National Green Tribunal
Vallapureddy Gari Govardhan Reddy S/O ... vs Ministry Of Environment, Forest And ... on 12 May, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 66 of 2017 (SZ)
IN THE MATTER OF:
Vallapureddy Gari Govardhan Reddy
Age 29 years
S/o. Vallapureddy Gari Ramakrishna Reddy
H.No.: 1- 6B, Kondajuturu Village,
Panyam Mandal, Polur Post,
Kurnool District, Andhra Pradesh - 518 511 and Ors.
...Applicant(s)
Versus
Union of India
Rep. by its Secretary to the Government
The Ministry of Environment, Forests and Climate Change
Paaryavaran Bhavan, Jor Bagh,
New Delhi and Ors.
...Respondent(s)
For Applicant(s): Mr. A. Yogeshwaran along with
M/s. Sara Daniel.
For Respondent(s): Mrs. Me. Saraswathy for R1.
Mrs. Madhuri Donti Reddy for R2 & R3.
Mr. V. Chandrakanthan along with
Mr. S. Praveen for R4.
Mr. Sravan Kumar along with
Ms. S.M. Kothai Muthu Meenal (Intervenor)
Date of Judgment: 12th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Page 1 of 52
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.66/2017 (SZ), 12th May 2022. Mn.
Page 2 of 52 Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Original Application No. 66 of 2017 (SZ) IN THE MATTER OF:
1) Vallapureddy Gari Govardhan Reddy Age 29 years S/o. Vallapureddy Gari Ramakrishna Reddy H.No.: 1- 6B, Kondajuturu Village, Panyam Mandal, Polur Post, Kurnool District, Andhra Pradesh - 518 511.
2) Rachamalla Ramesh Age 32 years H.No.: 1 - 11, Kondajuturu Village, Panyam Mandal, Polur Post, Kurnool District, Andhra Pradesh - 518 511.
3) Guddeti Bogeshwarudu Age 42 years S/o. Guddeti Bogaiah H.No.: 1 - 74, Kondajuturu Village, Panyam Mandal, Polur Post, Kurnool District, Andhra Pradesh - 518 511.
4) Guddeti Srinivasulu Age 46 years S/o. Guddeti Rangaswamy H.No.: 1 - 63, Kondajuturu Village, Panyam Mandal, Polur Post, Kurnool District, Andhra Pradesh - 518 511.
5) Siddam Eswaraiah Age 41 years S/o. Siddam Konda Reddy H.No.: 2 - 25A, Kondajuturu Village, Panyam Mandal, Polur Post, Kurnool District, Andhra Pradesh - 518 511.
6) Chowdabonia Chinna Subbarayudu Age 51 years S/o. Chowdabonia Pedda Subbarayudu H.No.: 1 - 89, Kondajuturu Village, Panyam Mandal, Polur Post, Kurnool District, Andhra Pradesh - 518 511.
...Applicant(s) Page 3 of 52 Versus
1) Union of India Rep. by its Secretary to the Government The Ministry of Environment, Forests and Climate Change Paaryavaran Bhavan, Jor Bagh, New Delhi.
2) The State of Andhra Pradesh Rep. by its Secretary Department of Environment, Forests, Science and Technology, 4th Block, Ground Floor, Secretariat, Hyderabad, Telangana State.
3) The Andhra Pradesh Pollution Control Board Rep. by its Member Secretary Andhra Pradesh Pollution Control Board Paryavaran Bhavan, A-III, Industries Estate, Sanath Nagar, Hyderabad, Telangana.
4) Santhiram Chemicals Private Limited Represented by its Managing Director H.No.25/602, Srinivasa Nagar, Nandyal, Kurnool District, Andhra Pradesh - 518 501.
...Respondent(s) Additional Parties:
1) Dr. K. Babu Rao S/o. Lakshminarayana Coordinator, Scientists for People H.No.4-1-50/2, Road No.3 Snehapuri Colony, Hyderabad - 500 076.
2) Dr. A.V. Rao S/o. A Rama Rao Secretary, CSIR Scientists Service Forum H.No. 7 - 102/3 & 14, Sai Enclave Habsiguda, Hyderabad - 500 007.
(Additional Parties No.1 & 2 are impleaded as Intervenor as per order in I.A. No.137/2021 dated 28.09.2021.) For Applicant(s): Mr. A. Yogeshwaran along with M/s. Sara Daniel.
For Respondent(s): Mrs. Me. Saraswathy for R1.
Mrs. Madhuri Donti Reddy for R2 & R3.
Page 4 of 52 Mr. V. Chandrakanthan along with Mr. S. Praveen for R4.
Mr. Sravan Kumar along with Ms. S.M. Kothai Muthu Meenal (Intervenor) Judgment Reserved on: 25th March 2022.
Judgment Pronounced on: 12th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes/No Whether the Judgment is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The grievance in this application is regarding the study to be conducted in respect of impact on environment on account establishing the nano industries on several aspects.
2. It is alleged in the application that the 4th Respondent was attempting to establish an industry to produce 500 TPD Precipitated Calcium Carbonate and 200 TPD Nano Precipitated Calcium Carbonate in the first phase (with further unspecified expansion thus envisaged), without mandatory impact assessment and studies to assess the propensity of the subject nano chemical manufacturing unit to affect the environment, human health, flora and fauna. According to the applicant, production process of Precipitated Calcium Carbonate involves the following steps Page 5 of 52 viz., Calcination, Slaking, Carbonation, Drying and Packing. In the calcination process, limestone is converted into Calcium oxide and Carbon dioxide by means of calcinations at temperature in excess of 9000C. The reaction is CaCO3 CaO + CO2. In slacking, the Calcium Oxide (Calcined Lime) derived through calcinations process is then slaked with water to obtain Calcium Hydroxide (Milk of Lime). The reaction is CaO + H2O Ca (OH)2. The next step in the process is carbonation. The purified milk of lime is then carbonated with Carbon dioxide which is derived during the first process of calcinations. This process ensures the Calcium Carbonate and water. The reaction is Ca (OH)2 + CO2 CaCO3 + H2O. The next step is drying of the product. According to the applicant, the present industry, apart from the manufacture of Precipitated Calcium Carbonate, is also manufacturing super fine nano particles of Precipitated Calcium Carbonate. Nano parties are those which are less than 100 nano meters or 0.1 micros in size. To help judge what this means, a human hair is between 40 to 120 microns thick.
3. Further, according to the applicant, it is a proven science that nano particles of a compound behave differently than the compound itself. Necessary assessment of the impacts of this activity have not been carried out and the State Pollution Control Board/3rd Respondent herein has also issued Consent to Establish under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 without mandating the conduct of the EIA Study and obtaining Environmental Clearance (EC) from the 1st Respondent herein.
Page 6 of 52
4. There were numerous studies expressing concern about nanotechnology. One study referring to modern industrial history states ―We have witnessed the devastating fallout of an approach to safety and technology that puts profits and technological gains ahead of worker safety. Have we learnt from the reckless approach to safety exhibited in the past? Has the approach of governments and business to worker safety and new technology changed? Could nano materials prove to be as devastating to workers in years to come as asbestos has been?‖ [Mathew S. Hull, Diana M. Bowman (Eds); Nanotechnology Environmental Health and Safety - Risks, Regulation, and Management, Second Edition, Elsevier, Page 25 (2014)]. The human health risks are involved in various stages of production, handling and use, R Denning, Chapter 10, Enhancing wool products using Nanotechnology, Page 255, Advances in Wool Technology, N. A. G. Johnson and I. M. Russell (Eds), Woodhead Publishing Ltd, Cambridge, England, 2009 states the following, "Several studies have shown that:
(i) due to the high surface-area-to-volume ratio and higher reactivity of nanostructures, large doses can cause cells and organs to demonstrate a toxic response (in particular inflammation) even when the material itself is non-toxic;
(ii) some nano sized particles are able to penetrate the liver and other organs and to pass along nerve axons into the brain;
(iii) nano materials may combine with iron or other metals, thereby increasing the level of toxicity and presenting unknown risks;
(iv) engineered nano materials raise particular concerns because of the unknown characteristics of their new properties and their potential use in concentrated amounts; and
(v) some nano materials may have similar characteristics to known high risk materials at the micro scale.‖ It is submitted that ecological risks do exist. "The impact of nano structures on the Page 7 of 52 environment may be significant because of the potential for: (i) bioaccumulation, particularly if they absorb smaller contaminants such as pesticides, cadmium and organics and transfer them along the food chain; and (ii) Persistence, in effect creating non-
biodegradable pollutants which, due to the small size of the nanomaterials, will be hard to detect."
5. The applicant relied on the observations of Matthew S. Hull, Diana M. Bowman (Eds); Nanotechnology Environmental Health and Safety - Risks, Regulation, and Management, Second Edition, Elsevier, Page 4 (2014) which states, "Previously, little was known or understood about nanotechnology risks--basic toxicology of engineered nanomaterials, reliable characterization strategies, environmental fate and transport, occupational hazards, applicability of current governance schemes, and many other areas were in their infancy or largely unexplored. Many key questions remained unanswered, making it difficult for policy makers, industry, and the scientific community at large to make evidence-based decisions. And although many knowledge gaps remain, particularly with respect to chronic exposures to certain engineered nanomaterials, we now find ourselves armed with some basic and fundamental information on potential nano risks that can be translated into positive action. It is still too early to tell which specific action/s (or indeed inaction/s) will be taken, by whom, and when, and whether or not they will yield their desired outcomes."
6. According to the applicant, these aspects were not considered by the 3rd Respondent/State Pollution Control Board before granting Consent to Establish under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. The project proposal was not evaluated as establishment of nano chemical Page 8 of 52 production plant, but as a calcium carbonate plant. In the Consent to Establish issued, the reference to nano precipitated calcium carbonate occurs just once in the product list. There is not a single condition in the Consent to Establish related to manufacture of Nano Precipitated Calcium Carbonate. Especially in the background of absence of any regulations for nanotechnology in India, issuing Consent to Establish at the zonal office level without the need for EIA process generate questions on the reasons for not referring the matter to MoEF&CC to ascertain the appropriate categorization of the project. The manner of issuing Consent to Establish with undue haste while the affected people were agitated about the project in their neighbourhood leave lot of unanswered questions. The applicant also mentioned about the various studies conducted by different parts of the world namely, China, USA and other countries where nanotechnology has been introduced and the mechanism adopted by them for the purpose of establishing project units. The applicant also relied on certain articles of some scientist regarding the impact of nanotechnology and also studies to be conducted to protect human health.
7. So, according to the applicant, without conducting proper study of impact of this unit, allowing such units to come, will have great impact on environment. Further, according to the applicant, the present site where the industry to be established is surrounded by three water bodies (i.e., Kondajuturu Village old pond, Vadugandia [Chilakaia Village] - old pond and SRBC canal which is linked to Gorakallu Reservoir (12.04 TMC]), has irrigated paddy fields (approx. 1500 acres of double crop lands) nearby and the village of Kondajuturu (approx. 2500 population Page 9 of 52 and 1400 Voters) is at an aerial distance of about a kilometre from the proposed site. There are totally around 8 villages viz., Kondajuturu, Chilakala [Rasullapeta], Balapanur, Bhupanapadu, Nerawada, Kowlur, Thogarchedu, Polur in the neighbourhood of this proposed chemical plant and the impact is huge on human and environment. The location is not suitable for the establishment of such a large red category industry as per WALTA Act, 2002. These factors have not even been considered by the authorities before permitting such units. The land allocated through G.O. Ms. No. 84 dated 23-02 2016 issued by the Government of AP claiming "The Kondajuturu Gram panchayat has passed resolution in favour of alienation of the said land subject to condition that the proposed unit should not cause any environmental pollution to their village, cattle, and fields etc." is false. The Gram Panchayat resolved "No Nano Chemical Industry at our Kondajuturu Village" evidenced by Annexure A3.
8. The applicant also relied on the decision reported in In Re : Construction of park at Noida Near Okhla Bird Sanctuary Vs. Union of India (UOI) (2011) 1 SCC 744 for the proposition that ―But in the absence of a statute will not preclude this Court from examining the project's effects on the environment with particular reference to the Okhla Bird Sanctuary. For, in the jurisprudence developed by this Court Environment is not merely a statutory issue. Environment is one of the facets of the right to life guaranteed under Article 21 of the Constitution of India.‖ He had also relied on the decision reported in Samaj Parivartan Samudaya Vs. State of Karnataka, (2012) 7 SCC 407 for the proposition that "Wherever and whenever the State fails to perform its duties, the Court shall step into ensure that Rule of Law prevails over the abuse of process of law. Such abuse may result from inaction or even Page 10 of 52 arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes."
9. Since the authorities have not taken effective steps to protect environment and conduct study on the impact of the nanotechnology industries on environment and allowing such industries to come causing harm to the environment and health of the people, the applicant sought interference of this Tribunal and filed this application seeking the following reliefs:-
―a. Direct the 1st Respondent to assess and appraise the environmental, health and other impacts of the 4th Respondent industry.
b. Direct the 1st Respondent to frame guidelines and safeguards for the industries manufacturing and activities involving nano materials.
c. Direct the 4th Respondent not to proceed with the project without obtaining mandatory Environmental Clearance from the 1st Respondent based on an exhaustive environmental impact assessment prepared by the accredited experts.
d. Direct the 1st Respondent to conduct a public hearing to assess and consider public objections while considering the project.
e. And pass such further order or orders as may be fit, proper and necessary in the facts and circumstances of the case.‖
10. The 4th Respondent filed counter affidavit contending that the application is not maintainable and the applicant has not come before this Tribunal with clean hands. The State Pollution Control Board after thorough examination had issued Consent For Establishment (CFE) to Page 11 of 52 M/s Santhiram Chemicals Pvt. Ltd/4th Respondent for manufacturing Precipitated Calcium Carbonate (PCC) & Nano Precipitated Calcium Carbonate (NPCC) as per letter dated 23.09.2016. The allegation of probable pollution and health impacts that is likely to be caused on account of nanotechnology for manufacture of NPCC is exaggerated and without any basis. It is not mandatory for obtaining prior Environmental Clearance for the unit of the 4th Respondent as per the EIA Notification, 2006 dated 14.09.2006. They will not come under any of the categories enumerated in the schedule attached to the EIA Notification, 2006 mandating prior Environmental Clearance (EC) before starting the unit or for expansion of the existing units. The authors of the article relied on the applicant are not experts in the field of Nanotechnology and most of the observations made by them regarding the probable impact on environment are not related to the PCC product. Each industry will have their own impact and they cannot compare the impact of the asbestos with that possible pollution likely to be caused on account of manufacture of PCC and NPCC. The manufacturing process detailed by the applicant in Para (5) of the application is general in nature and bio accumulation is not relevant for this product. The PCC and NPCC were used as food supplement and nutrient in human, dairy, poultry, aqua as well as crops. These products are biodegradable products and can be decomposed to CaO and CO2 just like as lime stone powder. The CFE was issued in accordance with law and it was not issued in haste as alleged by the applicant. An expert committee was constituted by APPCB with the following members viz.
(i) Prof, O.Subramanyam, IIT, Hyderabad;
(ii) Prof. G. Prabhakar, Chemical Engineering Page 12 of 52 Department, S.V. University Tirupathi;
(iii) Sri G. Thirumoorthy, SEE CPCB Zonal Office, Bengaluru;
(iv) Dr. R. Nageswar Rao Chief Scientist (Retd.,) IICT, Hyderabad; and
(v) Dr. Sheik Basha, Principal Scientist and Head, Hyderabad Zonal Lab.NEERI, Hyderabad and also officials from the APPC.
11. The experts after thorough examination have recommended for issuance of Consent for Establishment and it is on that basis, the State Pollution Control Board issued the Consent. There are no details given in the application as to how the mitigations measures are inappropriate and what are all the corrective measures to be done. Even if it is so, a corrective measures suggested by the State Pollution Control Board will be adopted during the Consent for Operations (CFO) and they will commence only after getting CFO. The various study conducted in China and USA are also not applicable to this issue. The opinion given by Shilpanjali Deshpande Sharma in an article is also general in nature and not specific in relation to industry that is being proposed by the 4th Respondent. The comparison of toxicity in the air with welding fumes is not applicable to this industry. The Pollution Control Board had considered all these aspects and imposed conditions which will be complied with by the 4th Respondent. Even as per the order of the World Health Organization on nano particles, it was mentioned that at present acute toxicity seems not to be a problem for many Nano particles as per item no 3.3 titled Vulnerable Sub groups Line No. 6, Page No. 5 of the Page 13 of 52 Annexure A-1 produced by the applicant themselves. In the conclusion portion, they have mentioned that ―There is a general agreement that the overall data and evidence on health effects of nano technology is far from conclusive. The toxicity and eco toxicity of some nano materials have been described with attention principally focused on in vitro toxicological assessment and exposure in the occupational setting. There are indications for ex. That CNT's and titanium dioxide might be a hazard in occupational setting and the Nano silver might be an environmentally relevant contaminant. However the public health implications are unclear. Although first generation Nano materials are being used in a variety of applications and products, they do not seem to present an imminent public health issue‖. None of the articles relied on by the applicant is dealing with the impact of PCC and NPCC products. In order to prevent air pollution, they are intending to provide mitigation measures which they are going to adopt including installation of Bag filters, ESP etc. The efficacy of the equipment will be monitored only during its operation. Any deficiency can be complied by using latest technological advances suggested by Central and state pollution control boards and experts. The initial fresh water requirement will be fulfilled by Government of Andhra Pradesh. Fresh water will be used for domestic purpose and the recycled water will be used for gardening and sanitation needs. The waste water will not be discharged into any streams or water bodies in and around the premises. Most of the water will be recycled and reused in the process and internal usage. No Objection Certificates were issued by the following departments to the Andhra Pradesh Pollution Control Board stating that ―a. The runoff water will not join the SRBC canal as the canal is running in higher elevated ground given by Water resource department, Page 14 of 52 Govt. of Andhra Pradesh by its Lr no. EE/SRBC Divn No.1/PNM/TWIATO/289M dated 15/09/2016 b. The runoff water from the area of the proposed site will not affect the inflows into the Kondajutur MI tank given by Irrigation and CAD Department, Govt. of Andhra Pradesh by Lr No Tw/JTO.2/File No 1001M dated 08/09/2016 c. The proposed site of the Industry is not in the catchment area of the Gorukallu reservoir and the runoff water from the proposed site will not join the reservoir given by Water resource department, Gorukallu reservoir, Andhra Pradesh by Lr No EE/SRBC/Divn.4/GKL at NDL/TW/308M dated 17/09/2016.‖
12. Earlier, the panchayat has passed the resolution in favour of the industry and subsequently, due to some reasons, without conducting proper enquiry, passed the subsequent resolution relied on by the applicant. Public hearing was not required for the 4th Respondent industry as per the CPCB Notification and Classification of Industry. But the District Collector constituted an Expert Committee to visit the Kondajutur village and asked the committee to take objections from the villagers regarding the establishment of the industry. Further, the Expert Committee visited the Kondajutur village on 20.07.2016 and the minutes of objections of the villagers along with covering letter No. 1141/A4/2016, dated 05/08/2016 were given to the 4th Respondent to give a reply. They gave reply to the Expert Committee on 07.08.2016 denying the allegations made by the villagers and also assuring their industry will not cause any environmental hazard and this is basically a non-polluting product with absolutely no health hazard and the apprehensions were created by false propaganda with ulterior motive of some biased people to take Page 15 of 52 advantage in the socio economic and political fields. They also denied the allegation of any pollution being caused apart from public being affected as alleged. This is a production based company founded by Dr. M. Santhiram, Chairman of RGM Group of Institutions and Santhiram Medical College & General Hospital. He had established number of educational institutions which are being managed successfully, benefiting large number of students and employees. In order to expand their activity, they started M/s.Santhiram Chemicals Pvt. Ltd for production of NPCC & PCC with a production capacity of 640000 Metric tons per annum in a phased manner with an investment of Rs.900 Crores. The Rayalaseema region of Andhra Pradesh was known for vast deposits of various Minerals and Metals. The major Mineral available in and around Kurnool Dist is lime stone. Because of its impurities like Silica, Magnesium, Iron, Alumina, etc. the utilization is a very little in industries. Major utilization is in cement industry only. No other alternative industries are developed in this region except small lime kilns for domestic use. Mr. M Santhiramudu, Chairman of RGM Group and Santhiram Medical College with Mr. J.V. Ramana Reddy a Technocrat having 30 years of industrial experience thought of utilizing low grade lime stone for value added products by exploring various possibilities. One of the best and suitable projects envisages is 'Nano precipitated Calcium Carbonate (NPCC)' to be manufactured in this area with the imported technical knowhow and patented technology having entire Indian rights for manufacturing. The PCC & NPCC is one of the ingredients for various Industries. In view of the above, M/s. Santhiram Chemicals Pvt. Ltd. was incorporated and requested the Andhra Pradesh Government for land alienation to an extent of 218 Acres of unassessed Page 16 of 52 waste land to establish the industry in Survey No. 570/1, Kondajutur Village, Panyam Mandal, Kurnool District of Andhra Pradesh. After considering the request for land alienation, Govt. of Andhra Pradesh has alienated 150 acres of waste and barren land for setting up the industry with the installed capacity of 6,40,000 MT/year in a phased manner. The production capacity of the plant will be 1,60,000 MT of PCC and 60,000 MT of NPCC in Phase-I with the potential technology from Abroad and plant and machinery from Europe/Asia. In general PCC was manufactured with high chemical grade lime stone ore purity of above 98%. M/s Santhiram Chemicals proposed to use low grade lime stone available abundantly in Kurnool District and Chemical grade lime stone from Guntur District. Lands for lime stone ore are procured in the extent of 50 acres in Nandavaram, Nandivargam, Ramathirtham Villages of PanyamMandal consisting of more than 2 million MT of Lime Stone ore. Apart from supply of 5 million MT of lime stone ore from Guntur District for which lease agreement was already signed. The possession of land was handed over to the 4th Respondent on 11/04/2016 and they approached the Govt. of Andhra Pradesh in single desk policy for consent of establishment and Approvals for starting the Industry and after thorough scrutiny and verification, they obtained the following permissions:
―a. Feasibility certificate from electricity board APSPDCL vide Lr no. SE(O)KNL/ADE coml/F.Doc/D.No:656/16, Dt:18/07/2016 b. Approval from Director of Factories vide Lrno D.DisC2/KNL/4669/2016. Dt:27/07/2016 c. Approval from Director of Town and country Planning vide Lr no D.Dis No. 3874/2016/A, Dated 27/07/2016 d. Provisional No objection certificate from State disaster response and Fire services department vide Lr no Rc.No877/RFO/SR/SW/2016.Page 17 of 52
Dated 04/08/2016 e. Consent of establishment from A.P Pollution control Board vide order no. KNL/668/PCB/ZOK/CFE/2016-696 dated 23/09/2016‖
13. It is further contended that the land allotted was completely rocky terrain and barren land unused for the past 100 years as per Government revenue records. Even before obtaining permissions from various departments, a Writ Petition No. 26198 of 2016 was filed before the Honourable High court questioning the action of Govt. authorities in not considering their representation made by the petitioner therein regarding grant of permission to the fourth respondent and the Honourable High Court of Andhra Pradesh disposed the Writ Petition on 07.09.2016 stating it is premature. They have denied the allegation of drawal of ground water by the industry from SRBC Canal. According to them, they will make their own arrangement for obtaining the required water of 500 KLD and they will not draw any water from nearby SRBC canal. The Pollution Control Board had granted Consent for Establishment vide their Order No. KNL/668/PCB/ZOK/CFE/2016-696 dated 23/09/2016. The allegation that there is a possibility of soil pollution that is being caused on account of discharge of trade effluents is not correct. No water will be discharged from the industry and 85% of the process water will be reused in the process itself and remaining water will be treated in the Effluent Treatment Plant and domestic waste water will be treated in the Sewage treatment Plant to achieve Zero Liquid Discharge (ZLD) system as prescribed by the AP Pollution Control Board in their order of Consent mentioned above. No construction activity has been carried out in the site and they will be taking steps to put up industry as per the approvals and consent given Page 18 of 52 by the various departments. The Committee appointed by the Board for consideration of their project observed that the industry situated in a lower elevation than the canal bund and the runoff water will not join the Srisailam Right Branch Canal (SRBC) gravitationally, as the canal is running in higher elevated ground. They also considered the report of the Executive Engineer, W.R. Department, M.I. Works Division, Nandyal vide letter dated 08.09.2016 where they have stated that the catchment area of Kondajuthuru Cheruvu will not fall under the area of proposed site of the 4th respondent located in S.No.570/1. The runoff from the proposed site will join the downstream of the surplus water course of Kondajuturu Cheruvu and will not affect the inflows into Kondajuturu M.I. tank. The Executive Engineer, SRBC Division vide their Letter dated 17.09.2016 informed that the full level of reservoir is + 261.00 Meters. The proposed site of the industry is not in the catchment area of the Gorukallu reservoir. The runoff from the proposed site does not join the reservoir. Only after considering all these aspects, the Board has considered to issue CFE to the 4th Respondent. The line of activity of their factory will be manufacturing of Precipitated Calcium Carbonate (CaCo3) and Nano Precipitated Calcium Carbonate (CaCo3) using limestone as raw material. In Rayalaseema area the low grade lime stone with a purity of 80 to 90% of Calcium Carbonate (lime stone ore) with impurities like Magnesium, Aluminium, Iron and Silica constitute the balance. In the process by removing the above impurities the beneficiation of calcium carbonate is done up to 99% by thus improving the value addition. Removed Impurity slag can be used in cement Industry. Their industry will not create any environmental hazards as alleged. This is basically in alliance with the nature itself. The Calcium Page 19 of 52 Carbonate is affirmed as generally recognized as Safe (GRAS) by US Food and Drug Administration (US FDA). It is Non Toxic, Non carcinogenic, health hazard zero and non-polluting Product with absolutely no health hazard. The PCC and NPCC are used in the following industries ―1. Paint Industry
2. Paper industry
3. Plastic industry
4. Tooth Paste Industry
5. Pharmaceutical Industry
6. Rubber Industry
7. Food Industry
8. Fertilizers
9. Oil and gas Exploration
10. Automobile Industry
11.Tyre Industry
12.Sealants and Adhesives
13.Animal feed
14.Poultry feed.‖
14. The value addition of these products may give scope for setting up various industries in this locality. They have also given the usage of PCC for various health and pollution control mechanism which reads as follows:-
―• PCC is used as calcium supplementation for treatment of calcium deficiency diseases and for good health of babies and pregnant women.
• PCC is widely used in environmental protection like waste management and water management and used for reducing acidic nature in soil for better plantation.
• PCC is used in Pharmaceutical tablets as base. Hence, it can never be bad for human health.
• PCC is used for Desulphurization in various Industries. • PCC is used as acid neutralizing agent.
• PCC is used as natural buffer and works as a pollution filter.‖ Page 20 of 52
15. They denied the allegation of possible pollution. While vacating the interim order in O.A. No. 246 of 2016, this Tribunal clearly stated that the Pollution Control Board shall scrutinize the functions of the unit of the 4th Respondent. The allegations contra made in this application against the 4th Respondent are not correct and without any bonafides. All necessary precautions have been taken by the Pollution Control Board before issuing the Consent and it is an appealable order and without challenging the Consent granted, they are not entitled to agitate the same indirectly before this Tribunal. They further contended that the applicant is not entitled to get any of the reliefs claimed in the application and they prayed for dismissal of the application.
16. The 3rd Respondent filed counter contending that the application is not maintainable and the same is liable to be rejected in limine. The 4th respondent's project is for the manufacture of Precipitated Calcium Carbonate majorly involving four steps i.e. calcinations, slaking, carbonation and drying. The allegation that they have issued Consent to Establish in haste is not correct and hence denied. The EIA Notification does not cover this activity for obtaining Environmental Clearance (EC). The Board office vide letter dated 07.09.2016 informed that "the proposed product is an inorganic chemical and do not require the EIA process and Environment Clearance (EC). The project or activity is not covered in the schedule of the EIA Notification, 2006 and its amendments thereof. Hence, the Environmental Clearance is not required‖. So, there is no statutory requirement for conducting impact assessment study and obtaining Environmental Clearance (EC) for this purpose. The crushed lime stone of size of about 60 mm undergoes calcination process in the Rotary kiln Page 21 of 52 to form calcium oxide (CaO) & CO2 at a temperature of around 900°C, the solid CaO is discharged from the bottom of the kiln and gaseous CO2 is propelled from the top of the kiln. The hydration /lime slaking of calcium oxide is carried out in the hydrator to form calcium hydroxide and in the next step, the calcium hydroxide is then carbonated with carbon dioxide to form Precipitated Calcium Carbonate (CaCO3). The Precipitated Calcium Carbonate is then dried and packed. The Board vide CFE order dated 23.09.2016 has directed the project proponent to undertake a study to establish the base line environmental conditions covering the air, water, soil & noise by any reputed government organization like NEERI, NPC etc., in the core and buffer zones. The CFE application of the industry was considered by the following experts attended the CFE committee meeting as special invitees:
1. Prof. C. Subramanayam, IIT, Hyderabad
2. Prof. G. Prabhakar, Chemical Engineering Dept., S.V. University, Tirupati
3. Sri.G.Thirumurthy, S.E.E., CPCB, Zonal Office, Bengaluru.
4. Dr. R. Nageswara Rao, Chief Scientist (Retd), IICT, Hyderabad
5. Dr.Shaik Basha, Principal Scientist & Head, Hyderabad Zonal Lab, NEERI, Hyderabad.
17. The CFE committee and the expert members have examined the representation of villagers of Kondajuturu submitted to the Board vide Letter dt:11.07.2016, report of the Committee constituted by the District Collector, Kurnool, Process details and Pollution control measures Page 22 of 52 proposed by the industry, the letters given by the Irrigation Department officials and report of EE,RO, Kurnool in detail. It is after thorough examination that the CFE was issued to the industry stipulating conditions to control air, water pollution and solid waste management evidenced by Annexure R3 (1). This Tribunal by order dated 13.02.2017 in Application No.246 of 2016 directed M/s. Santhiram Chemicals to act as per "Consent to Establish" order granted by the APPCB dt.23.09.2016 and also directed the Board to closely scrutinize the functioning of the industry. As per the orders of the NGT, the Board is closely monitoring the functioning of the industry with regard to compliance of the conditions stipulated in the CFE order. The CFE order was issued to the industry duly considering the opinion of the expert members with stringent conditions such as ―i. Particulate Matter Emission standard of 30 mg/Nm3 to the stacks attached to rotary Kiln, hot blast furnace & lime stone crusher.
ii. To provide appropriate technology to control SO2 and Nox emissions to meet the standards.
iii. To adopt "Environmental guidelines for prevention and control of fugitive emissions‖ specified to cement plants by CPCB to control fugitive emissions from all sources of generation.
iv. To install minimum 3 AAQ monitoring stations covering upstream, downstream and predominant wind direction to monitor the ambient air quality.
v. To install online continuous emission monitoring systems and to connect the monitoring system to APPCB website.‖
18. It is further contended that one of the main concerns of the villagers of Kondajuturu was that their water resources will get affected due to establishment of the industry and the industry may release the waste material into the bore wells. Keeping in view of the above concerns of the villagers, the CFE committee and expert members attended the CFE Page 23 of 52 committee meeting thoroughly examined the process details, water consumption and waste water details. In order to ensure minimum water consumption and to achieve Zero Liquid Discharge (ZLD), the Board directed the industry to recycle the entire treated waste water back into the process and minimize the water consumption to the maximum extent possible. The industry proposed to consume 5,440 KLD of water initially on day one and proposed to recycle 4,140 KLD of water into the process from day two onwards. They have requested to permit them to use 1,300 KLD of fresh water from day two onwards as makeup. The industry also proposed to generate 800 KLD of waste water from process, washings & domestic purposes. The Board directed the industry to recycle the above 800 KLD of treated waste water back into the process to achieve Zero Liquid Discharge (ZLD) system. Hence, the net water consumption is reduced to 500 KLD only. The detailed break up of fresh water requirement, water recycled from process and treated waste water recycled is tabulated below: -
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19. The Board has also stipulated the following condition in the CFE order dt.23.09.2016:
"The project proponent informed that as per new Industrial Promotion Policy and MoU signed by them with Govt. of AP, the Government will identify source of water and supply accordingly. Hence, the project proponent shall obtain necessary permissions from the competent authorities to draw water from the nearby surface water bodies. The project proponent shall not dig bore wells without the permission of competent authority. The project proponent shall not draw water from bore wells, as the water requirement for the project is huge and may deplete the ground water in that area"
20. They also more or less reiterated the contentions of the 4th Respondent regarding the various No Objection Certificate issued by the various departments in respect of the impact of the industry on the nearby water bodies. The Executive Engineer, SRBC Division-I, Panyam vide letter dt. 15.09.2016 reported as follows:
―The proposed site for firm M/s Santhiram Chemicals Private Limited is located in Survey No.570/1, Parallel to SRBC Main Canal from Ch.57.200 to Km 58.630, left side i.e. south western side of canal, slightly close to the canal boundary. The proposed site of firm M/s Santhiram Chemicals Private Limited is situated in lower elevation than the canal bund level. Hence, in this context, it is observed that, the run-off water will not join the Srisailam Right Branch canal (SRBC) gravitationally, as the canal is running in higher elevated ground.‖
21. The Executive Engineer, W.R. Dept. M.I Works Division, Nandyal vide letter dt. 08.09.2016 reported as follows:
―The Kondajuturu M.I. Tank is having natural feeder cannel starting from Gorukalluvillage to Kondajuturu Cheruvu. Kondajuturu Cheruvu receives water from rainfed as well as SRBC Canal water. The Catchment area of Kondajuturu Cheruvu will not fall under the area of proposed site of M/s Santhiram Chemicals runoff from the area of the proposed site will join in the downstream of the surplus weir course of Page 25 of 52 Kondajuturu Cheruvu and will not affect the inflows in to the Kondajuturu M.I.Tank, Hence the runoff / storm water in the proposed site can be utilized by the establishment by using suitable methods.‖
22. The Executive Engineer, SRBC Division No.4, Gorukallu, Nandyal vide Ir.dt.17.09.2016 informed as follows:
―The full level of the reservoir is + 261.00 m. The proposed site of the industry is not in the catchment area of the Gorukallu Reservoir. The runoff from the proposed site not joins to the reservoir.‖
23. The following conditions were imposed as per the recommendations and members, to ensure the protection of ground water and surface water which reads as follows:-
―i. The project proponent shall obtain necessary permissions from the competent authorities to draw water from the nearby surface water bodies. The project proponent shall not dig bore wells without the permission of competent authority. The project proponent shall not draw water from bore wells, as the water requirement for the project is huge and may deplete the ground water in that area.
ii. The project proponent shall achieve Zero Liquid Discharge (ZLD) system for both trade & domestic effluents, by providing appropriate treatment to recycle the entire waste water.
iii. All the units of ETP & STP shall be constructed above the ground level.
iv. The storm water drain shall be constructed with proper design to collect and reuse in the process. The process & domestic effluents shall not be mixed with storm water drains under any circumstances.
v. The project proponent shall provide trench of 1 mtr depth along the southern boundary to collect seepages if any and the seepages shall be treated in the ETP.
vi. The project proponent has to undertake a study to establish the base line environmental conditions covering air, water, soil & noise by any reputed government organization like NEERI, NPC etc,.
vii. The project proponent shall provide at least 10 piezo monitoring wells within the site and report the ground water quality data to the Board quarterly as prescribed.‖ Page 26 of 52
24. One Sri. B.Balaveeraiah, Sri. T.Chinnaiah and others of Kondajuturu village filed W.P. No.26198 of 2016 before the Hon'ble High Court against the establishment of the unit and the Hon'ble High Court disposed of the case on 07.09.2016 with the following order:
"As the AP Pollution Control Board has not even granted consent for establishment to the 4th respondent, it is evident that the writ petition, as filed, is pre-mature. Suffice it to direct the PCB to dispose of the petitioner's representation, by way of a reasoned order, within four weeks from today. It is made clear that this order shall not preclude the petitioners from availing their legal remedies if, and when, permission is accorded to the 4th respondent. The WP is disposed accordingly".
25. As per the orders of the Hon'ble High Court, a reply was furnished to the petitioners in the writ petition vide their letter dated 07.09.2016 and as such, the application is not maintainable and they prayed for dismissal of the application.
26. The 1st Respondent filed counter statement contending that the 1st Respondent had held a meeting of the Expert Committee on 12.07.2017 wherein the applicability of the EIA Notification, 2006 as amended from time to time for Precipitated Calcium Carbonate and Nano Precipitated Calcium Carbonate and their threshold limit, if any was examined. During the meeting, it was observed that the remains of nano material have been detected upto 3 generations of Bacteria that fed on these chemicals. The larvae which are fed on nano material have shown deformities. There is no study on impact of nano chemicals on human and environmental health in India. However, the Director, Indian Institute of Toxicology Research had suggested that Environmental Page 27 of 52 Impact Assessment studies should be conducted for manufacturing of nano materials. He had suggested conducting Risk and Life Cycle Assessments of nano materials. The Expert Committee has mentioned that at present data on nano precipitated calcium carbonate particles in respect of its toxic nature is not documented and its toxicity is also not reported in the literature. The Committee has expressed its willingness to discuss issues related to other nano material which have potential to be manufactured and used at large scale in industry, identify the potential impact it can generate on the ecosystem if released into the atmosphere and also establish the mechanism to quantify the impact and further explore technology. The applicability of EIA Notification, 2006 to nano material will be decided after the above stated data is collected. At present, manufacturing of nano material including nano precipitated calcium carbonate and precipitated calcium carbonate is not covered under EIA Notification, 2006 as amended from time to time. They also produced the minutes of the meeting dated 12.07.2017 as Annexure - 1 to the counter. So, they prayed for accepting their contentions and dismissal of the application.
27. The applicant filed rejoinder more or less reiterating the allegations made by them in the Original Application. They also explained the Precautionary Principles which has to be taken by the policy makers namely, taking preventive action in the face of uncertainty, shifting the burden of proof or responsibility onto proponents of potentially harmful activities, exploring a wide range of alternatives to possibly harmful actions, and increasing public participation in decision making. They also relied on the observation made by the Hon'ble Apex Court in Vellore Page 28 of 52 Citizen's case reported in (1996) 5 SCC 647 for the proposition that ―The "Onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign‖. The same view has been reiterated by the Hon'ble Apex Court in another decision in APPCB Vs. Prof. M.V. Naidu. No attempt was made to conduct further scientific study regarding the impact of nanotechnology as opined by one of the Expert Committee members so far to address the issue as to whether the nanotechnology has to be brought within the purview of Environmental Clearance (EC) which is the fundamental duty of the 1st Respondent applying the Precautionary Principle to protect environment which they did not do. They also relied on the various articles to emphasize on the necessity for conducting study on risk and life cycle assessment of nano materials. The Hon'ble Apex Court in W.P. (Civil) No.13029 of 1985 by order dated 24.10.2017, heavily came on the functioning of the MoEF&CC for not taking any steps to prevent air pollution in NCR regions. They also reiterated the deficiency in the procedure adopted by the 3rd Respondent in granting the Environmental Clearance (EC). They also relied on several articles of different authors to address the necessity for conducting further studies of the impact on environment and health on account nanotechnology. The impact of Calcium Carbonate industries on health workers were considered in several articles relied on by the applicant which was also relied on by them for the purpose of emphasizing the necessity for conducting proper EIA of Nano industries before it is being launched. So, they prayed for accepting their contentions and allowing the application.
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28. In the meantime, an interlocutory application [I.A. No.137 of 2021 (SZ)] was filed by third parties to get themselves impleaded in the proceedings and this Tribunal by order dated 28.09.2021 allowed them to intervene in the matter and assist the Tribunal regarding the impact of nano technology and necessity for issuing any effective directions to meet the situation. The learned counsel for the intervenor also produced certain materials along with their affidavit.
29. As per order dated 20.03.2020, this Tribunal after considering the pleadings and also documents produced, directed the MoEF&CC to come with a concrete proposal as to whether the Environmental Clearance (EC) is required or not in respect of manufacturing of nano chemical industries especially when one of the members of the Expert Committee in the meeting had expressed that some study will have to be conducted in this regard, as no such study has been done in India and he had extracted his international experience and submitted that EIA Study will have to be conducted before establishing nano industry.
30. So, this Tribunal had directed the MoEF&CC to come with a concrete proposal as to whether the Environmental Clearance (EC) is required or not in respect of manufacturing of nano chemical industries especially when issues are likely to arise on account of such industries as precautionary measure and if such requirement has to be imposed, then they will have to come with the proposal of establishing such industries also under the purview of the EIA Notification. Such a proposal will have to come from the MoEF&CC at the earliest point of time, especially once such type of units are established, it is difficult to get back Page 30 of 52 environment to its original position, as no nano industries have come into existence so far. Thereafter, at the request of the MoEF&CC, the matter has been adjourned enabling the MoEF&CC to come with a proper decision in this regard.
31. The matter was again taken up on 15.06.2021 and on that day, this Tribunal had considered the additional affidavit filed by the 1st Respondent received on 17.03.2020 wherein, they have mentioned that the respondent had held the meeting of the Expert Committee on 23.01.2020 and 24.01.2020 wherein, the applicability of the EIA Notification, 2006 as amended from time to time for Precipitated Calcium Carbonate and Nano Precipitated Calcium Carbonate and other threshold limit, if any, was examined. During the meeting, it was observed that at present data on Nano Precipitated Calcium Carbonate particles in respect of its toxicity is also not reported in the literature. The issues related to potential impact of nano sized material in the range upto 100 nm and 40 - 60 nm were also discussed by the committee. They further mentioned that at present manufacturing of nano material including Nano Precipitated Calcium Carbonate and Precipitated Calcium Carbonate is not covered under the EIA Notification, 2006 as amended from time to time. The Committee has expressed a desire to discuss issues related to other nano materials which have the potential to be manufactured and used on a large scale in industry, identify its potential impact on the ecosystem if released into the atmosphere and also establish the mechanism to quantify such impact. The applicability of the EIA Notification, 2006 to nano material will be decided after the above stated data is collected. They produced the minutes of the meeting Page 31 of 52 as Annexure - 1 to the additional affidavit.
32. They also filed another reply affidavit received on 23.11.2020 wherein, they have reiterated their earlier contentions and observed that at present, the EIA Notification, 2006 as amended from time to time did not warrant any Environmental Clearance (EC) for nano materials including the Nano Precipitated Calcium Carbonate and Precipitated Calcium Carbonate.
33. Since we are not satisfied with the affidavit filed as directed by this Tribunal, the 1st Respondent filed further additional affidavit e-filed on 05.08.2021 wherein they also reiterated their earlier contentions that at present, it does not require any prior Environmental Clearance (EC) and as regards, the further study to be conducted, they mentioned that due to Covid-19 pandemic restrictions, the meeting of the Expert Committee could not be convened and the tenure of the committee has expired on 30.06.2020 and it was extended only for the period of 3 months specifically to deliberate on the suggestions/comments/observations received on draft EIA Notification, 2020 which was issued vide S.O. 1189 (E) dated 23.03.2020 and related issues. Since then the Expert Committee (IA Policy) has not been reconstituted, the sectoral Expert Appraisal Committee of Industry - III has considered this subject in their meeting held on 02.08.2021 under the Chairmanship of Prof. Dr. A.B. Pandit, Vice Chancellor, Institute of Chemical Technology, Mumbai and Chairman, Expert Appraisal Committee, Industry - III Sector of the MoEF&CC, in which meeting the representatives of M/s. Santhiram Chemicals Pvt. Ltd. And Prof. Dr. Thalappil Pradeep, Professor of Chemistry, Indian Page 32 of 52 Institute of Technology, Madras were invited and on the basis of the discussions and deliberation, they made the following recommendations:-
―i. With regard to bringing this activity under the purview of the EIA Notification, the committee opined that, at present there is no requirement to bring manufacture of precipitated calcium carbonate nanoparticles under the ambit of the EIA Notification 2006.
ii. Committee reiterated the opinion of the earlier Expert Committee at present Environmental Clearance is not required for manufacturing of precipitated calcium carbonate nanoparticles by the proposed process. The precipitated calcium carbonate nanoparticles are inorganic and will not fall under the ambit of EIA Notification, 2006 as the Notification only covers synthetic organic chemicals under Schedule 5 (f) (Copy of the minutes is herewith attached as Annexure).‖
34. They further observed that on the basis of the present EIA Notification, 2006, this will not require any prior Environmental Clearance (EC). They also produced the minutes of the meeting as annexure to the counter affidavit.
35. Heard Mr. A. Yogeshwaran, the learned counsel appearing for the applicant, Mrs. Me. Saraswathy, the learned counsel for the MoEF&CC, Mrs. Madhuri Donti Reddy, the learned counsel for the State Department and State Pollution Control Board, Mr. V. Chandrakanthan along with Mr. S. Praveen, the learned counsel for the project proponent and also Mr. Sravan Kumar along with Ms. S.M. Kothai Muthu Meenal, the learned counsel for the intervenor.Page 33 of 52
36. The learned counsel appearing for the applicant argued that various studies that are being conducted by various agencies will go to show that the Nano Precipitated Calcium Carbonate production will involve in great health impact on the employees as well as general public and a proper study is required to assess the impact of the industry on environment and such a study has not been undertaken in India.
Without conducting such a study, allowing such industries to flourish will result in great environmental degradation.
37. Further, he had also argued that even as per the admission made by the 4th Respondent in their counter statement that they are doing beneficiation of minerals which will fall under Item 2 (c) of the Schedule to the EIA Notification, 2006 requiring prior Environmental Clearance (EC). He had also relied on the manual of the EIA Notification for the purpose of sustaining his case that this process requires Environmental Clearance (EC) even as per the existing laws.
38. The learned counsel for the applicant further argued that even the counter statement filed by the MoEF&CC shows that a committee was constituted for the purpose of studying these aspects and one of the members of the Committee is of the opinion that it requires further study regarding the impact of nano industry on environment. That also shows the necessity for conducting further study in this regard. Before conducting such study and coming to the conclusion as to whether this will have to be included in the EIA Notification for obtaining Environmental Clearance (EC) or not, the same cannot be permitted to be established, as once damage has been caused to the environment, it is Page 34 of 52 irreversible in nature, which cannot be set right by doing remediation process. He had also argued that if the MoEF&CC is not taking any steps, this Tribunal can interfere and issue necessary directions in this regard.
39. The learned counsel appearing for the intervenor also supported the case of the applicant.
40. On the other hand, the learned counsel appearing for the MoEF&CC argued that as the law stands now, manufacturing of Nano Precipitated Calcium Carbonate is not falling under any of the items of Schedule attached to the EIA Notification, 2006 and as such, no Environmental Clearance (EC) is required. It is a policy decision to be taken by the Government and the MoEF&CC is conducting study in this aspect and as and when the study is completed, they will decide as to whether this will have to be included in the category requiring prior Environmental Clearance (EC) or not, till then the law as applicable today has to be applied.
41. The learned counsel appearing for the State Pollution Control Board also submitted that since as on date it is not falling under any of the items requiring prior Environmental Clearance (EC), there is no necessity for obtaining Environmental Clearance (EC) and they need only Consent to Establish which has been granted. Further, before granting the Consent to Establish, a Sub Committee was constituted with some experts to study about the impact and it is on the basis of the recommendations made by the Expert Committee that the Consent to Establish was granted Page 35 of 52 with some conditions. Further, they have not challenged the Consent to Establish granted by filing an appeal, as it is an appealable order and as such, they are not entitled to challenge the Consent to Establish granted in collateral proceedings by filing original application.
42. The learned counsel appearing for the project proponent argued that as on the law stands today, the nano industries will not fall under the category which requires prior Environmental Clearance (EC). Further, the word ―beneficiation‖ used in the counter is only used in a liberal sense and not in the literate sense of mineral beneficiation as required under the EIA Notification, 2006. He had also explained the procedure that is being followed by them for manufacturing Nano Precipitated Calcium Carbonate blocks. They also mentioned that the State Pollution Control Board before issuing the Consent to Establish, constituted a Sub Committee with experts and it is only after considering its recommendations that the Consent to Establish was granted. If the conditions imposed are not sufficient, even at the time of granting the Consent to Operate and during the course of operation of the unit, if any, further methodology will have to be adopted for the purpose of mitigating the pollution aspects, that will be imposed by the State Pollution Control Board and they are prepared to carry out the same. So, according to the learned counsel, the applicant is not entitled to get any of reliefs claimed in the application.
43. We have considered the pleadings, submissions made by the learned counsel appearing for the parties and also perused the documents available on record.
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44. The points that arise for consideration are:-
i. Whether the 4th Respondent unit require any prior Environmental Clearance (EC) for the purpose of manufacture of Nano Precipitated Calcium Carbonate and Precipitated Calcium Carbonate?
ii. Whether the applicant is entitled to get any of the reliefs claimed in the application?
iii. What is the nature of direction that can be issued by the Tribunal applying the ―Precautionary Principle‖ to protect environment?
POINTS:-
45. The grievance in this application was that there was no proper study conducted regarding the impact of Nano Precipitated Calcium Carbonate units on environment and large number of studies on this aspect also show that primary data on these aspects are lacking and it is necessary to go for a detailed study of the impact of such units on environment including health impact, as they are likely to generate minute particulate matters which are likely to affect the respiratory system. Studies also show the nature of impact and as such, without conducting such study, no such industries should be allowed to come. At the time when the application was filed, the applicant had no case that it requires prior Environmental Clearance (EC) as per the existing law, but a study will have to be conducted on that aspect and till such study is conducted by the MoEF&CC and take a call as to whether such units require prior Environmental Clearance (EC) or not, no such Page 37 of 52 industries should be permitted to come. But during the course of argument, an attempt was made on the side of the learned counsel for the applicant even under the existing laws, since beneficiation process is being done by the 4th Respondent before using the mineral for their purpose it fall under Item 2 (b) of the Schedule to the EIA Notification, 2006 and the interpretation of mineral occurring in that item has to be liberally construed and no restrictive meaning can be given than what was intended by the legislature in this regard.
46. On the other hand, the case of the official respondent was that as on the law stands today, there is no necessity to obtain prior Environmental Clearance (EC) for this unit and study is being undertaken by the Ministry and as and when the study is completed, they will take a call on this aspect, till then the law as it exists has to be applied.
47. The learned counsel for the 4th Respondent also argued that it does not involve in mineral beneficiation and if such a liberal interpretation is taken, every unit which is making some process of cleaning the mineral or raw material will fall under this clause and every industry will have to go for prior Environmental Clearance (EC) before starting the operation, which was not the intention of the legislature.
48. Various articles produced and relied on by the learned counsel for the applicant and also the learned counsel for the intervenor only show that there is no primary data available on the basis of the studies conducted in India as to whether such industries will have any impact on health as well as environment. The various materials that are being relied on by Page 38 of 52 the learned counsel for the applicant as well as the learned counsel for the intervenor only show that some sort of detailed study will have to be conducted to ascertain the real nature of impact of so called nano industries, as there is a possibility of minute particulate matters emanating from such process which is likely to have health impact on people.
49. Even, the articles relied on by the counsel for the applicant as well as the counsel for the intervenor do not conclusively show what would be the impact of these industries on environment and health due to their procedure adopted for their operation and all these studies only require a further detailed study to be conducted to ascertain the impact of such industries on environment and health of the people.
50. Even assuming that some of the industries do not require Environmental Clearance (EC), it is not a case that they will not cause any pollution. But the nature of pollution caused will be minimal when it is compared to other industries, for which, prior Environmental Clearance (EC) is required before its establishment. For such type of industries, the State Pollution Control Board is the authority to consider the nature of mitigating measures to be taken by such industries at the time of establishment and also during their operation.
51. In this case, it is also in a way admitted in the counter statement filed by the MoEF&CC that the issue regarding whether prior Environmental Clearance (EC) is required for nano industries is under study and a Sub Committee of experts have been appointed to study the matter and they Page 39 of 52 are doing their research on the same and it is also seen from the minutes of the Sub Committee so appointed which was produced by the MoEF&CC along with their counter that one of the members of the committee namely, the Director of Indian Institute of Toxicology Research (IITR) opined that as of now, there is no study on the impact of nano chemicals on human, environment and health in India, however based on his knowledge about international experience, the invited expert has suggested that the Environmental Impact Assessment study should be conducted for manufacturing nano materials. He had recommended to conduct the Risk Lifecycle Assessment of nano materials, this was intended by the counsel appearing for the applicant on the basis of the various research papers and articles produced by them as well. They also wanted to have such a study to be conducted. That will not conclusively show that as on today, there was any primary data available to come to the conclusion that it will have any impact on environment and health. He also did not come to the conclusion that there is any necessity for prior Environmental Clearance (EC) as such required, in view of the existing laws. The committee appointed by the MoEF&CC on the basis of the materials available on record came to the conclusion that as on today, the EIA Notification does not mandate nano industry to obtain any prior Environmental Clearance (EC).
52. Item 2 (b) of the EIA Notification, 2006 reads as follows:-
Project or Activity Category with threshold limit Conditions if any A B (1) (2) (3) (4) (5) 2 (b) Mineral >0.5million < 0.5 million General Condition shall beneficiation ton/annum ton/annum apply (Mining proposal mineral mineral with Mineral throughput throughput beneficiation shall be appraised together for grant of clearance) Page 40 of 52
53. The Environmental Impact Assessment Guidance Manual for Mineral Beneficiation prepared by the Administrative Staff College of India, Hyderabad in 2010 gives a general information on mineral beneficiation as follows:-
―1.1 General Information on Mineral Beneficiation Mining of coal, non-metallic and metallic mineral deposits produces raw mineral which needs to be processed further by a specified method depending on the mineral and waste product (s) associated with it. The beneficiation methods and its associated processes (gravity separation / floatation / magnetic or electrostatic separation) chosen concentrates the mineral to the desired level.
An intimate knowledge of the mineralogical composition of the ore is essential if efficient processing is to be carried out. With growing population and increasing demand for minerals for economic growth and decreasing higher grades of resources, there will be tremendous pressure on nations to exploit deposits at lower cut-off grades resulting in unprecedented generation of discarded beneficiation wastes which pose one of the most serious environmental challenges to the industry. The environmental effects are quite often, specific to the mineral/ore being processed.
Problems resulting from beneficiation are generation of solid waste, liquid waste and tailings, resulting from different processing operations. Atmospheric emissions resulting from transportation, crushing / grinding / dry process separation can be minimized by adopting suitable in-process, online control systems.
During mining, metal-bearing deposit, called ore, is extracted from underground or opencast mines. Metal concentrations in ore vary greatly. In order to upgrade the metal concentration, the ores are beneficiated for further use in industries. Mining and beneficiation can have a variety of environmental effects. The most visible effect will be disturbance of land and water regime due to waste disposal. The beneficiation process also includes ore transport, ore handling, crushing etc. Consequently, the environmental impacts of mineral beneficiation on the surroundings are considerable. Many times, the beneficiation plants are located in the mine lease area. The magnitude of environmental impacts in such cases is more significant and they will have add- on effects to the existing environmental conditions. However, mineral beneficiation projects are unavoidable because of commercial use of minerals/ores and their contribution to national economy.
Noting the above, opportunities to minimize significant impacts at the planning and design phases must not be overlooked, as mitigation or restoration during or after construction is prohibitively expensive. It must be Page 41 of 52 accepted that planning of a mineral beneficiation project and its subsequent operation has some impact on the environment. The purpose of the EIA is to quantify the impact and ensure that changes to the environment fall within acceptable predefined limits. In an ideal situation, the whole EIA process will be undertaken in parallel with the conceptualization, design and operation of the mineral beneficiation plant. While the EIA process can be complex and sometimes expensive, the early identification of adverse environmental impacts can provide the opportunity to take early corrective actions.
To address this, effective government policies as laid town in legislation and regulations, and management policy are important. Self-regulation by the project proponent, including the adoption of good management practices during planning, design and operation stages will significantly help ensure environmental protection, in which an optimal balance may be struck between socioeconomic, physical, morphological and ecological issues.
Mineral beneficiation is of great economic importance to the mining industry and the country. The continual growth of infrastructure with rapid industrialization, exploitation of minerals is likely to increase. The increasing demand of minerals also promotes mineral beneficiation to upgrade the ore. Mineral beneficiation methods commonly used are for coal, iron ore, asbestos, base metal sulphide ores, potash, tungsten, uranium, gold, titanium and others. Their activities during the construction as well as operational phases may create a wide range of impacts on the environment through activities like crushing, ore handling, tailings management, utilities services etc. The potential adverse effects of mineral beneficiation encompass water pollution of surface streams, groundwater contamination, air pollution, noise pollution, change in drainage pattern etc. The preparation of EIA report and implementation of EMP are essential to effectively manage these adverse effects. The flow diagram for mineral beneficiation plant is given in Fig.1.1‖
54. The manual details with tailing treatment and also Terms of Reference which reads as follows:-
―Tailings Treatment Tailings are mineral processing solid rejects containing mainly host- barren rocks along with minor amounts of unrecovered or non-recoverable mineral values. Wet concentration techniques usually discard solid particulate materials (tailings) in the form of a slurry. The quantum of tailings produced may be as much as 98% of Run- Of -Mine (R.O.M.) in case of precious metal ores or sulfide ores, and as low as 5 to 10% in case of low-value minerals like iron ores. In most cases 50 to 60% of tailings are finer than 70 microns and about 10 to 15 percent finer than 2 microns and engineering properties of such material are similar to silt. Slurry concentrations are in the range of 35 to 50 Page 42 of 52 percent solids by weight. The slurry of tailings is transported either after thickening process or by pipelines or launder with gravity flow. These methods are described below.
(a) Slurry transport Tailings are slurried in water and transported by pipeline or launder with gravity flow. The slurry under certain conditions may be discharged into a natural drainage channel and collected at a lower elevation for distribution to a pond area. The system becomes more complicated when gravity flow is not possible, requiring a pumping station. Slurry concentrations are in a range of 35 to 50 percent solids by weight.
i) Gravity flow To avoid cost and problems of pumping the ideal situation is to have gravity flow from the mill thickeners to the tailings pond for the entire life of the pond. To prevent excessive wear; it is important that the velocity is not too high and to preclude plugging of the line the velocity should not be too low. The flow should be between 1.2 and 1.8 m per second for non-ferrous tailings and as high as 3.6 and 4.2 m per second for taconite.
ii) Pumping When the above-mentioned system does not work i.e. gravity flow is not possible then pump must be installed for discharging the tailings to the tailings pond. Centrifugal pumps are common for low -head demands in concentrators where seal water is available and easily controlled. Where several pump stations are required in the pump line, valve should be placed just ahead of each pump station, with a catch basin to hold the entire contents in case of a power failure.
Centrifugal pumps of abrasive resistant plastic liner are much simpler to operate and are probably the must popular for tailing slurry pumping. Different types of pipes used for tailing disposal are steel pipes, wood stave pipes, reinforced concrete pipes, transit pipes, fibreglass pipes and plastic pipes. Wood stave pipes are used in older installations.
(b) Tailings containment / impoundments Tailings containment must have sufficient dimensions to allow the mine or plants operate during its estimated life time.‖
55. In the Terms of Reference, they have mentioned regarding the general information as follows:-
―General Information Depending on the types of mineral / ore processing may involve beneficiation where mined ore is either concentrated for further processing (metallic ores) or graded for sale (non- metallic ores). For metallic ores, beneficiation normally consists of preparation by crushing and / or grinding, gravity concentration, magnetic separation, and flotation aided by chemicals.Page 43 of 52
The outputs from beneficiation process are ore concentrate and wastes, in the form of tailings, which include process chemicals and heavy metals. The beneficiation process may cause adverse impact on the surrounding environment. The potential adverse impacts of mineral beneficiation involve air pollution, surface and groundwater pollution, solid waste generation, damage to flora and fauna, socioeconomic etc. The developer is therefore, required to plan their activities considering the site specific environmental concerns and minimize the adverse impacts.‖
56. It is clear from the word ―mineral beneficiation‖ mentioned in the EIA Notification and also in the guidelines that the beneficiation process was intended to be carried out in a plant which is established in the mining lease area itself before the raw ore that has been extracted is being sold out by adding value to it or otherwise the raw ore will not have the saleable value. If the construction in the way in which the counsel for the applicant wanted to make for the word ―mineral beneficiation‖ mentioned in the EIA Notification, then even a small industry where certain raw materials are obtained and for the purpose of manufacturing of certain article using that raw material, some minor process of cleaning is to be done which includes washing, grading, and grinding, then even such industries will have to be brought under the regime of Environmental Clearance (EC) and that was not intended by the legislature when using the word ―mineral beneficiation‖ in the EIA Notification, 2006.
57. So under such circumstances, though we are agreeing with the argument made by the learned counsel for the applicant that some study will have to be conducted to ascertain as to whether this also will have to be brought under the regime of the Environmental Clearance (EC) by the MoEF&CC, but as on today, there is no law which makes it mandatory for nano industries to obtain prior Environmental Clearance (EC) and no Page 44 of 52 direction to the effect that the nature of products manufactured by the units which are not covered under the EIA Notification, 2006 has to obtain Environmental Clearance (EC) can be possible. So, the applicant is not entitled to get the relief of directing the authorities not to permit the 4th Respondent to start the unit of manufacture of Precipitated Calcium Carbonate or Nano Precipitated Calcium Carbonate without conducting a study by the MoEF&CC to ascertain as to whether prior Environmental Clearance (EC) is required or not, cannot be granted and that prayer is rejected.
58. As regards the other prayers are concerned, we feel that direction can be given to the MoEF&CC to consider this aspect by conducting a study as opined by the Director of Indian Institute of Toxicology Research regarding the Risk Lifecycle Assessment study and also the probable pollution that is likely to be caused on account of each type of nano industries including the Precipitated Calcium Carbonate unit and after conducting a study, take a decision as to whether this will have to be brought under the regime of prior Environmental Clearance (EC) as a precautionary measure to protect environment and amend the EIA Notification accordingly within a particular time frame.
59. The applicant is not entitled to get the relief of setting aside the Consent to Establish granted to the 4th Respondent, as it is an independent appealable order and that cannot be challenged in a collateral proceeding. Further, it is seen from the reply affidavit filed by the 3rd Respondent/State Pollution Control Board that even in the order passed by the National Green Tribunal dated 13.02.2016 in O.A. No.246 of 2016, Page 45 of 52 there was only a direction to the 4th Respondent unit to act as per the Consent to Establish order granted by the Andhra Pradesh Pollution Control Board dated 23.09.2016 and directed the State Pollution Control Board to closely scrutinize the functioning of the unit.
60. It is also seen from the reply statement that they have appointed an Expert Committee before granting the Consent to Establish order to the 4th Respondent and on the basis of the recommendations of the Expert Committee, they have incorporated certain stringent conditions in the Consent to Establish granted. They also obtained necessary details from the authorities like Executive Engineer, SRBC, Division - I, Executive Engineer, WRD Minor Irrigation Works Division and Executive Engineer, SRBC, Division - IV and satisfied that there will not be any possibility of impact on water bodies on account of runoff, if any, from the proposed site where the industries is to be established. Further, another condition was also imposed that they will have to adopt Zero Liquid Discharge (ZLD) system and they must also have Effluent Treatment Plant (ETP) and Sewage Treatment Plant (STP) for treatment of the trade effluents as well as sewage generated.
61. So, all possible studies have been conducted by the State Pollution Control Board before granting the Consent to Establish. So, it cannot be said that they have indiscriminately granted the Consent to Establish to the 4th Respondent unit without conducting any proper study and in haste as contended by the learned counsel for the applicant. Page 46 of 52
62. So, under such circumstances, we feel that the application can be disposed of with the following directions:-
a. The applicant is not entitled to get the relief of injunction against the 4th Respondent from establishing the Nano Precipitated Calcium Carbonate unit in the proposed site without conducting Environmental Impact Assessment Study by the MoEF&CC to consider the question as to whether this will have to be included in the category of mandating prior Environmental Clearance (EC) before establishment.
b. The Consent to Establish granted to the 4th Respondent cannot be set aside in this proceedings, as it is an independent appealable order under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981.
c. The State Pollution Control Board is directed to monitor the operation of the unit during establishment phase and also in the operational phase and if there is any violation found, then they are directed to take appropriate action against the 4th Respondent in accordance with law including imposition of environmental compensation.
d. If the 4th Respondent had committed any violation or made any arrangement for establishment of the unit without obtaining Consent to Establish, then the State Pollution Control Board if not already initiated any proceedings for imposing environmental compensation for the violation, then they are directed to initiate proceedings against the 4 th Respondent, depending upon the period of violation, if any, and applying the guidelines issued by the Central Pollution Control Board (CPCB) in this regard and also as directed by the Principal Bench as well as this Bench in several cases of this nature.Page 47 of 52
e. The State Pollution Control Board is also directed to consider the probable and possible further conditions (if any) to be imposed at the time of granting Consent to Operate, if it is not already granted for the unit and impose such conditions which are required for the purpose of mitigating the possible pollution that is likely to be caused on account of the operation of the unit.
f. The MoEF&CC is directed to conduct a proper Environmental Impact Assessment study as has been observed by one of the Expert Committee members viz., the Director of Indian Institute of Toxicology Research regarding the Risk Lifecycle Assessment study and also the probable pollution that is likely to be caused on account of each type of nano industries including the Precipitated Calcium Carbonate unit and after conducting a thorough study, take a decision as to whether the units which are adopting nanotechnology including certain industries which are not covered under the EIA Notification for manufacturing certain articles are to be included in the category of obtaining prior Environmental Clearance (EC) and if so, make necessary amendment in the EIA Notification in this regard, at the earliest possible time, at any rate within a period of 1 (One) year and issue necessary directions (if any) required in this regard to protect environment. g. They are also directed to file a report regarding the outcome of the study conducted before this Tribunal after the time that has been fixed by this Tribunal for completion of the study and issuing necessary directions in this regard.
63. The points are answered accordingly.
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64. In the result, this Original Application is disposed of with the following directions:-
(i) The applicant is not entitled to get the relief of injunction against the 4th Respondent from establishing the Nano Precipitated Calcium Carbonate unit in the proposed site without conducting Environmental Impact Assessment Study by the MoEF&CC to consider the question as to whether this will have to be included in the category of mandating prior Environmental Clearance (EC) before establishment.
(ii) The Consent to Establish granted to the 4th Respondent cannot be set aside in this proceedings, as it is an independent appealable order under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981.
(iii) The State Pollution Control Board is directed to monitor the operation of the unit during establishment phase and also in the operational phase and if there is any violation found, then they are directed to take appropriate action against the 4th Respondent in accordance with law including imposition of environmental compensation.
(iv) If the 4th Respondent had committed any violation or made any arrangement for establishment of the unit Page 49 of 52 without obtaining Consent to Establish, then the State Pollution Control Board if not already initiated any proceedings for imposing environmental compensation for the violation, then they are directed to initiate proceedings against the 4th Respondent, depending upon the period of violation, if any, and applying the guidelines issued by the Central Pollution Control Board (CPCB) in this regard and also as directed by the Principal Bench as well as this Bench in several cases of this nature.
(v) The State Pollution Control Board is also directed to consider the probable and possible further conditions (if any) to be imposed at the time of granting Consent to Operate, if it is not already granted for the unit and impose such conditions which are required for the purpose of mitigating the possible pollution that is likely to be caused on account of the operation of the unit.
(vi) The MoEF&CC is directed to conduct a proper Environmental Impact Assessment study as has been observed by one of the Expert Committee members viz., the Director of Indian Institute of Toxicology Research regarding the Risk Lifecycle Assessment study and also the probable pollution that is likely to be caused on account of each type of nano industries including the Precipitated Calcium Carbonate unit and after Page 50 of 52 conducting a thorough study, take a decision as to whether the units which are adopting nanotechnology including certain industries which are not covered under the EIA Notification for manufacturing certain articles are to be included in the category of obtaining prior Environmental Clearance (EC) and if so, make necessary amendment in the EIA Notification in this regard, at the earliest possible time, at any rate within a period of 1 (One) year and issue necessary directions (if any) required in this regard to protect environment.
(vii) They are also directed to file a report regarding the outcome of the study conducted before this Tribunal after the time that has been fixed by this Tribunal for completion of the study and issuing necessary directions in this regard.
(viii) Considering the circumstances, parties are directed to bear their respective costs in the application.
(ix) The Registry is directed to communicate this order to the MoEF&CC, New Delhi, Integrated Regional Office, MoEF&CC at Vijayawada, Andhra Pradesh Pollution Control Board for their information and compliance of directions.Page 51 of 52
(x) As and when the report is received, the Registry is directed to place the same before this Bench for consideration and also for issuing necessary directions, if any, required in this regard.
65. With the above observations and directions, this Original Application is disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.66/2017 (SZ), 12th May 2022. Mn.
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