National Green Tribunal
Paryavaran Mitra vs State Of Gujarat on 10 August, 2022
Item No. 06 Court No. 2
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 438/2021
Paryavaran Mitra Applicant
Versus
State of Gujarat Respondent
Date of hearing: 10.08.2022
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Respondent: Mr. Maulik Nanavati, Advocate for GPCB
Ms. Supriya Dangare, Advocate for SML Films Industries Ltd.
ORDER
1. This Original Application was registered on suo-moto cognizance taken on a letter petition dated 17.06.2021, received from Paryavaran Mitra 502 Thaltej Road, Thaltej, Ahmedabad. Grievance made in the letter petition was against M/s SML Films Industries Limited, Ichchapore, GIDC, Surat (hereinafter referred to as 'Project Proponent/PP'). It was alleged that the said industry is causing huge pollution by disposing plastic waste in illegal manner from film making unit. It was further stated that burning of plastic waster by the industry emits foul gases which is dangerous to the health of the residents of the surrounding areas. It was next stated that industry has also started new construction on mass scale and has removed soil and trees from the site without requisite statutory permission and has also unauthorizely constructed a 10 lakhs liter Glycol tank. 1
2. Tribunal found it appropriate to obtain a factual report by constituting a joint Committee comprising CPCB, State PCB, Gujarat Industrial Development Corporation (hereinafter referred to as 'GIDC'), State Environment Impact Assessment Authority, Gujarat (hereinafter referred to as 'SEIAA Gujarat') and District Magistrate, Surat.
3. The said Committee submitted report on 05.05.2022 which was considered by Tribunal on 09.05.2022. The relevant extract of the observations of the Committee contained in the report are as under:-
"3. In pursuance of above, a report of the joint Committee has been filed on 05.05.2022 as follows:
"SITE OBSERVATIONS OF COMMITTEE The committee members visited all the 05 plots allotted to the unit to assess the factual position. The observation details are as follows:
1. Plot No. A-17/1 As per GIDC letter No. GIDC/RM/SRT/1822, dated 23-8-2017, the total area of Plot No. A-17/1 is 26857.16 Sq. Meter. As per approved plan total constructed area is 19762.79 Sq. Meter and keep open spare 2909.70 Sq. Meter for plantation and other activities. It was observed that 3 BOPET lines are working in the plot wherein manufacturing of bi-axially oriented polyester film (BOPET film polyester film) was going on. There are 4 TFH are installed in the said plot which were not in operation during the visit. The permission accorded to unit by GPCB to operate the BOPET lines are as below.
Sr. Production Consent to Operate
No. Line (issued by GPCB)
1. BOPET line 1 AWH-58571
Dated 25/11/2013
2. BOPET line 2 AWH-90711
Dated 25/01/2018
3. BOPET line 3 AWH-40561
04/02/2020
2
2. Plot No. A-16/2
It is observed that plot is utilised for Metallized films manufacturing unit and raw material storage area for BOPET lines 1,2& 3.
Sr No. Production Line Consent to Operate 1. Metallised film unit 04/02/2020 3. Plot No. A-10/2
It is observed that the Electricity sub-station is located in the plot and partially utilized for green belt.4. Plot No. 11/2
It is observed that Thermic Fluid Heater of capacity 6000 U is installed in the said plot and coal is used as fuel. The plot is also utilised partially for coal storage and partially for Green Belt. The Green Belt Development in the said plot was found in preliminary stage.
5. Plot No. A-17/2 The approved (CTE obtained) / proposed expansion activities of the unit are supposed to come up in Plot No. A-17/2. As per GIDC record, the total area of Plot No. A-17/2 is 27,812.50 Sq. Meter, out of which GIDC has approved the plan for construction in 27359.05 Sq. Meter built up area. The committee observed that in one large part of the plot, construction and machinery installation work is under progress which is claimed (by the unit) to be for BOPET line 4, 5 and 6 along with one Metalized film unit, storage area for raw material, finish goods, coal storage, TFH 6,7 and 8. As per the layout of plant submitted with EIA report of the unit to SEIAA Gujarat for seeking Environment Clearance, it was observed that there was no construction / installation activity in the area proposed for Polyester Chips manufacturing and green belt development. Two Nos of storage tanks (red colour) of capacity 1000 KL each were observed in the plot, which are claimed to be water storage tanks for fire extinguishing purpose. The EIA report addressed the fire safety details of the plant and the two tanks of 1000 KL capacity each are shown in the layout as water storage tanks.3
CONCLUSION:
Following conclusions can be drawn considering all the above observations / facts on record and allegations of the applicant raised in the matter:
1. It is understood from the manufacturing processes of BOPET Film and Metallized Film, explained to the committee during site visit and process flow diagram provided by the unit (Annexure-II} that maximum part of generated cutting plastic films waste from BOPET Film manufacturing is recycled back in to processes and only few lump waste generated is sold to the plastic waste recyclers. As per record of 2021 -22 provided by the unit (Annexure-III), about 54.688 MT of waste lumps are generated against total BOPET films production of -- 82005.396 MT. As per the record provided by the industry (Annexure-IV), generated waste lumps are sold to MIS Shruti Enterprise, Silvassa and M/S A. K. Enterprise, Ankleshwar, Bharuch, M/S K. R. Enterprise, Mandavi, Surat and M/S Jay Ambey Industry Dadranagar Haveli for recycling. As per information provided by GPCB, these units are not having valid CCA and not registration with SPCB / PCC under plastic waste management rules-2016. Similarly, as per record of 2021- 22 provided by the unit (Annexure-V), about 34.924 MT of Side Cutting Or Trim material are generated against total production of Metalized BOPET films production of 18264.815 MT. Generated Side Cutting Or Trim material are sold to MIS Happy Hands Plastic Solution, Plot No. 6-9, Jal Bhumi Industrial Estate, Village Atodara, Tal : Olpad, Dist.
: Surat, Gujarat (Annexure-VI). As per the information of GPCB, the said unit is registered recycler with GPCB under plastic waste management rules-2016. Thus, as per available records, the unit is disposing the cutting waste from Metallized Film manufacturing to registered recyclers, however, disposal of the lump waste generated during the manufacturing of BOPET film is not in accordance of rule. GPCB should take appropriate action in this regard.
2. GPCB and GIDC representatives apprised the committee that they have not received any complaint regarding burning of plastic or foul smell originating from the unit in the past.
3. As per information provided by GIDC, there was no plants/trees in the plots allotted to M/s. SML Films Ltd., from time to time. Google images of the area in question in timeline of 2006 to 2012 are enclosed as Annexure-VII for ready reference. The committee has not observed any soil mining activity in the unit premises (as alleged by the 4 applicant) during visit except construction related activities of different manufacturing lines. GIDC representative has clarified that the unit is located in notified industrial area i.e. GIDC and the plots were allotted to the unit for the industrial purpose. The above observations shows that possibility of removal / cutting of plants from the unit premises does not arise.
4. The inspection report of GPCB dated 24.03.2021 clearly indicates that the unit had started construction / installation activities for Polyester Chips manufacturing, which requires prior Environment Clearance and after receiving the Closure Direction from GPCB, the unit had removed the structure / machineries related to Polyester Chips manufacturing. As far as allegation related to construction of Glycol tank is concerned, the layout presented by SEIAA shows that the space airmarked for Glycol tanks is still vacant and the 02 nos. of tanks (1000KL each) are reportedly meant for water storage for fire extinguisher. GPCB should ensure that this observation needs to be in consideration when CTE / CCA application of the unit is processed in future."
4. Tribunal found that though it was mentioned that coal was in use as fuel but nothing was mentioned about generation and disposal of fly ash. Even requisite EC was not obtained. Since operations of PP were in violation of requirement of EC, Tribunal directed Gujarat State Pollution Control Board (hereinafter referred to as 'GSPCB') to take further action against such illegal operations following due process of law and submit action taken report within two months.
5. Pursuant to order dated 09.05.2022, an action taken report has been filed by GSPCB on 23.06.2022. The latest status of the Proponent, as also silent features noted in the report dated 23.06.2022, are as under:-
"
3) Latest status of the Industries:
Unit is engaged in the manufacturing BOPET film/Polyester film
- 8700 MT/Month, Metalized (BOPET) Polyester film - 2000 MT/Month, CCA valid up to 07-11-2022.
CTE amendment was granted by GPCB on 27.11.2021 for BOPET Line- 4, 5 & 6, Metallic Film, BOPP Line-1 (New product) and addition of new Plots A-11/2 and A17/2 and the 5 construction work of BOPET line 4,5& 6 along with other machineries storage, TFH, etc. was going on according to CTE amendment granted for following products:
1. Bi-axially oriented polyester film (BOPET Film/Polyester Film) - 16,700 MT/Month.
2. Metallized Polyester Film - 3000 MT/Month.
3. BOPP Film - 4500 MT/Month.
4. Metallized (BOPET) Poly Propylene Film - 500 MT/Month.
The four category of products mentioned above for which CTE was granted by GPCB on 27.11.2021 does not attract EC. Besides these products, the unit has proposed for production of Polyester chips which attracts the provision of EIA Notification 2006. EC has been approved by SEIAA Gujarat for the same vide letter No. SEIAA/GUJ/EC/5(d)/578/2022, dated 28-02- 2022.
Salient features is as follows:
A propose directions of the Hon'ble NGT, Joint Committee has visited the site on 25/02/2022. The committee comprises of following officers;
1) Shri Aayush Oak, IAS, (Collector & District Magistrate, Surat).
2) Shri N. Semwal (Scientist C, CPCB, Baroda).
3) Dr. J. D. Oza (Regional officer, Surat).
4) Mehul Patel (DEE, SEIAA).
5) Parimal Patel (Dy. Engineer, GIDC, Surat).
Joint committee also observed during the site visit that the construction and commissioning of plant machinery is in line 4, 5 & 6 and limited to non - EC attracted products for which necessary permissions have been obtained by the unit from the GPCB.
As per GIDC, Surat letter no. GIDC/EE/SURST/1435, dated 5- 3-2022 there was no plants/trees in the plots allotted to M/s. SML Films Ltd., from time to time.
It is informed by the GPCB and GIDC that they have not received any such complaint regarding burning of plastic waste in open or foul smell originating from the unit in the past. Generated cutting plastic films waste is recycling back in to processes.
6 Generated waste lumps and Side Cutting OR Trim material and metalized BOPET films which sold out to those units are not registered under plastic waste rules-2016.
Regional office, GPCB, Surat has issued SCN to unit dated 26- 04-2022 for noncompliance of Plastic waste rules. The EIA report submitted by the unit for the proposed expansion of polyester chips manufacturing show the layout of existing, under commissioning and proposed different units of the plant. The EIA report addressed the fire safety details of the plant and the two tanks of 1000 KL capacity each are shown in the layout as water storage tanks which were observed by the joint committee during visit in red color and unit has informed that this tanks are meant for water storage for fire extinguisher.
In the past GPCB and Regional Office carried out inspection on 24.03.2021 and subsequently, Closure Directions under Section 5 of the Environment (Protection) Act-1986 was issued to the unit by GPCB on 23.04.2021.
Further, the unit was inspected by GPCB on 25.05.2021 and basis of observation Revocation of closure order was issued on 25/06/2021.
Regional officer, Surat has filed legal case to chief judicial magistrate court, Surat (Case No. 73498) and same is disposed on 11/12/2021.
The unit was inspected by Regional Office Bhopal of MoEF&CC on 26.06.2021 with reference to a letter dated 12.04.2021 from MoEF&CC New Delhi. The major outcomes of the report are as follows:
It is seen that front open land is proposed for CP plant of plot on.A-17/2. In the same plot no. A-17/2 the construction work is in progress for line 4 & 5 (BOPP line) and associated utilities are in progress. PP submitted that this activity not attracted by EC products and they have CTE and amendment for the above activity. However, the construction in the same plot claims to be for only this activity. PP categoricallystated they have obtained TOR and for the EC attracted products but not started any construction.
Site inspection of Plot No. A-17/1, A-17/2, A-10/2, A-16/2 & A-11/2 was carried out and it was observed that construction work on line no. 4 & 5 is under progress as per CTE (amended) and the portion in question A-17/2 having proposed CP plant is not yet constructed and the plot was vacant at the time of visit. The two big tanks having 1000 Kl capacity have been erected and said to be used for water storage for fire 7 extinguisher. These tanks are coloured by red fire extinguisher colour. The Project Proponent was directed to follow the condition of ToR and submit the project as per direction of SEIAA Gujarat.
Unit is again visited by officials of the GPCB on 18-05-2022 and shows "tanks are observed empty, commissioning of plant machinery is going on and no any connections with this tank are observed".
Installed coal based Thermic fluid heater (capacity 6000 U) were found operational.
Installed Air pollution control measures (APCM) ESP followed by wet scrubber is also found in operation.
As per Inspection Report dated 18-05-2022, "fly ash stock @ 1.5 MT is observed in storage area. Fly ash generation and disposal details show that. Total 234.08 MT fly ash generations from June-2021 to May 2022 and 232.45 MT of fly ash supply to M/S Madhav Bricks, Near Khodiyar Mataji Mandir, Hazira Road, Variyav, Surat for bricks manufacturing.
Unit is maintaining Zero Liquid Discharge (ZLD) condition as prescribes in CC&A by recycling back."
6. The above report shows that the location of PP is in Ichchapore, GIDC Surat spreading on 5 plot nos. A-17/1; A-16/2; A-10/2; A-11/2 and A- 17/2; all these plots are located adjacent to each other and allotted to Proponent by GIDC; possession of plots no. A-17/1 was acquired by PP from GIDC on 25.08.2011; on 05.03.2011, Consent to Establish (hereinafter referred to as 'CTE') was granted by GSPCB for Bi-axially Oriented Polyester Film (hereinafter referred to as 'BOPET Film/Polyester Film') Line-1; Combined Consent Authorization (hereinafter referred to as 'CCA') was issued on 25.11.2013 by GSPCB; Proponent acquired possession of Plot Nos. A-10/2 on 14.02.2013 and A-16/2 on 21.03.2013; CTE (2nd) was granted on 23.08.2017 by GSPCB for BOPET Line-2; the name of Proponent initially was Surat Metallic Limited which was changed to SML Films Limited on 23.08.2017 with due permission of GSPCB; amended combined consent authorization was issued for BOPET Line-1 8 and BOPET Line-2 on 26.01.2018 by GSPCB; a 3rd CTE was issued on 04.01.2019 by GSPCB for BOPET Line-3 (Metallized Film); Proponent acquired 4th plots i.e. A-11/2 from GIDC on 19.11.2019; CCA amendment was issued on 04.02.2020 for BOPET Line-3, Metallized Film by GSPCB; Proponent acquired 5th Plot i.e. A-17/2 on 11.02.2020 from M/s Shreya Tex Feb Private Limited on lease for a period of five years; Consent to Establish (4th) was granted by GSPCB on 27.11.2020 for BOPET Line-4,5 and 6, Metallic Film, BOPP Line-1 (new product) and addition of new plots A-11/2 and A-17/2; the total production capacity allowed to PP, of the above four products, is as under:-
1. Bi-axially oriented polyester film (BOPET Film/Polyester Film)-
16,700 MT/Month.
2. Metallized Polyester Film -3000 MT/Month
3. BOPP Film-4500 MT/Month.
4. Metallized (BOPET) Poly Propylene Film -500 MT/Month.
7. Report further said that the above four products are not within the ambit of Environment Impact Assessment Notification dated 14.09.2006 (hereinafter referred to as 'EIA 2006'). The unit, however, has also proposed production of Polyester Chips which attracts the provision of EIA Notification 2006.
8. An inspection was made by GSPCB officials on 24.03.2021 when following violations were noted:-
"
i. You have started construction work and installation of new plant machineries at Plot No. A-17/2. It is observed that you have installed two MS storage tank having capacity of 1000 KL each (above ground), installed REG (Refresh Ethylon Glycol) collection vessel, about 6 numbers of heat exchangers, also one reaction vessel and other machineries observed within premises. As per installed REG (Refresh Ethylene Glycol) collection vessel and other reaction vessel, it shows You have started installation of Polyester Chips manufacturing plant and there may be applicability of EIA Notification for same activities.
9 ii. During visit it was observed that You have installed new coal based TFH (capacity 6000 U) and was found in operation. ESP followed by water scrubber is provided as APCM. Unit has not obtained CCA amendment for new installed 6000 U
-- TFH."
9. Consequently, closure direction was issued on 23.04.2021 under Section 5 of Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act, 1986') for violation of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 as amended from time to time (hereinafter referred to as 'HWMTM Rules, 2016'). The unit submitted its reply dated 26.04.2021 undertaking compliance of Rules and also furnished bank guarantee of Rs. 20 Lakhs. Pursuant thereto, closure order was revoked for a period of three months with the condition to check performance of industry and compliance conditions by order dated 25.06.2021.
10. Another inspection was made at the Proponent's premises on 25.02.2022 when it was found that it has sold waste lumps and side cutting OR trimmed material and metallized BOPET films to units which were not registered under Plastic Waste Management Rules, 2016 (hereinafter referred to as 'Plastic Rules, 2016'). For violation of Plastic Waste Rules, 2016, a show cause notice dated 26.04.2022 was issued by Regional Officer. GSPCB requiring to show cause as to why action be not taken for violation of the provisions of Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act, 1981'). Proponent submitted reply dated 24.05.2022 to show that it was using imported coal for operation of Thermic Fluid Heater (hereinafter referred to as 'TFH') and fly ash generated therefrom was disposed by transporting to M/s Madhav Bricks which is claimed to be a fly ash bricks manufactures. 10
11. When questioned, Counsel for the Proponent could not dispute that there was violation of Plastic Waste Rules, Air Act, 1981 and with regard to use of coal, she could not dispute that unit used imported coal which had high Sulphur contents and caused severe air pollution in comparison to in country coal. For the past violations, no appropriate compensation was imposed by State PCB.
12. Counsel for Proponent stated that in order to amicably settle the matter, Proponent is willing to pay an amount of Rs. 25 Lakhs as environmental damage compensation and this statement has also been placed on record by sending a letter (e-mail) dated 10.08.2022; content whereof are as under:-
"OA 438/2021 Paryavaran Mitra vs State of Gujrat was listed today before the Hon'ble National Green Tribunal, Court No. 2.
I am Mr. Pragnesh I. Jariwala, Managing Director of M/S SML Films Limited, GIDC Ichhapore, Surat i e. the Project Proponent.
As per the submission/direction of the hearing; I make a statement with respect to the Environmental Damage Compensation On behalf of my unit, I am ready and willing to pay an amount of RS. 25,00,000 (Rupees Twenty Five Lakhs Only) towards the final Environmental Damage Compensation."
13. We have gone through the entire record and submissions advanced by learned Counsel for the parties including learned Counsel appearing for GSPCB and Proponent.
14. We find that GSPCB has not acted in a very straight manner. It has submitted information in phases which are also not complete. Proponent on its website with the name SML has displayed information stating that it is involved in the development, manufacture and supply of various PET Films under the brand name "METLON". It is in this field for the last 16 years. The wide products range includes clear, metalized and liquor quoted 11 polyester film and a glitter powder. The production capacity it has disclosed on the website (available in public domain) is as under:-
1. BOPET Film - 68 Thousand MTPA
2. Metallized Film - 32,200 MTPA
3. Liquor Quoted Film - 9360 MTPA
4. Glitter Powder- 1215 MTPA
15. Further, EC dated 28.02.2022 which is on page 51 of the paper book shows that the proposal was submitted for grant of EC for setting up expansion in manufacturing plant of manmade fabric at plots No.A-17/1, A-17/2, A-10/2, A-16/2 and A-11/2, Sector- A, Ichchapore, GIDC, Surat. The existing unit, manufacturing products which fall in category- 5 (d) of Schedule of EIA Notification, 2006, given in the EC, are as under:
Sr. Name Of Product Quantity (MT/Month) End Use No Existing Proposed Total after Expansion 1 Bi Axial Oriented 8700 8000 16700 Packing Material & polyester Film (BOPET) Making of Jail Products or textile 2 Bi-Axially - 4500 4500 product Oriented/Poly Propylene Film (BOPP) 3 Metalized BOPET 2000 1000 3000 4 Metalized BOPP - 500 500 5 Polyester chips - 12000 12000 Making of polyester film or yarn
16. In para A.3, fuel consumption for TFH has been allowed and it shows existing fuel consumption of light diesel oil of 3.4 KL/day or natural gas 12000 SCM/day for TFH Heater- 1, 2, 3 and 4. There is an existing TFH Heater- 5, capacity 6000 U, in which imported coal of 40 MT/day was shown as consumption. E.C. further said that air pollution control management shall be adopted as per the prescribed norms. 12
17. Looking to the entirety of facts and circumstances, it could not be disputed that there was violation of environmental norms and various rules from time to time and therefore, for the past violations, Proponent is liable to pay environmental compensation.
18. General rule as laid down by Supreme Court for assessment of environmental compensation is upto 10 % of turnover of the Proponent. As per the information available in public domain, for financial year ending on 31.03.2021 i.e. 2020-2021, operating revenue of Proponent is over 500 crores. If take even 1% thereof as compensation, it will be more than 5 crores. In fact, accepting violations, PP itself has proposed to pay Rs. 25 lakhs towards environmental compensation.
19. In the facts and circumstances of this case, considering relevant factors, as also the turnover of Proponent, we assess Rs. 1 crore as environmental compensation which shall be paid by the proponent within two months with GSPCB. The said amount shall be used for remediation of environment in the area in question. For the purpose of use of the said money, a joint Committee comprising GSPCB and SEIAA shall prepare the plan for remediation of environment and on its recommendation the amount deposited by PP shall be used. We further direct GSPCB to continue to monitor the proponent so as not to allow any further violation of environmental laws and norms.
Original Application, subject to above directions, is hereby disposed of.
13
Copy of this order be forwarded to the CPCB, SEIAA, GSPCB and District Magistrate, Surat by e-mail for compliance.
Sudhir Agarwal, JM Prof. A. Senthil Vel, EM August 10, 2022 Original Application No. 438/2021 SN 14