National Green Tribunal
K Gemini vs Union Of India Rep. By The Secretary To ... on 26 May, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1:-
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 16 of 2019 (SZ)
IN THE MATTER OF
K. Gemini (Died)
S/o. Kannupaiyan
Aged about 53 years
5/1-34, Rettaipuliyamaram
Raman Nagar Post
Mettur Dam, Salem District - 636 403 and Ors.
...Applicant(s)
Versus
Union of India
Represented by the Secretary to Government
Ministry of Environment, Forests & Climate Change
III Floor, Pritvi Wing
Indira Paryavaran Bhavan
Jor Bagh, New Delhi - 110 003 and Ors.
...Respondent(s)
For Applicant(s): Mr. T. Sai Krishnan.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1.
Dr. D. Shanmuganathan for R2.
Mr. S. Sai Sathya Jith for R3.
Mr. N.L. Rajah, Senior Counsel along with
Mr. T. Ravichandran for R4.
Judgment Pronounced on: 26th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
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, J.M. Sd/-
Dr. Satyagopal Korlapati, E.M. O.A. No.16/2019 (SZ), 26th May 2022. AM & Mn.
Page 1 of 130Item No.1:-
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Original Application No. 16 of 2019 (SZ) IN THE MATTER OF
1) K. Gemini (Died) S/o. Kannupaiyan Aged about 53 years 5/1-34, Rettaipuliyamaram Raman Nagar Post Mettur Dam, Salem District - 636 403.
2) Mrs. G. Santhal W/o. K. Gemini Aged about 53 years 5/1-34, Rettaipuliyamaram Raman Nagar Post Mettur Dam, Salem District - 636 403.
3) Mr. G. Poovannan S/o. K. Gemini Aged about 30 years 5/1-34, Rettaipuliyamaram Raman Nagar Post Mettur Dam, Salem District - 636 403.
(Applicants No.2 & 3 were impleaded as Legal heirs of the 1st Applicant as per order in I.A. No.204 of 2021 (SZ) dated 23.12.2021) ...Applicant(s) Versus
1) Union of India Represented by the Secretary to Government Ministry of Environment, Forests & Climate Change III Floor, Pritvi Wing Indira Paryavaran Bhavan Jor Bagh, New Delhi - 110 003.
2) The State of Tamil Nadu Represented by the Secretary to Government Environment and Forests Department Fort St. George, Chennai - 600 009.
Page 2 of 1303) The District Environmental Engineer Tamil Nadu Pollution Control Board Siva Tower, Post Box No.457, No.1/276, Meyyanur Main Road Salem - 636 004.
4) M/s. Chemplast Sanmar Limited Represented by its Director S. Ramkumar Veerakkalpudur Village Raman Nagar Post, Mettur Dam, Salem District - 636 403.
...Respondent(s)
For Applicant(s): Mr. T. Sai Krishnan.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1.
Dr. D. Shanmuganathan for R2.
Mr. S. Sai Sathya Jith for R3.
Mr. N.L. Rajah, Senior Counsel along with
Mr. T. Ravichandran for R4.
Judgment Reserved on: 19th April 2022.
Judgment Pronounced on: 26th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member.
1. This application was filed by the original applicant, since no more, alleging that he was a resident of Veerakkalpudur Town Panchayat and public spirited citizen actively taking part in general welfare of inhabitants of the villages and also for protection of environment. The said village is situated abutting the Mettur Reservoir which is known as Page 3 of 130 Stanley Reservoir built on the river Cauvery, the life line of the State of Tamil Nadu.
2. The 4th respondent is a company which had established its three units within the radius of 500 meters from the river and the reservoir, on the Government land and the water bodies and has been carrying on its activities. Originally the Government of Tamil Nadu leased out the land which includes certain water bodies vide G.O. Ms No. 1950 Revenue Department dated 25.07.1964 for establishment Polyvinyl Chloride Factory to the 4th respondent which was then known as M/s Chemicals and Plastics India Ltd. The 4th respondent thereafter has gone from one unit to other and now has three units. They use Cauvery River water by erecting three pump houses right in the reservoir.
3. The 4th respondent had violated all the norms and conditions and causes gravest damage to the environment by drawing huge amount of water by maintaining false meter and calculations, by discharging most poisonous effluents into the downstream river by criminally concealing the PVC pipes under the earth polluting the river Cauvery, the lands nearby and maintains a false story as if it is a Zero Liquid Discharge Industry and by emitting poisonous gases and by-products in the air causing grave air pollution.
4. Over the period, the entire ground water of both Gonur and Veerakkalpudur Villages have been completely spoiled and has become unfit for drinking purposes. The river water is polluted and causes itching and skin diseases to the people and the cattle and the fishes in the river die in masses. Most of the people in the locality are suffering from skin ailments and incidents of cancer are high on account of the pollution caused due to the operation of the 4th respondent unit.
5. The 4th respondent was in the process of constructing and establishing another monstrous unit, namely, Unit-IV for producing Hydrogen Peroxide (H2O2) another environmental dangerous chemical as Unit-IV without obtaining Environmental Clearance. No proposals have been Page 4 of 130 sent either to MoEF&CC or SEIAA for obtaining Environmental Clearance for the Unit-IV.
6. Further, as per G.O. (3D). No. dated 12.09.2017 permitting the new industry as if it is an expansion activity, is not permissible within that area. The people in the locality including the applicant have raised objections regarding the activity of the 4th respondent, some demonstrations were also done. Thereafter the applicant approached this Tribunal by filing O.A. No. 12 of 2019 and when it came up for admission on 15.04.2019, the Tribunal observed that allegations are vague, the details of violations were not mentioned and the provisions of the statute which were applicable were also not clearly mentioned. So, at the request for the Learned Counsel for the applicant, the Tribunal allowed the applicant to withdraw the application with liberty to file fresh application with the details and that was recorded and the same was dismissed as withdrawn with above liberty.
7. According to the applicant, the establishment of the Unit-IV of the 4th respondent without obtaining clearance is against law and they were not entitled to proceed with the project and necessary directions had to be issued to control pollution on account of the activities of the 4th respondent. Though, representations were made in this regard, since no action was taken, the applicant filed this application seeking the following interim as well as main reliefs:-
"Interim Prayer To pass an order of interim injunction restraining the respondent 4 from in any manner proceeding with works or commencing operation or production in the Unit-IV of the fourth respondent located in S. No. 58/8 (part) etc of Verrakkalpudur Village, Mettur Taluk, Salem District pending disposal of the main Original application and pass such further or other orders and thus render justice.
Main Prayer
a) Direct the respondents 1 to 3 to issue the necessary directions stopping all further work and dismantling and demolishing the Unit No. IV of the fourth respondent located in S. No. 58/8 (part) etc of Verrakkalpudur Village, Mettur Taluk, Salem District in as much as the same is established without the mandatory Environmental Clearance,
b) Impose such find and costs on the fourth respondent for flagrant violation of law and utilize the amounts for re-construction and restoration of the damage area;
c) To pass such further or other orders as the Hon'ble NGT may deem fit and appropriate in the circumstances of the case.‖ Page 5 of 130
8. When the application came up for consideration for admission on 25.09.2019, this Tribunal observed that before proceeding further, in order to ascertain the genuineness of the allegations made, a joint Committee had to be appointed and accordingly, a Joint Committee comprising of Senior Officer from the SEIAA - Tamil Nadu; Senior Scientist from the Central Pollution Control Board and Senior Scientist from the State Pollution Control Board was appointed to go into the question and submit a factual and action taken report if there is any violation found. They were directed to consider the following things: "whether any environmental clearance is required for starting the Unit-IV of the respondent no-4 project for manufacturing of Hydrogen Peroxide in that location".
9. The 1st respondent had filed an affidavit on the basis of the direction given by this Tribunal vide order dated 01.06.2020 as to whether the proposed project by the 4th respondent require any prior Environmental Clearance or not. They have mentioned that under Sub-Section (1) Clause
(v) of Sub Section (2) of Section 3 of the Environment (Protection) Act, 1986, the Central Government had got power to make Rules for carrying out the purposes of the said Act. Pursuant to the power, they issued EIA Notification, 1994 vide S.O. 60 (E) dated 27.01.1994 mandating 32 categories of projects listed in the Schedule-I to obtain prior Environmental Clearance based on the investment criteria (Originally it was Rs. 50 crores, which was later enhanced to Rs. 100 Crores).
10. It was further contended that Environmental Impact Assessment was made a statutory requirement for certain construction and development activities through amendment dated 07.07.2004. Thereafter, the 1994 EIA notification was superseded by subsequent notification issued by MoEF&CC by S.O. 1533 (E) dated 14.09.2006 with its subsequent amendments. They have explained the nature of industries which will come under the notification and the nature of categories and the authorities who are expected to grant the same and the procedure to be followed in respect of each category as envisaged in EIA Notification, 2006. It is further contended that under the Provisions of EIA, Notification, the manufacturing of Polyvinyl Chloride requires prior Page 6 of 130 Environmental Clearance as per Schedule -I Item5 (C): Petrochemcial Complexes (both Olefinic acid Aromatic) aid Petro-Chemical intermediates such as DMT, Caprolactam, LAB etc., aid production of basic plastics such as LOPE,HOPE, PP, PVC. Under the EIA Notification, 2006 the manufacturing of Polyvinly Chloride requires a prior Environmental Clearance as per Schedule 5(f): Synthetic organic chemicals industry (dyes and dye intermediates: bulk drugs aid intermediates excluding drug formulations: synthetic rubbers; basic organic chemicals, other synthetic organic chemicals aid chemical intermediates), located outside the notified industrial area/estate, located in a notified industrial area/estate, "General as well as specific conditions will apply". They further contended that they may be permitted to file further reply, if any, required and pass appropriate orders accepting their contentions.
11. The Tamil Nadu Pollution Control Board filed a report dated 20.11.2019, received on 23.11.2019 which reads as follows:-
"4. It is respectfully submitted that the Joint Committee, inspected the Group of Industries of M / s. Chemplast Sanmar Limited, Mettur, Salem District on 21.10.2019 & 22.10.2019 and furnished the report of the joint committee to the respondent Board.
5. It is further submitted that the Joint committee has submitted the report based on the field observation and monitoring as follows
a) The pipeline laid down in for discharging treated effluent into surplus water course: Though the industry is not discharging their effluent through this pipelines and achieving ZLD, these pipelines are creating suspicious and fear among the public. And also the concentration of TDS & Chloride (4024 & 2079 mg / L) in sample taken from storm water drain near the Plant II, confirms the occasional discharges.
b) Storm water drain passing through the plants of M/s. Chemplast Sanmar and carrying surface runoff: In any plant of M/s. Chemplast Sanmar industries not provided storm water management system to collect roof top water, surface runoff during rainy days, all surface runoff from plant area as well as vacant land joining the storm water drains passing inside the premises and ultimately joining the public drains which makes doubt among the public. The samples collected from plant -11 outlet of storm water drain reported high TDS & Chloride (2464 mg/L & 1060 mg/L) which confirms the chances of contaminated surface run off from the plant areas into these storm water drains (Odai).
c) The water samples taken from the Open wells and Bore wells from agricultural fields: In spite of continuous rain fall in the area, the concentration of TDS and Chloride were found as high as 3396 mg / L & 1100 mg / L which confirms the sources of contamination in the area which requires detailed hydro geological study to identify the sources of contamination.Page 7 of 130
d) Status of Pollution Control Measures taken by six units of Chemplast Sanmar: All units are provided treatment system for treating their effluent and achieving ZLD, also installed Air Pollution Control Devices (APCD) to achieve prescribed standards of TNPCB. In spite of this the committee noticed following short falls;
i) The Plants are provided STP in 2 plants and Soak pit / Septic tank in remaining plants to treat domestic effluent generated. The unit required to install STP in place of Soak pit / Septic tank and treated effluent shall be utilized for gardening purpose or for any other suitable purpose to reduce the fresh water consumption.
ii) The industry claims that the trade effluent generated is being treated and utilized in the process and achieving ZLD. However, the unit not made substantial data to prove the reduction of fresh water consumption in details w.r.t individual plants.
iii) The plants are not provided storm water management system and rain water harvesting system to collect surface runoff during rainy days on account of water conservation. Huge quantity of Storm water being discharged to nearby drain which was objected by the public. The unit required to commission proper rain water collection system which reduces the fresh water consumption.
iv) Except Plant -IV and Power plant, all other plants are having Secured Land Fill (SLF) sites to dispose of their hazardous waste generated. Thirty SLFs were found closed with concrete top, the committee could not verify the measures taken in SLF and no proper leachate collection system exists in many old SLFs. Detailed ground water monitoring around the plant as well as in the surrounding area is required to ascertain the safety measures taken in old SLFs.
6. It is respectfully submitted that the Joint committee has recommended the following recommendation as follows:
i. The Industry shall remove the unused pipeline wherever possible from the surplus course of the River Cauvery laid by the unit earlier and shall ensure that no trade effluent or any other liquid discharge into river or any drain.
ii. The industry shall stop sending domestic effluent into either Soak Pit or Septic tank, entire domestic effluent shall be taken to STPS exist (if adequate) or to be provided additional STP to treat entire sewage and utilized for gardening and other purposes in place of fresh water.
iii. The industry shall install adequate number of flow meters and web camera to ensure the ZLD system and to submit the detailed water auditing report on account of ZLD and recycling of treated effluent in different process.
iv. The industry shall take detailed study on present conditions of Old SLF in consultation with. Expert organization such as NEERI / CLRI or any other Institutes to ensure the safety and to take measures as per the outcome of the study.
v. The industry shall stop disposing of their hazardous waste in captive SLFs and to direct to sent to Common TSDF or Co processing depending on the quality of hazardous waste.
vi. The Industry shall take immediate steps to provide proper storm water management system to collect roof top water separately, surface runoff (contaminated with product or raw material) from plant area separately and surface run off from vacant land separately in all plants and to construct separate storage system so that these water shall be utilized for industrial purpose with suitable treatment if required. No storm water shall be let it out in public drains / Odai.
vii. The industry shall explore the possibility of diversion of storm water drains which are passing inside the premises in consultation with local administration. In extreme circumstances of non diversion of existing storm water Page 8 of 130 drains (Odai), the unit required to install online monitoring system for pH, TDS, BOD and COD to ensure the natural quality of storm water / surface water runoff.
viii The industry shall take steps to find out root causes for oozing of water from outside boundary wall of Plant II (South west side) and sources of stagnant water in the area.
ix. A detailed study on the issue of ground water contamination in and around the unit of M/s. Chemplast Sanmar group of industries in Mettur should be carried out by the National Geophysical Research Institute, Hyderabad to address the grievances of the public regarding ground water contamination and to take follow up action by the Tamil Nadu Pollution Control Board. The study should be completed by NGRI within six months. The cost of the study should be given by the M/s. Chemplast group of units Mettur.
x. A High level Committee may be formed to look into the adequacy of the safety measures taken, Air pollution control measures and also monitoring systems with respect to M/s. Chemplast Sanmar Ltd Plant - IV (Hydrogen Peroxide Plant). The Committee may consist of a member from NEERI, a member from Indian Institute of Technology (IT) Chemical Engineering Department, Chennai, the Director, Safety & Occupational Health, Government of Tamil Nadu, a senior official from CPCB and a senior official from Tamil Nadu Pollution Control Board. Tamil Nadu Pollution Control Board can be the nodal agency for the Committee. The unit shall operate in the presence of the Committee with different capacity starts from 40% - 75% to observe the odor nuisance and other Environment related issues as addressed by the public.
xi. The Plant IV shall take action to reuse the storm water collected from seepage of the unit during rainy time. The unit shall take the necessary step to close the rain water inlet line to avoid the rain water entry into the unit.
xii. The unit shall provide Continuous Ambient Air Quality monitoring stations (CAAQM) in four directions around the Plant - II, III, IV, V and Power Plant. The unit shall monitor PM10, SOX, NOX, Chlorine and VOC.
7. It is submitted the report of the Joint Committee on Group of M/s. Chemplast Sanmar Limited, Mettur, Salem District as per the direction of the Hon'ble National Green Tribunal order dated: 25/09/2019 is submitted here with Annexure.‖
12. The Joint Committee also filed a report dated 20.11.2019 which was produced along the report of the Tamil Nadu Pollution Control Board which reads as follows:-
―In Compliance of above mentioned order, The Member Secretary, Tamilnadu Pollution Control Board, Chennai, constituted a Committee comprising the following officials from SEIAA, TNPCB and CPCB. The Committee members were communicated vide letter dated October 14, 2019 (Annexure - 2).
Sl. Name and designation of the Officer Committee No.
1. Thiru.M.Murugan, Member SEIAA, Chennai. Member
2. Mrs.H.D.Varalaxmi, Sc. E/AD CPCB, Bangalore Member
3. Thiru.K.Gokuladas Joint Chief Environmental Convener Engineer, TNPCB, Chennai
4. Thiru.S.Sankarasubramanian Assistant Member Director (Lab), AEL, TNPCB, Chennai.Page 9 of 130
Apart from the above Thiru.R.Mathivanan, JCEE, TNPCB, Salem, Mr.Gopalakrishnan, DEE, TNPCB, Salem, Thiru. Abu Bakkar, AE, TNPCB, Salem and other officials of the Revenue Department, the Public works Department and petitioner were participated during field visit around the M/s. ChemplastSanmar on 21.10.2019.
2.0 Meeting & Planning The Committee met the District Collector on 21/10/2019 and briefed about the purpose of the Committee. Also, the Committee met the petitioner Mr.K.Gemini at the Inspection Bungalow, Mettur who is the petitioner of the case. The other public consisting of 50 persons also expressed their grievances before the Committee regarding pollution caused by M/s. Chemplast Sanmar units, Mettur issues in presence of the Sub-Collector, Mettur, the Executive Engineer, PWD, Mettur and the Deputy Director(Health), Salem. The public presented petitions to the Joint Committee. Later, the petitioner along with some of the public showed the pipe lines of M/s. Chemplast Sanmar Ltd which were laid earlier to discharge their treated effluent into surplus course of the River Cauvery and also they showed the storm water drains of M/s. Chemplast Sanmar Ltd, Unit-II. Water samples were taken from the storm water drain, stagnated water, wells and bore well in the vicinity of the units as requested by the petitioner. The samples were sent to the Advanced Environmental Laboratory, TNPCB, Salem for analysis. The Committee also inspected the water intake points of Chemplast Sanmar.
The second day on 22/10/2019 the Committee inspected M/s. Chemplast Sanmar Ltd Plant - I, II, III, IV, V and the Power Plant.
Also, the Committee inspected their Captive Secured Land Fill sites which were closed as well as active sites. After inspection, the Committee discussed with unit authorities in their Plant -II. The Committee have received certain details from the unit authorities and completed the inspection of the unit. The details of individual plant inspection are furnished as below.
3.0 Field observations of Joint Committee:
i. Visit to Pipe Line laid down for discharging Treated Effluent into Cauvery Surplus water Channel:
The committee observed the pipelines laid down in past for discharging treated effluent into Cauvery Surplus water channel, these pipelines were found blocked with cement concrete at discharge end as per the direction of TNPCB to ensure no effluent discharge into the river. The unit claims that these pipelines are dummy and no effluent discharged, however these pipelines are still exist from industry to Cauvery Surplus Water Channel.
ii. Visit to Storm water drains which were passing across the different plants of Chemplast Sanmar and finally joining nearby nalas/ public drains:
The committee noticed the two storm water drain & outlet from the boundary walls of Chemplast industries, public complained that these storm water drains being misused to discharge their effluent. The committee collected samples from these drains to verify the quality of water flowing.
iii. Visit to Surrounding villages :
The committee visited the surrounding villages namely Konur, Veerakalpudur and Kunjandiyur and observed the open wells and bore wells which were reported that these water is not suitable for agricultural crops. The committee collected the water samples from these open wells and bore wells to verify the claims of public. The committee also observed the hosing of water from outside of boundary wall of Plant - II and the stagnated water near to hosing area was collected to cross verify the claims of public.Page 10 of 130 Page 11 of 130 Page 12 of 130 Page 13 of 130 Page 14 of 130 Page 15 of 130 Page 16 of 130 Page 17 of 130 Page 18 of 130 Page 19 of 130 Page 20 of 130 Page 21 of 130
Tamil Nadu Pollution Control Board can be the nodal agency for the Committee. The unit shall operate in presence of the Committee with different capacity starts from 40 % - 75% to observe the odour nuisance and other Environment related issues as addressed by the public.
xi. The Plant - IV shall take action to reuse the storm water collected from seepage of the unit during rainy time. The unit shall take necessary step to close the rain water inlet line to avoid the rain water entry into the unit.
xii. The unit shall provide Continuous Ambient Air Quality monitoring stations (CAAQM) in four directions around the Plant-II, III, IV, V and Power Plant. The unit shall monitor PM10, SOx, NOx, Chlorine and VOC.‖
13. The 4th respondent filed reply to the counter affidavit filed by the 1st respondent contending that grievance in the original application was that the 4th respondent is operating their project Unit No.-IV for manufacturing Hydrogen Peroxide (H2O2) without obtaining Environmental Clearance. Originally, this Tribunal by order dated 25.11.2019 at Para 4 directed the 1st respondent to make a comment regarding necessity or otherwise of getting Environmental Clearance in respect of the disputed project of the 4th respondent. Again by order dated 01.06.2020 directed the 1st respondent to respond as to whether any prior Environmental Clearance is required for the project before commencement under the prevailing environmental laws. The 4th respondent is manufacturing Hydrogen Peroxide at Unit/Plant-IV. The Tribunal by above orders specifically sought the response of the 1st respondent as to whether prior Environmental Clearance is required for this project or not. 1st respondent filed counter and in Para 9 and 10, they mentioned about the need for obtaining prior Environmental Clearance for manufacturing Polyvinyl Chloride under provisions of EIA Notification, 2006. It is mentioned in the reply that there PVC plant is not a new project and it is manufacturing Polyvinyl Chloride at Unit/plant-II for many decades and that it had obtained Environmental Clearance for manufacturing of Polyvinyl Chloride which was produced as annexure R4-1, even though the same is not the subject matter of the present application. Plant II PVC unit is not the subject matter of the application filed by the applicant in respect of which Environmental Clearance was obtained by the 4th respondent. The Tribunal wanted the response from the 1st respondent as to whether the project now established by 4th respondent unit/Plant-IV that is manufacturing of Hydrogen Peroxide (H2O2) requires prior Environmental Clearance or not but this was not Page 22 of 130 answered by the 1st respondent. The Joint Committee filed a report (pursuant to the order of this Tribunal dated 25.09.2019) responding to the each of the allegation of the applicant specifically stated that unit/plant-IV does not attract EIA Notification as follows:-
―Allegation No.4 - Unit - IV without obtaining any prior environmental clearance and it is a new factory for producing another environmentally dangerous chemical - Hydrogen Peroxide.‖
14. It is further mentioned in the reply that in this unit Hydrogen Peroxide is manufactured by using Hydrogen and Air as main raw materials. The organic Chemicals such as anthroquinone and solvent such as methyl cyclohexile acetate and solvent naphtha are used as working solution.
There is no synthetic organic chemical manufactured in the unit. So it is not attracting EIA Notification, 2006 and as such no Environmental Clearance is required. The SEIAA is member of the Joint Committee which has specially mentioned that this unit did not require any prior Environmental Clearance.
15. On 25.11.2019, this Tribunal had considered the observations and recommendations of the Joint Committee and felt that there is necessity to admit the matter and admitted the matter. Since the 4th respondent entered appearance through counsel, notice to the 4th respondent was dispensed with. This Tribunal directed MoEF&CC to make comment about the necessity or otherwise of getting Environmental Clearance in respect of such projects. Further, this Tribunal also appointed a Joint Committee comprising of a Member from NEERI, IIT Engineering Department, Chennai, the Director of Safety and Occupational health from Government of Tamil Nadu, a Senior Official from CPCB, Senior official from Tamil Nadu Pollution Control Board and a member from National Geophysical Research Institute, Hyderabad to consider the question whether the safety measures taken by respondent No. 4 in the Secured Land Fill (SFL) are sufficient and also regarding the ground water contamination caused on account of the activities of the 4th respondent, industrial group and also the land fill measures taken by the industry to dispose of the hazardous substances dumped in the land fill, Page 23 of 130 scientifically as per rules and whether it is likely to cause any further degradation of the soil or ground water and if there is any possibility, then further remedial measures which are to be taken and also suggest the same and expenses incurred for the purpose has to be met by the 4 th respondent-industry. The Pollution Control Board was designated as nodal agency for this purpose.
16. The Joint Committee appointed by this Tribunal as per order dated 25.11.2019, submitted the following report e-mailed on 25.09.2020 which reads as follows:-
"In Compliance of above mentioned order, The Member Secretary, Tamil Nadu Pollution Control Board, Chennai, constituted a Committee comprising the following officials from NEERI, IIT Madras, Directorate of Industrial Safety and Health, CPCB, TNPCB and NGRI. The Committee members were communicated vide letter dated 20/01/2020 (Annexure -2).
Apart from the above Thiru.R. Mathivanan, JCEE, TNPCB, Salem, Thiru.V. Gopalakrishnan, DEE, TNPCB, Salem, Thiru.I.AbuBakkar, AE, TNPCB, Salem were also participated along with committee member.
2.0 Meeting & Planning The Joint Committee had meeting followed by preliminary visit to M/s Chemplast Sanmar Ltd., during December 23-24, 2019 to view the activities of group of industries of M/s. Chemplast Sanmar, SLFs and surrounding areas. The committee discussed the directions of Hon'ble NGT and visited the all SLFs of M/s Chemplast Sanmar Ltd., and its surrounding areas to understand the subject site. The committee prepared format to obtain primary data on individual industrial activities and SLFs to take up detailed inspection followed by monitoring during January 20-21, 2020 and the same was recorded in minutes (Annexure - 3).
As scheduled the committee met again during January 20-21, 2020 along with team of officials of National Geophysical Research Institute, Hyderabad. The committee witnessed the VOC emission monitoring carried out at Plant - IV by engaging the third party laboratory on Page 24 of 130 Page 25 of 130 Page 26 of 130 Page 27 of 130 Page 28 of 130 Page 29 of 130 Page 30 of 130 Page 31 of 130 Page 32 of 130 Page 33 of 130 Page 34 of 130 Page 35 of 130 The unit shall provide more effective chillier to the solvent recovery unit for better recovery of the solvent.
The unit shall provide adequate number of additional adsorbent beds for better control of VOC emission further.
In addition to adsorbent beds, the unit shall be directed to install Regenerative Thermal Oxidizer (RTO) system to achieve the VOC emissions below 5 microgram /Nm2 The concentration of VOC at outlet of adsorbent should be interlocked with production line. The unit shall provide proper stack emission monitoring system (VOC monitoring) with suction motor. The unit shall install alarm system to give caution in case of exceedance of VOC limit in the stack The unit shall provide suitable emission monitoring system of the inlet and out let of the adsorbent.
The unit shall provide Siren system coupled with ambient VOC monitoring system to give alert to public in case of exceedance of TVOC in ambient air.
The unit shall carry out automation in the adsorbent section to control emission.
9. The unit shall regularly calibrate all the VOC monitors installed at the stacks attached to adsorbent beds and provide proper data to Care Air Centre of TNPCB, Guindy at all times
10. The unit shall provide Continuous Ambient Air Quality monitoring stations (CAAQM) in four directions around the Plant - II, III, IV, V and Power Plant. The unit shall monitor PM10, SOx, NOx, Chlorine and VOC.‖
17. The 4th respondent filed reply cum objection contending that the application is not maintainable. The applicant is a habitual complainant and had filed baseless complaints in the past before the Taluk Legal Services Committee, sub Court Building, Mettur on 13.02.2019 vide application nos. 8 of 2019 and 9 of 2019 levelling similar allegations against the respondent. Pursuant to that, notice was issued, they appeared before the said Committee on 25.02.2019 and submitted its detailed response to each and every allegation levelled by the applicant in their complaint on 04.04.2019 evidenced by annexure R4-1 and R4-2 produced along with this counter. Thereafter, the Taluk Legal Service Committee dismissed the application for non-prosecution after considering the reply submitted by them. While the said matter was pending, the applicant filed O.A. No. 12 of 2019 before this Tribunal which was dismissed by this Tribunal vide order dated 15.04.2019. Thereafter, the present application has been filed alleging the same allegations made by them before the Taluk Legal Service Committee. They contended that they had started their unit in 1967 and they were Page 36 of 130 operating the four units in conformity with the statutory provisions and obtaining necessary approvals and clearance.
18. The present unit did not require any Environmental Clearance and the notification mentioned by the applicant is not applicable to their unit because most of the units were established prior to that notification. Further, they have established a robust treatment system for treating their effluent and achieving Zero Liquid Discharge (ZLD) which was in operation since February, 2008 for all their units by spending an amount of Rs. 28 crores apart from recurring expenditure for operation and maintenance of the said ZLD system ranging from Rs. 5.6 to Rs. 7.2 crores annually. The ZLD system operated by them was successful evidenced by annexure-R4-3, study published by Chemical Engineering World Journal. They were adopting all environmental friendly methods and obtained awards from various organisations considering their implementation of environmental friendly measures evidenced by annexure R4-4 and R4-5. They denied the allegation made in the application regarding the alleged pollution caused on account of their unit. They have extracted in a tabular form regarding the allegations made by the applicant and the findings of the Joint Committee in this regard in Para 8 of their counter which reads as follows:-Page 37 of 130
19. n view of the findings of the Committee, the allegations were not genuine and the application is to be rejected in limine.
20. They also raised their objections to the recommendations made by the Committee regarding their landfills and they have raised their comments on the same in Para 16 in a tabular form which reads as follows:Page 38 of 130 Page 39 of 130 Page 40 of 130 Page 41 of 130
21. So, they prayed for dismissal of the application.Page 42 of 130
22. As per order dated 01.06.2020, this Tribunal had directed the MoEF&CC to file the reply as directed by this Tribunal and also directed the Committee to seek the assistance of NGRI to conduct the study as observed in the recommendations and thereafter to file a further report regarding the same to this Tribunal, instead of relegating the same to the project proponent. The case was originally posted to 21.08.2020 for consideration of report, filing objection and response to the original application by party respondents, who had not filed the response so far and objections, if any, to the Joint Committee Report already filed.
23. In the meantime, the Pollution Control Board directed the 4th respondent to pay an amount of Rs. 82,50,000/- for conducting the study by National Geophysical Research Institute (NGRI) and aggrieved by the same, they filed I.A. No. 55 of 2020 before this Tribunal, till their objections were considered by the Tribunal sought the intervention of this Tribunal to keep the direction in abeyance pursuant to letter dated 17.06.2020 issued by the Pollution Control Board. This Tribunal considered the application on 22.07.2020. After considering the submissions made by both parties this Tribunal observed "however, we are not going into the question of liability of amount at this stage. Further, the Pollution Control Board as well as the applicant (4th respondent in the main application) are directed to consider the question as to whether this amount can be either appropriated from the environmental compensation deposited and lying with the Pollution Control Board or by the unit invoking their corporate social responsibility of the fourth respondent company as this is required for general study to be conducted to improve the water quality in that area, if it is contaminated and submit a response regarding the same on the next hearing date" and till then, Pollution Control was directed not to proceed with further pursuant to their notice dated 17.06.2020 directing 4th respondent to remit Rs. 82,50,000/- plus GST and with that observation the I.A. No. 55 of 2020 was disposed of and the case was posted to 21.08.2020 for consideration of further report. On 21.08.2020, the matter was adjourned to 15.09.2020. On 06.10.2020, after considering the objections raised by the parties regarding the liability to remit the Page 43 of 130 amount required for conducting the study, this Tribunal had passed the following order:
―3. The fourth respondent has filed their objection to the report of the committee. Further, they have expressed their inability to spend this amount from the Corporate Social Responsibility Fund, as it was intended for several other projects already launched by them detailed in the objection filed and the same cannot be diverted.
4. So under these circumstances, since it is a general study to be conducted to assess the water quality in that area for the benefit of the local people, we direct the Pollution Control Board to appropriate this amount from the environmental compensation lying with them and thereafter when they are assessing the environmental compensation from the persons to be recovered in proportion to the level of pollution contributed by the units, including the fourth respondent, if any and recover this portion of the amount also from those persons, as part of the environmental compensation fixed or assessed, so that the necessary study to be conducted for the benefit of the people can be proceeded with. The committee is also directed to consider the reply/objection filed by the fourth respondent and compliance of the recommendations made by the committee which the fourth respondent is expected to carry out and if there is any deficiency, they are directed to mention the same also in the further report to be filed
5. We are not satisfied with the manner in which MoEF & CC has given their response regarding the applicability or otherwise of the Environment Clearance for the unit in question launched by fourth respondent - M/s Chemplast Samkar Ltd and when this was pointed out, learned counsel appearing for the MoEF & CC submitted that he will file a fresh additional reply, clarifying that aspect, on the basis of the nature of activity that is being done by the fourth respondent - M/s Chemplast Samkar Ltd unit. They are directed to submit additional reply, as mentioned above before the next hearing date.
6. The learned counsel appearing for the applicant submitted that objection or reply have not been served on them. The respective counsel are directed to serve the copy of the objections/reply/compliance report submitted by them to the counsel for the applicant as well as other counsel appearing for other parties.‖
24. The case was posted to 06.01.2021. By this order this Tribunal observed that since it is a general study to be conducted to assess the water quality in that area for the benefit of the local people, this Tribunal directed to appropriate this amount from the environmental compensation lying with the Pollution Control Board and thereafter, when they were assessing the environmental compensation to be recovered from the persons in proportion to the level of pollution contributed by the units including the 4th respondent, if any, and recover that portion of amount from those persons also as part of environmental compensation fixed or assessed so that the necessary study to be conducted for the benefit of local people can be proceed with. The Committee was also directed to consider the reply/objection filed by the 4th respondent and compliance of the recommendations made by the Committee which the 4th respondent is expected to carry out and if there were any deficiencies, they were directed to mention the same in the further report to be filed.Page 44 of 130
25. The matter was taken up on 22.02.2021 and considered the report submitted by the Joint Committee dated Nil received on 02.02.2021 and extracted in Para 4 of the order which reads as follows:-
―2. Meeting of the Joint Committee In compliance with the Hon'ble NGT order dated 06/10/2020 a meeting was conducted by the joint committee on 21/12/2020 in the unit of M/s. ChemplastSanmar Limited Unit-IT, Mettur Dam, Salem District.
The unit authorities made power point presentation regarding compliance of the Hon'ble NGT Committee recommendation and alsoexplained about the compliance status of earlier field observations of the joint committee and compliance status w.r.t recommendations of the joint committee on SLFs.
3. Inspection of the Joint Committee
a) STP installation in Plant - I The joint committee inspected plant-1 and observed the construction activities of the STP. The civil works were under progress.
b) Storm water management The committee inspected the Plant-II, III, IV, V and Coal Power Plant to check the storm water management systems. In plant II, the unit has proposed 5 roof top water collection schemes out of which 3schemes were completed and remaining two schemes were under progress. In plant-HI out of 5 schemes, 4 schemes were completed and one was in progress. In plant-IV all 4 schemes were completed. In Cabot plant, all the 2 schemes were completed. In coal power plantall 4 schemes were completed. The said units have also made arrangements to collect the surface run off water collection from the non process area & process area.
c) Online monitoring in Storm water The unit has installed online monitoring system for pH, TDS and COD at the outlet of the storm water runoff of plant-II & plant --III. It was observed that the unit has not provided online monitoring for storm water outlet in plant- IV.
d) Oozing of water Oozing of water from outside of the plant-II was found during committee's earlier visit. The same area was inspected and found that there was no oozing of water. That area wasdry during inspection.
e) PiezometricBorewells The piezometric bore wells located in plant-I, II, III and Cabot SLFs were inspected by the committee and found that all the SLFs were provided with the required numbers of the upstream and downstreampiezometric wells Page 45 of 130 as per the guidelines of CPC13. The details of the piezometric wells are furnished vide Annexure-II.
f) Inspection of Plant-IV The committee noticed that the unit has provided stack emission monitoring system (VOC) with suction motor and also it has installed alarm system for caution in case of exceedance of VOC limit in the stack. The unit has provided interlocking system in the production line with respect to the VOC concentration at the outlet of the absorbent bed. Further, the unit has provided siren system coupled with ambient VOC level to issue caution to the public.
g) Rain water entry into Plant-IV The origin of the storm water is from outside of the plant-IV and it was entering the plant through anodai(nullah). Earlier the committee recommended to close the rain water inlet to avoid rain water entry into plant-IV and to take action to reuse the storm water from seepage of plant. But, the unit has provided 2 Nos. of 8inch PVC line for transporting the water coming from northern side of the plant to the outside of the plant.
The unit has not made provision to collect the ground water seepage at plant-IV.
h) Safety measures in plant IV as suggested by Additional Director of Industrial Safety &Health.
The Additional Director of Industrial Safety & Health has recommended to implement 35 safety measures. The unit has implemented 30 recommendation and the remaining 5 recommendations are yet to be implemented by the unit. The report of the Director of Industrial Safety & Health is enclosed vide Annexure-IV.
4. The committee recommendation and its compliance.
Si. Committee Unit's Reply Joint Committee
No Recommendation remarks.
1. The unit has Company is in the STP civil works are in
already p r o v i d e d process of establishin a
S T P f o r domestic effluent sewage treatment plant progress(photo
arising from Plant II & III. (STP) for Pl ant - I . attached)
Now the Unit has installed A l l m ec ha ni cal
Partially complied
one new STP w.r.t Plant e q uipments arrived to
IV & V a n d i t i s i n the site. Civil work is
operation. The Unit has in the advanced stage.
not provided STP for STP will be in
domesticeffluent w.r.t. operation by end Jan
Plant I & its colony and 2021.
still sending domestic
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Connections shall be removed (or) made flame proof. Smoke detectors shall be provided.
The committee recommends for carrying out the above measures.‖
26. The matter was adjourned to 17.03.2021 for consideration of report and also for filing objection, if any, to the report.
27. In the meantime, the Pollution Control Board filed R.A. No. 01 of 2021 along with delay condonation of application I.A. No. 56 of 2021 to condone the delay in filing the review application and this Tribunal condoned the delay in filing the review application by order dated 17.03.2021 and also dismissed the Review Application by order dated 13.04.2021.
28. In the meantime, as directed by this Tribunal, the 1st respondent filed their reply affidavit contending that this affidavit was filed pursuant to this Tribunal‟s order dated 06.10.2020 inter alia directed the MoEF&CC to file an additional affidavit as to whether the Environmental Clearance is required for the Hydrogen Peroxide plant established by the 4th respondent. They further contended that manufacturing of Hydrogen Peroxide which is an inorganic chemical does not fall under the purview of EIA Notification, 2006 and as such no Environmental Clearance is needed for this project. So, they prayed for accepting that reply affidavit and pass appropriate orders.
29. The 4th respondent filed objection to the Joint Committee report which reads as follows:-
Page 70 of 130 Page 71 of 130 Page 72 of 130 Page 73 of 130 Page 74 of 130 Page 75 of 130 Page 76 of 130 Page 77 of 130 Page 78 of 13030. The Joint Committee filed a report dated Nil e-filed on 14.07.2021 which reads as follows:-
―2. Meeting of the Joint Committee In Compliance with the Hon'ble NGT (SZ) order dated 31.05.2021, a virtual meeting was organized with the members of the committee constituted by Hon'ble NGT in the matter of O.A. No.16 of 2019 on 22.06.2021 due to the prevailing COVID - 19 pandemic. Copy of the Minutes of the meeting is enclosed at Annexure - III.
The discussion held and the decision of committee is reproduced as below; The unit presented the following compliance status w.r.t recommendations of the Joint Committee Page 79 of 130 Page 80 of 130 Page 81 of 130 Page 82 of 130 Page 83 of 130 Page 84 of 130
31. The Joint Committee also filed another report dated Nil, e-filed on 12.11.2021 which reads as follows:-
―2. Inspection of the Joint Committee In compliance with the Hon'ble NGT (SZ) order dated 31.05.2021 and as committed in the earlier report dated 14.07.2021, the Joint Committee members inspected the unit of M/s. Chemplast Sanmar Limited, Mettur, Salem District during 26.08.2021 and 27.08.2021.Page 85 of 130 Page 86 of 130 Page 87 of 130 Page 88 of 130 Page 89 of 130 Page 90 of 130 Page 91 of 130 Page 92 of 130 Page 93 of 130 Page 94 of 130 Page 95 of 130 Page 96 of 130 Page 97 of 130 Page 98 of 130 Page 99 of 130 Page 100 of 130 Page 101 of 130 Page 102 of 130 Page 103 of 130 Page 104 of 130 Page 105 of 130
32. On 30.09.2021, this Tribunal considered the Joint Committee report of compliance dated Nil, e-filed on 14.07.2021 extracted in Para 2 of the order which this Tribunal already extracted in earlier paragraphs and then passed the following order:-
―3. It is seen from the report that they have not conducted the physical verification of the compliance of status and recommendations, for that purpose, they want eight weeks time as they proposed to conduct the inspection by third week of July 2021.
4. The learned counsel appearing for the Tamil Nadu Pollution Control Board submitted that they have conducted the inspection on 26th and 27th August, 2021 and if some time is granted, they may be able to file the report.
5. As regards the larger study is concerned, the committee can take its own time, but as regards the compliance of recommendation is concerned, the committee is directed to file an interim report regarding the compliance of the recommendations made by the committee on or before 22.10.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules.
6. The learned counsel appearing for the applicant submitted that the applicant is no more and they want to implead their son who is interested in prosecuting the matter. The applicant is also directed to take steps to implead the legal heirs or any other interested person to prosecute the matter before the next hearing date.
7. The Registry is directed to communicate this order to the members of the committee and also to the official respondents by e-mail immediately so as to enable them to comply with the direction.‖ Page 106 of 130
33. In the meantime, the Learned Senior Counsel appearing for 4th respondent had filed a memo stating that the original applicant was no more and without impleading the legal representatives, the matter cannot be proceeded with. Since it being an environmental issue, the question of abatement does not arise. However, by order dated 30.09.2021, this Tribunal had posted the case on 22.10.2021 for taking steps to implead the legal heirs or other interested persons in place of deceased original applicant and also for consideration of interim report. Thereafter, the matter has been adjourned from time to time either at the request of the parties or by notification.
34. On 15.11.2021, this Tribunal had considered the further report of the Joint Committee dated nil, e-filed on 12.11.2021 extracted in Para 3 of the order which we have already extracted in the earlier paragraphs and the case was posted to 09.12.2021 for filing objections, if any, to the report and also for taking steps to implead the legal heirs of the deceased original applicant. On 17.12.2021, the case was again adjourned for giving opportunity to implead the legal heirs of the deceased original applicant and filing objection to the Joint Committee report and posted the case to 23.12.2021 for hearing and also for compliance of above directions.
35. On 23.12.2021, the legal representatives of the deceased original applicant filed I.A. No. 204 of 2021 to get themselves impleaded as additional applicants no. 2 and 3 and the same was allowed and the applicants in I.A. No. 204 of 2021 were impleaded as additional applicants no. 2 and 3 in the original application as legal representatives of the original deceased applicant and permitted them to prosecute the matter. On that day the case was heard and the Learned Counsel for the applicant as well as 4th respondent filed their written submissions as well.
36. As per order dated 14.02.2022, since there was some clarification required as to whether the manufacturing of Hydrogen Peroxide will fall under Item 6 (b) of Schedule to the EIA Notification, 2006, this Tribunal reopened the matter for further hearing. The MoEF&CC as well as the project proponent and the State Pollution Control Board were directed to file their independent statement regarding this aspect.Page 107 of 130
37. Further, as per order dated 18.02.2022, this Tribunal raised a doubt about as to whether the manufacturing of Hydrogen peroxide will fall under Item 5 (b) and Item 6 (b) of EIA Notification, as it has been termed as hazardous substance under Manufacturing Storage and Import of Hazardous Chemicals (MSIHC) Rules, 1989 as amended in 2000. Since it was used as pesticide and pesticide intermediate, whether it can be considered under Item 5 (b) of the EIA Notification and the learned counsel appearing for the MoEF&CC as well as Project Proponent wanted some time to clarify this aspect by filing detailed affidavits. This Tribunal also brought to the notice of the counsel appearing for the MoEF&CC that similar industry in Gujarat have applied for Environmental Clearance before the MoEF&CC and they have obtained Environmental Clearance and if that be the case, why this cannot be extended to the project proponent industry herein as well and wanted the MoEF&CC to give a clarification on this aspect as well.
38. The 1st Respondent/MoEF&CC filed additional affidavit contending that Item 6 (b) of the schedule of the EIA Notification, 2006 deals with projects/ activity associated with the isolated storage and handling of hazardous chemicals (as per the threshold planning quantity indicated in column 3 of schedule 2 & 3 of the MSIHC Rules, 1989 amended in 2000) which has been omitted vide S.O. No. 1960(E) dated 13.06.2019, evidenced by Annexure - R1 (1) produced along with the affidavit.
Hydrogen peroxide could be one of the many chemicals proposed to be produced by the same industry. In such cases, after due deliberations, Environmental Clearance (EC) was granted to such projects inter-alia subject to the statutory compliance of the specific condition that the project authorities need to strictly comply with the provisions made in the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 as amended from time to time for proper handling and securing necessary approvals before commissioning of the project as envisaged under the rules. It was also duly mentioned in such Environmental Clearances (ECs) that Hydrogen Peroxide does not require Environmental Clearance (EC). A copy of Environmental Clearance (EC) for similar industry (No. IA-J-11011/332/2018-IA.II(I) dated 07.01.2020 Page 108 of 130 granted to M/s Punjab Alkalies and Chemicals Ltd under Item 4(d) 'Chloro-Alkali Industry' of the schedule of the EIA Notification, 2006' wherein hydrogen peroxide was produced as a product and no Environmental Clearance (EC) was required for the same and that Environmental Clearance (EC) was produced as Annexure - R1(2). The MoEF&CC in September, 2010 has published sector-specific technical EIA guidance manuals (TGMs) for all developmental activities listed in the EIA Notification, 2006. This manual is a tool designed to assist in successful completion of an EIA and to provide clear and concise information on EIA to all the stakeholders i.e., the project proponent, the consultant, the reviewer and the public. As per the above said guidance manual also, hydrogen peroxide is not listed as a pesticide or pesticide intermediate under the schedule Item 5(b) of the EIA Notification, 2006. So under such circumstances, it does not require any Environmental Clearance (EC).
39. The 1st Respondent / MoEF&CC also filed another additional affidavit contending that as per the order dated 29.02.2022, this Tribunal directed this respondent to file additional affidavit clarifying why while granting Environmental Clearance (EC) to the Gujarat Alkalies in which one of the product is Hydrogen peroxide and certain specific conditions have been imposed for Hydrogen peroxide plant also whereas in Punjab Alkalies case, they have specifically mentioned that the Environmental Clearance (EC) is not required for manufacture of Hydrogen peroxide and no additional conditions imposed and the MoEF&CC was directed to file an additional reply, as it was not mentioned in the earlier reply filed. They have reiterated the procedure for filing the application for Environmental Clearance (EC), authorities before whom the same will have to be filed and the procedure to be followed by the authorities for appraising the project and the procedure to be followed and adopted by the project proponent for the purpose of application, making the application and also for conducting the EIA Study etc. They have further mentioned that in the case of Gujarat Chemicals, Terms of Reference was granted as per Letter dated 05.03.2016 by the MoEF&CC, no additional specific conditions imposed for the hydrogen peroxide unit wherein the project Page 109 of 130 proponent (PP) was directed to submit the final EIA/EMP report for consideration of their proposal for Environmental Clearance (EC) within 3 years. A copy of the ToR dated 05.03.2016 was produced as Annexure - R1 (3) along with the affidavit. Further, the Project Proponent has not submitted the EIA/EMP report against the above said ToR to the MoEF&CC for further appraisal by the EAC. There may be a scenario wherein Environmental Clearance (EC) is sought by the project which is manufacturing certain chemicals/products covered in the schedule of the EIA Notification, 2006 and the same project may be producing/manufacturing other chemicals/products which may not require prior Environmental Clearance (EC). In such cases, the ToR is granted for the entire project including those chemicals which may not require prior Environmental Clearance (EC) in order to have a holistic picture about the baseline data within an impact zone of study area i.e., l0 km radial distance from the project site and cumulative impact of the project in the EIA report along with the designing of risk assessment and disaster management plan to prevent any hazardous incidents. When some of the items fall under Category A and some items fall under Category B1 and B2, then the project will be appraised on the basis of the higher category. In the instant case of M/s Gujarat Alkalies as a unit required Environmental Clearance (EC) for the production of its organic chemicals. Therefore, it was appraised by the EAC at the central level and not for the grant of Environmental Clearance (EC) to the hydrogen peroxide unit. The Project Proponent is supposed to enumerate the details of all the products that they are producing, because expansion ToR was sought for the entire unit and not for any specific chemical. Hence, it is the entire integrated unit, for which, Environmental Clearance (EC) was granted which may or may not include products, for which, Environmental Clearance (EC) is not required as per the schedule of the EIA Notification, 2006. Even in the case of M/s Gujarat Alkalies also, ToR was granted to conduct EIA studies for the entire plant and that does not indicate that hydrogen peroxide units require Environmental Clearance (EC).
Page 110 of 13040. The Project Proponent has filed a memo dated Nil, e-filed on 18.04.2022 which reads as follows:-
―MEMO FILED BY THE 4 111 RESPONDENT It is most respectfully submitted that:
1. In the last hearing which took place on 12.4.2022, this Hon'ble Tribunal wanted some clarif i cat ions wi th regard to the condit ions prescrib ed b y the MoEF for Hydrogen Peroxide plants of Gujarat Alkalis and Punjab Alkalis. Even though no prior Environmental Clearance (EC) is required for the Hydrogen Peroxide pla nt of the 4th Respondent which has been endorsed by MoEF, gi ven b el ow i s t he com parati ve statem ent of t he conditions prescribed for the above mentioned Units with regard to H 2 O 2 Plant and the status of compliance by the 4th Respondent for their H 2 O 2 Plant Page 111 of 130 Page 112 of 130
2. From the above statement, it is clear that not only the 4 t h Respondent is in compliance with all the conditions imposed by MoEF for the aforesaid t w o i n d u s t r i e s b u t a l s o i n c o m p l i a n c e w i t h a l l t h e o t h e r t e r m s a n d conditions prescribed by TNPCB for the Hydrogen Peroxide plant as per the Consent to Establish and Consent to Operate issued by them.
3. A d d i t i o n a l l y , t h e v a r i o u s s p e c i a l r e c o m m e n d a t i o n s / c o n d i t i o n s a s prescrib ed b y the Joi nt Commi ttee appointed by this Hon'ble Tribunal has also been complied with by the 4th Respondent including the various safety measures prescribed by the Joint Director of Industrial Safety and Industrial Health.‖
41. The Learned Counsel for the applicant submitted that according to them, the stand taken by the MoEF&CC that Unit/Plant-IV does not require Environmental Clearance is not correct in view of the classifications mentioned in the EIA Notification, which according to them will be applicable to the 4th respondent unit. They have further contended that certain violations were found by the Joint Committee and it was also mentioned that there was possibility of pollution being caused on account of the non-maintenance of the landfills maintained by the 4th respondent. These aspects were not properly considered and as such they are liable to pay compensation.
Page 113 of 13042. The learned counsel also argued that the Hydrogen peroxide will fall under Item 5 (b) or Item 6 (b) of the EIA Notification, 2006. The statement filed by the MoEF&CC has clarified the circumstances under which the Environmental Clearance (EC) was granted to the Gujarat Chemicals did not mention that it does not require any prior Environmental Clearance (EC) for manufacture of Hydrogen peroxide as one of the products, though certain conditions were imposed. Further, Item 6 (b) was later deleted as per amendment to the EIA Notification, 2006 issued in 2019 and as such, in Punjab Alkalies case, it was mentioned that no Environmental Clearance (EC) is required for Hydrogen peroxide.
43. On the other hand, the Learned Counsel appearing for the MoEF&CC submitted that as per the classification made in the Schedule to EIA Notification, 2006, no prior Environmental Clearance is required for manufacturing of Hydrogen Peroxide as it is not an organic chemical compound.
44. The Learned Counsel for the Pollution Control Board submitted that the question regarding compensation and other aspects can be considered only after the study directed to be conducted by this Tribunal is completed which will take longer time as this Tribunal has directed the Pollution Control Board to approach the Joint Committee for change of agency for conducting the study instead of NGRI as suggested by the Committee, if they so feel and they are taking steps for that purpose.
45. The Learned Senior Counsel appearing for the 4th respondent submitted that the grievance in this application was that the 4th respondent was operating the Unit/Plant-IV without obtaining prior Environmental Clearance but as per the stand of the MoEF&CC it is clear that no Environmental Clearance is required and as such nothing survives in the application. As regards the other aspects are concerned, regarding the non-compliance and assessment of environmental compensation, further study has to be conducted and remedial measures to be taken, if at all ought to be done on the basis of the Joint Committee recommendation, if any, to be suggested in the report to be filed later and the Tribunal can Page 114 of 130 dispose of the matter leaving open the study to be conducted and further action to be taken by the Committee and the regulators on the basis of the study report to be filed later.
46. The learned Senior Counsel appearing for the 4th Respondent further argued that Hydrogen peroxide cannot be treated as a pesticide or intermediate chemical as required under Item 6 (b) and it will not fall under Item 5 (b) though Hydrogen peroxide was included in the MSIHC Rules, 1989. But it was specifically mentioned therein that only those which are included in Column 3 and 4 of the Schedule attached to the MSIHC Rules, 1989 as amended in 2000 and the Hydrogen peroxide will not come under that schedule. Further, as directed by the Joint Committee, certain conditions imposed in the Environmental Clearance (EC) granted to the Gujarat Chemicals were to be complied with by the project proponent and the same has been complied with which is evidenced from the memo submitted by the project proponent regarding the compliance of the recommendations made by the committee. So, as such there is no necessity to obtain Environmental Clearance for manufacture of Hydrogen peroxide.
47. We have considered the submissions made by the Learned Counsel appearing for the parties and their written submissions.
48. The points that arise for consideration are:
(i) Whether the Unit/Plant-IV established by the 4th respondent requires any prior Environmental Clearance?
(ii) Whether the applicant is entitled to get any of the reliefs as claimed in the application?
(iii) What are all further directions to be issued for the purpose of protecting environment applying ―Precautionary Principle‖?
(iv) Relief and costs.Page 115 of 130
POINTS:-
49. The allegation in the application was that 4th respondent-M/s Chemplast Sanmar Limited had established three units in the land leased by Government of Tamil Nadu by G.O. Ms No. 1950 Revenue Department dated 25.07.1964 for establishing Polyvinyl Chloride Factory which was originally started with name as M/s Chemicals and Plastics India Ltd subsequently the same has been changed as M/s Chemplast Sanmar Limited. They started the 4th unit- Unit No. IV for manufacturing of Hydrogen Peroxide (H2O2) without obtaining Environmental Clearance. Further the unit was established against the sitting criteria provided in G.O. (3D). No. dated 12.09.2017. Further they have also violated the conditions. So the applicant filed this application seeking injunction restraining the 4th respondent from proceeding with the work, dismantle and demolish the unit and other consequential relief including compensation for damage caused to environment.
50. The 4th respondent filed counter affidavit contending that their unit had started much prior to 2017 notification providing sitting criteria for establishment of new polluting industries near the water bodies and as such that notification is not applicable to them. They do not require any prior Environmental Clearance for the Unit No. IV for manufacturing of Hydrogen Peroxide as it will not fall under category provided in EIA Notification, 2006. For the remaining units, they have obtained the Environmental Clearance and also consent to establish and operate. As regards the allegations of violations etc. they denied the same.
51. The Pollution Control Board as well as MoEF&CC on the basis of the directions given by this Tribunal replied that the present Unit No-IV of 4th respondent for manufacturing of Hydrogen Peroxide did not require any prior Environmental Clearance.
52. It may be mentioned here that the MoEF&CC in their affidavit categorically stated that manufacturing/production of Hydrogen Peroxide which is an inorganic chemical does not fall under the purview of EIA Notification, 2006 and as such no Environmental Clearance is Page 116 of 130 required for manufacturing/production of Hydrogen Peroxide (H2O2). Further, the area which was leased in favour of the 4th respondent and the declaration of that area as industrial area had happened much prior to 2017 Notification providing sitting Criteria for establishment of new industries or expansion of polluting industries. So, the said notification is not applicable as far as 4th respondent unit is concerned. Under such circumstances, the applicant is not entitled to get the relief of dismantling and demolishing of the Unit No IV of 4th respondent and injunction restraining them from operating Unit No IV of 4th respondent.
53. After the matter was reopened to clarify the doubt raised by the Tribunal as to whether manufacture of Hydrogen peroxide will fall under Item 5
(b) or Item 6 (b) of the Schedule attached to the EIA Notification, 2006 and when granting the Environmental Clearance (EC) to the Gujarat Chemicals where one of the product was shown as Hydrogen peroxide that was also considered along with other products and certain specific conditions were imposed, whereas when they considered the application filed by the Punjab Alkalies, it was specifically mentioned that Environmental Clearance (EC) is not required for Hydrogen peroxide and no specific conditions were imposed. The MoEF&CC has filed a detailed statement.
54. Item 6 (b) of the EIA Notification, 2006 reads as follows:-
(1) (2) (3) (4) (5)
6(b) Isolated storage & handling - All projects General
of hazardous chemicals (As Condition shall
per threshold planning apply
quantity indicated in
column 3 of schedule 2 & 3
of MSIHC Rules 1989
amended 2000)
55. It is true that Hydrogen peroxide was shown as one of the hazardous substances to which MSIHC Rules, 1989 amended in 2000 will apply. There is no doubt regarding the fact that Hydrogen peroxide is a hazardous substance and it is highly reactive and can be a dangerous explosive hazard, if there is any mishandling of the same, then there is a Page 117 of 130 possibility of serious danger being caused to the people and environment. But when we are considering the question as to whether the manufacture of particular item requires Environmental Clearance (EC) or not, we will have to go by the items enumerated in the schedule to the EIA Notification. In Item 6 (b), it was specifically mentioned that isolated storage and handling of hazardous chemicals as per the threshold planning quantity indicated in Column 3 and 4 of the Schedule attached to the MSIHC Rules, 1989 as amended in 2000 requires prior Environmental Clearance (EC). But under MSIHC Rules, 1989, hazardous chemicals was defined under 2 (e) of the said Rules which says ―Hazardous Chemical" means - (i) any chemical which satisfies any of the criteria laid down in Part I of 1 [Schedule 1 or] listed in Column 2 of Part II of this Schedule ; (ii) any chemical listed in Column 2 of Schedule 2; (iii) any chemical listed in Column 2 of Schedule 3‖ and the Hydrogen peroxide was shown as Item No. 318 of Part II Column 2. So, there is no doubt that it is a hazardous substance coming under the above said Rules.
56. Isolated storage has been defined under Section 2 (i) of the above said Rules which says ―Isolated storage means storage of hazardous chemical, other than storage associated with an installation on the same site specified in Schedule 4 where that storage involves atleast the quantities of that chemical set out in Schedule 2‖.
57. The Threshold quantity was defined under Section 2 (n) of the said Rules which reads as follows:-
"Threshold quantity" means, -
(i) in the case of a hazardous chemical specified in Column 2 of Schedule 2, the quantity of that chemical specified in the corresponding entry in Columns 3 and 4;
(ii) in the case of a hazardous chemical specified in Column 2 of Part I of Schedule 3, the quantity of that chemical specified in the corresponding entry in Columns 3 & 4 of that part;
(iii) in the case of substances of a class specified in Column 2 of Part II of Schedule 3, the total quantity of all substances of that class specified in the corresponding entry in Columns 3 and 4 of that part.‖ Page 118 of 130
58. In order to bring under Item 6 (b), it must satisfy the definition of isolated storage and threshold quantity as mentioned in Item 6 (b) of the EIA Notification. But in Schedule II and Schedule III, the Hydrogen peroxide was not included. So, though it may require certain procedure and permissions to be obtained under the said Rules, which will not fall under category, which requires prior Environmental Clearance (EC) under the EIA Notification, 2006 so as to attract the Item 6 (b) of the EIA Notification, 2006. But this was also omitted later as per notification S.O. 1960 (E) dated 13.06.2019 which reads as follows:-
Page 119 of 13059. Though certain reasons were stated for bringing this amendment to the EIA Notification, 2006 for making amendment to Item 5 (g), they have not given any reason as to why Item 6(b) was intended to be deleted, though it was dealing with the hazardous substances. We are not satisfied with the manner in which Item 6 (b) was abruptly deleted from the purview of the EIA Notification, 2006 by this amendment.
60. As regards Gujarat Chemicals and Punjab Alkalies are concerned, Environmental Clearance (EC) for Punjab Alkalies was granted after the said Item 6 (b) was deleted. The explanation given by the MoEF&CC that when Hydrogen peroxide is also manufactured along with other products, for which, Environmental Clearance (EC) is required, the Project Proponent cannot leave Hydrogen peroxide and they will have to include that also in the product of manufacture so as to assess the cumulative impact assessment of the industry and on such circumstances, certain conditions will have to be imposed taking into that product as well, though that individual product does not require any prior Environmental Clearance (EC). The reasoning given by the MoEF&CC appears to be justifiable. So, it will not fall under Item 6 (b) of the EIA Notification, 2006.
61. As regards Item 5(b) is concerned, it reads pesticides industry and pesticides specific intermediates (excluding formulation). So, in order to attract Item 5 (b), it must be a pesticide industry and the product that is being manufactured has to be used as pesticide alone. But in this case, it was not used as pesticide by the 4th Respondent and the unit of the 4th Respondent is not a pesticide industry producing pesticides as required under Item 5 (b) of the EIA Notification, 2006. Merely because, Hydrogen peroxide can also be used as pesticides is not a ground to categorize that as a pesticide industry when it was not intended by the 4th Respondent as a pesticide industry and part of the pesticide industry, this product is being manufactured.
62. So, there is some force in the submission made by the learned Senior Counsel appearing for the 4th Respondent and the MoEF&CC that this will not fall under Item 5(b) as well. So, as the law stands today and on Page 120 of 130 the basis of the categorization of industries mentioned in Schedule I of the EIA Notification, 2006, manufacture of Hydrogen peroxide will not fall under the category requiring prior Environmental Clearance (EC) and as such, the contention of the applicant that it requires prior Environmental Clearance (EC) is not sustainable and the same is rejected.
63. However, considering the fact that the Hydrogen peroxide is a hazardous chemical known to be mutagenic and highly reactive and a dangerous explosive hazard, if not handled properly and likely to result in great danger in case of mishandling, we feel it appropriate that it is highly necessary for MoEF&CC to consider the question as to whether the manufacture of Hydrogen peroxide is to be included in the category requiring Environmental Clearance (EC) and they will have to consider this aspect and take appropriate decision in this regard, applying the ―Precautionary Principle‖ to protect environment.
64. Even if it does not require any prior Environmental Clearance (EC), when we asked the learned Senior Counsel for the 4th Respondent as to whether applying the ―Precautionary Principle‖, the specific conditions imposed in the Environmental Clearance (EC) granted to the Gujarat Chemicals can be imposed for this project also to be complied with, the learned Senior Counsel submitted that this aspect has been considered by the Joint Committee and the Joint Committee had suggested certain additional conditions to be complied with by the project proponent which is clear from the memo submitted by the 4th Respondent.
65. We have extracted the memo submitted by the 4th Respondent above, where they have given a comparative statement of Gujarat Alkalies and the 4th Respondent unit and also they given the conditions imposed in that case and compliance status which will go to show that all specific conditions imposed in the Environmental Clearance (EC) granted to the Gujarat Alkalies where one of the product was included as Hydrogen peroxide in respect of manufacture of Hydrogen peroxide and those things were complied with by them.
Page 121 of 13066. So under such circumstances, all precautionary methods have been taken on the basis of the directions given by the Joint Committee by the 4 th Respondent and as such, there is no necessity to issue any further additional conditions to be complied with for the purpose of avoiding any possible pollution that is likely to be caused on account of manufacture of Hydrogen peroxide by the 4th Respondent unit.
67. As regards the extraction of ground water and discharge of untreated sewage into the public drain which ultimately reaches the Cauvery River etc are concerned, it will be seen from the reports that the 4 th respondent obtained necessary permissions from the Public Works Department and other Departments for drawing water from Cauvery River and they have not exceeded the limit of permission granted.
68. As regards the illegal discharge of untreated trade effluents/sewage are concerned, the report of the Pollution Control Board and Joint Committee will go to show that they are adopting ZLD system and they are reusing the recycled effluents and other treated water and they are not discharging the same into any drain or river. They have further mentioned that there was a pipeline provided earlier which gave an impression for others that they were constantly using that pipe for discharging the untreated sewage or treated sewage into the drain. Further, it is seen from the various reports extracted above that in order to remove the apprehensions from the mind of the people, 4th respondent was directed to remove that pipeline and they removed the same as well. So, the allegation that they are discharging the untreated sewage or trade effluent into the water body is also not correct.
69. As regards the pollution aspect is concerned, there are certain directions given for the purpose of controlling the possible pollution being caused on account of certain activities or management of Secured Land Fills (SFLs) used by them, certain conditions were partially complied with and on the basis of the directions given by the Joint Committee there was a direction given for conducting a general study regarding the water quality in that area with the assistance of the NGRI (National Geophysical Research Institute). As per order dated 01.06.2020 on the basis of the Page 122 of 130 recommendations of the Joint Committee, instead of relegating the same to the project proponent the same was directed to be conducted by the Committee and thereafter, by order dated 16.02.2020, this Tribunal had directed the Pollution Control Board to spend the amount of Rs. 82,50,000/- required for that study as it is a general study to be conducted for finding out the source of high TDS level and hardness level of the water quality in that area and after ascertaining the source and applying the principle of „Polluter Pays Principle‟ while assessing the Environmental Compensation this amount also can be included in the compensation to be recovered from the industries which are responsible for such pollution and recovery the amount from them including the 4 th respondent, if ultimately they were found to be responsible for the same. They were also directed if on account of the mismanagement of the secured landfills of the 4th respondent unit and if there is any possibility of pollution, that also will have to be considered and necessary Environmental Compensation can be fixed on that ground. When a Review Application was filed to review that order as Review Application No. 01 of 2021, the same was dismissed by this Tribunal vide order dated 13.04.2021. So under such circumstances, the study has to be conducted by the Joint Committee to ascertain the nature of source of contamination or pollution being caused in that area and that may take some time.
70. Further, as regards the prayer in the application is concerned, there is no necessity to keep the case pending for that purpose as it has been found against on the basis of the contentions raised and reply affidavit filed by MoEF&CC and also on the basis of nature of manufacture and material used for manufacturing purpose by the 4th respondent and also on the basis of the subsequent statutes and materials produced as well. So under such circumstances, this Tribunal feels that the application can be disposed of as follows:
a. The various reports submitted by the Joint Committee are recorded and accepted.
b. The applicant is not entitled to get the relief of injunction restraining the 4th respondent from carrying on their activities of Unit No. IV (manufacturing of Hydrogen Peroxide unit) and Page 123 of 130 dismantling and demolishing of the unit for establishing the same without prior Environmental Clearance as the same did not require any prior Environmental Clearance as it will not amount to manufacturing of synthetic organic chemicals as mentioned in EIA Notification, 2006.
c. As regards the compensation of illegal drawl of water is concerned, the applicant is not entitled to get the relief as 4th respondent is having all necessary permission for that purpose and they are not drawing in excess of the permission granted. d. The allegation that they are discharging untreated trade effluent/sewage is also found to be not correct in view of the Joint Committee report that 4th respondent is adopting ZLD system and they are not discharging any untreated trade effluent or sewage into the neighbouring lands as alleged by the applicant. e. As regards the Environmental Compensation aspect is concerned, since a further study will have to be conducted by appointing NGRI as suggested by the Joint Committee, without getting that report, the same cannot be assessed at this stage. Further, it will take longer time and that is not related to any of the claim made by the applicant but it is a subsequent development happened during the course of enquiry on the basis of the report submitted by the Joint Committee appointed by this Tribunal. f. The Joint Committee, after getting the report from NGRI, is directed to assess the Environmental Compensation against the industries which are responsible for excess TDS and other metals found in the water quality and if it is found that 4th respondent is also contributing to the same, then they are at liberty to assess the Environmental Compensation and realise the amount from the 4th respondent or other erring units which are found to be responsible for such pollution after giving proper opportunity in accordance with law.
g. The 4th respondent is directed to comply with the recommendations given by the Joint Committee for improvement of their unit against possible pollution noted by them to avoid complaints from the public.Page 124 of 130
h. The Pollution Control Board is directed to monitor the compliance of the directions given by the Joint Committee to the 4th respondent periodically and if there is any violation of non- compliance of the recommendation, then the Pollution Control Board is directed to initiate appropriate action against the 4 th respondent including imposing of Environmental Compensation for the violation after giving them proper opportunity of hearing in accordance with law.
i. The Joint Committee is directed to complete the study within a period of six months and file the report to this Tribunal and on the basis of the Study the Pollution Control Board is directed to take further action to be taken against the erring units and submit the periodical report to this Tribunal regarding the action taken once in three months from the date of completion of study by the Joint Committee.
j. In the meantime, Pollution Control Board is also directed to submit the periodical report of inspection and compliance of recommendations of the Joint Committee by the 4th respondent and if there is any violation of found, nature of action taken once in three months.
k. If the Pollution Control Board wants to change the agency from NGRI to any other agency for conducting the study as directed by the Joint Committee, they are at liberty to approach the Joint Committee for the change and if any change has been made by the Committee, then the study will have to be conducted by that agency which will have to be evaluated by the Joint Committee for assessing the further aspects including compensation and source of contamination of industries which are responsible for the same and fix a responsibility of payment of compensation applying „Polluter Pays‟ principle against such units and the amount incurred for conducting study as directed by this Tribunal also to be included in the compensation amount to be recovered from the persons/units responsible and also suggest any remedial measures to be taken by the erring industries to restore the damage caused to the environment to its original position.Page 125 of 130
l. Considering the fact that Hydrogen peroxide is highly reactive and a dangerous explosive hazard, if it is not properly handled, we direct the MoEF&CC to reconsider the question as to whether Item 6 (b) has to be reintroduced and the hazardous substances mentioned therein has to be included in category of obtaining prior Environmental Clearance with specific reference to the inclusion of Hydrogen peroxide also in such category requiring prior Environmental Clearance (EC) and on the basis of the study, if it is required, they are directed to take steps to amend the EIA Notification accordingly and this aspect will have to be considered by the MoEF&CC applying the ―Precautionary Principle‖ and also the probable danger that is likely to be caused in the course of manufacturing of Hydrogen peroxide, considering that it is highly reactive and a dangerous explosive hazard besides it being mutagenic and there is a need to handle Hydrogen Peroxide (H2O2) with extreme caution to protect the people and environment.
71. The points are answered accordingly.
72. In the result, this Original Application is disposed of with the following directions:-
(i) The various reports submitted by the Joint Committee are recorded and accepted.
(ii) The applicant is not entitled to get the relief of injunction restraining the 4th respondent from carrying on their activities of Unit No. IV (manufacturing of Hydrogen Peroxide unit) and dismantling and demolishing of the unit for establishing the same without prior Environmental Clearance as the same did not require any prior Environmental Clearance as it will not amount to manufacturing of synthetic organic chemicals as mentioned in EIA Notification, 2006.Page 126 of 130
(iii) As regards the compensation of illegal drawl of water is concerned, the applicant is not entitled to get the relief as 4th respondent is having all necessary permission for that purpose and they are not drawing in excess of the permission granted.
(iv) The allegation that they are discharging untreated trade effluent/sewage is also found to be not correct in view of the Joint Committee report that 4th respondent is adopting ZLD system and they are not discharging any untreated trade effluent or sewage into the neighbouring lands as alleged by the applicant.
(v) As regards the Environmental Compensation aspect is concerned, since a further study will have to be conducted by appointing NGRI as suggested by the Joint Committee, without getting that report, the same cannot be assessed at this stage. Further, it will take longer time and that is not related to any of the claim made by the applicant but it is a subsequent development happened during the course of enquiry on the basis of the report submitted by the Joint Committee appointed by this Tribunal.
(vi) The Joint Committee, after getting the report from NGRI, is directed to assess the Environmental Compensation against the industries which are responsible for excess TDS and other metals found in the water quality and if it is found that 4th respondent is also contributing to the same, then they are at liberty to assess the Environmental Compensation and realise the amount from the 4 th respondent or other erring units which are found to be responsible for such pollution after giving proper opportunity in accordance with law.Page 127 of 130
(vii) The 4th respondent is directed to comply with the recommendations given by the Joint Committee for improvement of their unit against possible pollution noted by them to avoid complaints from the public.
(viii) The Pollution Control Board is directed to monitor the compliance of the directions given by the Joint Committee to the 4th respondent periodically and if there is any violation of non-compliance of the recommendation, then the Pollution Control Board is directed to initiate appropriate action against the 4th respondent including imposing of Environmental Compensation for the violation after giving them proper opportunity of hearing in accordance with law.
(ix) The Joint Committee is directed to complete the study within a period of six months and file the report to this Tribunal and on the basis of the Study the Pollution Control Board is directed to take further action to be taken against the erring units and submit the periodical report to this Tribunal regarding the action taken once in three months from the date of completion of study by the Joint Committee.
(x) In the meantime, Pollution Control Board is also directed to submit the periodical report of inspection and compliance of recommendations of the Joint Committee by the 4th respondent and if there is any violation of found, nature of action taken once in three months.
(xi) If the Pollution Control Board wants to change the agency from NGRI to any other agency for conducting the study as directed by the Joint Committee, they are at liberty to approach the Joint Committee for the change and if any change has been made by the Committee, then the study will have to be conducted by that agency which will have Page 128 of 130 to be evaluated by the Joint Committee for assessing the further aspects including compensation and source of contamination of industries which are responsible for the same and fix a responsibility of payment of compensation applying „Polluter Pays‟ principle against such units and the amount incurred for conducting study as directed by this Tribunal also to be included in the compensation amount to be recovered from the persons/units responsible and also suggest any remedial measures to be taken by the erring industries to restore the damage caused to the environment to its original position.
(xii) Considering the fact that Hydrogen peroxide is highly reactive and a dangerous explosive hazard, if it is not properly handled, we direct the MoEF&CC to reconsider the question as to whether Item 6 (b) has to be reintroduced and the hazardous substances mentioned therein has to be included in category of obtaining prior Environmental Clearance with specific reference to the inclusion of Hydrogen peroxide also in such category requiring prior Environmental Clearance (EC) and on the basis of the study, if it is required, they are directed to take steps to amend the EIA Notification accordingly and this aspect will have to be considered by the MoEF&CC applying the ―Precautionary Principle‖ and also the probable danger that is likely to be caused in the course of manufacturing of Hydrogen peroxide, considering that it is highly reactive and a dangerous explosive hazard besides it being mutagenic and there is a need to handle Hydrogen Peroxide (H2O2) with extreme caution to protect the people and environment.
(xiii) Considering the circumstances, parties are directed to bear their respective costs in the application.Page 129 of 130
(xiv) The Registry is directed to communicate this order to the MoEF&CC, New Delhi, Members of the Joint Committee, State Pollution Control Board and other official respondents for their information and compliance of directions.
(xv) As and when the report is received, the Registry is directed to place the same before the Bench for consideration and for issuing further direction, if any, required in this regard.
73. With the above observations and directions, this Original Application is disposed of.
Sd/-
Justice K. Ramakrishnan, J.M. Sd/-
Dr. Satyagopal Korlapati, E.M. O.A. No.16/2019 (SZ), 26th May 2022. AM & Mn.
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