was issued by the answering respondent dated 25.09.2007 for a period of one year, subject to renewal if the underlying conditions are met. (within favour of Respondent No. 4, BALCO).
10. The respondent CECB conducts regular inspections of the plant of Respondent no. 4 before renewing the CTO and the details of inspections as narrated by the CECB are as follows :-
a) Inspection Report dated 08.03.2018 wherein inspection was conducted on 08.03.2018 it was observed that central monitoring basin has been established for contaminated water generated from TPPs. That zero discharge system is being maintained for air pollution control according to the quality and efficiency of E.S.P and Fabric Bag Filter has also been installed, so as to keep the chimney emission standard (50 mg/cm3). It is also stated that the ash (bottom ash) generated from the industry is being discharged through High Concentration Ash Slurry Disposal System in 24 converted ash dam (decommissioned Respondent No. 5) and fly ash must be utilised in compliance with notification dated 03.11.2009 of the Government of India, Ministry of Environment and Forests, New Delhi. That as per the abovementioned observations, water and air consent of the industry was renewed, by depositing a Bank Guarantee.
b) Inspection dated27.04.2019 and 29.04.2019 it was observed that as per consent, 1200 (4x300) MW plant and machinery is installed in the industry complex. ESP (99.56%) and Bag Filter (99.99%) were found installed in all the four units; Online Emission Monitoring System was found established for each unit. That, two Ambient Air Monitoring Systems were installed and one of which maintenance work was found to be going on and in the other NOX emission was visible. It was further observed that the ash generated out of 1200 MW is stored in ash dyke No. 4, 5, and 6. That Respondent no. 4 was in violation of a condition of CTO, to set up a brick plant with a capacity of 135,000 bricks per day, against which a bank guarantee has been deposited by Respondent no. 4 with validity till 1010712023. Further 100% utilization of fly ash was reported by Respondent no. 4.
c) Inspection Report dated 27.03.2021 wherein inspection was conducted on 25.03.2021 it was observed that Contaminants are being released from TPPs during rainy season thus settling of water (ash slurry), the condition of construction of new ash sludge settling pond is mandatory It was further stated that the managements made by Respondent no. 4 for the management and controlling water and air pollution in 540 and 1200 MW power 25 plants seem appropriate. Therefore, the consent of the industry can be renewed.
d) Inspection Report dated 07.04.2022 wherein inspection was conducted on 31.03 .2022 it was observed that Under the renewal of consent issued to respondent No. 02, conditions of water consent 02, 03, 07 and 08 have not been complied with. 4 and air consent conditions 03 and 07 for 540 and 1200 MW TPPs have also not been done. It is recommended to renew the consent issued to Respondent no. 4 only after the abovementioned conditions are fully complied with.‖
11. It is further argued that one Nav Astha Jan Vikas Seva Samiti which is a registered Non-Government Organisation (NGO) registered on 07.04.2005 at Raipur, Chhattisgarh, under Registered Societies Act, 1973 carried out an inspection of plantation carried out by Respondent No. 4 at BALCO Nagar, District Korba in March,2021. It is pertinent to note that in its Report, Nav Astha Jan Vikas Seva Samiti complied the data of plantation carried out by Respondent No. 4 since 2002 to 2021, and observed that Respondent No. 4, at (a) Integrated Aluminum and Power Complex; (b) Township; (c) Ash Pond has carried out total plantation in 575 acres. That the Report also observed that Sapling Survival Percentage in the areas where Plantation was carried out by BALCO is 80.10% and the Project of Plantation carried out by Respondent No. 4 has been graded at a scale of 8.1/10 by Nav Astha Jan Vikas Seva Samiti in its Report.
12. Respondent further carried out an inspection of up and down stream of Belgari Nalla near BALCO Township, KORBA and Hasdeo river near Kohadia village, Korba for year 2022, wherein it was observed that water contaminator levels of the water body is within the prescribed limit. 26
13. The Respondent has also verified the status of ground water of 15 villages situated within the radius of 5-10 KM of Respondent no. 4, by sending the samples collected from the hand-pumps and nallahs to one M/s Ultimate Envirolytical Solutions in June, 2022. The ground water analysis report clearly shows that the ground water in those 15 villages is not contaminated at all. That, the water analysis carried out by the answering respondent on the water samples collected from Belgiri Nallah, BALCO Township for the Month of June, 2022 and July 2022 also clearly show that there is no water contamination, as results of the various contaminators in within the prescribed standards.
14. That the answering respondent received letter no. BALCO/Sm-5.1(A-
01)/ENVT/2020/54 from Respondent no. 4 to conduct public-hearing for Expansion of Aluminium Smelter from 5.75 LTPA to 10.85 LTPA and in correspondence to the same, the answering respondent vide letter dated 03.03.2020 directed Regional Officer, CECB, Korba District to publish the announcement for public-hearing for Expansion of Aluminium Smelter from 5.75 LTPA to 10.85 LTPA. It is also pertinent to note that the answering respondent vide letter dated 16.03.2021, sent all the proceedings of public-hearing and other relevant documents to Respondent No. 1 in original.
15. Respondent no. 4 vide Online Application No. 8423810 dated 13.10.2021 applied for CTE for the Expansion of Aluminium Smelter from 5,75 LTPA to 10.85 LTPA. It is pertinent to note that after examining the application of Respondent No.3 and EC issued by Respondent no. 1, the answering respondent issued CTE in favour of Respondent No.3 vide CTE dated 28.06.2022 for Expansion of Aluminium Smelter from 5.75 LTPA to 10.85 LTPA.
27
16. Learned counsel for the applicant has argued that findings of BALCO having no green belt have been made by a Geographic Information System Expert named, Zvi Serper. He is a GIS Analyst based at the University of Sussex in UK and holds an M.Sc. in Geographic Information System and Environmental Management from University of Sussex. A detailed 21 page report titled as "The Extent of Vegetation, Tree - Cover and Green Belt, Soils and Ash Dykes Expansion at BALCO Site in Korba, Chhattisgarh Between 2006-2023 (including Ash Dykes/Red Mud Pond and Production Plant with Cooling Towers has been prepared by him for the purposes of evidence.
His findings are mentioned as under:
"4. Discussion and Conclusion A Major Spill event from Bharat Aluminum Company Limited (Balco) Ash Dyke North on 23 September 2017 is at the centre of a court case and prompt a GIS investigation of vegetation/tree cover, pollution by fly-ash and ash-dyke expansion process. GIS analysis provided clearer dimensions of Balco ash-dyke and plant with cooling towers site, unavailable up until now: Balco plant with cooling towers measures 389 hectare and Ash Dyke North covers now 158 hectare. The combined study-area covers 547 hectare (Equal to 1352 acre).
The investigation shows an increase of 34% (40 hectare) of Balco Ash Dyke North Since 2006, growing from 118 to 158 hectare in 2023. In the light of change of land-use/land-cover (LULC) it is recommended to check compatibility of ash-dykes expansion with town planning, environment clearances, land ownership Ash Dyke North first high-resolution clear image on 28 Google Earth Pro dates from 2006. Red Mud Pond appears to be in use in June 2010, contrary to information provided from this study. NDVI dynamics from 2019-2022 show that the top 10% NDVI values- covering 74 hectare out of 547 hectare study area- remained stable throughout. This amounts to 13.5% of vegetations covers (Even lower percentage if than 100 meter buffer-zone area is added to the total:725 hectare). The unchanged high vegetation index, typically representing tree- cover, lead to conclusion that there has not been change in tree-cover inside Balco perimeter, and that no new tree plantation is detected there. These results are in line with and supported by Visualization of Earth Observation Data and Archival System (VEDAS) and Global Forest Watch (GFW) analysis result on their interactive mapping tool. Regarding „Green-Belt‟, there is scope for increased planting of native tree in Balco and the region at large, as regional average MEAN- NDVI in may is 0.229 for the four consecutive years 2019, 2020, 2021, 2022, manisfestation of very low vegetation/tree cover. Preliminary spectral analysis of satellite images of ash- dyke spills pollution and contamination of water bodies‟ events point to a possible link between ash-dyke affluent and contaminated land and water visible. This may require further GIS investigation whether there was a correlation 1) Between ash-dyke spills and ash-dyke spectral signature, and 2) Between fly-ash affluent content to water samples results."[please further take note of para 21 of the report to see that BALCO nagar was densely green 50 years ago]. In view of the aforementioned findings, the Applicant states and submits 29 that the Respondent no. 4 BALCO is nowhere close to 33% or 15% green belt norm. It is further submitted that the aforementioned findings are enough to take appropriate action against Respondent, BALCO. It is submitted that the Hon‟ble High Court of Uttarakhand had stayed construction in Jilling Estate based on Google Map images showing reduced green cover in the case of Birendra Singh Vs. Union of India W.P. (PIL) 44 of 2020 dated 23.11.2022; HMJ Vipin Sanghi. Please paras 11, 12, and 19 of the interim order as passed by the Hon „ble High Court of Uttrakhand. Therefore, it is humbly submitted before this Tribunal to take notice of the absent green cover in the subject area of BALCO as can be seen via annexed pictures and videos.
In support of aforementioned evidence, it is vehemently submitted that the actual need of green belt plantation is along the periphery of the plant premises, around and above the ash dyke, boundary of the cooling tower to prevent the air pollution. It is a fact that the green belt will act as an effective pollution sink only within the tolerance limits of constituent specified broad leaves trees. It is important to mention that when primary pollutants are taken care of, formation of secondary pollutants will not reach menacing proportions. Ergo, it is pertinent to highlight that in absence of green belt along the plant premises, cooling tower and ash dyke the pollutants are creating absolute menace.
2. That per the letter bearing no. 5574/TS/CECB/2016, an amendment was made in the condition stipulated under consent to operate under section 25/26 of water (Prevention and Control of 30 Pollution) Act, 1974 and under section 21 of the Air (Prevention and Control of Pollution) Act, 1981.
It is submitted that on February 25, 2016, CECB in the matter of Rajesh Kumar Seth vs. Bharat Aluminium Co. Ltd. in original application bearing no. 06 of 2015 before the NGT at Bhopal, wherein CECB had elaborated the reasons for its decision of bringing an amendment to consent to operate dated January l4, 2015 as issued by the Board under Section 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. The reasons for amendment primarily belonged to M/s BALCO facing some amount of difficulty (for lack of space) in carrying out the condition of developing a 100 M green belt along the periphery, since the distance for carrying out such plantation varied from 11 to 149 meters which made it impossible for M/s BALCO to comply with the condition stipulated in the consent to operate. That surprisingly instead of' strategizing and finding a methodology as to how to make a development of a green belt possible along the periphery of the TPP, CECB without application of mind granted an amendment dated February 17, 2016, to consent to operate dated January 14, 2015. It is relevant to highlight that CECB‟s amendment granted a relaxation in the mandatory condition of development of a green belt up to 100 meters of area along the periphery of the TPP. The said amendment made plantation mandatory only in 33% of the sea available with M/s. BALCO.
It is emphatically submitted that even as per the amended criteria the plantation should be carried out only along the periphery of the TPP, ash dyke and the cooling tower since the namesake plantation 31 being carried out in the 33% of area available with M/s. BALCO as it deems fit is not helping in prevention of pollution. It is necessary to mention that the EC conditions clearly stipulate that if required the industry shall purchase/acquire additional land for the pm-pose of development of the green belt. Thus, it is submitted that the difficulty as expressed by the M/s BALCO is unreasonable and inexcusable.
2. It is further argued that the amendments made in condition no. 14 and condition no. 16 reads as follows:
"Extensive tree plantation in at-least 33% are of the project area shall be carried out. Industry shall abide by the decisions taken by the Ministry of Environment and Forests. Government of India/ Central Pollution Central Board/Government of Chhattisgarh/Chhattisgarh Environment Conservation Board from time to time in this regard. Industry shall plant 2500 saplings per hectare with broadleaf local species in consultation with the local forest department. Industry shall involve local villagers for the development of green belt as an additional sources for employment generation.
The Applicant states and submits that the aforementioned amendment was brought in a pending litigation in the case of Rajesh Kumar Seth vs. Bharat Aluminium Co. Ltd. in original application bearing no. 06 of 2015 wherein then. Applicant (Saurabh Agrawal) had appeared in person who is not an advocate and he lacked the skill to properly represent his case and resultantly, 32 the said case was withdrawn. The said Amendment was appealed before the Hon‟ble Supreme Court of India in SLP No. 6923 of 2018 but owing to delay in filing of the said Appeal, the Supreme Court of India had dismissed the said Appeal and it is noteworthy, that the SC did not go into the merits of the matter. It is submitted that had authorities kept a cheek on BALCO to comply with 100 M of been belt development mandate (or even the amended 33% of green belt mandate) around the plant premises and ash dyke then the incident of September 23, 2017 wherein the ash dyke was burst open and acres of land was damaged due to pollution would not have occurred. It is submitted that Respondents have failed in compensating many villagers who are affected from the aforementioned incident till date. It is submitted that BALCO should accordingly pay compensation as per polluter pays principle. It is further submitted that the Applicants are competent to highlight the issue of September 23, 2017 seeking compensation as per polluter pay principle since the cause of action is within limitation period of five years in view of the order dated January 10, 2022 passed by the Hon‟bIe Supreme Court of India."
17. Learned counsel for the respondent i.e. Project Proponent has submitted that in Appeal No. 14/2022 and 15/2022 the similar matters were raised which have been heard and decided by this Tribunal vide order dated 06.01.2023. The grounds raised in the above Appeals are :- 33
1. The green cover as proposed upto financial year 2022-24 should be in 33 % area in the Plant Premises but the Respondent has overlooked this condition and the fact is that the project proponent has failed to raise at least 33 % Green Cover. The condition of fluoride in soil and forage should extend up-to 10 KMs radius of Plant Premises covering upwind and downwind directions, which has not been complied.
2. It is further argued that the Respondent No. 01/ MOEF &CC has also overlooked mandatory provisions of establishment of Online Monitoring Systems to be placed at ETP discharge as well as for the purpose of Air Pollutants Emission Monitoring Mechanism. These Monitoring Systems are neither installed by the respondent's industry, nor has the respondent taken any steps for such installations. However, it is pertinent to mention here that this condition is mandatory for such type of industries, which must be regularly monitored in real-time at PCB as well as CPCB stations. In fact the respondent/ EAC Committee has also overlooked while deliberating this condition and allowed to expand the Project vide impugned EC.
Therefore, the expansion of EC is liable to be cancelled until and unless the Unit or respondents give in writing for compliance of the above mandatory provisions.
3. The observations made by Regional Office, MOEF&CC with regard to evaluation of compliance of previous conditions stipulated in the Environment Clearance is recorded in 2nd EAC Meeting held on 22nd-23rd March, 2022, which were prima facie observed as 'partially complied' or 'not complied' in the columns in the observation of RO. In fact the respondent EAC has overlooked noncompliance / partial compliance, yet hastily the expansion of EC for Smelter Unit has been granted, which is a clear violation of Environmental Laws, having long lasting effects upon the residents of the area and its ecology. Therefore, the expansion of EC granted is liable to be revoked till the conditions are fulfilled.
34
4. The respondent EAC has overlooked the distance of habitation from the existing Cooling Tower, which is less than 25 meters as per various representations and grievances raised in public hearings conducted for expansion of Project. Particularly as per earlier EC, the R&R Policy has not been complied till date. Obviously the residents are already facing safety problems, as has already been submitted in Para Supra. Infact noise level in and around the Plant is not within control, as per the observation made by RO.
5. The EAC while deliberating the Environmental impacts and management plans proposed by the project proponent BALCO has overlooked the prime concern of the people residing in the area surrounding the Plant with regard to adverse impacts of huge mountains of fly ash not being utilized as per Government of India Notification with regard to Fly Ash Management. The emitting dust and fumes have made the lives of residents miserable, has not been duly deliberated by EAC, rather manipulating, concealing by the Project Proponent. The impugned EC deserves cancellation on the sole ground.‖
18. It is further argued that similar matter were raised in Appeal No. 06/2015 Rajesh Kumar Seth Vs Bharat Aluminum Co. Ltd . and the matter was heard and decided as follows :
―This appeal was filed by the Appellant against the Respondent No. 1 alleging that there has been a violation as mentioned in para no.5.4 :
1. ― A greenbelt shall be developed all along the plant and ash pond boundary covering a total area of 1/3 of total project area.
2. Leq of Noise level should be limited to 75 dBA and regular maintenance of equipment be undertaken. For people working in higher noise areas, personal protection devices should be provided.35
3. Half yearly report on the status of implementation of the conditions and environmental safeguards should be submitted to this Ministry, the Regional Office, CPCB and SPCB.
4. Separate funds should be allocated for implementation of environmental protection measures along with item-
wise break-up. These costs should be included as part of the protect cost. The funds earmarked for the environmental protection measures should not be diverted for other purposes any year-wise expenditure should be reported to the Ministry.‖ Accordingly after the receipt of the memo of appeal vide order dtd. 19.03.2015 notices were ordered to be issued. In pursuance to the notice, the Respondents put in their appearance. During the course of hearing on 15.07.2015 appellants confined their prayer to observance and compliance of the EC condition more particularly as referred to prayer clause 5.4. They were permitted to file affidavit in that behalf. Among the issues raised was also the issue with regard to the rehabilitation and payment of compensation to the residents of Shanti Nagar Colony which is in close proximity with the plant of the Respondent no. 1. This has become relevant particularly in view of the fact that the Respondent No. 1 as per the EC condition were required to create 100 meters wide green belt and so long as the land of the Colony was not made over to the Respondent No. 1, it could not have been possible for the Respondent No. 1 to create that 100 meter wide green belt all along the periphery and parameter of the plant. It is in this context that the issue with regard to the rehabilitation of the residents of Shanti Nagar Colony comprising of about 86 families and acquisition of their land is relevant.
It was submitted before us that the Respondent No. 1 tried to amicably resolve the issue and 70 families agreed to shift after taking compensation amount and 16 of them 36 still remain as they did not accept the offer given by the Respondent No. 1 / Company. While dealing with the issue during the course of hearing on 24.02.2016 it was submitted before us that as far as the noise level is concerned monitoring of the same has been carried out and the report was submitted before us by the CECB on 20.04.2016 along with the annexed documents Annexure R-1 which are the reports of two locations namely Nehru Nagar and Housing Board Colony near BALCO, Korba. We find that the prescribed limits as per the said reports are 55db during day time and 45 db during night time. In the report submitted before us the noise level had exceeded marginally at Nehru Nagar fall during the day and night time on some of the dates that are mentioned in the report. Though, the Learned Counsel for the Respondent No. 1, submits that these are minor deviations and there may be various reasons even other than the operation of the plant. As regards the location No. 2 of the Housing Board Colony by and large the noise levels at both the day and night are more or less within the prescribed limits except on few occasions. Learned Counsel appearing for the CECB, however, pointed that so far as the EC conditions are concerned the data provide for compliance of the norms prescribed for industrial operations which would be 75 db during day time and 70 db during night time. Nevertheless it was submitted by the Learned Counsel for the CECB since the levels were taken in the residential area therefore, the norms for residential areas have been given as prescribed norms.
In so far as the other issue with regard to the creation of the green belt is concerned apart from the colony the plantation work has been carried out in other areas except towards the South where Shanti Nagar Colony is located. As has been submitted above the residents of 48 dwelling units and families have handed over the possession of the same the remaining despite the acceptance of the amount other than 16 persons have yet to hand over possession 37 and as such plantation work could not be carried out. Three Appellants are among those 16 who have not accepted the said amount and have not handed possession of their respective properties to the Respondent No. 1.
On the last date of hearing, on 21.07.2016 it was directed as follows :
―Having heard the parties as well as the Learned Counsel for the Respondents, we are of the view that this is such a case where a settlement can be arrived at between the parties. From the side of the Tribunal it was proposed that in the light of the claim of the Applicants for their re-settlement in accordance with the policy of the Govt. of Chhattisgarh State which inter alia provides a residential house to be provided at alternate location equal to or similar in nature to their present accommodation and also compensation for the land and the property which they are required to forgo after handing over the area in question in Shanti Nagar as also compensation on account of suffering from pollution caused by the operations carried out by the Respondent No. 1 at their plant.
On this issue, we direct both the parties to revert back to their respective clients and other members (Applicants) and submit their response before this Tribunal on the next date.
It has been brought to our notice that in all there were 86 units (families) which can be termed to be project affected persons residing in Shanti Nagar out of which, we have been informed that about 70 such families have already accepted compensation offered by the Respondent No.1 and about 48 families have 38 handed over their possession of the premises to the Respondent No. 1 and the remaining 22 families were are in the process of doing the same. Approximately 16 such families including the Applicants did not accept the compensation that was provided under the terms of the settlement and have approached this Tribunal and also the Hon'ble High Court of Chhattisgarh at Bilaspur.
Be that as it may, during the course of hearing we suggested to the parties that the Applicants' demands of rehabilitation for residential accommodation on the basis of assessment of their present accommodation, compensation for the land at the market value to be determined on a cut off date as also compensation for suffering as a result of pollution be worked out and the parties should come with their respective claims and any other term on which they would be willing to settle the dispute. The three Applicants present would also approach the remaining 13 parties in the light of the above so that the matter could be resolved amicably.
Put up on 8th September, 2016. In the meanwhile the Applicant with their proposals may approach to Shri J.S. Vishwanathan, Head Project, BALCO, Korba.‖ In the light of the above orders, we have been informed today that the Appellant No. 1 / Shri Rajesh Kumar Seth who is present in person has arrived at the settlement with the Respondent No. 1 and has moved an M.A. No. 822/2016 for being permitted to withdraw the appeal in so far as the Appeal of the Respondent No. 1 is concerned. In the said application it has been stated as follows :39
―That post discussions, the parties have arrived at a mutual understanding. Accordingly the Appellant No. 1 and his father have agreed to accept compensation as per tripartite settlement dated 24.09.2013 arrived between the residents of Shanti Nagar, the Respondent No. 1 & the District administration. The Respondent No. 1 has accepted & agreed to pay compounded interest to the Appellant No. 1 / his father, @ 8.25% p.a w.e.f, 24.09.2013 till the date of payment over the amount of compensation payable (as per aforesaid tripartite settlement dated 24.09.2014) to the Appellant No. 1 / his father. As a result of the settlement an amount of INR Rs. 98,05,146/-
(Ninety Eight Lacks Thousand One Hundred Forty Six) would be payable to the father of the Applicant No. 1, being the owner of the property which the Respondent No. 1 is buying.
Appellant no. 1 Shri Rajesh Kumar Seth has stated that he has arrived at the aforesaid settlements without any undue pressure or influence. Learned Counsel appearing for the Respondent No. 1 assisted by Shri J.S. Vishwanath, Head Projects stated that an amount of Rs. 25,00,0000/- (twenty five lakhs) will be paid on 14.09.2016 and 60 days after 14.09.2016 i.e. by 14.11.2016 an amount of Rs. 40,00,000/- (forty lakhs) would be paid to the Appellant No.1 and the remaining amount at the time of registration before the registering authority. In this way the entire payment having been received the Appellant would hand over possession of the property after registration of the same. In view of the above settlement the Appellant No. 1 does not wish to press the appeal on his behalf.
In so far as the Appellant No. 2 & 3 are concerned who are present in Court submit that 40 there matter is pending for determination of the market value before the Hon'ble High Court and they would abide by the decision given by the Hon'ble High Court in that behalf.
We would direct the Respondent /CECB to continuously monitor the matter with regard to the implementation of the EC conditions as soon as the decision is arrived at by the Hon'ble High Court and the possession of the land given to the Respondent No. 1. The remaining work with regard to the creation of the green belt which could only be possible after the area is made over to the Respondent No. 1 shall be carried out and intimation with regard to the same shall be submitted before this Tribunal.
In view of the above, we find no merit in the appeal filed by the Appellant and accordingly this Appeal No. 06/2015 along with M.As.
544/2016, 546/2016 & 822/2016 stand disposed of, with liberty to the Appellant No. 2 & 3 who may seek redressal in the matter which is pending before the Hon'ble High Court.‖
19. Learned counsel for the Project proponent has contended that the fly ash generated from BALCO‟s plant is sent to BALCO‟s Ash Dykes while some quantity is directly sent to Cement Plants and Brick Manufacturing Plants. The ash transportation from plant to dykes is done through High Concentration Slurry Disposal (HCDS) System. It is submitted that BALCO can generate approx. 1740MW of electricity daily by utilising approximately 28,000 tonnes of coal per day (at 100% Plant Load Factor). This is not a fixed figure and is dependent on the requirement, thus, the generation and coal utilisation are dependent on the plant operation. In the year 2019, BALCO utilised 7.6094 million tonnes of coal through 41 which 2.869 million tonnes of Fly ash was generated. In the year 2020 - 2021, approx. 1771744.76 tonnes of Fly Ash were generated by BALCO at the 1200 MW TPP, approx. 743917.5 tonnes of Fly Ash was generated by BALCO at its 540 MW CPP (4X135). A portion of the said fly ash was disposed of in the mined out Chotia Coal Mines and low-lying area at Tarda. The answering Respondent also received permission from CECB to dispose 1.6 MT of Fly Ash in abandoned Manikpur OCM of SECL. In the year 2021-2022, 2453210 tonnes of coal were consumed due to which 795840 tonnes of Fly Ash was generated by BALCO at its CPP-II (540MW) unit (4X135 MW) located in Korba. 1711484 tonnes of Fly Ash were generated at the 1200 MW TPP (4X300 MW). That ash generation in coal and lignite based TPPs in various forms such as dry ash, bottom ash, pond ash and mound ash are required to be managed in such a manner that it does not affect the environment. Utilisation of ash for reclamation of low-lying areas and abandoned quarries is recognised as an alternate option and therefore, the MoEF & CC has issued the aforementioned notifications, time and again, to address the utilisation of ash for various purposes. Detailed plans have been submitted by BALCO for management of project‟s impact on air, water and solid wastes. The following sub heads contained in the EIA Report may be are as follows:
i. Chapter 4 4.0 - Anticipated Environmental Impacts and Mitigation Measures EIA REPORT ii. Chapter 4.3 Greenbelt / Green Cover Development Plan @Pg. C4-85/ EIA Report iii. Chapter 4.4 Summary of Anticipated Environmental Impacts And Mitigation Measures @Pg. C4-95/EIA iv. Chapter 6.0 Environmental Monitoring Program v. Chapter 9.0 Environmental Cost Benefit Analysis
20. It is further argued that that BALCO disposes of fly ash through proper ash management system and there is no substantial proof of dumping of 42 Ash made in the application. BALCO has its own FLY ASH MANAGEMENT SYSTEM which takes care of disposal of fly ash. The Fly ash is used to fill the low-level areas and for making of fly ash bricks and for road widening as well. The Fly Ash generated from BALCO‟s plant is sent to BALCO‟s Ash Dykes while some quantity is directly sent to Cement Plants and Brick Manufacturing Plants. The ash transportation from plant to dykes is done through High Concentration Slurry Disposal (HCDS) System. From the ash dykes, the fly ash is utilized through various avenues such as mine void filling, infrastructure projects run by NHAI & CGPWD (CG Public Works Dept.) and reclamation of low-lying areas.
21. BALCO has a total area of 1099.91 Hectares out of which only 805.54 Hectares is in possession of BALCO. Present BALCO has 291.79 Hectares (241 acres) of green cover as per the National Remote Sensing Centre (NRSC). If only the land in BALCO‟s possession is considered, then the present green cover amounts to 36.22% (3.22% more than the requirement under law) of the land area in BALCO‟s possession i.e., 805.54 Hectares. However, on 29.10.2021 BALCO vide a letter to MoEF & CC submitted its action plan to achieve 33% of green area development as per the total land area belonging to BALCO i.e., 1099.91 Hectares. The total green area requirement of 33% amounts to 363.28 hectares which shall be achieved by the end of FY2023-24 by planting trees like Karanj, Neem, Peepal, Sal, Sarai, Arjun, Sagon, Banyan, Sisoo, Rain tree, Gulmohar, Mahua, Kadam etc and the detailed plans were submitted for management of project‟s impact on air, water and solid wastes which also forms part of the EIA report. Based upon the said comprehensive study and analysis of all the data and documents submitted by the Answering Respondent, the EC dated 22.04.2022 was granted by the MoEF & CC. 43
22. The Points of hazardous waste anti-plantation was also raised in Appeal No. 14/2022 and it was observed by the Tribunal as follows :
i. Learned counsel for the CECB has submitted that the Regional Office of the answering respondent at District- Korba visited the premises of Respondent no. 4 on 26.08.2022 and inspected the storage of the hazardous waste, that is SPL (Carbon) and SPL Refractories. It was found that hazardous wastes are being properly stored and managed in covered SLF (Secured Land Fill) shades. It is also pertinent to note that no dumping of hazardous wastes outside of the industrial premises was observed during the inspection. It was also noted that Respondent no. 4 regularly provides the SPL (Carbon) to one M/s Green Mac Technology for de-
toxification and provides the SPL Refractories to one M/s Sunraj Transport for recycling. That all the arrangements made for handling and storage of hazardous wastes were in correspondence to the provisions laid down under the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016.
ii. The answering respondent has also verified the status of ground water of 15 villages situated within the radius of 5-10 KM of Respondent no. 4, by sending the samples collected from the handpumps and nallahs to one M/s Ultimate Envirolytical Solutions in June, 2022. The ground water analysis report clearly shows that the ground water in those 15 villages is not contaminated at all and the contention of the appellant about water of Dengur Nallah and Lalghat being contaminated is false and baseless. That, the water analysis carried out by the answering respondent on the water samples collected from Dengur Nallah and 44 Belgiri Nallah, BALCO Township for the Month of June, 2022 and July 2022 also clearly show that there is no water contamination, as results of the various contaminators in within the prescribed standards.
iii. That, Respondent no. 4 vide Online Application No. 8423810 dated 13.10.2021 applied for Consent to Establish (hereinafter referred to as ―CTE‖) for the Expansion of Aluminium Smelter from 5.75 LTPA to 10.85 LTPA. It is pertinent to note that after examining the application of Respondent No.3 and EC issued by Respondent no.
1, the answering respondent issued CTE in favour of Respondent No.3 vide CTE dated 28.06.2022 for Expansion of Aluminium Smelter from 5.75 LTPA to 10.85 LTPA.
iv. That, one Nav Astha Jan Vikas Seva Samiti which is a registered Non-Government Organisation (NGO) registered on 07.04.2005 at Raipur, Chhattisgarh, under Registered Societies Act, 1973 carried out an inspection of plantation carried out by Respondent No. 4 at BALCO Nagar, District Korba in March, 2021. It is pertinent to note that in its Report, Nav Astha Jan Vikas Seva Samiti complied the data of plantation carried out by Respondent No. 4 since 2002 to 2021, and observed that Respondent No. 4, at; {(a) Integrated Aluminium and Power Complex; (b) Township; (c) Ash Pond} and { BALCO 270 MW Power Plant} has carried out total plantation in 575 acres and 65 acres respectively. That the Report also observed that Sapling Survival Percentage in the areas where Plantation was carried out by BALCO is 80.10% and the Project of Plantation carried out by Respondent No. 4 has been graded at a scale of 8.1/10 by Nav Astha Jan Vikas Seva Samiti in its Report. 45
23. It is further argued that Respondent No. 3 was granted EC by Respondent no. 1 vide EC dated 04.08.2007 for the 1200 MW power plant and has allowed the construction of Ash Dyke for the said power plant under condition no. (x) of the EC. It is also pertinent to note that the Appellant has challenged EC dated 24.04.2022 and the issue of Fly Ash was enumerated in previous EC, thus the same is not appealable under the present appeal.
24. With regard to the trees cutting, Learned Counsel for the Respondent has argued that there is no tree cutting in the BALCO premises as has been alleged by the Appellant. The veracity of the tree cutting pictures is highly questionable and the Appellant may be put to strict proof for the same. The Appellant has not submitted any proof of the fact that there is tree cutting inside BALCO‟s premises. Furthermore, there are no Geo-tagged photos to prove that the photographs of tree cutting are from inside the BALCO‟s plant premises. The Appellant has also alleged that before receiving EC from the MoEF & CC, the answering Respondent (BALCO) has issued work order to Bridge and Roof Company (not a party in the present appeal) for Expansion project. It is submitted that BALCO has only awarded the Letter of Award (LOA) to Bridge and Roof Company for the proposed work. The said LOA is also available on the website of the Bridge and Roof Company. The answering Respondent craves leave of this Hon‟ble Tribunal to not to reply to the said averments. It is however pertinent to mention that no work has been commenced by the Bridge and Roof Company before acquiring necessary approvals.
25. It is argued that the Appellant has wrongly stated that the answering Respondent has submitted in its EIA report that more than 48000MT of Spent Pot Line (SPL) and 30000MT of refractory has been stored in 46 secured land fill (SLF) and covered shed correspondingly. It is submitted that no land allocation for SPL safe pit has been allocated in the land use data submitted by BALCO. It is submitted that the details of SPL land allocation are not present in the land use details presented in the EC dated 22.04.2022 because no new land is being allocated for the same. The present Spent Pot Line (SPL) is being stored in secured landfill (SLF) and sheds with concrete floor which is in line with the Hazardous Waste Management & Handling Rules. The design and drawing of the SLF is approved by CECB.
26. Learned counsel for the Respondent has argued that the matter of fly ash has been raised before this Tribunal in O.A No. 33/2022 and vide order dated 19.09.2022, the matter was dealt as follows:
1. ―On the grounds mentioned above, the Applicant has sought a relief for restraining from the fly ash illegal dumping activities in Korba district and to make necessary punitive orders against the authorities with directions to CPCB to regulate the fly ash dumping in the area. The matter was taken up by this Tribunal on 05.05.2022 and notices were issued to the respondents in addition to constituting a Joint Committee consisting (i) District Collector, Korba, Chhattisgarh, (ii) one representative from Central Pollution Control Board, and (iii) one representative from Chhattisgarh Environment Conservation Board, Chhattisgarh with direction to submit the factual and action taken report.
2. In response thereof, Respondent no.4, Chhattisgarh Environment Conservation Board has submitted the reply with the facts that No Objection Certificate was issued to the authorized transporters who have applied for transportation and filing of ash in the low lying areas and the NOC is only valid upto the point in time where the filing of fly ash gets completed. It is further submitted that :47
The procedure to obtain NOC for disposal of fly ash in low lying areas of Korba district is that an individual or company submits the application for ash filling in low laying area to district administration and they in turn verify the application vis-a-vis ownership, land use and area. It is then forwarded to the answering respondent. CECB then issues the NOC with certain condition as per fly ash notifications and resend it to district administration. BALCO's Thermal Power Plant further applied to the answering respondent for NOC for disposing of fly ash in low lying area along with all requisite permissions and the answering respondent issued the final NOC with certain underlying conditions to Respondent no. 6. It is pertinent to note that after obtaining the NOC, Respondent no. 6 dumped fly ash on the permitted location through authorized transporter.
3. It was observed that out of the 23 locations, for which Respondent no. 6 has obtained NOC for dumping of fly ash from CECB, the work of dumping fly ash has been completed in 15 locations and the process of soil covering and plantation is under progress at these completed sites. The remaining 08 sites are still operational and are being closely monitored and the precautionary measures like soil topping, stone pitching, plantation etc. are being adopted.
4. The answering respondent granted Respondent no. 6 NOC for raising height of the abandoned red mud pond no. - 2, 3, 4 and 7 to 5 meters for disposal of ash generated from 540 and 1200 MW Power Plant based on Coal. Respondent no. 6 has also obtained requisite permissions from MoEF&CC for the same and has converted its red mud ponds to ash dykes as per the approved design for disposal of ash through HCSD system.48
5. As per Environmental Clearance issued by the MoEF & CC vide letter no. J-11011/123/2007-IA. II (I) dated 22.04.2022 wherein specific condition XIV states that:
―Legacy ash stocks of 18.2 Million tons shall be liquidated by December 2024. The vehicles carrying as from dyke shall use tarpaulin covers. No additional ash pond shall be developed for ash disposal.‖ Joint Committee observed that the fly ash was transported to the nearby cement plant only through bulkers or closed cover trucks, however for disposal in low laying areas as per NOC condition of CECB ash can be transported through fully covered or tarpaulin-covered vehicle.
i. The report states that the transportation through a mechanically covered truck is not viable for disposal in low lying area because for emptying of the mechanical covered truck, a truck tippler is needed and that can't be installed everywhere and presently such vehicles are not available for purchase in this region.
ii. As per the Guidelines for disposal/utilization of fly ash for reclamation of Low Lying Areas and in stowing of Abandoned mines/Quarries passed by the Central Pollution Control Board in March, 2019, there is no specific requirement or obligation on the answering respondent to carry out an inspection of the site where the fly ash is supposed to be dumped. As per Para 5 of the above-mentioned guideline, prior permission from the land owner, regulatory authority and the State Pollution Control Board shall be taken before dumping of Fly Ash in the low-lying area. The transporters of fly ash are only dumping fly ash after obtaining permission from the answering respondent, the SDO and the land owner.49
iii. The fly ash management committee for Korba region has been constituted under the Chairmanship of District Collector and an order also issued in this regard vide letter no 299 dated 07.06.2022. The committee will look after the fly ash disposal in low laying area, mine voids and other allied areas of the region.
6. Respondent No.5, CPCB has submitted that in light of the order passed by this Tribunal a Joint Committee has submitted the report with the conclusions and recommendations which are to be complied by the project proponent. It has further been submitted that CPCB has issued guidelines for disposal/utilization of fly ash for reclamation of low lying areas and in stowing of abandoned mines/quarries in March, 2019. The guidelines are mandatory and are to be implemented by the state authorities.
7. Reply of the Respondent No.6, Bharat Aluminum Company Ltd.
are as follows:
(i) The answering Respondent is a disinvested company which is a 49% Government owned company. The answering respondent i.e., BALCO runs its Thermal Power Plant units of 540 MW and 1200 MW in District Korba which constantly produces Fly Ash. By virtue of the permissions, the said TPPs units have been in operation for over a period of 16 years. Apart from catering to the power needs of the smelter operations of BALCO, the said units are also serving public interest in as much as the power is also being supplied to the State Governments of Chhattisgarh, Tamil Nadu and Kerala under long-term PPAs respectively. BALCO is currently supplying approximately 55MW of electricity to the State of Chhattisgarh and is also supplying electricity to 5 other States in the country.
(ii) BALCO is one of the largest Aluminium Producers in India - with 5.75 lakh tonne per annum production 50 capacity, BALCO produces approximately 15% of the total aluminium produced in the country. BALCO is a highly valued and one of the largest stakeholders in the State of Chhattisgarh producing ingots, Alloy ingots, wire-rods, busbars and rolled products. The Smelter plants are being supported by uninterrupted power supply through the Captive Power Plant (CPP) Units of the 1200 MW unit and 540 MW Power Plant at the smelter site.
(iii) BALCO has been operating its Thermal Power Plants (TPP Units), which produces fly ash, strictly in consonance with the approvals granted by the MoEF & CC and the State Pollution Control Board (SPCB). BALCO was accorded with Environmental Clearances (EC) which were renewed from time to time. The latest CTO was renewed by CECB on 27.05.2022 for running the two power plant Units for a period of one year i.e., from 01/06/2022 to 31/05/2023. CECB has also directed compliance of additional condition which is as follows;
―Condition No. 4 of the Consent To Establish (CTE) ―Industry shall ensure 100% utilization of fly ash, bottom ash and legacy ash (unutilized accumulated ash) as per provisions of notification dated 31/12/2021 issued by MoEF & CC regarding utilization of ash.‖
27. It is argued that BALCO‟s manufacturing activities primarily focus on economic, environmental and social impact equally. One of the core principles followed by BALCO is to align its working with zero harm, zero waste and conservation of natural resources. In terms thereof, BALCO has planted approximate 6 lakhs saplings till date in the vicinity of its zone and endeavours to explore greener options while 51 diversifying its operations. BALCO also holds the national benchmark for the highest energy efficiency in smelter operations and also been conferred with various awards in this regard. On 21.03.2022 BALCO was awarded with the prestigious CSR Journal Excellence Award in the category of „Agriculture and Rural Development‟ for the Project Mor Jal Mor Maati. This is BALCO‟s flagship program in the domain of sustainable livelihood. The said project is aimed at benefitting farmers by edifying them about modern agricultural techniques along with supporting them by providing resources. It is noteworthy that more than 1000 farmers are associated with the project, covering over 800 acres of land by enhancing their production and diversifying their source of income and that all the approvals (including the ECs, the Consent to Establish (CTE) and the Consent to Operate (CTOs)) accorded to BALCO for establishing and operating the TPPs categorically provide for specific conditions to handle disposal- utilisation - dumping of Fly Ash. This is done in a manner following the due process of law, including but not limited to, adherence of the extant Fly Ash Regulations notified by the MoEF, the Central Pollution Control Board (the "Respondent No. 5"/ the "CPCB") guidelines for disposal/utilisation of fly ash for reclamation of Low-Lying Areas as well as the consistent regulatory oversight of the Chhattisgarh Environmental Conservation Board (the "Respondent No. 4"/the "CECB"). The disposal of fly ash is regulated under various regulations issued from time to time. The said regulations have been enacted under section 3(2)(v)(1) of the Environment (Protection) Act, 1986 r/w Rule 5(3)(d) Environment (Protection) Rules, 1986. 52
28. BALCO has been proceeding in accordance to the Fly Ash Notifications published by the Ministry of Environment Forest & Climate Change ("MoEF CC"), the Office Memorandum dated 28.08.2019 (Bearing Ref. No. F. No. 22-13/2019 - IA. - III) of MoEF regarding change in conditions stipulated in the Environmental Clearance of TPPs and Coal Mines in line with the Fly Ash Notification and subsequent amendments, and the Guidelines for disposal/utilisation of Fly Ash for reclamation of Low-Lying Areas and in stowing of Abandoned mines/Quarries published by Central Pollution Control Board dated March, 2019 (the "Fly Ash Guidelines"). The Fly ash utilization is a constant and symbiotic process since the ash gets accumulated post generation of power; the utilization is to be undertaken as per the provisions of the EC, CTE and CTO. The utilization therein has to be conducted strictly in accordance with the terms of the Fly Ash Notification - a condition which is compulsorily incorporated in the approvals granted by the authorities which in the present case have also been done in the NOCs for undertaking ash dumping in low lying areas.
29. The Fly Ash Guidelines, 2019 inter alia mandate use of fly ash in mines filling as well as reclamation of Low-Lying Areas. Para 4 of the Fly Ash Guidelines provide the steps to be undertaken for Loading/unloading, storage and transportation of fly ash. Para 5 then provide for reclamation of Low-Lying area using Ash. Clause 5.1 (Precondition) under sub-clause 5.1.2. states that the "Power plant/land owner/agency shall obtain statutory permission from regulatory authorities such as SPCB as per the requirement." Para 6 spells the mechanism for carrying out disposal of fly ash in voids of abandoned mines - these ash fillings are required to be regularly 53 monitored not only during the period of disposal of ash into the mine void but also after the reclamation of mine void is done. The detailed monitoring programme is given under Clause 6.3.1. In the event of deterioration of environmental quality, the same shall be reported to the CECB immediately and suitable preventive/corrective action will be undertaken.
30. Pertinently, with respect to processing the application for consideration of grant of permission for reclamation of Low-Lying Areas/Abandoned Quarries, the Fly Ash Guidelines stipulate the following under Para 8.1:
―8.1 The activity of reclamation of Low-Lying Areas / Abandoned Quarries will be regulated under the provisions of Water (Prevention and Control of Pollution) Act, 1974 and Air Water (Prevention and Control of Pollution) Act, 1981. The stipulations specified in this guideline is consistent with the provisions of Fly Ash Notification, 1999 and amended thereafter which should be a special condition mentioned in consent order issued under the Water (Water (Prevention and Control of Pollution) Act,1974 and the Air Water (Prevention and Control of Pollution) Act, 1981. Thereafter any deviations from the guidelines shall be treated as violation of both Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and action as deemed proper shall be taken under Consent Administration by the Board.
8.2 Necessary clearances shall be obtained from the concerned agencies such as DGMS, SPCB, IBM, MoC, etc.‖
31. The Fly Ash Notification 2021 states under Para A (5) the following:
―The un-utilised accumulated ash i.e. legacy ash, which is stored before the publication of this notification, shall be utilised progressively by the thermal power plants in such a manner that the utilization of legacy ash shall be completed fully within ten 54 years from the date of publication of this notification and this will be over and above the utilisation targets prescribed for ash generation through current operations of that particular year:
Provided that the minimum quantity of legacy ash in percentages as mentioned below shall be utilised during the corresponding year and the minimum quantity of legacy ash is to be calculated based on the annual ash generation as per installed capacity of thermal power plant.
YEAR AND DATE 1ST 2ND 3RD -
OF PUBLICATION 10TH
Utilisation of At least At least At least
legacy ash (in 20 35 50
percentage of percent percent percent
Annual ash)
Provided further that the legacy ash utilisation shall not be required where ash pond or dyke has stabilised and the reclamation has taken place with greenbelt or plantation and the concerned State Pollution Control Board shall certify in this regard. Stabilisation and reclamation of an ash pond or dyke including certification by the Central Pollution Control Board (CPCB) or State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall be carried out within a year from the date of publication of this notification. The ash remaining in all other ash ponds or dykes shall be utilised in progressive manner as per the above-mentioned timelines.
Note: The obligations under sub-paragraph (4) and (5) above for achieving the ash utilisation targets shall be applicable from 1st April, 2022.
32. The Fly Ash Notification 2021 entails various other compliances apart from utilisation which have been provided under Para A (2) viz. ways of utilisation of the fly ash so generated, formation of committee, installation of silos, compliance under Para B, etc. The validity of these compliances and ensuing obligations have crystallized and come into force from the 55 date of publication i.e., 31.12.2021. It is only with respect to targets for utilisation of fly-ash which have been made applicable w.e.f. 01.04.2022. Thus, for all other compliances the date of 31.12.2021 is to be reckoned as the date of the notification being in force. Solely for the purpose of targets of utilisation, the author of the Notification has given a window of three months of deferment as a transition period - with an umbrella deadline of 10 years to comply from the date of publication. It is provided for the thermal power plants to put their house in order so that they are able to comply with the minimum requirements of disposal. This would be necessary since there are penal consequences for non-compliance.
33. Under Para B(6), the Central Government has stipulated that "Filling of low-lying areas with ash shall be carried out with prior permission of the State Pollution Control Board or Pollution Control Committee (PCC) for approved projects, and in accordance with guidelines laid down by Central Pollution Control Board (PCB) and the SPCB or the PCC shall publish approved sites, location, area and permitted quantity annually on its websites." Thus, any activity of fly ash disposal qua filling of low-lying areas is always carried out under the overall supervision and strict scrutiny of the State Pollution Control Board/Chhattisgarh Environment Conservation Board (CECB) (the Respondent Nos. 3 and 4). Part C of the Fly Ash Notification 2021 entails the Environmental compensation for noncompliance - the answering Respondent therefore shall be liable in case of breach of the provisions of the notification and if the utilisation is not undertaken as per the terms thereof.
34. The law in respect of the Fly Ash Notification 2021 and the compliance thereto has been laid down by the Hon‟ble Supreme Court in the Aravali Power Case, which is being reproduced hereunder - 56
―12. In view of the above background, it would be necessary for the MoEF&CC to revisit whether the parameters which have been prescribed by the notification dated 31 December 2021 must be modified taking into account the provisions of the Rules of 2016, to the extent to which the applicability of the Rules is attracted to the utilization, transportation and disposal of fly ash. Besides conducting this exercise, MoEF&CC shall ensure that the enforcement, monitoring, audit and reporting mechanism which is envisaged in paragraphs E(3) and E(5) of the notification dated 31 December 2021 is duly put into place and enforced scrupulously. Unless steps have already been taken to enforce the precautionary steps envisaged in the notification, MoEF&CC shall do so within a period of three months from the date of this judgment. In doing so the precautionary principle shall be followed. The MoEF&CC shall also determine upon due analysis whether any further modification of the notification is necessary to comply with the provisions of the Rules of 2016 noticed above and other cognate legislation, including subordinate legislation bearing on the utilization, transport and disposal of fly ash in an environmentally sustainable manner.
...
15 We clarify that this judgment shall not be construed as a decision on merits upholding the validity of the notification dated 31 December 2021. Any party aggrieved by the terms of the notification would be at liberty to pursue the remedies which are available in law before the appropriate forum. (Emphasis Supplied)
35. That Fly Ash generated from BALCO‟s plant is sent to BALCO‟s Ash Dykes while some quantity is directly sent to Cement Plants and Brick Manufacturing Plants. The ash transportation from plant to dykes is done through High Concentration Slurry Disposal (HCDS) System. From the ash dykes, the fly ash is utilized of through various avenues such as mine void filling, infrastructure projects run by NHAI & CGPWD (CG Public Works 57 Dept.) and reclamation of low-lying areas. Land owners & various agencies approach BALCO for reclamation of low-lying areas. These owners/agencies send letters to BALCO seeking fly ash for reclamation purposes. The onus of getting the approval from SDM Revenue lies with the land owner/agency. BALCO takes the approval copy from them before proceeding with the project. The approvals taken by Land Owner/Agency are already on record at Annexure A/6 (Pg. 59/Application) i.e., request by Land Owner/Agency to BALCO for reclamation project. After this first level approval, BALCO also takes NOC from RO (CECB/SPCB) which constitutes the NOC documents attached by the applicant. Even in a case where some authorities require permissions for certain areas to be taken from the SDM, the answering Respondent has only sought all requisite permissions from CECB and no such other authority. The same shall be detailed further in the upcoming sections.
36. BALCO generates approx. 1740MW of electricity daily by utilising approximately 28,000 tonnes of coal per day (at 100% Plant Load Factor). This is not a fixed figure and is dependent on the requirement, thus, the generation and coal utilisation are dependent on the plant operation. Contrary to the averments in the Application, BALCO generates less than 14,000 MT of fly ash every day and the average generation is around 8-8.5 KT of fly ash. Reference in this regard be made to the following details:
(a) In the year 2019, BALCO utilised 7.6094 million tonnes of coal through which 2.869 million tonnes of Fly ash was generated.
(b) In the year 2020 - 2021, approx. 1771744.76 tonnes of Fly Ash were generated by BALCO at the 1200 MW TPP, approx.
743917.5 tonnes of Fly Ash was generated by BALCO at its 540 MW CPP (4X135). A portion of the said fly ash was disposed of in 58 the mined out Chotia Coal Mines and low-lying area at Tarda. The answering Respondent also received permission from CECB to dispose 1.6 MT of Fly Ash in abandoned Manikpur OCM of SECL. The details of these utilization have been duly furnished by BALCO before the MoEF& CC vide Letters (Bearing Ref. No. BALCO/POWER-1200MW/ENV/04/2021/93 & CPPII/ENV/01(A)/2021/94) dated 15.04.2021 titled ―Annual Implementation report for 2020-2021 on fly ash utilisation of BALCO 1200 MW Thermal Power Plant‖ and ――Annual Implementation report for 2020-2021 on fly ash utilisation of CPP- II (540 MW)‖ respectively.
37. In the year 2021-2022, 2453210 tonnes of coal were consumed due to which 795840 tonnes of Fly Ash was generated by BALCO at its CPP-II (540MW) unit (4X135 MW) located in Korba. 1711484 tonnes of Fly Ash were generated at the 1200 MW TPP (4X300 MW). The details of these utilisation have been duly furnished by BALCO before the MoEF& CC vide Letters (Bearing Ref. No. CPPII/ENV/01(A)/2022/86 and BALCO/POWER1200MW/ENV/04/2022/85) dated 30.04.2022 titled "Annual Implementation report for 2021-2022 on fly ash utilisation of CPP-II (540 MW)" and "Annual Implementation report for 2021-2022 on fly ash utilisation of BALCO 1200 MW. Ash generation in coal and lignite based TPPs in various forms such as dry ash, bottom ash, pond ash and mound ash are required to be managed in such a manner that it does not affect the environment. Utilisation of ash for reclamation of low-lying areas and abandoned quarries is recognised as an alternate option and therefore, the MoEF & CC has issued the aforementioned notifications, time and again, to address the utilisation of ash for various purposes.
38. In order to address the environmental concerns of fly ash produced, BALCO sought permission from CECB for disposal of Fly Ash through 59 reclamation of low-lying areas of Korba, Chhattisgarh. The sites selected for undertaking reclamation was done based on scientific assessments carried out by an independent expert body i.e., M/s Blacksmith Corporation Mining and Allied (OPD) Private Limited who assessed the suitable topography as per the Fly Ash Guidelines. That based on the requests, and after evaluating the land sites, CECB was pleased to grant No Objection Certificates to BALCO to undertake reclamation of the land sites. Some of these NOCs have been annexed to the present application - these NOCs along with the details of the land sites have been tabulated here in below:
A. Details of NOCs Granted to Balco by CECB for ash filling in low lying areas in Korba Dist. (C.G.) S. No. Date of NOC NOC No. & Pg. Area allocated for Ash No. in O.A. Disposal Documents
1. 05.10.2018 NOC No. 1230 Low-Lying Area at Vill. - Rogbahri, Tehsil - Korba (.030 acre, 0.298 acre, 0.429 acre and 0.429 acre)
2. 27.11.2018 NOC No. 1414 Low-Lying Area at Sangam Nagar Gram Panchayat - Dondro Distt -
Korba (C.G.) (3.0 Acre)
3. 14.06.2019 NOC No. 524 Low-Lying Area near Water Treatment Plant Kohadiya, Dist.
Korba (C.G.) (56.7 Acres)
4. 11.06.2020 NOC No.: 251 Low Lying Area at Village:
(Pg. 107) Barbuspur, Tehsil - Korba (C.G.) (1.46 Ha)
5. 15.07.2020 NOC No.: 421 Low Lying Area at Ratakhar, (Pg. 120) Tehsil - Korba (C.G.) (0.729 Ha)
6. 02.09.2020 NOC No.: 655 Low Lying Area situated at (Pg. 85) Village: Barbuspur, Tehsil - Korba (C.G.) (4.28 Ha)
7. 23.02.2021 NOC No.: 1517 Low Lying Area situated at Village (Pg. 93) Barbuspur, Tehsil - Korba (C.G.) (11.617 Ha, 0.972 Ha)
8. 01.03.2021 NOC No. 1550 Low Lying Area situated at Gram 60 (Pg. 137) Panchayat - Jambahar, Janpad Panchayat, Korba (C.G.)
9. 18.03.2021 NOC No. 1682 Low Lying Area situated at (Pg. 144) Dhelwadih, Tehsil and District Korba (C.G.) (0.101 Ha and 0.057 Ha)
10. 01.04.2021 NOC No.: 01 Low Lying Area situated at Village (Pg. 153) Barbuspur Tehsil, Korba (C.G.) (0.291 Ha, 0.024 Ha and 0.441 Ha)
11. 21.05.2021 NOC No. 42 Low Lying Areas situated at (Pg. 160) Village Barbuspur (Karranalia), Tehsil and District Korba (C.G.) (3.914 Ha)
12. 05.07.2021 NOC No. 189 Low Lying Areas situated at (Pg. 164) Village Godhi (Karrumula) Tehsil and District: Korba (C.G.) (11.808 Ha)
13. 16.08.2021 NOC No.: 383 Low Lying Area situated at Village (Pg. 170) - Dhongdarha Tehsil: Kartala, Dist.: Korba (C.G.) (4.569 ha)
14. 16.09.2021 NOC No.: 498 Low Lying Areas situated at (Pg. 179) Village Naktikhar, Tehsil - Korba (C.G.) (4.569 Ha)
15. 21.10.2021 NOC No.: 622 Private Land totalling 13.51 ½ (Pg. 64) Acre at Village - Urga, Tehsil -
Korba (C.G.)
16. 16.11.2021 NOC No.: 712 Low-lying areas situated at (Pg. 55) Village Dongdarha, Tehsil and District: Korba (C.G.)
17. 01.12.2021 NOC No.: 783 Low-lying area situated at Gram (Pg. 77) Panchayat - Katbitla, Janpad Panchayat - Korba District (C.G. ) (5.2 Ha)
18. 02.12.2021 NOC No.: 790 Low Lying Area at Village:
(Pg. 74) Dhongdarha, Tehsil: Kartala, Dist.
Korba (C.G.) (4.569 Ha)
19. 24.12.2021 NoC No.: 540 Low-Lying Areas situated at (Pg. 47) Gram: Satranga, District: Korba (C.G.) 61 S. No. Date of NOC NOC No. Area allocated for Ash Disposal
1. 11.03.2022 NOC No. 1279 Low-Lying Area at Gram -
Kurudih, Baraspur, Dist. - Korba (C.G.) (0.47 acre)
2. 11.03.2022 NOC No. 1281 Low-Lying Area at Gram -
Kharmora - Naktikhar, Dist. -
Korba (C.G.) (16.87 Acres)
3. 22.04.2022 NOC No. 62 Low-Lying Area at Vill. - Kukricholi (Bhaisma) (4.963 Ha.) & Village -
Urga (2.630 Ha), Dist. - Korba (C.G.)
4. 28.04.2022 NOC No. 88 Low-Lying Area at Vill. - Nonbirra, Tehsil - Kartala, Dist. - Korba (C.G.) (2.122 Ha)
39. During the whole process of land filling and reclamation, BALCO has consistently adhered to the terms and directives given under the extant Fly Ash Notifications, the reclamation has then been undertaken as per the Guidelines dated March, 2019 which in a piecemeal manner provide each and every step required to be followed by Thermal Power Plants in order to meet the objective of the Fly Ash Notifications. As stated in the Office Memorandum dated 28.08.2019 (Bearing Ref. No. F. No. 22-13/2019-IA.III) which is part of the Fly Ash Guidelines, under Para 7(i) the guidelines have been prepared "by CPCB for disposal of fly ash for reclamation of low-lying areas and in stowing/backfilling of abandoned mines/quarries shall be followed during disposal of ash in abandoned or working mines, as annexed and that there is not even a slightest avenue or room for aberration or violation; any anomaly whatsoever, while undertaking fly ash disposal, cannot pass unnoticed by the two authorities, namely, CECB and CPCB, who along with BALCO maintain constant vigil on the environmental conditions effecting the District of Korba. In this respect, BALCO is submitting six-monthly Environmental Reports for utilising Fly Ash to CECB, with copy to MoEF &CC who thoroughly scrutinise the measures 62 undertaken, both remedial and operational, and the technical levels of treatment of effluents so as not to cross the permissible thresholds.
40. Transportation of Fly Ash is done by independent transporters and agencies who are engaged by BALCO through contracts. While transporting the Fly Ash to the designated sites, these transporters are instructed to adhere to the regulations and no open trucks have been used as has been wrongly alleged by the Applicant. As per information with BALCO, all trucks transporting Fly Ash to the intended disposal sites are tarpaulin covered and disposal is done strictly in accordance with the Fly Ash Guidelines. In order to address the environmental concerns of fly ash produced, BALCO sought permission from CECB for disposal of Fly Ash through reclamation of low-lying areas of Korba, Chhattisgarh. The sites selected for undertaking reclamation was done based on scientific assessments carried out by an independent expert body i.e., M/s Blacksmith Corporation Mining and Allied (OPD) Private Limited who assessed the suitable topography as per the Fly Ash Guidelines. That based on the requests, and after evaluating the land sites, CECB was pleased to grant No Objection Certificates to BALCO to undertake reclamation of the land sites.
41. The matter of fly ash generation and disposal to mitigate air pollution during operation of TPP‟s was considered in O.A. No. 164 of 2018 (Ashwani Kumar Dubey vs. Union of India & Ors) and the Principal Bench of this Tribunal found following facts which are enumerated as follows:
―The Tribunal also considered the subject of parameters for determining environmental compensation. Apart from the said issues, there was specific consideration with regard to the breach of fly ash dyke of ESSAR Thermal Power Plant and NTPC, Vindhya Nagar at Singruali, M.P. In O.A. No. 63 164/2019, with reference to breach of fly ash dyke of ESSAR Thermal Power Plant and NTPC, Vindhya Nagar at Singruali, M.P., the Committee appointed by this Tribunal headed by Justice Rajes Kumar, former Judge of Allahabad High Court, in its report dated 03.11.2019 observed:-
―(2) By persuasion and monitoring, the Fly Ash disposal by the Thermal Power Plants has been increased but 100% disposal could not be achieved. Disposal of stocked Fly Ash has not yet been started. An exclusive meeting of the Thermal Power Plants has been held on 22nd October, 2019. The meeting was very successful. Some positive suggestions have come out to deal with the Fly Ash. Copy of the Minutes has already been sent by email. It is stated that the Fly Ash is the main cause of the air pollution in the Singrauli-Sonbhadra area. Since the installation of the Thermal Power Plant(s) from the year 1981 onwards, no sincere effort was made by the Thermal Power Plants for the disposal of Fly Ash. It is only because of the sincere effort made by the Committee and regular monitoring, the Thermal Power Plants have started taking steps for disposal of Fly Ash.
(3) Construction of the Fly Ash Dyke and its maintenance was not found technically sound and proper. Recently, two Fly Ash Dykes - one of ESSAR Thermal Power Plant and another of NTPC, Vindhyanagar were breached, causing heavy environmental damages. The Committee has taken serious note about this happening and has given direction to all Thermal Power Plants to get the certificate of the third party expert about the construction and stability of the Fly Ash Dyeke. The Committee is seriously monitoring.
(4) Since long, the industrial effluents have been drained in the Rihand Reservoir. The Fly the Fly Ash has also been drained by some of the Thermal Power Plants, Ash travelled to the Rihand Reservoir, polluting the water 64 of the Rihand Reservoir, which is only source of water.
The committee has taken a very serious note of this issue and directed the U.P. Pollution Control Board to prepare a DPR for de-silting of sludge in order to purify the water and to increase the capacity of the Rihand Reservoir which has been substantially reduced due to drainage of affluents and fly ash.
(8) Shri Ashwani Kumar Dubey has filed one Application seeking the various reliefs on account of the environmental damages being cause by the breach of Fly Ash Dyke of ESSAR Thermal Power Plant. The enquiry in pursuance thereof is going on. Shri Ashwani Kumar Dubey has also filed a second Application seeking various reliefs on account of the breach of the Fly Ash Dyke of NTPC Vindhyanagar causing environmental damages. The enquiry in this regard is going on and is pending.‖
18. Finally, the Tribunal passed following operative order:-
―30. We have considered the written submissions filed by the individual TPPs. In view of earlier orders dealing with the contentions of the TPPs, there is no merit in the stand that the said plants are not liable for 100% fly ash disposal. Difficulties pointed out are of no relevance as the same are to be resolved by the administration and not by the victims of pollution whose rights are being affected. Environment cannot be violated against statutory norms. Violation of statutory notifications needs to be visited sternly in terms of enforcing the same, recovering compensation and prosecuting the violators. Whatever be the individual circumstances, it cannot be a ground to disobey law and to commit criminal offence under the Water Act, Air Act and EP Act. There is no discretion available with this Tribunal to dispense with the mandate of law. Statutory provisions are binding on every TPP without any 65 exception. It is, thus, not necessary to go into the justification or otherwise of such impermissible defence of the TPPs.
31. In view of above, all TPPs must take prompt measures for disposal of both current and accumulated fly ash. In respect of non-compliant TPPs, Polluter Pays principle has to be applied from the cut-off date of 31.12.2017, apart from other statutory consequences for continued violations.
32. Thus, our directions are as follows:-
a. The TPPs may take prompt steps for scientific disposal of fly ash in accordance with the statutory notification issued by the MoEF&CC under the provisions of EP Act requiring 100% utilization and disposal of fly ash.
b. For the non-compliant TPPs, environmental compensation needs to be determined w.e.f. the cut-off date of 31.12.2017 as stipulated in the Notification dated 27.01.2016.
c. CPCB may accordingly compute and levy Environmental Compensation in accordance with the formula referred to above w.r.t. individual TPPs in accordance with law and submit compliance report to this Tribunal before the next date.
d. CPCB Guidelines of May 2019 for Utilization/Disposal of Fly ash for Reclamation of Low Lying Areas and in Stowing/Back filling of Abandoned Mines/Quarries may be complied.
e. Task Force of Ministry of Power and Ministry of Coal may recommend list of abandoned mines/quarries for mine back filling purposes to the CPCB. CPCB may notify the same accordingly 66 for use by the TPPs as per applicable guidelines and permission from State PCBs/PCCs.
f. A Committee comprising of CPCB and IIT Roorkee may assess the environmental damage with regard to the breach sites at Vidhyanchal TPP an Essar TPP in Singrauli area and submit its recommendation within three months. CPCB shall be at liberty to engage any other technical expert for this purpose.
g. The Committee comprising of Collector, CPCB and Member Secretary of MP State Pollution Control Board may assess the damage with regard to the breach sites at Vidhyanchal TPP and Essar TPP in Singrauli area to the crop and agricultural productivity and ensure effective restoration/remediation of affective sites within three months.
h. CPCB may ensure implementation of action plans approved by it in accordance with timeline as provided in the statute.
i. A joint Committee comprising of MoEF&CC, CPCB, IIT Roorkee and any other member considered necessary may submit quarterly progress report on recommendations of Expert Committee of Niti Aayog for enhanced utilization of fly ash in various sectors: mines, roads, cement, industries and bricks etc., along with its implementation status.
j. The present order is subject to proceedings pending before the Hon'ble Supreme Court and where stay is operative, this order will not operate till stay continues and thereafter abide by orders of Hon'ble Supreme Court.‖ .........
The recommendations in the report are as follows:-67
―i. Industrial units have engaged professional institute NEERI, Nagpur to assess the damage; the institute needs to assess the site specific long term direct or indirect impact on the flora fauna, human health and consumptive cost.
ii. Industrial units need to comply for 100 % fly ash utilization to avoid such incidence in future.
iii. To install monitoring stations on the affected sites, to continuously monitor the movement of plume underground or the leaching of toxic heavy metals from the sediment iv. Industrial units need to take care for the health of worker s employed for spill clean-up working.‖
42. The matter of fly ash disposal was again regulated vide notification dated 31.12.2021 which is quoted below:
―S.O. 5481(E).--Whereas by notification of the Government of India in the erstwhile Ministry of Environment and Forests vide S.O.763 (E), dated the 14th September, 1999, as amended from time to time, the Central Government, issued directions for restricting the excavation of top soil for manufacturing of bricks and promoting the utilisation of fly ash in the manufacturing of building materials and in construction activity within a specified radius of three hundred kilometres from the coal or lignite based thermal power plants;
And whereas, to implement the aforesaid notification more effectively based on the polluter pays principle (PPP) thereby ensuring 100 per cent utilisation of fly ash by the coal or lignite based thermal power plants and for the sustainability of the fly ash management system, the Central Government reviewed the existing notification; and 68 whereas environmental compensation needs to be introduced based on the polluter pays principle;
And whereas, there is a need to conserve top soil by promoting manufacture and mandating use of ash based products and building materials in the construction sector;
And whereas, there is a need to conserve top soil and natural resources by promoting utilisation of ash in road laying, road and flyover embankments, shoreline protection measures, low lying areas of approved projects, backfilling of mines, as an alternative for filling of earthen materials;
And whereas, it is necessary to protect the environment and prevent the dumping and disposal of fly ash discharged from coal or lignite based thermal power plants on land;
And whereas, in the said notification the phrase 'ash', has been used which includes both fly ash as well as bottom ash generated from the Coal or Lignite based thermal power plants;
And whereas, the Central Government intends to bring out a comprehensive framework for ash utilisation including system of environmental compensation based on polluter pays principle;
And whereas, a draft notification on ash utilisation by coal or lignite thermal power plants in supersession of the notification of the Government of India, Ministry of Environment and Forests published in the Gazette of India, Extra Ordinary part II, section 3, sub-section (i) vide S.O.763 (E), dated the 14th September, 1999, by notification in exercise of the powers conferred under 69 sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with clause (d) of sub-rule (3) of rule (5) of the Environment (Protection) Rules, 1986, was published in the Gazette of India, Extraordinary, Part II, section 3, sub-section (i), vide G.S.R. 285(E), dated the 22nd April, 2021 inviting objections and suggestions from all persons likely to be affected thereby before the expiry of sixty days from the date on which copies of the Gazette containing the said draft provisions were made available to the public;
And, whereas all the objections and suggestions received from all persons likely to be affected thereby in respect of the said draft notification have been duly considered by the Central Government;
Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with clause (d) of sub-rule (3) of rule (5) of the Environment (Protection) Rules, 1986, and in supersession of the Notification S.O.763 (E), dated the 14th September, 1999 except as respect things done or omitted to be done before such supersession, the Central Government hereby issues the following notification on ash utilisation from coal or lignite thermal power plants which shall come into force on the date of the publication of this notification, namely:-
A. Responsibilities of thermal power plants to dispose fly ash and bottom ash.-
(1) Every coal or lignite based thermal power plant (including captive or co-generating stations or both) shall be primarily responsible to ensure 100 per cent utilisation 70 of ash (fly ash, and bottom ash) generated by it in an eco-
friendly manner as given in sub-paragraph (2); (2) The ash generated from coal or lignite based thermal power plants shall be utilised only for the following eco- friendly purposes, namely:-
(i) Fly ash based products viz. bricks, blocks, tiles, fibre cement sheets, pipes, boards, panels;
(ii) Cement manufacturing, ready mix concrete;
(iii) Construction of road and fly over embankment, Ash and Geo-polymer based construction material;
(iv) Construction of dam;
(v) Filling up of low lying area;
(vi) Filling of category of 60-80 per cent and Provided also that 20per cent of ash generated in the final year of compliance cycle may be carried forward to the next cycle which shall be utilised in the next three years cycle along with the ash generated during that cycle.
(5) The unutilised accumulated ash i.e. legacy ash, which is stored before the publication of this notification, shall be utilised progressively by the thermal power plants in such a manner that the utilization of legacy ash shall be completed fully within ten years from the date of publication of this notification and this will be over and above the utilisation targets prescribed for ash generation through current operations of that particular year:
Provided that the minimum quantity of legacy ash in percentages as mentioned below shall be utilised during the corresponding year and the minimum quantity of legacy ash is to be calculated based on 71 the annual ash generation as per installed capacity of thermal power plant.
Year from date of publication 1st 2nd 3rd - 10th Utilisation of legacy ash At least 20 At least 35 per At least 50 (in percentage of Annual ash) per cent cent per cent Provided further that the legacy ash utilisation shall not be required where ash pond or dyke has stabilised and the reclamation has taken place with greenbelt or plantation and the concerned State Pollution Control Board shall certify in this regard. Stabilisation and reclamation of an ash pond or dyke including certification by the Central Pollution Control Board (CPCB) or State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall be carried out within a year from the date of publication of this notification. The ash remaining in all other ash ponds or dykes shall be utilised in progressive manner as per the above mentioned timelines.
Note: The obligations under sub-paragraph (4) and (5) above for achieving the ash utilisation targets shall be applicable from 1st April, 2022.
(6) Any new as well as operational thermal power plant may be permitted an emergency or temporary ash pond with an area of 0.1 hectare per Mega Watt (MW). Technical specifications of ash ponds or dykes shall be as per the guidelines of Central Pollution Control Board (CPCB) made in consultation with Central Electricity Authority (CEA) and these guidelines shall also lay down a procedure for annual certification of the ash pond or dyke on its safety, environmental pollution, available volume, mode of disposal, water consumption or conservation in disposal, ash water recycling and greenbelt, etc., and 72 shall be put in place within three months from the date of publication of this notification.
(7) Every coal or lignite based thermal power plant shall ensure that loading, unloading, transport, storage and disposal of ash is done in an environmentally sound manner and that all precautions to prevent air and water pollution are taken and status in this regard shall be reported to the concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) in Annexure attached to this notification.
(8) Every coal or lignite based thermal power plant shall install dedicated silos for storage of dry fly ash silos for at least sixteen hours of ash based on installed capacity and it shall be reported upon to the concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) in the Annexure and shall be inspected by Central Pollution Control Board (CPCB) or State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) from time to time.
(9) Every coal or lignite based thermal power plant (including captive or co-generating stations or both) shall provide real time data on daily basis of availability of ash with Thermal Power Plant (TPP), by providing link to Central Pollution Control Board's web portal or mobile phone App for the benefit of actual user(s).
(10) Statutory obligation of 100 per cent utilisation of ash shall be treated as a change in law, wherever applicable.73
B. For the purpose of utilisation of ash, the subsequent sub-paras shall apply.--
(1) All agencies (Government, Semi-government and Private) engaged in construction activities such as road laying, road and flyover embankments, shoreline protection structures in coastal districts and dams within 300 kms from the lignite or coal based thermal power plants shall mandatorily utilise ash in these activities:
Provided that it is delivered at the project site free of cost and transportation cost is borne by such coal or lignite based thermal power plants.
Provided further that thermal power plant may charge for ash cost and transportation as per mutually agreed terms, in case thermal power plant is able to dispose the ash through other means and those agencies makes a request for it and the provisions of ash free of cost and free transportation shall be applicable, if thermal power plant serves a notice on the construction agency for the same.
(2) The utilisation of ash in the said activities shall be carried out in accordance with specifications and guidelines laid down by the Bureau of Indian Standards, Indian Road Congress, Central Building Research Institute, Roorkee, Central Road Research Institute, Delhi, Central Public Works Department, State Public Works Departments and other Central and State Government Agencies.
(3) It shall be obligatory on all mines located within 300 kilometres radius of thermal power plant, to undertake backfilling of ash in mine voids or mixing of ash with external Overburden dumps, under 74 Extended Producer Responsibility (EPR). All mine owners or operators (Government, Public and Private Sector) within three hundred kilometres (by road) from coal or lignite based thermal power plants, shall undertake measures to mix at least 25 per cent of ash on weight to weight basis of the materials used for external dump of overburden, backfilling or stowing of mine (running or abandoned as the case may be) as per the guidelines of the Director General of Mines Safety (DGMS):
Provided that such thermal power stations shall facilitate the availability of required quantity of ash by delivering ash free of cost and bearing the cost of transportation or cost or transportation arrangement decided on mutually agreed terms and mixing of ash with overburden in mine voids and dumps shall be applicable for the overburden generated from the date of publication of this notification and the utilisation of ash in the said activities shall be carried out in accordance with guidelines laid down by the Central Pollution Control Board, Director General of Mines Safety and Indian Bureau of Mines.
Explanation.- For the purpose of this sub-paragraph, it is also clarified that the provisions of ash free of cost and free transportation shall be applicable, if thermal power plants serve a notice on the mine owner for the same and the mandate of using 25 per cent of ash for mixing with overburden dump and filling up of mine voids shall not be applicable unless a notice is served on the mine owner by thermal power plant.
(4) (i) All mine owners shall get mine closure plans (progressive and final) to accommodate ash in the 75 mine voids and the concerned authority shall approve mine plans for disposal of ash in mine voids and mixing of ash with overburden dumps. The Ministry of Environment, Forest and Climate Change (MoEFCC) has issued guidelines on 28th August, 2019 regarding exemption of requirement of Environmental Clearance of thermal power plants and coal mines along with the guidelines to be followed for such disposal.
(ii) The Ministry in consultation with Central Pollution Control Board (CPCB), Director General of Mine Safety (DGMS) and Indian Bureau of Mines (IBM) may issue further guidelines time to time to facilitate ash disposal in mine voids and mixing with overburden dumps and it shall be the responsibility of mine owners to get the necessary amendments or modifications in the permissions issued by various regulatory authorities within one year from the date of identification of such mines.
(5) (i) There shall be a committee headed by Chairperson, Central Pollution Control Board (CPCB) with representatives from Ministry of Environment, Forest and Climate Change, Ministry of Power, Ministry of Mines, Ministry of Coal, Director General of Mine Safety and Indian Bureau of Mines for identification of mines for backfilling of mine voids with ash or mixing of ash with overburden dump including examination of safety, feasibility (not economic feasibility) and aspects of environmental contamination and the committee shall get updated quarterly reports prepared regarding identified mines (both underground and opencast) for the stakeholder Ministries or Departments and the committee shall start identifying the suitable mines immediately after the publication of this notification.76
(ii) Thermal power plants or mines shall not wait for disposal of ash till the identification is done by the above mentioned committee, to meet the utilisation targets mandated as above.
(6) Filling of low lying areas with ash shall be carried out with prior permission of the State Pollution Control Board or Pollution Control Committee for approved projects, and in accordance with guidelines laid down by Central Pollution Control Board (CPCB) and the State Pollution Control Board or Pollution Control Committee (PCC) shall publish approved sites, location, area and permitted quantity annually on its website.
(7) Central Pollution Control Board after engaging relevant stakeholders, shall put in place the guidelines within one year for all types of activities envisaged under this notification including putting in place time bound online application process for the grant permission by State Pollution Control Boards (SPCBs) or Pollution Control Committees (PCCs).
(8) All building construction projects (Central, State and Local authorities, Govt. undertakings, other Govt. agencies and all private agencies) located within a radius of three hundred kilometres from a coal or lignite based thermal power plant shall use ash bricks, tiles, sintered ash aggregate or other ash based products, provided these are made available at prices not higher than the price of alternative products.
(9) Manufacturing of ash based products and use of ash in such products shall be in accordance with specifications and guidelines laid down by the 77 Bureau of Indian Standards, Indian Road Congress, and Central Pollution Control Board.
C. Environmental compensation for non-
compliance-
(1) In the first two years of a three years cycle, if the coal or lignite based thermal power plant (including captive or co-generating stations or both) has not achieved at least 80 per cent ash (fly ash and bottom ash) utilisation, then such non-compliant thermal power plants shall be imposed with an environmental compensation of Rs. 1000 per ton on unutilised ash during the end of financial year based on the annual reports submitted and if it is unable to utilise 100 per cent of ash in the third year of the three years cycle, it shall be liable to pay an environmental compensation of Rs. 1000 per ton on the unutilised quantity on which environmental compensation has not been imposed earlier:
Provided that the environmental compensation shall be estimated and imposed at the end of last year of the first compliance cycle as per the various utilisation categories as mentioned in sub-paragraph (4) of Para A. (2) Environmental compensation collected by the authorities shall be deposited in the designated account of Central Pollution Control Board.
(3) In case of legacy ash, if the coal or lignite based thermal power plant (including captive or co-
generating stations or both) has not achieved utilisation equivalent to at least 20 per cent (for the first year), 35 per cent (for the second year), 50 per cent (for third to tenth year) of ash generated based 78 on installed capacity, an environmental compensation of Rs. 1000 per ton of unutilised legacy ash during that financial year shall be imposed and if the utilization of legacy ash is not completed at the end of 10 years, an environmental compensation of Rs.1000 per ton shall be imposed on the remaining unutilised quantity which has not been imposed earlier.
(4) It shall be the responsibility of the transporters or vehicle owner to deliver ash to authorised purchaser or user agency and if it is not complied, then an environmental compensation of Rs. 1500 per ton on such quantity as mis-delivered to unauthorised users or non- delivered to authorised users will be imposed besides prosecution of such non-compliant transporters by State Pollution Control Board (SPCB) or Pollution Control Committee (PCC).
(5) It is the responsibility of the purchasers or user agencies to utilise ash in an eco-friendly manner as laid down at para B of this notification and if it is not complied, then an environmental compensation of Rs. 1500 or per ton shall be imposed by State Pollution Control Board (SPCB) or Pollution Control Committee (PCC).
(6) If the user agencies do not utilise ash to the extent obligated under para B or the extent to which they have been intimated through Notice(s) served under sub-paragraph (1) of para D, whichever is lower, they shall be liable to pay Rs. 1500 per ton of ash for the quantity they fall short off:
Provided that the environmental compensation on building constructions shall be levied at Rs.75/- per square feet of built up area of construction.79
(7) (i) The environmental compensation collected by Central Pollution Control Board from the thermal power plants and other defaulters shall be used towards the safe disposal of the unutilised ash and the fund may also be utilised for advancing research on use of ash including ash based products.
(ii) The liability of ash utilisation shall be with thermal power plants even after imposition of environmental compensation on unutilised quantities and in case thermal power plant achieves the ash utilisation of any particular cycle after imposition of environmental compensation in subsequent cycles, the said amount shall be returned to thermal power plant after deducting 10 per cent of the environmental compensation collected on the unutilised quantity during the next cycle and deduction of 20 per cent, 30 per cent, and so on, of the environmental compensation collected is to be made in case of utilisation of ash in subsequent cycles.
D. Procedure for supply of ash or ash based products.--
(1) The owner of thermal power plants or manufacturers of ash bricks or tiles or sintered ash aggregate shall serve written notice to persons or agencies who are liable to utilise ash or ash based products, offering for sale, or transport or both. (2) Persons or user agencies who have been served notices by owner of thermal power plants or manufacturers of ash bricks or tiles or sintered ash aggregate, if they have already tied up with other agencies for the purpose of utilisation of ash or ash 80 products, shall inform the thermal power plant accordingly, if they cannot use any ash or ash products or use reduced quantity.
E. Enforcement, Monitoring, Audit and Reporting.--
(1) The Central Pollution Control Board (CPCB) and the concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall be the enforcing and monitoring authority for ensuring compliance of the provisions and shall monitor the utilisation of ash on quarterly basis. Central Pollution Control Board shall develop a portal for the purpose within six months of date of publication of the notification. The concerned District Magistrate shall have concurrent jurisdiction for enforcement and monitoring of the provisions of this notification. (2) (i) Thermal power plants shall upload monthly information regarding ash generation and utilisation by 5th of the next month on the web portal. Annual implementation report (for the period 1st April to 31st March) providing information about the compliance of provisions in this notification shall be submitted by the 30th day of April, every year to the Central Pollution Control Board, concerned State Pollution Control Board or Pollution Control Committee (PCC), Central Electricity Authority (CEA), and concerned Integrated Regional Office of Ministry of Environment, Forest and Climate Change by the coal or lignite based thermal power plants. Central Pollution Control Board and Central Electricity Authority shall compile the annual reports submitted by all the thermal power plants and submit to Ministry of Environment, Forest and Climate Change by 31st May.
81
(ii) All other user agencies shall submit consumption or utilisation or disposal of ash and use of ash based products as mandated in this notification in the compliance report of Environmental Clearance (EC) issued by Ministry of Environment, Forest and Climate Change or State Level Environment Impact Assessment Authority (SEIAA) or Consent to Operate (CTO) issued by State Pollution Control Board (SPCB) or Pollution Control Committee (PCC), whichever is applicable. The Central Pollution Control Board (CPCB) or State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall publish annual report of ash utilisation of all other agencies except thermal power plants to review the effective implementation of the provisions of the notification. (3) For the purpose of monitoring the implementation of the provisions of this notification, a committee shall be constituted under the Chairperson, Central Pollution Control Board (CPCB), with members from Ministry of Power, Ministry of Coal, Ministry of Mines, Ministry of Environment, Forest and Climate Change, Ministry Road Transportation and Highways, Department of Heavy Industry as well as any concerned stakeholder(s), to be nominated by the Chairman of the committee. The committee may make recommendations for effective and efficient implementation of the provisions of the notification. The committee shall meet at least once in six months and review annual implementation reports and the committee shall also hold stakeholder consultations for monitoring of ash utilisation as mandated by this notification by inviting relevant stakeholder(s) at least once in six months. The committee shall submit 82 the six monthly report to Ministry of Environment, Forest and Climate Change (MoEFCC).
(4) For the purpose of resolving disputes between thermal power plants and users of ash or manufacturer of ash based products, the State Governments or Union territory administration constitute a Committee within three months from the date of publication of this notification under the Chairman, State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) with representatives from Department of Power, and one representative from the Department which deals with the subject of concerned agency with which dispute is made.
(5) The compliance audit for ash disposal by the thermal power plants and the user agency shall be conducted by auditors, authorised by Central Pollution Control Board (CPCB) and audit report shall be submitted to Central Pollution Control Board (CPCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) by 30th November every year. Central Pollution Control Board (CPCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall initiate action against non-compliant thermal power plants within fifteen days of receipt of audit report.‖
43. In reply to the contention of green belt development as argued by the learned counsel for the applicant, the respondent has submitted that the green cover amounts to 36.22 % on the basis of calculation based by National Remote Sensing Centre (NRSC) which is more than 3.22 % than 83 the requirement under the law. It is further argued that on 29.10.2021 BALCO has submitted an action plan to achieve 33% of green area development as per the total land area belonging to BALCO and this target may be achieved in the financial year 2023-2024. It is further argued that BALCO has already placed before this Tribunal its practical difficulty in creating green belt around the boundary wall of the plant since there is no vacant land around the boundary of plant and there are already longstanding residential structures of local peoples. This lacks the practical viability to develop a green belt around the plant premises. However being a responsible company BALCO has complied with plantation in nearby areas. This issue has been dealt in detail by this Tribunal in the case titled as Rajesh Kumar Sethi v. MoEF&CC & Ors. Appeal No. 06/2015 dated 08.09.2016 which was upheld by the Hon‟ble Supreme Court in Civil Appeal Diary No. 6923 of 2018 dated 01.05.2018.
44. The learned counsel for the respondent has submitted that all the matters raised in this applications were heard and decided by the competent court and the matter was also raised in Civil Appeal Diary No. 6923 of 2018 which was heard and decided by the Hon‟ble Supreme Court and was dismissed. The contention of the learned counsel for the PP is that no further issues with regard to the issues raised in the previous applications can be raised in this application.
45. The learned counsel for the applicant has submitted that the matter raised in Anil‟s case and the present case are different. In the matter of Anil‟s case the red mud ponds and ash dyke were the issues while Dr. Anil or Ramavtar were not directly affected or suffered by the pollution and thus this is a separate and independent issue. 84
46. It is further argued that the compensation to the applicants were not directly in issue in above referred matters and the agriculture department in above noted cases has informed that due to absence of any complaint about soil degradation the department has not carried out any such study while in the present case the contention of the applicant is that damage was caused to the land owners hence soil testing is necessary and it can be seen by the State of Chhattisgarh or the competent authority. Further distinction as raised by the learned counsel is that the industry did not provide the timeline frame for utilisation of legacy fly ash and BALCO must provide a time frame for the unitization for the fly ash in view of the notification dated 31.12.2021. As discussed above the notification dated December, 2021 provides certain guidelines and time frame and it is for the CECB to regulate and monitor the compliance and in case of non compliance the concerned statutory authority shall ensure in accordance with the law.
47. The next contention of the applicant is that BALCO has failed in complying with the amendment in the conditions stipulated under consent to operate under Section 25 & 26 of Water (Prevention and Control of Pollution) Act, 1974 and under Section 21 of Air (Prevention and Control of Pollution) Act, 1981 because of which the ash flooded in the land of villagers at Rogabhari and nearby villagers and the compensation has not been paid. In order to prevent such incident in future BALCO must develop a green belt and lastly they must compensate for the harm caused to the environment as per the polluter pay principle.
48. The reliance has been taken on Prafulla Samantha vs. MoEF&CC (2009) ILR 5 Delhi 821, Delhi Court held that :
―The world as we know is gravely imperiled by mankind's collective folly. Unconcern to the environment has reached such 85 damaging levels which threatens the very existence of life on this planet. If standing before a special tribunal, created to assess impact of projects and activities that impact, or pose potential threats to the environment, or local communities, is construed narrowly, organizations working for the betterment of the environment whether in form of NGOs or otherwise, would be effectively kept out of the discourse, that is so crucial an input in such proceedings. Such association of persons, as long as they work in the field of environment, possess a right to oppose and challenge all actions, whether of the State or private parties, that impair or potentially impair the environment. In cases where complaints, appeals etc. are filed bona fide by public spirited interested persons, environmental activists or other such voluntary organisations working for the betterment of the community as a whole, they are to be construed as "aggrieved persons" within the meaning of that expression under Section 11 (2) (c) of the Environment (Protection) Act, 1986.
49. That in Biswaranjan Paramuru vs. Union of India in O.A. No. 225 of 2014, the Hon‟ble Chairperson, Principal Bench, NGT directed Hindalco Industries Limited to pay compensation of fifty lakhs rupees on the basis of Polluter Pay Principle for polluting the agricultural land by emitting fluoride as beyond prescribed limit. Hon‟ble Chairperson directed as follows :-
14. The above resume of the facts shows that though there were incidents of discharge of effluents particularly the fluoride which affected the health and the land of the nearby farmers, as at present, there is no evidence to show continuing pollution.
15. However, having regard to the past events and by way of precaution, we direct the CPCB to once again carry out a detailed inspection within one month from today. The CPCB may examine whether any further remedial measures are 86 required. If such measures are recommended, respondent no. 5 may adopt the same.
16. We are also of the view that having regard to the magnitude of damage suffered by the inhabitants, apart from the compensation already paid, respondent no. 5 must deposit further sum of Rs. 50,00,000/- (Rupees Fifty Lakh only) with the District Legal Services Authority, Sambalpur within one month from today. The said amount may be spent, in accordance with a scheme to be framed by the District Legal Services Authority in consultation with the District Administration and respondent no. 5, for development and welfare of the affected farmers in the area.
50. In the matter of Anjani Jaiswal V. Union of Inidia & Ors. in O.A. No. 453 of 2019 in order dated 11.10.2019, Principal Bench, NGT observed that :-
―We take for consideration the report dated 21.08.2019 furnished by the MPPCB which refers to serious level of pollution prevailing in Singrauli area. A Committee was constituted to assess the quantum of compensation based on laid down norms which are not under challenge. In the light of directions, notifications and norms on the subject, the compensation in respect of 11 units was assessed as follows:
―Details of imposed Environmental compensation‖ As per the Environmental Compensation guidelines framed by CPCB in compliance of order 31.08.2018 in O.A. 593/2017 the maximum environmental compensation is Rs. 30,000/- per day of non-compliance. The total amount of 56,08,50,000/- (Fifty Six Crore Eight Lac Fifty thousand rupees) may be imposed upon the 03 TPP & 08 NCL mining project against the noncompliance of the major notification, recommendations issued since 2014‖.87
51. With regard to the plantation the respondent has submitted the detailed chart of plantation and total sapling as follows :
Plantation Details: M/s Bharat Aluminium Co. Ltd (BALCO) Korba(CG) Year BALCO PLANT BCPP Total No. of Percenta Location Species & TOWNSHIP saplings Saplings ge including Su Survived No of Area No of BCPP BALCO rvived Percenta Sapling in Sapling Area & BCPP ge % Planted Acre Planted in BALCO BCP Acre 2002-03 55000 54 10000 10 65000 51745 79.61 Plant boundary wall Sagwan, Karanj plantation sites, Sarai, Nilgiri, 2003-04 30000 29 10000 10 40000 33252 83.13 inside township, subabul, BCPP township, plant Gulmohar, 2004-05 11000 10 21000 21 32000 25335 79.17 and ash dyke area Mango and Fruit 2005-06 57000 56 10000 10 67000 53278 79.52 and roadside of plant bearing saplings and township.
2006-07 130000 128 5000 5 135000 106782 79.10
2007-08 35000 32 5000 5 40000 33600 84.00
2008-09 13000 12 1000 1 14000 11276 80.54 BCPP Plant and Sagwan, karanj,
township plantation Sarai, Nilgiri,
area Subabul.
Gulmohar,
Mango and Fruit
bearing saplings
2009-10 53500 52.5 1500 1 55000 40100 72.91 Townshipand Sagwan, karanj,
Hariyar Chhattisgarh Sarai, Nilgiri,
plantation Subabul.
programme (roadside Gulmohar,
plantation in Mango and Fruit
Devpahri road) bearing saplings
2010-11 54850 54 150 0 55000 39870 72.49 Hariyar Chhattisgarh Sagwan, karanj,
plantation program Sarai, Nilgiri,
BCPP Subabul.
Gulmohar,
Mango and Fruit
bearing saplings
2011-12 20000 18.5 0 0 20000 16875 84.38 Near stadium joggers Ashoka,
park Sagwan, Karanj,
Gulmohar
2012-13 5600 5 0 0 5600 4826 86.18 Near kali mandir Karanj,
Gulmohar
2013-14 4150 4 650 0.65 4800 4025 83.25 Inside plant BCPP Neem, Guava,
ash dykes DPS Karanj,
school Gulmohar
2014-15 35700 34 0 35700 30638 85.82 Lalghat plantation Sagwan, Karanj,
area inside roads mix fruits plants
2015-16 30000 28 0 30000 25434 84.78 Near township office Sagwan, Karanj,
ash dykes, cooling mix fruits plants
tower inside/outside.
ETP boundary wall
1200 MW, behind
alumina plant
2016-17 30000 28 0 30000 25500 85.00 Balco plant and Sagwan, Karanj,
Gulmohar,
88
around township Guvava Jamun,
Sehtut, Sagwan.
2017-18 5000 4 0 5000 4100 82.00 In and around plant Sagwan, karanj,
and township Subabul.
Gulmohar,
Guvava, Jamun,
Sehtut, Mango
2018-19 5000 4 0 5000 4000 80.00 In and around plant Sagwan, karanj,
and township Subabul.
Gulmohar,
Guvava, Jamun,
Sehtut, Mango,
Black Sirus,
Neem
2019-2020 15000 13 0 15000 12900 86.00 Near ash dyke, karanj, Satwan,
townshop and plant Gulmohar,
premises Mango, Amla,
Neem, Bamboo
2020-2021 10000 9 0 10000 8420 84.00 Ash dyke 3 band at karanj, Satwan,
STP area Gulmohar,
Mango, Amla,
Neem, Bamboo
599800 575 64300 65 664100 531956 80.10
52. In the matter of payment of compensation, it is argued that many representations and court disputes, on June 12, 2020 the sub divisional magistrate in the matter of Rogbahari vs. BALCO in 25/b-121/2019-2020 vide its order dated June 12, 2020 directed M/s BALCO to pay compensation to a list of a few villagers whose land was damaged by the pollution caused by the ash dyke of M/s BALCO and that on July 07, 2020 M/s BALCO paid compensation amounting to Rs. 22,83,567/- (in words, rupees Twenty Two Lakhs Eighty Three Lakhs Five Hundred and Sixty Seven only) for the year 2016-2017 to 2019-2020. However it is pertinent to mention that the applicants and many villagers who are directly affected by the pollution caused by ash dyke of M/s BALCO have not been included in the aforestated list for reasons unknown to the applicants and that they are yet to be monetarily compensated which is pending since long.
53. In reply to the above contents it has been submitted that compensation was paid as per survey and valuation provided by the SDM (Revenue) and that as 89 per SDM order, BALCO presented a Banker Cheque for said payment but the SDM (Korba) imposed penalty on this amount which was challenged before the Collector Court and said matter is pending for adjudication in the Collector Court for further orders.
54. In view of the above facts, the matter of compensation, quantum of compensation, payment of compensation and the entitlement of compensation are pending before the Revenue Court/Collectorate or the authority working under the Collector and the applicant or anyone aggrieved by any order passed by the Competent Authority or anyone who want to file any application for payment of compensation may file the application before the Competent Authority Collector before whom the matter is pending and the Competent Authority may pass a suitable order. Since the matter is pending before the Competent Court having the jurisdiction to decide it, thus it would not be proper to proceed in the matter of compensation which is pending before the Collector concerned.
55. In view of above contentions, we direct the respondents that the guidelines issued by the MoEF &CC with regard to disposal of fly ash and legacy fly ash (notification issued in December, 2021) must be strictly enforced and the timeline provided by the above office memorandum must be adhered to and in case of any non-compliance or violation, the State PCB/CECB must take necessary legal action according to law and ensure the compliance of the guidelines issued by the MoEF&CC. With regard to applicant‟s prayer for payment of compensation, we provide liberty to the applicant to raise his grievances before the Competent Court/Collector concerned by way of moving application or to raise the issue in pending application and the collector may decide the matter of compensation, eligibility and amount of compensation according to rules.90
56. CECB is further directed to ensure the compliance of the development of the green belt in accordance with the law. With these observation Original Application No. 65/2022 stands disposed of.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 21st February, 2023 O.A. No. 65/2022 PN 91