National Green Tribunal
Tessenderlo Kerley India Private ... vs Ministry Of Environment Forest And ... on 9 December, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 886/2022
Tessenderlo Kerley India Private Limited Applicant
Versus
Ministry of Environment, Forest and Climate Change Respondent
Date of hearing: 09.12.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Vijay Nair, Mr. S.A. Zaidi & Mr. Sudeep Cecil, Advocates for Applicant
ORDER
1. Prayer in this application is for a clarification that the product of the applicant does not fall in the EIA Notification, 2006 as wrongly held by MoEF&CC vide order annexure A-1 on representation of the applicant dated 26.08.2022 as follows:-
"Agenda No. 37.13 Clarification for prior EC requirement for two inorganic chemicals, Calcium and Potassium thiosulphate, classified as liquid fertilizers
1. The PP submitted that the query pertains to requirement of EC for setting up a manufacturing facility for two inorganic chemicals - Calcium and Potassium thiosulphate. It is understood that the manufacture of inorganic chemicals do not require prior EC and inorganic chemicals are not covered by the EIA Notification, 2006. MoEF&CC has submitted several written responses as well as affidavits (w.r.t chemicals under the cases before the NGT) stating manufacture of inorganic chemicals do not require prior EC.1
2. In September 2021, the GoI issued the Fertilizer (Inorganic, Organic, or Mixed) (Control) Sixth Amendment Order 2021. Amended Part A of Schedule I of the FCO now includes Calcium and Potassium thiosulphate as liquid fertilizers
- serial no. 5(a) of the EIA notification 2006 covers chemical fertilizers. The inclusion of these products under the FCO does not alter their composition or manufacturing process; the products shall continue to be inorganic chemicals with different end uses. The above-mentioned Serial No. 5(a) of the Schedule to the EIA Notification, 2006, manufacturing of the Products should not fall within the ambit of EIA Notification, 2006. Inclusion of the Products in the FCO would essentially mean that the Products will have to be registered as liquid fertilizer under the FCO if they are sold as fertilizers, and otherwise the Products can be sold for any other end-use without touching upon the FCO or EIA Notification, 2006.
3. Deliberations by the EAC:
The EAC noted that all Chemical Fertilizers, irrespective of organic or inorganic, attract the provision of Schedule 5 (a) of EIA Notification, 2006 (as amended). Hence, the above two inorganic fertilizers, Calcium and Potassium thiosulphate also require EC.
Further, the manufacturing of these chemicals will also result in similar types of emissions of gases, particulate matter etc. (except the VOCs) as that of synthetic organic chemicals."
2. The applicant has relied upon stand taken by the MoEF&CC before the South Zone Bench of this Tribunal in K. Gemini (Deceased) vs. Union of India, Original Application no. 16 of 2019 (SZ) and Vallapureddy Gari Govardhan Reddy and others vs. Union of India and others, Original Application No. 66/2017 that inorganic chemicals do not fall under the purview of EIA Notification, 2006 and as such no Prior EC is required for manufacturing/production thereof.
3. We are unable to entertain the application. Firstly, the issue raised is not by any victim of environmental violation to maintain application under Section 14 read with Section 15 of the NGT Act, 2010. Secondly, Entry 5 (a) of the Schedule to the EIA Notification is 'chemical fertilizers' which is vide enough to cover every type of chemical. EIA process being part of 'Precautionary' principle, strict interpretation has to be taken to 2 ensure that impact of activity having potential of adverse impact on environment is not excluded from EIA regime. The entry cannot be narrowed down as suggested. Thus, merely because erroneous stand in law has been taken by MoEF&CC in some matters can be no ground to accept the contention of the applicant as there is no estoppel against law.
The Application is accordingly dismissed.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM Dr. Afroz Ahmad, EM December 09, 2022 Original Application No. 886/2022 AB 3