National Green Tribunal
Bhavnaben Yogeshbhai Sarpanch vs The Union Of India Through Secretary on 12 December, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Appeal No. 57(THC)/2018 (WZ)
IN THE MATTER OF :
1. Bhavnaben Yogeshbhai
Sarpanch, Village Padhar,
Taluka- Bhuj, Kutch,
Pin Code- 3701105.
2. Rajesh Naran Khungla,
Member, Taluka- Panchayat,
Village Padhar, Taluka Bhuj,
Kutch,
Pin Code : 3701105
3. Arvind Kana Khungla
Village Padhar, Taluka Bhuj,
Kutch,
Pin Code. 3701105
.....Appellant(s)
Versus
1. The Union of India,
Through the Secretary, Ministry of Environment,
Forests and Climate Change Paryavaran Bhavan,
Lodi Road, New Delhi.
2. Balkrishna Industries Limited,
BKT House, C/15, Trade World,
Kamala Mills Compound,
Senapati Bapat Marg,
Lower Parel, Mumbai, 400013
3. Gujarat Pollution Control Board,
Paryavaran Bhavan, Sector 10-A
Gandhinagar, 382010, Gujarat.
4. The State of Gujarat,
Through the Additional Chief Secretary,
Forest and Environment Department,
Block No. 14, 8th Floor.
Sachvaliya, Gandhinagar, Gujarat.
....Respondent(s)
Counsel for Appellant(s):
None appeared
Counsel for Respondent(s):
Mr. Rahul Garg, Advocate for R-1/ MoEF&CC
Shri. T. N. Subramanian, Senior Advocate along-with
Ms. Atika Vaz, Mr. Saurabh Kulkarni and Ms. Anumeha K., Advocates for R-2
Page 1 of 25
Mr. Maulik Nanavati, Advocate for R-3/GPCB.
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 06.12.2022 Pronounced on : 12.12.2022
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Judgment
1. This appeal has been preferred against the Environmental Clearance dated 8th January, 2018 granted by the Respondent No.1/ MoEF&CC to Respondent No.2/ Balkrishna Industries Limited (Project Proponent) for the Addition of Carbon Black Facility in Existing Plant at Kutch and it is further prayed that the Respondent No.2/ Balkrishna Industries Limited be directed to desist from carrying on operation at the project site. Further, it is prayed that the Respondent No.1/ MoEF&CC be directed to constitute a fact- finding committee comprising of technical experts along with representatives of the local committee, to prepare a comprehensive report regarding the extent of the environmental damage caused to the 22 affected villages falling within a 10km radius of the plant. Further, it is prayed that Respondent No.1/MoEF&CC be directed not to issue Environmental Clearance (EC) pertaining to the project in question for addition of a Carbon Black Manufacturing unit.
2. The brief facts of this appeal are as follows:-.
The Appellant No.1 is the Sarpanch of the Village Padhar, Appellant No.2 is member of the Taluka Panchayat, Village Padhar. The unit of the Respondent No.2, manufacturing tubes and tyres, is located at Plot No. 470, 544/1, 545/1, 555 in Paddhar Village, Bhuj Taluka, Kutch District, Gujarat which has been granted Environmental Clearance(EC) for the addition of a Carbon Black Manufacturing unit having a capacity of 11500 TPM, for which public hearing was conducted on 26.09.2017, as per the requisite procedure. The location of Project Proponent‟s unit is Page 2 of 25 eight highly dense reserved forests, surrounded by the 22 villages, inhabited by the people belonging to Schedules Caste, Scheduled Tribe and other Backward Class categories, who are mainly engaged in animal husbandry and farming activities. The fertility of the land has significantly eroded due to the manufacturing units of the Respondent No.2, which are in operation in the region since 2011, when the Respondent No.2 had initially set up a tubes and tyres manufacturing unit. The scale of the operations of the Respondent No.2 has grown exponentially through the years, and in 2012, the Respondent No.2 had obtained an Environmental Clearance(EC) for the construction of 20MW coal-based captive thermal power plant to meet the power and steam requirement of its manufacturing plant. The Respondent No.2 did not comply with substantial conditions of the first Environmental clearance (EC) dated 20.03.2012. Now, Respondent No.2 intends to expand its scale of operations even further, by proposing Carbon Black Manufacturing unit to be added to the existing plant, for which it has submitted an online proposal for the Terms of Reference(ToR) along-with the Form I, draft ToR and Pre-feasibility Report(PFR).
3. The said project falls in the category „A‟ of the Schedule to the EIA Notification of 2006 due to it‟s being Petrochemical based plant. Accordingly it was appraised at the Central Level by an Expert Appraisal Committee (EAC) in meeting held on 15.06.2017 and ToR for the said project were recommended. Respondent No.1 issued the ToR in favour of the Respondent No.2 on 25.07.2017 communicating that the ToR stipulated therein would be in addition to ToR available on the website of the Respondent No.1 applicable to all the projects of a similar scale/size. The said ToR did not require the preparation of a cost-benefit analysis of alternatives of the said project, accordingly the final EIA report of the said project does not record a cost-benefit analysis of the alternatives of the said project. After the receipt of ToR, Respondent No.2 appointed M/s Kadam Environmental Consultants to conduct the Environmental Impact Page 3 of 25 Assessment (EIA). The draft EIA report was submitted to the District Collector Office, Kutch, District Development Office, Kutch, District Industry Centre, Kutch, Taluka Development Office Bhuj, Chief Conservator (Forest), and the regional office of the GPCB, but was not submitted to the District Magistrate or to the Zilla Parishads, as mandated under the EIA Notification 2006. On learning of the scheduled public hearing proposed to be held on 19.09.2017, several representations were sent to the concerned authorities urging them to cancel the said public hearing in the light of the large scale opposition to the said project due to the likely damage that the existing project had caused due to release of untreated effluent into nallahs, damage to agricultural yield and public health, but no response was received. The Respondent No.3/Gujarat Pollution Control Board(GPCB), had conducted the public hearing, 29.09.2017, at which a large number of people, approximately 2200, from the 22 villages appeared and attended the hearing and vociferously opposed the said project on the following grounds:
a. The proposed project will result in large scale degradation of the environment, would impact adversely the agricultural activities and the animal husbandry, as well as public health.
b. The untreated water being disposed of in the open, would affect the people adversely. The minutes of previous public hearing were demanded to be circulated but were not circulated. c. The local people were assured to be given employment in the factory of Respondent No.2, but were not given.
d. The untreated polluted water being released into the streams from the unit of the Respondent No.2 would contaminate the source of drinking water.
e. The proposed green belt to be provided around the periphery of the project in terms to Environmental Clearance(EC) dated 20.03.2012, was not provided.
Page 4 of 25
f. The coal was being transported in open vehicles causing pollution.
g. Several hundred livestock had perished on consuming polluted water.
h. The Carbon emitted from the carbon plant will affect the production of china clay.
4. It is further mentioned that the convenor of the public hearing, during public hearing had stated that the questions related to the project proponent would be answered in writing as it was not possible to reply to all the queries, and that the issues raised there-at would be referred to the higher authority. It is apparent from the public hearing that it was merely an empty formality because the minutes of the meeting were not read back to the participants; the seating arrangements were not adequate; not everyone was given a chance to speak and the public hearing was adjourned prematurely; the representatives of the Respondent No.2 did not give the details required for the answers to the questions being posed by the participants; video recording of the public hearing was not provided to the participants.
5. The final EIA report was submitted on 17.10.2017 which included the minutes of the public hearing undertaken on 26.09.2017. The said report identifies the air pollution as the main environment issue for the proposed project, because of which it is noted at page 156 that "The air pollutants of present project are hazardous, though within the limit, it would have long term effect on agriculture in the region. Studies showed that SOx showed adverse impact on exposure to castor and papaya plantation." The local farmers bore the brunt of the toll taken by the polluted air and soil of the region.
6. The EIA report was appraised in the 31st meeting of the Expert Appraisal Committee (EAC) of MoEF&CC on 23. 11. 2017 and recommend to grant the Environmental Clearance to the project on 23.11.2017 itself, after having considered the report only once. The minutes of the meeting of Page 5 of 25 the 31st EAC do not reflect substantial discussion regarding the contents of the EIA report. On page 182 of EIA report, it is noted that "In Bhuj, rainfall is the main source of recharge to groundwater aquifer. Although, the water supply to this industry is from surface water, which will reduce groundwater recharge. From the groundwater point of view this area falls in critical category. Therefore, measures need to be taken for water conservation by constructing recharge structures." However, on the next page of the report itself, it is noted that the use of ETP waste water, which is water treated through recharge structures, can result in the soil becoming saline/alkaline. On page 182 of the report, it is noted that "It is pertinent to mention that groundwater velocities are infinitely small. Moreover in case of this site hydraulic parameters are poor. Therefore, in the eventuality of any entry/ leakage of pollutant due to industrial activity into underlying groundwater aquifer, may take time to be noticed." The said observation would indicate that the measures suggested in the report to control the effect of effluent discharge have been recorded as being likely to lead to the degradation of the soil in a manner which is unlikely to be immediately detected. However, this did not form the basis of any meaningful discussion of the EAC while deciding to recommend clearance to the said project.
7. Following the decision of the EAC on 23.11.2017, the final Environmental clearance for the said project was issued on 08.01.2018, and the same was published in the Dainik Bhaskar newspaper on 16.01.2018 through which appellant came to now of it.
8. Regarding Public Hearing It is submitted that Appendix IV to the EIA Notification, 2006 set out the procedure to be followed for the conduct of public hearing. The purpose of public hearing is to know the concerns of affected people and is an integral part of analysing the project. In case in hand there is no meaningful participation of the people as a number of issues have been left unaddressed, as is reflected in the minutes of the meeting of the Page 6 of 25 public hearing. There were no responses to a number of pertinent questions raised by the Villagers. Moreover, in response to a large number of questions it was assured that answers would be provided later in writing, but were never provided. Adequate seating arrangement was not made because of which a large number of people had left. The meeting was abruptly declared as concluded. The EIA report curiously records that "Since there is no oral presentation related to the environment, with the consent of the Chairman of the public hearing, the process of public hearing have been declared concluded......." The said statement is apparently false. A representation was addressed to the Respondent No.3 with regard to the improperly conducted public hearing and request was made to conduct the public hearing afresh, but no action was taken.
9. Impact on Health of Local Residents:-
The plant of the Project Proponent contaminated source of drinking water. It released unwanted toxins into the air and reduced the quality of soil. Water pollution and soil pollution has been caused due to inefficiency in disposal of waste. It led to chronic health problem such as lung disease, cardiovascular diseases, respiratory diseases as well as malaria etc. Several reports have been annexed related to the patients suffering from swollen supraclavicular node, acute thrombolysis, and coronary artery disease. The local residents had made additional attempts to raise their grievances after the conclusion of the public hearing, but no reply was received. The reliance is placed by the appellant on Alaknanda Hydro Power Company Limited v/s Anuj Joshi & Ors.{2014 (1) SCC 769} and Lafarge Umiam Mining Private Ltd. v/s Union of India & Ors {AIR 2011 SC 2781} and prayed that Environmental Clearance granted should be set aside as it was mere formality in the present case and as no actual public hearing took place.
10. The stand of Respondent No.2 / Project Proponent as follows:- Page 7 of 25
The answering respondent is a leading manufacturer and exporter of tyres which has established four state-of-the-art manufacturing units at Waluj, Aurangabad in Maharashtra, Bhiwadi & Chopanki in Rajashtan and Bhuj in Gujarat. Considering the export potential and close proximity of port(Mundra), the answering Respondent established a state-of-the-art tyre manufacturing unit along with a 20 MW coal based Captive Power Plant at Village Padhdhar, Taluka-Bhuj, District- Kutch, Gujarat, after obtaining all the requisite permissions / clearances, including Consent to Establish and Consent to Operate from Gujarat Pollution Control Board (GPCB), factory license from the Directorate of Industrial Safety and Health and after fulfilment of all other requisite regulatory compliances. The answering respondent also obtained Environmental Clearance (EC) dated 20.03.2012 from the State Environment Impact Assessment Authority (SEIAA) for the Captive Power Plant. These clearances/ permissions have been renewed, as applicable, from time to time by the regulatory authorities after ascertaining compliance of the terms and conditions stipulated therein. In the year 2017, with a view to reducing its heavy reliance on importing carbon black, which is one of the most important raw material/ ingredient in tyre manufacturing, the answering respondent proposed the addition of Carbon Black manufacturing facility (11500MT/month) at the existing plant. This move was also environmentally efficient, since the amount of coal being used for generating steam to run the Power Plant could be reduced by the Offgas generated in the Carbon Black Process, which in turn would reduce the pollution load. The answering respondent submitted an online proposal on 31.05.2017 to the Respondent No.1 for Terms of Reference (ToR), for which Respondent No.1 issued ToR dated 25.07.2017 after observing that the Expert Appraisal Committee (EAC) had noted satisfactory compliance of the EC dated 20.03.2012.
Subsequently, the answering Respondent instituted Environment Impact Assessment (EIA) study through an accredited Environment Consulting Page 8 of 25 Agency i.e. Kadam Environmental Consultants in order to assess the impact on environment, addition of Carbon Black facility at the plant, based on which a draft EIA report dated August, 2017 and Executive Summary dated August, 2017 were prepared. The answering Respondent submitted soft and hard copy of these documents to Respondent No.3, and made an application to Respondent No.3 for conducting the public hearing. A public notice was issued regarding that on 23.08.2017 (in English and Gujarati) for conducting the public hearing at 10.00 am on 26.09.2017, at Common Plot of Paddhar Gram Panchayat, opposite Paddhar Bus Station, Bhuj-Bhachau Highway, Village Paddhar, Taluka Bhuj, District- Kutch. The news item was also published in the Times of India (English newspaper) and in Divya Bhaskar (Gujarati newspaper) on 25.08.2017. In compliance with the EIA Notification, 2006, the answering Respondent forwarded the physical and soft copies of draft EIA report and the Executive Summary to the District Collector with covering letter dated 06.09.2017; to the District Development Officer with covering letter dated 06.09.2017; to the Taluka Development Officer with covering letter dated 06.09.2017; to the District Industrial Centre with covering letter dated 06.09.2017; to the Regional Office of Respondent No.1 with covering letter dated 26.08.2017, and to Respondent No.1 (IA Division) with covering letter dated 26.08.2017.
11. The draft EIA Report and the Executive Summary were also made available electronically at the website of Respondent No.3. The answering Respondent widely publicized the public hearing to ensure maximum participation from the local people. The District Magistrate Kutch presided over the public hearing assisted by a representative of the Member Secretary GPCB. The answering respondent made a detailed presentation on the proposed project and the finding of EIA and Risk Assessment Report in Gujarati language, to the public present and also responded to the queries raised through the written representations made by the local residents. After the public hearing, EIA Report dated Page 9 of 25 October, 2017 was prepared. The answering Respondent made detailed presentation before the EAC in its 31st meeting on 23. 11. 2017, where-in during its deliberations, EAC noted that the EIA report "is in compliance of the ToR issued for the project reflecting the present environmental concerns and the projected scenario for all the environmental components. Issues raised during the public hearing have been duly addressed by the project proponent........The monitoring report on compliance status of existing EC conditions, forwarded by the Ministry's Regional Office At Bhopal vide letter dated 15th May, 2017 for CPP of 20 MW (site visit carried out 19th April, 2017) is found to be satisfactory." Based on the recommendations of the EAC, Respondent No.1 issued impugned Environmental Clearance (EC) dated 08. 01. 2018 in favour of the answering respondent. Now, the appellants are seeking setting aside of the impugned EC primarily on the grounds of alleged non-compliance of the previous EC dated 20. 03. 2012 and the purported violation of the prescribed norms and procedure in the conduct of the public hearing, which is completely erroneous and merits to be dismissed. In para 3 of the affidavit, answering respondent has submitted that the appellants had made no correspondence prior to the public hearing, urging the concerned authority to cancel the public hearing. The concerns raised at the public hearing dated 26. 09. 2017, stand answered as follows.
Para No. Issues raised during Response of the Answering
Public Hearing / the Respondent
present Appeal
13.a. That the company has a The answering Respondent
history of showing is complying with
conditions / instructions
disregard to the
issued by the State
environment and to the
Pollution Control Board
concerns of the local
from time to time, and
people and this has led to
with the conditions of the
Page 10 of 25
large scale degradation of EC dated 20.03.2012.
the environment and Copy of the compliance
reports submitted by the
resultantly impacted
answering Respondent in
agricultural activities, the
June 2017 and December,
practice of animal
2017, the action taken
husbandry and has also
report dated 21. 04. 2018
affected the health of the submitted by the
people. That these issues answering respondent to
are likely to compounded be respondent No.1, and
if the proposed project the Addendum dated
allowed. 28/05/2018 is issued by
Respondent No.1 are
already annexed to instant
Reply. During the public
hearing, it was also
committed by the
answering Respondent
that it will take the
necessary environmental
safeguards for the
proposed project
including:
1. Closed loop syste.
2. Adequate Stack
Height
3. Pneumatic
Conveying System
with Bag Filter.
4. ETP & HTP,
5. Attenuation of
Pollution/ protection
of report through
green belt/green
cover.
Page 11 of 25
13.b. That during the public It is denied that the
hearing for the previous minutes of the previous public hearing were not plant it was demanded by made available. The said the people that untreated minutes are in fact water should not be available in public disposed off in the open, domain at that access of the people https: //gpcb. gov.
of the village should not in/public-hearing-
be affected and that the 2011.htm.
people should not suffer
due to the proposed It is denied that the
project. It was also
Answering Respondent is
requested that the
disposing untreated water
minutes of previous public
in the open.
hearing be circulated.
Responses to the said
None of this was done by
the project proponent. No concerns were given by response to the said Respondent No. 2 during concerns was given by the Public Hearing and also Respondent No. 2 recorded in the Minutes of Company. the Meeting, which is available on Respondent No.3's website as well as in the final EIA Report.
Page 12 of 25 That it was assured that 13.c. About 60% of the people the local people would be employed by the given employment in the Answering Respondent are factory of the Answering from Gujarat. 82% of the Respondent. However, employees engaged by the this was not done. Answering Respondent in the Power plant are the locals. That agricultural activity, 13.d. It is vehemently denied on which more than 70% that the agricultural of the village is dependent, activity of the villages has has greatly suffered due to greatly suffered due to the the existing factory, as existing factory or that untreated water is let off untreated water is let-off into the fields, destroying into the fields. The the crops. That it is likely answering Respondent that the situation will also explained during the further aggravate if the proposed project is public hearing that it has allowed. provided full- fledged STPs for the power plant and manufacturing unit for treatment of Domestic Waste Water and the treated water is being recycled within the plant. The answering Respondent has provided full-fledged ETP along with RO & MEE for treatment of industrial Page 13 of 25 effluents and such treated water is being used for re- circulation in process. Hence, there is no release of untreated water into streams and water bodies. That untreated polluted 13.e. Same as above. water is released into the It is vehemently denied streams and other water that the untreated polluted bodies as well as water is released into the reservoirs which is a streams and other water source of drinking water. bodies as well as reservoirs which is a source of drinking water. That no green belt has 13.f. Greenbelt at area been provided around the equivalent to 40 acre was periphery of the project as already developed prior to directed in terms of the the public hearing, and the earlier EC dated same was informed by the 20.03.2012 granted to the answering respondent Answering Respondent. during the public hearing and is recorded in the minutes. Further, the answering Respondent has developed greenbelt at area equivalent to 83.68 acres(3,34,727 sq.meters) till November 2017, which is more than the area Page 14 of 25 equivalent to 50 acre prescribed under conditions of EC dated 20. 03. 2012 for the Power Plant. That coal was being 13.g. The answering respondent transported in open transports coal in covered vehicles causing pollution vehicles(trucks), only, as and inadequate per the guidelines for coal precautions have been handling issued by the taken by the Answering Respondent No.3 it is, Respondent. That the therefore, denied that the polluted water from the coal was or is being factory flows into the transported in open Tapper Dam- drinking
water to Gandhidham and vehicles causing pollution Kandla and Rudramata- and inadequate water for irrigation and precautions have been this water is consumed by taken by the answering the people living in respondent. It is Gandhidham-Adhipurcity, emphatically denied that Pictures were also the polluted water from produced as proof of the the factory flows into the same. Tapper dam-drinking water to Gandhidam and Kandla and Rudramata-
water for irrigation and
that this water is
consumed by the people
living in Gandhidham-
Page 15 of 25
Adipurcity.
That the region is fertile-
13.h. It is specifically denied
several acres of land
that several acres of land
around the factory are
around the factory are
cultivated. Dry dates,
cultivated. It is further
mangoes and dates from
denied that the cultivation
the region are famous and
of dry dates, mangoes and
exported to several
dates from the region has
countries. However, this
greatly suffered due to the
has greatly suffered due to
pollution caused by the
the pollution caused by
the answering respondent, answering respondent. In and this will only get this regard, it is submitted worse if the proposed that the answering project is allowed. Respondent has taken all applicable air pollution control measures at plant, such as bag filters, ESP and installation of stacks of adequate height and capacities etc. The answering respondent will continue to comply with the requisite measures for environment safeguard.
Page 16 of 25 That no agency will be 13.i. That is a purely willing to provide the speculative submission. necessary certification for At any rate, as submitted organic farming as the above, the answering particulate matter will respondent has taken all settle on the crops. the requisite safeguards. The pastoral Maldhari 13.j. This is also entirely Community that resides in baseless inasmuch as the the area that traditionally answering respondent practice animal does not discharge any husbandry have also been polluted water outside the affected as several plant. hundred livestock have perished on consuming the polluted water. That there are 46 china 13.k. It is vehemently denied clay plants in the village. any carbon will be emitted The Morbi ceramic from the carbon plant industry is dependent on which will affect the these China Clay Plants. production of china clay. The carbon emitted from The answering respondent the carbon plant will affect will install bag filters to the production of the control fugitive emission china clay. from its plant to avoid adverse impact on china clay mining activities. Page 17 of 25 That the existing plant 13.l. It is emphatically denied has already caused great that the existing plant has damage to health of the already caused great people. There has been damage to the health of an increase in cases of people. The appellants‟ lung diseases, malaria, suggestion that there has cardiovascular disease been an increase in cases etc. That if the proposed of lung diseases, malaria, project is allowed, this cardiovascular diseases, issue is only likely to be compounded. etc. due to the existing misleading and baseless. Air Pollution control measures like bag filter ESP and stacks of adequate height and capacities have been installed at the plant.
12. As regards the precautionary measures having been taken by the answering respondent so that no health hazard arises to the local residents, It is submitted para in 42 and 43 of the affidavit that there is no material basis provided to link the diseases/disorder which are alleged to have taken place, by the appellant, to the activities of the answering respondent. The answering respondent is well equipped with the state-of-the-art pollution control devices, which are fully functional and operational round the clock. Therefore, the alleged diseases/disorders have no bearing on the activities of the Answering Respondent. The Annexure 19 which is a medical report, pertains to the year 2011, i.e. before the answering respondent even commenced the operation of the plant. Thus, it is submitted from the side of answering Page 18 of 25 respondent that there is no force in the appeal. Further, it is stated by him that there is no identifiable risk of serious or irreversible harm, including, for example, of extinction of species, due to widespread toxic pollution etc. In the present case, therefore, the burden of proof cannot be placed on the answering respondent to prove that the proposed project is not potentially harmful to the environment. The EIA report and the presentation submitted to the expert Appraisal Committee clearly show that the Environmental Clearance (EC) dated 08.01.2018 is issued after due consideration and analysis and only after stringent conditions have been stipulated therein upon the answering Respondent to adequately safeguard the environment. Therefore, appeal should be dismissed.
13. In an additional affidavit Respondent No.2 has submitted that in October, 2021, a total green belt in an area equivalent to 4,12,637sq. mtrs. has been developed by the answering respondent comprising the tall and thick foliage including trees and herbs.
14. The stand of Respondent No.1/ Ministry of Environment, Forest and Climate Change is as follows:-
The EIA Notification, 2006 provides four stages for the processing and obtaining the Environmental Clearance. Stage (I) is screening where-in the Expert Appraisal Committee (EAC) or the State Expert Appraisal Committee takes the decision whether or not Environmental Impact Assessment Report (EIA) has to be prepared for the proposed projects. The Stage (II) is scoping where-in the Expert Appraisal Committee (EAC) for category „A‟ projects and the State Expert Appraisal Committee for category „B‟ projects determines the detailed and comprehensive Terms of Reference (ToR), addressing all relevant environmental concerns for the preparation of EIA Report in respect of the proposed project, for which the EC is sought. The Stage(III) relates to Public Consultation and has two components- First component deals with the public hearing to be conducted by the State Pollution Control Board at the project site or in Page 19 of 25 its close proximity, explaining all possible environmental impacts and measures proposed in Environment Management Plant (EMP). The second component deals with the obtaining written responses from other concerned persons who have a plausible stake in the environmental aspects of the project. The Stage (IV) relates to Appraisal of the Project, wherein the detailed scrutiny is done by the EAC or the SEAC of the applicant‟ project and of other documents like the Final EIA Report and outcome of public consultations, including public hearing proceedings, submitted by the Project Proponent(PP) to regulatory authority concerned for grant of EC.
15. It is further submitted that the Environment Impact Assessment (EIA) Notification, 2006 has decentralized the environmental clearance process by the categorizing the developmental projects in two categories, i.e. Category „A‟ and Category „B‟. The Category „A‟ projects are appraised at Central level by the Expert Appraisal Committee (EAC) and Category „B‟ projects are appraised at State Level Expert Appraisal Committee (SEAC). State Level Environment Impact Assessment Authority (SEIAA) and State Level Expert Appraisal Committee (SEAC) are constituted to provide clearance to Category „B‟ projects.
16. In the present case, the instant matter is covered under Category „A‟ of item 5 (e) „Petrochemical based processing‟ of the Schedule to the EIA, Notification, 2006. All Petrochemical products and petrochemical based processing such as production of carbon black and electrode grade graphite (process other than cracking & reformation and not covered under the complexes) industries located outside the notified industrial area are listed in item 5(e) which are appraised at Central Level by EAC. In the case in hand SEIAA Gujarat had earlier issued an EC vide letter dated 20.03.2012 for 20 MW Captive Power Plant to the Project Proponent (PP). The Project Proponent submitted online proposal on 31.05.2017 for the grant of Terms of Reference(ToR) along with project documents including Form I, draft ToR and Pre-feasibility Report (PFR)for Page 20 of 25 Addition of Carbon Black manufacturing facility in the existing plant which was considered by the Expert Appraisal Committee (EAC) in the meeting held on 14th to 16th June, 2017. Based on the recommendations of the EAC the Answering Respondent granted ToR dated 25.07.2017 for the Addition of Carbon Black manufacturing facility. Thereafter, an application for conducting the public hearing was made to the Gujarat Pollution Control Board (GPCB) along with the Draft EIA/EMP&RA/DMP report, Executive summary and in consultation with the district administration the public hearing was conducted on 26th September, 2017 at 10 AM at Common Plot of Paddhar Gram Panchayat. The provisions for conducting of public hearing have been laid down in Appendix IV of EIA Notification, 2006 (as amended from time to time) which refers to the process by which the concerns of local people are ascertained. The said provision provides for the public hearing to be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site or in its close proximity by the concerned State Pollution Control Board (SPCB). In the case in hand the public hearing was held on 26.09.2017 and presided by the Collector, District Magistrate, Kutch in the presence of Regional Officer, Gujarat Pollution Control Board (GPCB). The industry was inspected by the Integrated Regional Office of the Answering Respondent on 04.02.2021 with respect to EC granted by the SEIAA vide letter dated 23.03.2012 and the EC was granted by MoEF&CC vide letter dated 08.01.2018 as amended vide order dated 20.05.2019 and dated 15.10.2020. Further, it is submitted that the proposal was considered by EAC in its meeting held on 23rd -24th November, 2017. The EAC based on the due deliberations recommended the instant proposal for the grant of EC, providing therein environmental protection measures, subject to the specific and general conditions stipulated there-in. Based on the recommendations of the EAC, the Project Proponent was granted EC vide letter dated 08.01.2018 (impugned herein), which is in accordance Page 21 of 25 with the provisions of EIA Notification, 2006 as amended from time to time.
17. On the basis of the above pleadings following points/issues needs to be determined.
a) Whether public hearing was conducted as per the procedure stipulated in EIA Notification, 2006 ?.
b) Whether issue raised at the public hearing were duly considered by the EAC while recommending the proposal ?.
c) Whether the compliance of conditions stipulated in EC issued in 2012 is duly considered by EAC while recommending the proposal ?.
18. We have heard the learned counsel for the parties and perused the record.
19. The findings at issue 'A' :-
From the reply of Respondent No.2, it is apparent that the proposal of EC was submitted online for Addition of Carbon Black Manufacturing Facility (11500MT) in the existing plant which had already been granted EC earlier on 20.03.2012 by SEIAA. The said online proposal was submitted to Respondent No.1 for ToR. The Respondent No.1 issued ToR dated 25.07.2017 after observing that the Expert Appraisal Committee (EAC) had noted its satisfaction with respect to compliances of EC dated
20.03.2012. Thereafter the Respondent No.2/ Project Proponent instituted EIA study through „Kadam Environmental Consultants‟ to assess the impact on the environment due to Addition of Carbon Black Facility at the plant in question. Based on the EIA study, a draft EIA report dated August, 2017 and Executive Summary dated August, 2017 were prepared and all these documents were submitted to Respondent No.3/ GPCB and the Project Proponent made an application to conduct a public hearing. Public Notice was issued regarding public hearing on 23.08.2017 for being conducted on 26.09.2017 at 10.00 am, at Common Plot of Paddhar Gram Panchayat, Opposite Paddhar Bus Station, Bhuj- Page 22 of 25 Bhachau Highway, Village Paddhar, Taluka Bhuj, District Kutuch which was given wide publicity in newspapers. After the public hearing EIA Report dated October, 2017 was finalized which is Annexure 2/1 to the reply affidavit of the Respondent No.2 from Page No. 325 to 498 of the paper book. We also find that the detailed presentation was made by the Project Proponent before the EAC in its meeting on 23.11.2017, Minutes of which are Annexure 2/7 from the Page No.2478 to 2567 of the paper book. It is evident from the perusal of these minutes that entire procedure prescribed in EIA Notification, 2006 to grant EC has been followed and it is recommended in the said minutes by the Expert Committee that the Environmental Clearance be granted in this matter for the present project for Carbon Black Unit at Bhuj at their existing tyre plant complex. No infirmity has been shown from the side of the appellants in these minutes of the meeting.
On the basis of the recommendations by the EAC the Respondent No.1 has issued Environmental Clearance dated 08.01.2018 in favour of the Project Proponent (PP). The Appellants have tried to seek its quashing on the ground that the Project Proponent did not comply with the conditions of the earlier EC dated 20.03.2012 which were made part and parcel of the EC dated 08.01.2018 as well. But we are of the view that since the appellants had not challenged the validity of EC dated 23.03.2012, therefore, indirectly it cannot be allowed to challenge it now as the same stands time barred. From the record it is revealed that all the earlier conditions were found complied with, then only the EC in question was granted.
Therefore, the issue (A) is decided against the appellant in favour of the Respondent No.2/ Project Proponent.
20. The findings at issue 'B' :-
As per this issue, we have to decide whether the public hearing was duly considered by EAC while recommending the proposal. In this regard, we find that the details of the public hearing proceedings are annexed as Page 23 of 25 Annexure 2/5 to the reply affidavit of the Respondent No.2, which is on record from the page No. 763 to 2167 of the paper book. We have gone through the said proceedings and find that the concerns which were shown by the public, which had appeared in a large number before authorities during the public hearing were properly addressed by the Project Proponent as is evident from table given by us above in Para-11 of the judgment. Nothing could be shown by the appellants in respect of any issue raised by the public not being addressed by the project Proponent. Therefore, we find that the ground which has been set up by the appellants regarding number of issues raised during the public hearing not having been addressed is false. We find that the proceedings of public hearing were duly conducted and all the concerned raised were properly addressed. Accordingly this issue is also decided in favour of the Respondent No.2/ Project Proponent against the appellants. However, we wish to record our displeasure regarding the way appraisal of public hearing is recorded in minutes of EAC meeting which simply state "Issues raised during the public hearing have been duly addressed by the project proponent" without elaborating the issues and responses. We direct MoEF&CC to advise all EACs, henceforth, to record appraisal of concerns expressed in public hearing of all projects in adequate details.
21. The findings at issue 'C' :-
As per this issues, we have to decide as to whether the conditions stipulated is earlier EC granted on 20.03.2012 were duly considered by the EAC while recommending the proposals in the present case. In this regard, we have already expressed our view that the earlier EC 20.03.2012 has not been assailed in the present appeal, therefore, this issue should not have been raised by the appellants. Also, we find that in minutes of 31st Meeting of EAC it is clearly recorded that "The monitoring report on compliance status of existing EC conditions, forwarded by the Ministry‟s Regional Office at Bhopal vide letter dated 15th May, 2017 for Page 24 of 25 CPP of 20 MW (site visit carried out 19th April, 2017) is found to be satisfactory." Hence, we are of the firm opinion that the evidence which has been placed on record by the Project Proponent as well as the Respondent No.1 indicates that full procedure which has been laid down in EIA Notification, 2006 for grant of EC, has been followed in the present case. No infirmity of any kind has been indicated from the side of the appellant by appearing before us.
22. It may be highlighted here that despite having been given adequate opportunity to the appellants none appeared from their side at the time of the arguments. Therefore, we are of the opinion that this appeal deserve to be dismissed and is accordingly dismissed. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM December 12, 2022 Appeal No. 57(THC)/2018 (WZ) S.J. Page 25 of 25