National Green Tribunal
Brackish Water Research Centre vs Gujarat Pollution Control Board on 8 May, 2024
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[Through Physical Hearing (with Hybrid Option)]
ORIGINAL APPLICATION NO. 70 OF 2021 (WZ)
Brackish Water Research Centre,
Through its President MSH Sheikh,
R/o Kasba Mohalla, Mougal Street,
At Po : Olpad,
District Surat - 394 540 Gujarat
Email : [email protected] .... Applicant
Versus
01. Gujarat State Pollution Control Board,
Through its Member Secretary,
Paryavaran Bhavan, Sector 10-A,
Gandhinagar - 382 010 Gujarat
Email : [email protected]
02. State of Gujarat,
Through Additional Chief Secretary,
Forest and Environment Department,
New Sachivalaya, Gandhinagar,
Gujarat - 382 010
Email : [email protected]
03. Principal Chief Conservator of Forests
& Head of Forest Force (HOFF),
"Apranya Bhavan", Near Ch-3 Circle,
Sector-10A, Gandhinagar - 382 010
Gujarat
Email : [email protected]
04. Assistant Conservator of Forests,
Bharch Sub Division (Normal),
Near Old Collector Office Campus,
Kanbivaga, Bharuch - 392 001
Email : [email protected]
05. Gujarat Coastal Zone Management Authority,
Through its Chairman,
Department of Environment and Forest,
Block 14/8, New Sachivalaya,
Gandhinagar, Gujarat - 382 010
Email : [email protected]
06. Central Pollution Control Board,
Through its Member Secretary,
Parvesh Bhawan, East Arjun Nagar,
New Delhi - 110 032
Email : [email protected]
07. The Ministry of Environment, Forest
and Climate Change,
Through the Secretary,
Indira Paryavaran Bhavan, Jorbagh Road,
NPJ Page 1 of 172
New Delhi - 110 003
Email :[email protected]
08. Hindalco Industries Ltd.
(Unit : Birla Copper),
Through its authorized representative
Village Lakhigam and Dahej, Tehsil Vagra,
P.O. Dahej, District Bharuch,
Gujarat - 392 130
Email : [email protected] ....Respondents
APPEARANCE :
Applicant : Ms. Shilpa Chohan, Advocate
Respondents : Mr. Maulik Nanavati, Advocate for R-1 and R-2
Mr. Aniruddha Kulkarni, Advocate for R-6/CPCB
Mr. Rahul Garg, Advocate for R-7/MoEF&CC
Mr. P. Chidambaram, Senior Advocate along with
Mr. Ashish Prasad, Mr. Kaustubh Mishra,
Mr. Aprameya Shivade, Advocates for R-8/PP
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
================================================================
Reserved on : 21.02.2024
Pronounced on : 08 .05.2024
================================================================
JUDGMENT
01. This Original Application has been filed with the prayers that the CC&A granted by respondent No.1 - GPCB vide letter dated 30.05.2020, be revoked; the closure of Birla Copper Plant being operated by respondent No.8 - Hindalco at village Lakhigam and Dahej, Tehsil Vagra, District Bharuch, Gujarat be ordered for repeated environmental violations; an interdisciplinary technical expert committee be ordered to be constituted to assess and investigate the impacts on air, water (surface and groundwater), soil, flora and fauna within Dahej Reserve Forest and on the health of the residents of the nearby villages; an order be issued directing respondent Nos.1-GPCB, respondent No.2- Additional Chief Secretary, Forest and Environment Department, State of Gujarat, respondent No.3-Principal Chief Conservator of Forests, Govt. of Gujarat, respondent No.4-Assistant Conservator of Forests, Bharuch Sub-Division, respondent No.5-Gujarat NPJ Page 2 of 172 Coastal Zone Management Authority (GCZMA), respondent No.6-CPCB and respondent No.7-MoEF&CC to restore the environment and ecology of impacted area in and around Birla Copper Plant upto Arabian Sea to their original condition and direction be issued to respondent No.8-Hindalco for paying the cost of restitution; a direction be issued to respondent No.8- Hindalco to undertake a complete performance assessment for adequacy of Environmental Management System by NEERI in view of the air pollution and water pollution being caused and implementation of suggestions be ordered, if any; legal action be directed to be taken against respondent No.8-Hindalco for violation of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974;
respondent No.1-GPCB and respondent No.6-CPCB be directed to compute the environmental damage compensation and an order be passed for segregation of heavy metal bearing waste disposed in all hazardous waste storage being stored in 1-8 SLF Cells without encapsulation in TSDF, treating the same as hazardous waste and after such encapsulation, the site in question be ordered to be safeguarded for 30 to 50 years.
02. The applicant is a registered Non-Government Organization (NGO) by the name "Brackish Water Research Centre", which has filed the present application through its President Mr. M.S.H. Sheikh. Respondent No.8-Hindalco Industries Ltd operates the Copper Smelter Complex known as "Birla Copper" unit consisting of Copper Smelter Plant plus Sulphuric Acid Plant (SAP-1 and 2), Captive Power Plant, Phosphoric Acid Plant, Di-
Ammonium Phosphate Plant (DAP), Continuous Cast Copper Rod Plant (CCR), Refinery and Captive Jetty at GIDC, Dahej and Villages Lakhigam and Dahej, Tehsil Vegra, District Bharuch, Gujarat. Respondent No.8- Hindalco established Birla Copper unit comprising of Copper Smelting and Refining Complex at villages Lakhigam and Dahej in February, 1995, which is a large-scale Red category industry developed by Gujarat Industrial Development Corporation (GIDC) in Survey Nos.29 to 39, 101, 104 to 110, 112 to 115, 117 to 122 of village Dahej (Plot No.2 of Dahej GIDC) and NPJ Page 3 of 172 Survey Nos.646 to 671, 679, 685, 732 to 742, 744 to 752 of village Lakhigam, which is located at the bank of Arabian Sea at Gulf of Khambat creek in Bharuch district. The total plot area of Birla Copper Unit is 327 Ha. There are two stage Effluent Treatment Plant (ETP) provided at the Birla Copper Unit. The first stage ETP consists of raw effluent storage tanks (2 nos.) with lime slurry and FeSO4 solution dosing system, 1st stage primary clarifier, 2nd stage precipitator reaction tanks (3 nos.) with lime dosing system, 2nd stage primary clarifier, intermediate tank, 1st stage treated waste water holding lagoon, RVDF (for sludge de-watering). The 2nd stage (polishing) ETP consists of polishing neutralization cum equalization tank, polishing clarifier, clarified waste water holding tank, PSF filter with waste water tank, dual medial filter, ultra filtration unit, RO feed tank, RO plan, permeate storage tank, RO reject storage tank. The first stage treated waste water from 1st stage treated waste water holding lagoon is taken into the 2nd stage ETP. Final treated waste water (RO permeate) is reused in the plant/unit with RO reject being discharged into Arabian sea through 2.5 km long discharge pipeline of the unit. The RO reject water is to conform to discharge norms of CCA and EP rules for marine waters. The Birla Copper Unit generates 4715 Kl/day (including RO reject 1000 KL/day) of industrial effluent and 406 KLD of domestic sewage and the industrial effluent has to be treated in the ETP as outlined above. There are 2 Sewage Treatment Plant (STP) one in the plant (500 KLD) the other is in the township (350 KLD) with primary and secondary treatment systems and treated water is to be used for gardening.
03. According to the applicant, respondent No.8-Hindalco was granted Environmental Clearance (EC) by respondent No.7-MoEF&CC on 14.03.1995, 08.01.2002, 10.02.2004 and 18.03.2005.. Respondent No.8 applied for EC for expansion of Continuous Copper Rod (CCR) plant from 120000 to 240000 TPA, which was granted on 11.02.2009 by respondent No.7-MoEF&CC. Thereafter, respondent No.8 again applied to respondent N.7 for expansion of CCR plant capacity from 240000 to 484000 TPA by NPJ Page 4 of 172 setting up new CCR plant of 244000 TPA capacity within the premises of Birla Copper Unit, which was granted on 23.02.2017. The related documents are annexed as Annexure-A2 (colly). The details of conditions laid down in various ECs are given in paragraph No.13 of the application.
The CC&As which were granted to respondent No.8 were subject to certain conditions, which are quoted hereinbelow:
"Unit shall sell out their hazardous waste to authorized end users. The quantity of waste water generation shall not exceed 5161KL/Day (Industrial : 4755 KL/Day (including 1000 KL/day RO reject), Domestic : 406 KL/Day The treated effluent conforming to the standards as per condition no.3.4 shall be reutilized as per specific condition no.III of environmental clearance certificate dated 18.03.2005. However, additional treated effluent shall be discharged into the deep sea through HDPE pipeline at a point through multiple diffuser system recommended by NIO specifically for the effluent generated from copper smelter plant I & II. There shall be no discharge outside the premises from the effluent generated from copper smelter plant III. Unit shall install continuous/online monitoring system and shall transmit online data so generated simultaneously to GPCB and CPCB as well for the parameters such as PH, BOD, COD, TSS other sector specific parameters etc with recorded and magnetic flow meters for flow measurement of treated wastewater as per CPCB guideline.
Unit shall affix water meters Unit shall either stop or curtail its production activities if the effluent is not conforming to the standards of GPCB Disposal system for storm water shall be provided separately, in no circumstances storm water shall be mixed with the industrial effluent.
Leachate from the secured land fill, if any shall also be connected into a collection tank through leachate collection facilities and shall be treated along with industrial effluent.
Unit shall operate industrial plant/air pollution control equipment very efficiently and continuously so that the gaseous emission always conforms to the standards specified as above. All efforts shall be made to control VOC emissions and odor problem if any."NPJ Page 5 of 172
04. Further it is mentioned that respondent No.8-Hindalco has developed its own captive TSDF within its premises to dispose off and treat hazardous waste generated by the industrial process. There are 7 SLF cells out of which 6 are old landfill which are closed and SLF-7 is in operation and SLF-8 is proposed to be developed. Respondent No.8 is generating 2,68,000 metric tons per annum of hazardous waste from Birla Copper Unit, including Arsenic bearing sludge, As-Cu precipitate amounting from 39.59 MT to 53.71 MT. The CC&A prescribed that the Arsenic bearing sludge, As-Cu precipitate has to be stabilized by prior encapsulation process and then disposed off in an SLF, though the same has not been done as no information is available to that effect nor respondent No.1-GPCB has investigated in this aspect despite the matter having been brought to their knowledge. The 6 SLFs are closed but there is no final closure plan approved by respondent No.6-CPCB for these SLFs.
05. It is further mentioned that Respondent No.6-CPCB has identified copper industries as one of the 17 industries as highly polluting industries which are discharging environmental pollutants directly or indirectly in ambient air and water having potential threat to cause adverse effect on the water and air quality, for monitoring of which self-regulatory mechanism through installation of online source emission and effluent monitoring systems was required to be put in place by respondent No.8, which was not done and it led respondent No.6-CPCB to issue directions dated 23.07.2015 under Section 5 of the Environment (Protection) Act, 1986 to show cause as to why the unit be not closed down. Respondent No.8 had replied to respondent No.6, stating that they had installed online continuous stack emission monitoring system in main plant stack of Sulphuric Acid Plant and Smelter and further stated that as it is secondary pyro-metallurgical process plant there is no need for analysis of COD and BOD on continuous basis.
Respondent No.8 misled the respondent No.6 by stating that they had installed online continuous monitoring system though in reality it was not installed in all the stacks (12 stacks out of total 34 stacks) and were non-
NPJ Page 6 of 172functional which is evident from the communication of respondent No.8 to respondent No.6. The non-compliance of directions of respondent No.6-CPCB resulted in issuance of order dated 26.07.2016 directing closure of the industrial operations until online continuous stack emission monitoring system was installed in all the stacks and status was submitted on connectivity for submission of online 24x7 monitoring data to CPCB/GPCB.
Respondent No.8 submitted partial compliance and an order of revocation was issued by respondent No.6-CPCB on 15.11.2016. The CPCB-respondent had also passed an order on 24.05.2017 closing down the operations of the industry due to non-compliance of the conditions of the Consent to Operate (CTO). It is apparent that it took two years in passing of two closure orders by respondent No.6-CPCB to enforce installation of online continuous stack emission monitoring system by respondent No.8, which show scant regard for the environment at the end of respondent No.8. Respondent No.8 had applied for diversion of 4.7325 ha of forest land within Dahej Reserved Forest for expansion of the Copper Smelter. Respondent No.7-MoEF&CC granted Stage-I approval on 30.12.2004 and Stage-II (final) forest clearance on 28.12.2005 diverting 4.7325 ha of forest land to respondent No.8.
Respondent No.8 again applied for diversion of 16 ha reserved forest land for setting up of 60 MW Captive Power Plant, DAP/NPK and PAP projects.
Respondent No.7-MoEF&CC granted Stage-I approval on 21.02.2013 and Stage-II (final) forest clearance on 23.07.2013 diverting 16 ha of forest land to respondent No.8. Respondent No.8 constructed the Power Plant and DAP/NPK/PAP projects on the forest land diverted to it and the same is now part of the Plan layout. Respondent No.8 over the years has dumped hazardous solid waste and acidic/hazardous wastewater into the compartment no.596 of Dahej Reserve Forest, which adjoins the northern side of Birla Copper unit, which led to destruction of forest land over an area of 20-25 ha. The Forest Department initiated proceedings against respondent No.8 for encroachment, dumping of untreated hazardous wastewater and hazardous solid waste that resulted in permanent pollution of forest land to NPJ Page 7 of 172 an extent that even weeds and grass don't grow on the said land. In the proceedings conducted in the years 2007-2010, it came on record that there was continuing violation which led to serious pollution problem for which Forest Department imposed Rs.17,84,000/- towards penalty and compensation for destruction of forest land. Respondent No.3-PCCF and respondent No.4-Dy. Conservator of Forest did not prepare any remediation plan for restoration of the forest land, therefore, it still remains as it is.
Recent photographs would show the desolate nature of the forest land. The dumping of copper slag/waste and untreated wastewater accumulation in the reserved forest continues unabated as the same is evident from the inspection report dated 25.03.2021 of respondent No.1-GPCB, which stated that "during inspection, copper slag is observed being dumped in about 10 meter width area of reserved forest, along the boundary wall of factory premises (outside factory premises), behind the 16 hectare land area. Leachate wastewater is observed being accumulated in reserved forest area in the form of small wastewater ponding." It is further mentioned that this would highlight the inability of respondent No.3-PCCF, respondent No.4-Dy.
Conservator of Forest and respondent No.1-GPCB to stop violations by respondent No.8. The Google Earth images would show the dumped wastewater and slag over Dahej forest reserve. Respondent No.8 has encroached upon the forest land and made storage for the purpose of Captive Jetty of respondent No.8, which area comes within CRZ as per the approved CZMP.
06. It is further mentioned that the continued air, water and land pollution on account of the operation of Birla Copper unit, led the applicant to make detailed representation to respondent No.1-GPCB, respondent No.6-CPCB, respondent No.7-MoEF&CC and respondent No.2-State of Gujarat seeking investigation into various aspects and violation of EC and CC&A conditions, which are detailed in the following bullet points in paragraph No.20 of the application:
NPJ Page 8 of 172 The Hindalco Industries Ltd is generating huge quantity of phosphogypsum and copper slag every year from smelting of copper. The raw material for this plant copper cathode, copper stag and hazardous waste should be analyzed by GPCB and MOEFCC in approved Govt. laboratory for presence of heavy metal in it. Presence of sulphur and ash content should also be analyzed in coal by GPCB/CPCB.
The presence of radioactive metals and radio activity should be measured from raw material, copper slag, hazardous solid waste. The radioactivity should be measured in all the plant, furnaces, at TSDF Site, and in vicinity of the village Dahej. The waste coming from precious metal recovery plant should be analyzed by AERB or BARC. The GPCB and MOEFCC should ask this detailed study from independent competent Govt. agency to prevent pollution of metals in this Dahej site.
Huge disposal of Arsenic baring Sludge and As-Cu precipitate is dumped directly in to the TSDF without encapsulation from a long time. As per information no encapsulation has been practiced at all in past decade. Detailed investigation for this violation is demanded as the TSDF cell which may be contaminated and in leachate such contamination will come polluting the ground water. Analysis of the TSDF leachate well should be carried out in GPCB laboratory Representative borewell made around the TSDF should be investigated for contamination of ground water due to percolation of the concentrate Leachate with heavy metals. Huge water disposal with hazardous waste from the TSDF cell is spreading outside the plant premises can be seen with green coloration in satellite image. This proves that the liquid waste with hazardous waste is reaching in to natural drain outside the plant. Soil sampling of this location must be carried out to assess the pollution of heavy metals and hazardous waste presence. This toxic waste is reaching in to the coast and sea through a creek violating CRZ notification 2011.
The toxic water from phosphogypsum storage yard is also reaching in to the creek and sea.
The release of the Sox from the Sulphur plant is reaching to the village in absence of efficient scrubbing system. There is eye irritation felt in and around the plant premises continuously. The acid mist eliminator is not functioning to achieve 25 mg/Nm3 in Sulphuric Acid main stake in plant 1 & 2. 2Kg of SO2 emission norms for Per ton of concentrated Sulphuric Acid generation is NPJ Page 9 of 172 practically not possible with the present APCM system of Hindalco. The GPCB should carryout detailed stake analysis with its own equipment of Stake monitoring for Sox and Mist. EC of 2005 says about achievement of 1kg/ton So2 emission. But it was never achieved violating EC conditions.
HF emission is also very high from the Phosphoric acid plant. 6 mg/Nm3 stake emission with only scrubber system is not possible to achieve.
Mercury and Lead should be analyzed in ambient air by GPCB. The total emission from Suphuric Acid pre heater Plant I and II, Dore furnace, etc should be measured at same time to find out the continuous release of Sox and H2So4 mist. The conversion ratio of So2 to H2So4 should be crosschecked and verified. Ammonia release from DAP Plant is high which is emitting more than the norms given in CCA 175 mg/Nm3. Verification is needed. The cumulative air emission and its dispersion should be carried out in nighttime to evaluate the actual effect of air pollution on the environment and villagers residing nearby.
The efficiency of the ESP and its functioning should be investigated by GPCB/CPCB with additional certification on efficacy and adequacy.
There is visible air pollution of particles (Dustings) in and around the plant premises.
The storage of phophogypsum and copper slag on the open land from years has contaminated the ground water source in and around plant premises.
The online facilities for environmental data monitoring are not established for all the parameters shown in EC and GPCB CCA. The heaps of coal are stored inside the premises without any APC measures which are in violating the guidelines issued by the GPCB for coal storage.
Coal/waste is also dumped outside the boundary (At unauthorized place) of the premises of Hindalco in northern area polluting the land."
07. Further it is mentioned that rapid investigation was conducted by RO, CPCB, Vadodara based on which respondent No.6-CPCB addressed a letter dated 17.05.2018 along with a copy of the brief report, to undertake detailed investigation on the points raised in the complaint.
NPJ Page 10 of 17208. Respondent No.1-GPCB conducted the investigation of the Birla Copper Unit on 13.06.2018 and found following violations:
It is also observed that unit has connected another pipeline to RO reject discharge line from first stage treated w/w holding lagoon (which is bypass line bypassing the second state treatment ETP) and can be discharged directly from the first stage treated w/w holding lagoon without polishing treatment. (Untreated effluent was being directly discharged into the sea through illegal bypass line and as there is no online analyser on the discharge line from the lagoon. There is 500-600 KLPD wastewater that was being discharged without polishing treatment).
Ponding of water/wastewater is observed at back side of ETP lagoon outside the premises. Soil near ponding looks yellowish and black coloured.
Further it is observed that unit is using water for dust suppression in copper slag storage heaps, near smelter no.3 which leachate is spreading go nearby open area outside the premises resulting in huge ponding of waste water outside premises near this location. Due to leakages from the top of caustic scrubber-1 strong SO2 is felt in this area.
Strong SO2 smell is felt near Sulphuric Acid Plant-1. Heavy dusting is observed from the conveyor belt for the conveyance of powder material.
Unit has not provided wet scrubber or any other APCMs in coal handling area.
Heavy dusting is observed from the huge quantity of fly ash dumped on open land opposite CPP-2/3 and spreading in the ambient air.
During inspection, huge quantity of Phosphogypsum is found stored in the Phosphogypsum storage yard within the premises which is open to sky, Storage of Phosphogypsum sludge is observed not in environment friendly manner.
It is informed by the contacted person of the industry that Arsenic bearing sludge generated from the Refinery plant is recycled several times and after saturation, it is disposed into own SLF. Record regarding disposal of Arsenic bearing sludge is not found with the unit. Also any record of encapsulation of Arsenic bearing sludge or any other waste is not found with the unit.NPJ Page 11 of 172
During inspection, these leachate collection wells are found completely filled up and there is overflowing of leachate into open drains."
9. It is mentioned in the application that based on the inspection report, respondent No.1-GPCB issued written instructions to respondent No.8-Hindalco to rectify the violations found. Respondent No.1-GPCB verified the compliance of the written instructions on 13.06.2018 and found that majority of them stood non-complied. Thereafter, based on the findings of the inspection conducted on 13.06.2018, respondent No.1-GPCB issued show-cause notice for closure to respondent No.8.
10. It is further mentioned that respondent No.1 conducted inspection on 14.08.2018 of captive TSDF on receipt of CTE amendment application for new captive TSDF-SLF-8 pit, which was constructed and being used without obtaining CTE (as highlighted in inspection of 13.06.2018). The inspection would reveal that "leachate collection well-1 of existing SLF-7 gets overflowed and leachate is found spilled in nearby surrounding..." "dumped hazardous waste at SLF-7 is not found covered during inspection". Another inspection was conducted by respondent No.1-GPCB on 05.10.2018as regards TSDF SLF-8 and it was observed in the report that there was no logbook maintained for TSDF so as to record the category of hazardous waste and its quantity that was dumped in the SLF 1 to 7. It was further observed that two monitoring bore wells around SLF were not working out of 4 installed near SLF. The Birla Copper unit was found not maintaining manifest for the hazardous waste and neither dedicated vehicle was provided for transportation of hazardous waste from the plant to TSDF SLF cells in violation of HWM Rules, 2016.Despite these violations, respondent No.1- GPCB granted CTE amendment for SLF-8 to respondent No.8-Hindalco even though it was a post facto approval as hazardous waste amounting to 20,725 MT had already been dumped against its capacity of 2,65,000 MT in SLF-8. Further it is mentioned that respondent No.1-GPCB conducted an inspection on 08.01.2019 as regards CTO for the CTE amendments granted, including the SLF-
8. Respondent No.1-GPCB (Vigilance) conducted an inspection on 05.10.2018 as NPJ Page 12 of 172 regards checking of compliances with regard to written instructions issued earlier and it was found that the instructions were still pending. Following are the details given regarding pending compliances:
Instructions Compliance Status Unit shall comply immediately with the Still Pending instructions given for the non-compliance during the previous visit dated 13/06/2018.
Compliance shall be carried out immediately.
The SLF site-cell no.7 has not been covered even Still Pending in the monsoon season. Corrective measures shall be taken immediately on it.
Corrective measures shall be taken to cover the Still Pending Active Operative SLF-7 as the monsoon season is about to start Leachate which collects from the Phospho- Still Pending gypsum storage area is being 484114 (30/06/2018) used in the Phosphoric Acid plant, but there is no record found regarding this.
Corrective measures shall be taken for it.
Open land soil has been observed to be Still Pending contaminated (Acidic) at the eastern side of the Phospho-gypsum yard. Corrective measures shall be taken regarding the remediation.
Acidic leachates releasing from the Phospho- Still Pending gypsum yard which is being collected at the various sites into the constructed pit. So that there are possibilities of contamination of groundwater. So that the acid proof leachate collection pit shall be constructed for this acidic leachate collection.
11. Further it is mentioned that inspection report dated 05.10.2018 by respondent No.1-GPCB for SLF cells would show that CTE/CCA is not obtained for SLF, 2 monitoring wells are non-functional, unit is not following any manifest system. This only highlights that CCA was not obtained for SLF 1-7 by respondent No.8-Hindalco.
12. Based on the inspection conducted on 13.06.2018, the applicant addressed another representation to respondents through e-mail on 13.10.2018, highlighting that the report would reveal that respondent No.8 had not followed the environmental norms as acidic wastewater was accumulated on soil and outside the unit premises, acid mist and SO2 pollution was observed, heavy metal copper 0.9 Gm/kg was found in the soil, bypass discharge line from 1st stage ETP 500-600 KLPD of untreated wastewater was found going directly into sea. No APCM was installed in SO2 NPJ Page 13 of 172 plant, no CPCB/GPCB guidelines were followed for coal handling and therefore, demand was made of thorough investigation.
13. Further it is mentioned that besides the inspection made of respondent No.8 on various dates, which are mentioned in paragraph No.25, an inspection was conducted on 10.08.2019 by respondent No.1-GPCB on account of death of a worker at the Birla Copper unit due to collapse of the conveyor belt due to acidic leakage in the plant, which incident was not informed to GPCB. In addition to above, during the inspection, acidic leachate was observed in the Phosphogypsum storage yard, acidic wastewater was found in the storm water drain near SAP-1 at road no.6. Sample was collected for analysis and contaminated wastewater was observed flowing continuously in the storm water drain near the coal storage yard. A perusal of the inspection reports of respondent No.1-GPCB would show that respondent No.1-GPCB was not able to enforce compliance by respondent No.8-Hindalco of its written instructions and that respondent No.8 continued to operate its Copper Unit even then. The non-compliance of the directions of respondent No.1-GPCB led it to issue directions under Section 33A of the Water Act, 1974 on 31.08.2019 against respondent No.8 after the inspections conducted on 30.07.2019 and 10.08.2019 wherein violations of EC and CC&A in the operation of Birla Copper unit were outlined. The analysis report of the wastewater sample would show that it exceeded permissible limits. In storm water drains near SAP-1, SAP-3 and PAP plant, acidic discharge was found from separate storm water drains outside the premises leading to the sea. Housekeeping was found to be poor and directions were issued to respondent No.8 to deposit Rs.25,00,000 by way of environment damage penalty.
14. Thereafter, respondent No.8-Hindalco applied for revocation of the closure order. So the inspection was conducted to check the status of compliance and it would reveal that there were new non-compliances.
Irrespective of the status of compliance, respondent No.8 managed to get the closure order revoked and CC&A renewed from respondent No.1-GPCB. One NPJ Page 14 of 172 inspection was also conducted on 08.11.2019 on the complaint of Paryavaran Suraksha Samittee as regards disposal of Phosphogypsum in the open land beside NH-8 and in that inspection, Acidic wastewater was found having pH@2 on the pH strip in Phospho-gypsum storage yard SFL-1 and between the SLF-1 and Value Circle area, Acidic wastewater was found filled up in the storm water drain and process drain in the PAP plant area, which had pH@2 on the pH strip. Further the non-compliances were found, which are as follows:
Instructions Compliance Status Phospho-gypsum yard leachate has been stored Still Pending approx..60000 m3 in the leachate pond.
Comply all the previous instructions about the Still Pending monsoon action plan and implement it A worker's death occurred in the morning due to Still Pending the fall from the coal transfer junction tower of coal the conveyor of CPP-3 plant. The detailed report shall be submitted to the regional office and head office immediately The contaminated rainwater having 4 to 6 pH Still Pending has been filled up in the storm water drain and surrounding area near road no.6 of sulphuric acid-1 plants, which shall be taken into ETP and disposed off properly. A sample is taken from this place for the analysis.
Air pollution control devices shall be functioning Still Pending properly in SA-1 plant, PAP plant and SA-3 plant.
Scrubber shall be installed with the Coal/Solid Still Pending Fuel based-3 TPH upper boilers as per the recent GPCB notification. Scrubber shall be installed in the time limit with the boilers in this regard.
Acidic wastewater going towards the sea (CRZ Pending area) from the storm water drainage of road no.20 and road no.3. Take immediate corrective measures for it. Two samples have been taken from this storm water drainage during the visit
15. Further it is mentioned that various test reports collected of the water samples for analysis by respondent No.1-GPCB would show that the prescribed parameters were not being met and there was high levels of Copper, Fluoride, COD and Ammonical Nitrogen thereby indicating pollution of the surface water in and around the Birla Copper unit, thereby polluting the groundwater. Despite this, respondent No.1 had not taken any action against respondent No.8.
NPJ Page 15 of 17216. It is mentioned that respondent No.1 had conducted inspections of respondent No.8 on 18.03.2021, 19.03.2021 and 20.03.2021 and following observations were made:
"Continuous seepage of acidic greenish coloured wastewater is observed in SAP-1 area.
During inspection, heavy stack emission of SO2 gas and particulate matter is observed being emitted through stack attached to centralized scrubbing system of smelter plant-3, provided ESP are found not working.
Heavy fugitive emission of SO2 gas is also observed through leakages at various location of duct line of smelter plant-3, eye and noise irritation is felt due to heavy SO2 gas emission. Actual parameters like PM and SO2 are not reflected in OCEMS of stacks.
During visit, copper slag and construction and demolition waste is observed dumped in open land area (16 ha area) located north of smelter Plant-3. Leachate generated due to dumped copper slag is observed being accumulated in three small wastewater ponding. Dumping of copper slag in reserved forest.
Leachate wastewater is observed being accumulated in reserved forest."
17. After making the above averments in the application, we find that the applicant has set up the grounds to file this application, which are mentioned in the application from grounds "A" to "L", which contain almost similar facts which we have already mentioned above along with some documents in support thereof and gist of all is that violations committed by respondent No.8-Hindalco were not taken seriously by GPCB and CPCB and hence, the above mentioned prayers have been made, which we have cited above.
18. This matter was taken up by this Bench on 27.10.2021 and thereafter, the Principal Bench considered it at length on 05.01.2022, wherein exhaustive order has been passed after considering the replies of the respondents as well as the averments of the applicant. That order will forml part of this judgment. The relevant part of that order is quoted hereinbelow:
"15. We have heard learned counsel for the parties and perused the record.NPJ Page 16 of 172
16. Learned Counsel for the applicant, apart from drawing our attention to the notice issued by GPCB on 16.11.2021, has referred to its representation dated 17.02.2021 pointing out various violations, including the water pollution (surface and ground water) as per reports of the labs from 2019 to 2021, air pollution, damage to the forest including mangroves, violation of leachate management norms, violation of hazardous waste norms and violation of consent conditions and CRZ regulations.
17. Learned Counsel for the GPCB fairly acknowledged that there have been violations in the past for which no adequate action was taken but GPCB now proposes to take stringent action for the past violations as well as for ensuring compliance of the environmental norms.
18. Learned Counsel for the PP submitted that as on today all norms have been complied and will continue to be complied, except removing the slag from the reserved forest which is held up for want of permission of the Forest Department.
19. We have given due consideration to the matter. Though the PP claims to have remedied the violations, except for removing the slag from reserved forest, it is necessary to have independent verification of such claim in view of stand of the applicant and the GPCB to the contrary. It is difficult to accept justification for not removing slag from reserved forest. Having illegally dumped such waste in forest, convenient plea that forest is not permitting clearance to continue such violations is untenable. It is not shown what remedies, if any, were taken for denial of such permission so as to ensure compliance with law and to remedy the blatant illegality committed by the PP. There is no justification for failure of the statutory regulators in taking action under polluter pays principle or otherwise against violations. Even if there is now compliance, as claimed by the PP, accountability needs to be fixed for the past violations in the matter of leachate management, slag management, TSDF management, air, water (surface and ground) and soil pollution, damage to the forest and mangroves and compliance of the consent and EC conditions, after verification of facts for five years prior to filing of the application i.e. 17.09.2021 and continuing violations, if still found. Apart from remediation and restoration plan, the compensation has to be assessed on principle of restoration with element of deterrence, having regard to the financial capacity of the PP in the light of law laid down inter- alia in Sterlite Industries (India) Ltd. V. Union of India, (2013) 4 NPJ Page 17 of 172 SCC 575 and Goel Ganga Developers India Pvt. Ltd. V UOI, (2018) 18 SCC 257.
20. In the light of above, we consider it appropriate to constitute a seven-member joint Committee headed by Justice B.C. Patel, former Judge of Gujarat High Court and former Chief Justice of J&K and Delhi High Courts with representatives of MoEF&CC, CPCB, GPCB, SEIAA, Gujarat, PCCF (HoFF) Gujarat and Gujarat Coastal Zone Management Authority as members. The CPCB and State PCB will be the nodal agency for coordination and compliance. Meeting of the Committee may be convened preferably within three weeks. The Committee or such of its members as may be decided by the Chairman may undertake visit to the site and interact with stakeholders. The Committee will be free to co-opt any other expert/institution for its assistance and conduct proceedings online, if necessary. The parties will be free to put forward their respective written version before the Committee through the GPCB within three weeks from today. The Committee may preferably give its report within three months by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF. A copy of the report may also be uploaded on the website of GPCB for response of the parties, if any, before the next date.
List for further consideration on 27.04.2022.
A copy of this order be forwarded to Justice B.C. Patel, former Judge of Gujarat High Court and former Chief Justice of J&K and Delhi High Courts, MoEF&CC, CPCB, GPCB, SEIAA, Gujarat, PCCF (HoFF) Gujarat and Gujarat Coastal Zone Management Authority by e-mail for compliance."
19. In pursuance of above order, a seven-member Joint Committee headed by Hon'ble Mr. Justice B.C. Patel, former Judge of Gujarat High Court and former Chief Justice of J&K and Delhi High Courts, after conducting site visits on 30.03.2022 and 31.03.2022, submitted Joint Committee report dated 21.05.2022, relevant part of which is quoted hereinbelow :
NPJ Page 18 of 172 NPJ Page 19 of 172 NPJ Page 20 of 172 NPJ Page 21 of 172 NPJ Page 22 of 172 NPJ Page 23 of 172 NPJ Page 24 of 172 NPJ Page 25 of 172 NPJ Page 26 of 172 NPJ Page 27 of 172 NPJ Page 28 of 172 NPJ Page 29 of 172 NPJ Page 30 of 172 NPJ Page 31 of 172 NPJ Page 32 of 172 NPJ Page 33 of 172 NPJ Page 34 of 172 NPJ Page 35 of 172 NPJ Page 36 of 172 NPJ Page 37 of 172 NPJ Page 38 of 172 NPJ Page 39 of 172 NPJ Page 40 of 172 NPJ Page 41 of 172 NPJ Page 42 of 172 NPJ Page 43 of 172 NPJ Page 44 of 172 NPJ Page 45 of 172 NPJ Page 46 of 172 NPJ Page 47 of 172 NPJ Page 48 of 172 NPJ Page 49 of 172 NPJ Page 50 of 172 NPJ Page 51 of 172 NPJ Page 52 of 172 NPJ Page 53 of 172 NPJ Page 54 of 172 NPJ Page 55 of 172 NPJ Page 56 of 172 NPJ Page 57 of 172 NPJ Page 58 of 172 NPJ Page 59 of 172 NPJ Page 60 of 172 NPJ Page 61 of 172 NPJ Page 62 of 172 NPJ Page 63 of 172 NPJ Page 64 of 172 NPJ Page 65 of 172 NPJ Page 66 of 172 NPJ Page 67 of 172 NPJ Page 68 of 172 NPJ Page 69 of 172 NPJ Page 70 of 172 NPJ Page 71 of 172 NPJ Page 72 of 172 NPJ Page 73 of 172 NPJ Page 74 of 172 NPJ Page 75 of 172 NPJ Page 76 of 172 NPJ Page 77 of 172 NPJ Page 78 of 172 NPJ Page 79 of 172 NPJ Page 80 of 172 NPJ Page 81 of 172 NPJ Page 82 of 172 NPJ Page 83 of 17220. Against the said report, the applicant has filed objections dated 13.05.2023 in the form of written submissions, wherein it is submitted that the Joint Committee was directed to assess the compensation on the principle of restoration with element of deterrence having regard to the financial capacity of the Project Proponent in the light of law laid down inter-
alia in Sterlite Industries (India) Ltd V. Union of India, (2013)4 SCC 575 and Goel Ganga Developers India Pvt. Ltd. v. Union of India, (2018)18 SCC 257, but the compensation assessed by the Joint Committee is contrary to the directions of the NGT. The Hon'ble Supreme Court and the NGT have laid down in various judgments the criteria and methodology to be followed for assessing the environment compensation based upon Polluter Pays principle. The relevant portion of the judgment delivered in the case of Sterlite Industries (India) Ltd. (supra) has been reproduced and copies of the judgments in the cases of Sterlite Industries (India) Ltd. and Goel Ganga Developers India Pvt. Ltd. (supra) have also been annexed as Annexure-A/1 (colly). Reliance is also placed on the judgment delivered in O.A. No.64/2016 (WZ) (Akhil Bhartiya Mengela Samaj Parishad and Ors. Vs. Maharashtra Pollution Control Board and Ors.). Having relied upon those judgments, it is submitted that the NGT has been consistently following these principles laid down in the above cases and in case the Committee had assessed the environmental compensation based on these principles, different amount could have been calculated. In view thereof, the compensation is required to be assessed based on the percentage of annual turnover of the unit of Hindalco. The applicant has managed to get the financial documents sourced from the website of Hindalco, which indicates annual turnover of the industry, which is annexed as Annexure-A/5 (colly).
21. It is further submitted that under the heading `damage cost assessment due to soil pollution', the report of NEERI on assessment has been relied upon. The affected/impacted area has been calculated by the NEERI to be only 7061 m2 at page 1492 of the paper-book, whereas actual area damaged due to release of wastewater is 26,200 m2. NEERI has failed NPJ Page 84 of 172 to take into account the Google images annexed to the OA for the years 2004 onwards, consistently showing the increase in the degraded area that is affected by the dumping of copper slag and wastewater from the unit. The comparison of degraded land on Google earth with NEERI image is showing clearly polluted area. It is also recorded that affected/impacted area is low lying area that is why the accumulation of wastewater was there in the area.
As such, on topography, the wastewater over the years is spread over an area of 26,200 m2 of reserved forest. The spread of the pollution containing metal due to ground water and rain is always there. Thus, taking into account the impacted area of 26,200 m2, the compensation amount will be Rs.9,19,44,122.7 approx. The NEERI in its report has failed to see the poisonous metals in soil and presence of it within 7061 m2 area and has itself said "likely impacted area". The site had to be monitored until it was within the safe range of the native soil, though there is no such recommendation in the report. It is re-asserted that the assessment on the basis of the Google image would establish that the affected area is much larger. The applicant has copied the two Google images at pages 1724 of the paper-book as part of its objection against the report, one of which is showing the position as disclosed in the map by the Committee and it is in respect of core area, while the other Google map image appears to have been prepared by the applicant itself indicating therein much larger area by white lines and the same is being claimed to be 26,200 sq.mtrs. We find that while NEERI assessment is based on actual site visit, collection and analysis of soil samples, applicant's assessment is merely based on Google image. Hence, we decide to go by the NEERI assessment.
22. Further it is submitted that the Committee has not done any assessment of environment damage to the CRZ area due to construction of road and dumping of copper slag and fly-ash. It has come on record that the production of the unit is more than the quantity mentioned in CC&A, but no damage compensation for the violation of such condition has been assessed by the Committee.
NPJ Page 85 of 17223. Further it is mentioned that the Committee has computed number of days of non-compliance for calculating the environmental damage compensation, details of which are given at pages 1594 to 1624 of the paper-
book, wherein the depiction of the same in tabular form would indicate that it is not made clear as to what is the basis for computation of days of non-
compliance. It appears that combination of violations are taken together as against a specific inspection and one consolidated number of days is arrived at for non-compliance. For example, for inspection conducted on 08.11.2016, there are violations listed out and number of days that is taken is 4 days, presumably it is calculated from the date of inspection to the date of submitting reply. It has to be first decided whether one set of days can be taken against a list of violations or whether these have to be computed separately. Perusal of the inspection reports post this, would show the compliances against each instruction issued by the GPCB, so it cannot be that one set of days that can be taken for a host of non-compliances.
Further it is mentioned that it is visible from the report that only non-
compliances of GPCB have been taken into account and not of CPCB. It can be seen that CPCB had issued directions dated 24.05.2017 under Section 5 of the Environment (Protection) Act to respondent No.8 (page 336 of the paper-book). This has not been considered by the Committee in its assessment of the number of days and non-compliances by respondent No.8.
The calculation of number of days is problematic as for inspection done on 13.06.2018 (page 1598) 82 days is taken, though pursuant to the inspection, NOC dated 29.09.2018 was issued by GPCB so even if one takes the days from the date of inspection to issuance of NOC (page 409), it is more than 82 days. The Committee has not taken into account various inspection reports of GPCB, wherein violations and non-compliances are given. List of it is given in paragraph No.7 from (i) to (xviii).
24. Further it is mentioned that the report in respect of Arsenic (page 1634) states that the entire arsenic is recycled in the plant, but the same is contradictory to inspection report of GPCB which states that Arsenic after NPJ Page 86 of 172 recycling is going to SLF cells, though the unit is not having details of it and neither encapsulation is taking place.
25. It is further mentioned that there is illegal construction of the silos in CRZ NDZ areas that were not visited by the Committee and GCZMA for reasons best known to it, nor has any reason been mentioned about it in this Committee's visit report. Thus, the violation has not been stated in the report. Google image in that regard has also been pasted in the objection.
26. Besides above, several other objections which have been raised by the applicant are contained in the said objections dated 13.05.2023, which are as follows:
"10. That (internal page 59) 12 Inorganic Acid (Spent Acids) B15/II 66960 TPA collection, storage, transportation and reuse to Mfg of ALF3/disposal by sale to actual users has been shown and CCA only allows them 66,960 tones.
There are no actual users shown and the Committee has not enquired about the proper hazardous waste rules compliance.
11. Birla Copper (page 1446) it is mentioned that in the year 2010-11, around 79658 MT copper slag was sold to M/s Sterling Port Ltd. This area is CRZ area and there is no permission on record to dispose off this slag in CRZ area and the same has not been taken into account by the committee. No violation was recorded and reflected in final EDS calculation. Even the road that has been constructed is not permitted and as such this violation is not recorded by the committee (page 1447).
12. Besides the road, heaps of fly ash and copper slag mix were found during the visit. It is mentioned in the report (page 1451) but no measures are recommended for lifting and shifting these materials from CRZ areas. NO fly ash management plan is with the unit company and no approval of GPCB under flay-ash notification.
13. It is mentioned in the report that "it was apparent that copper slag has been utilized as per its intended use and practice" though no details are available with the company (page 1453). And neither the committee enquired as to the use of copper slag in road and other thing.NPJ Page 87 of 172
14. In the report it is stated by Shri Nischal Joshi, Sr. Technical Officer, GCZMA mentioned that there is a continuous environmental damage due to dumping of Copper Slag and Contaminated Water accumulation in the reserve forest and it needs to be removed at the earliest to further prevent damage to the environment and ground water contamination (page 1517) but committee did nothing on this point.
15. It is stated by Dr. V.K. Srivastav, Member SEIAA that there is a need of verification of overall environment management plan of the industrial unit in terms of Air, Water and Haz. Waste aspects along with occupational health, safety measures taken by the industrial unit with respect to the toxic/hazardous compound handled by the unit. Further he mentioned that CER is also required to be verified which is to be spent by the unit as per the provision of the EIA Notification 2006. It is further mentioned that a study of at least one km area surrounding to the unit is required to assess ground water quality, soil condition and its contamination, level of porosity and permeability to assess as to what extent ground water table is under threat (page 1517) but committee has not undertaken any such study.
16. Dr. Yogesh Kumar, MoEFCC informed that a wide variation has been recorded in the amount of coal used by the unit.
The prescribed limit as per CCA is 36980 MT whereas it was found that it goes upto 42786 MT. Page 1518 but committee did nothing on this point.
17. Dr. Chinmay Ghoroi, Asstt. Professor, IIT, Gandhinagar mentioned that industrial unit is consuming coal on higher side of the consent which shows higher production may have been taken (page 1518) but committee has taken no action on this point.
18. Mr. Sonawane has stated (page 1519) about 8 to 9 Ha is remaining which shows no growth of vegetation but committee has not recommended anything in respect to it.
19. It is suggested by Hon'ble Chairman (Page 1523) that surprise checks on the deep Sea discharge shall be done on regular basis though no recommendation is made by the committee to NGT.
NPJ Page 88 of 17220. The Committee observed 12 lac tonnes of Phosphogypsum is there but did enquire as to its utilization plan needed as per EC condition and approved by the CPCB.
21. The committee also suggested to use leachate from collection sumps for dust suppression instead sending back to ETP, if extra water is needed, use ETP treated effluent for sprinkling. This (page 1457) is unscientific and arbitrary advice given to the company by the committee. The leachate always has higher concentration of toxic materials leached from years in the collection wells. It is not safe to utilize such waste to suppress dust. In world, nowhere such practice is allowed and in use. So, the committee has not gone into characteristics of the leachate from TSDF.
22. That the Hon'ble NGT considers the objections and submissions of the applicant on the Joint Inspection report."
27. We would like to make it clear here that during the argument, the learned counsel for the applicant has mainly concentrated on the number of days of violations on the part of respondent No.8, alleged to have been calculated on lower side; the area where the pollution was said to have happened which was also stated to be on much larger area i.e. 26,200 sq.mtrs instead of what was shown in the Joint Committee report as 7061 sq.mtrs and besides that, the basis for arriving on the number of days of violations is assailed on the ground that the number of days appear to be on lower side because the inspection conducted by the GPCB on 18 dates mentioned in paragraph No.7 of the said objections were not taken into consideration by the Joint Committee though the learned senior counsel for respondent No.8 had pointed out that there were repetition of minutes of several dates of inspections and if those minutes were deducted, total number of days would decrease to 15 from 18, which appears to have not taken into consideration by the Joint Committee. The learned counsel for respondent No.8 had also pointed out that these 15 inspections were conducted and there was no denial to that. In these inspections, no adverse was noted against the Project Proponent because of which number of days NPJ Page 89 of 172 are being wrongly stated to be on higher side. In fact, the Joint Committee had already taken into consideration all the number of days on which violations are found to be there in which deficiencies were found to be there in the unit of respondent No.8.
28. We had also enquired from the learned counsel for the applicant when this point was raised by her as to what is her calculation which she claims to have not been taken into account, to which she says that she has not made calculation on her own, rather it was job of the Joint Committee to calculate the same.
29. From the side of respondent No.8, reply-affidavit dated 16.11.2021 has been submitted, wherein it is submitted that the applicant has misled this Tribunal in respect of the fertilizer unit (DAP and PAP plants), alleging the said unit to be in operation, generating phosphogypsum because these plants have been shut down. The applicant has also suppressed the fact that the presence of copper slag over forest land outside the boundary of the respondent No.8's unit was a historical issue. Respondent Nos.1, 3 and 4 (i.e. GPCB and State Forest Department) had taken cognizance of this issue and the answering respondent has consistently made bona fide efforts to address the concerns under the supervision and guidelines of the said regulatory authorities and has also deposited the penal compensatory afforestation charges of approx.. Rs.94 lakhs as determined by the regulatory authorities in terms of applicable laws towards restitution. The remedial and restoration efforts undertaken by the answering respondent and respondent Nos.3 and 4 have shown positive results. Even then oblique picture is being drawn alleging that dumping of copper slag in reserve forest area is being done. It is also suppressed that the answering respondent subsequently lifted the copper slag from the diverted forest area in its possession and continued its efforts to work with the regulatory authorities to restore the forest area falling outside the boundary wall of respondent No.8. The Secured Land Fills (SLFs) constructed by the answering respondent have been designed by a reputed institute in line with guidelines published by NPJ Page 90 of 172 respondent No.6-CPCB and are operated and closed as per design.
Photographs showing the SLFs constructed by the answering respondent are annexed as Annexure-R8/1.
30. According to the answering respondent, the applicant has also omitted from mentioning that most of the violations stated in the application have already been addressed by the answering respondent and closed under the supervision of respondent No.1 - GPCB and respondent No.8 continued to make best efforts to address the remaining concerns as well. The applicant has also placed various inspection reports of respondent No.1 on record, but they were responded by respondent No.8 in detail along with supporting documents, which have not been filed by the applicant. According to the answering respondent, the cause of action for filing the application is shown to have arisen on 25.03.2021 while on the other hand, the applicant is posing to build a narrative of "continuing environmental violations" by relying on a cause of action going as far back as at-least in 2007. The substantial part of the cause of action agitated by the applicant is based on observations in the inspection reports dated 13.06.2018 and 24.01.2020 issued by respondent No.1-GPCB. The issues related to the abovesaid inspection reports are time-
barred as per the provisions of Section 14(3) of the NGT Act. The copper industry is a permitted industry categorized in red category, which is required to adopt cleaner technologies so as to result in generation of fewer pollutants.
The categorization seeks to strike a balance between economic development and environmental concerns as per the principles of sustainable development, permitting red category industries to operate under a stricter regulatory framework in acknowledgement of the contribution of such industries to economic development, employment generation as well as revenue augmentation for the State. The objective is not to close such industries, but to make sustained efforts to monitor, regulate and continuously explore alternatives for minimizing the emissions from such industries. The answering respondent has voluntarily taken the burden of reducing its emissions seriously and has made substantial investment in NPJ Page 91 of 172 undertaking a series of measures to install newer and cleaner technology to reduce its environment foot print.
31. It is further stated by the answering respondent that the answering respondent's copper division i.e. Birla Copper operates one of the largest single location custom copper smelters in the world. It is located in the Petroleum, Chemicals and Petrochemicals Investment Region (PCPIR) managed by the Gujarat Industrial Development Corporation (GIDC). It is spread over 342 Ha land of which 117 Ha is covered by green belt, which also includes a residential township. The answering respondent's unit comprises integrated and interdependent plants in one complex which are further segregated into industry segments and technologies and includes two copper smelters, two refineries, two rod plants, a captive power plant, a captive oxygen plant, phosphoric acid plant, di-ammonium phosphate plant (which has now been shut down), a precious metal recovery plant, captive jetty and other utilities. The Consolidated Consent & Approval (CC&A) dated 30.05.2020 granted to the answering respondent by respondent No.1 - GPCB for establishment and operation of the Birla Copper plant is annexed at Annexure-R8/5. The said plant meets 43% of the copper requirement in the country today and contributes to the growth, innovation and development of sectors such as Power, Automotive, Electronics and Telecommunication, Railways, Construction, Electric vehicle, Renewables, Defence that are critical for the country. This unit has engaged 378 Management Grade employees, 1110 Operational Grade and Local Management staff from nearby villages including Lakhigram and Dahej and 3500 contract manpower. The unit has been contributing to taxes and the statutory dues to the State and Central Governments, to the tune of Rs.12,706 Crores, including surcharges, entry tax, CGST, SGST, IGST, UGST/Cess, TDS, municipal taxes to the Central and State Governments since 2016 upto 2021. It has undertaken various activities under community development , which are mentioned in paragraph No.18 sub-paragraphs (i) to (ix) of the reply-affidavit. The answering respondent also runs Aditya Birla Public School at Kesrol.
NPJ Page 92 of 17232. The answering respondent has undertaken measures to reduce its environment footprint by resorting to investment of Rs.114 crores in desalination project in collaboration with GIDC to reduce its dependency on the Narmada river water. Due to the exothermic process of the copper smelting process it is not entirely dependent on electricity for heat generation.
The answering respondent operates two thermal captive power plants having generation capacity of 135 MW to cater to its power requirements for its remaining operations although it is consciously exploring opportunities for reducing its dependency on its captive power plants. The answering respondent generates only 60-65 MW of electricity and meets the remaining requirement by procuring energy from renewable sources of power and by drawing from the Gujarat Electricity Board. It has also adopted 3R approach i.e. Reduce, Reuse and Recycle by investing the environment improvement projects, which are detailed in paragraph No.23 (A) to (D) of the affidavit-
reply.
33. With respect to improvement in Solid Waste Management, it is submitted that the answering respondent has covered the entire gypsum yard (400X800m) wit HDPE Liner in the year 2020 to avoid generation of leachate and to directly transfer the rainwater in storm drain. This has effectively arrested any possibility of potential contamination. It has been consistently making efforts to apply the waste management hierarchy to all the waste, which means to reduce the quantity of waste produced during operations, by following techniques to reuse and recycle generated waste in an environmentally friendly manner. Apart from copper slag, solid waste generated from the smelters, refinery and precious metal recovery plants have valuable metals. The answering respondent has been recycling these through smelters to recover such metals internally through various stages of smelting process.. The answering respondent has also got permission from the MoEF&CC for exporting Dore Slag, C-Slag, Dust & Lumpy and Liberator Cake materials to overseas authorized recyclers. Recently, it has undertaken major overhauling and revamps of two major production facilities.
NPJ Page 93 of 17234. The fertilizer plant comprising the PAP and DAP was installed to utilize sulphuric acid which is a byproduct of the copper smelting process.
Sulphuric acid is treated to create phosphoric acid at the PAP which in turn reacts with ammonia at the DAP to produce Diammonium Phosphate which is a fertilizer. Phosphogypsum is produced as a byproduct during production of Diammonium Phosphate. Phosphogypsum in concentration is a pollutant but when mixed with soil in small quantities, is widely regarded as "the poor man's fertilizer". It is also stated that as per Schedule-I of Hazardous and Other Waste Rules, 2016, phosphogypsum and slags from pyrometallurgical operations are excluded from the category of hazardous wastes.
Phosphogypsum is stored in a dedicated storage yard, which is built as per prevalent guidelines. The answering respondent plans to implement a solution for clearing the entire phosphogypsum storage yard within the next 12 to 16 months and is currently exploring options for removal/disposal of the phosphogypsum and thereafter backfilling the area with soil composite to reclaim the land. In the alternative, capping the phosphogypsum and making it suitable for plantation in situ in consultation with expert agencies such as The Energy and Resource Institute (TERI). The answering respondent is no longer producing the phosphogypsum. In the year 2019, Gujarat witnessed exceptionally heavy rainfall leading to flooding in the region. Respondent No.1-GPCB regularly inspected premises of various industries in the region during this period to monitor seepage, overflow, spillover, etc. of the industrial pollutants and made observations wherever necessary to ensure that corrective measures were immediately taken. The answering respondent also received such observations including a closure notice in 2019 on account of seepage of acidic water in the area adjoining its phosphogypsum yard. Pursuant to the closure notice, the answering respondent adopted immediate corrective measures which were monitored by respondent No.1.
35. With respect to the allegations regarding dumping of hazardous waste in the forest area, it is submitted by the answering respondent that the area in question consists of two parts of the forest land i.e. 16 ha land which NPJ Page 94 of 172 stands diverted to the answering respondent as on date and 9 ha beyond the boundary wall of the premises of the answering respondent. The issue of dumping of copper slag in forest area is historical non-compliance for which the answering respondent has already paid penalty in 2013 to the extent of Rs.95 lakhs for the entire area of 25 ha. There is no current dumping of copper slag or phosphogypsum or waste water or any other waste or byproduct in the 16 ha which stands diverted to the answering respondent or in the 9 ha beyond the boundary wall. The answering respondent has already removed the copper slag dumped historically in the 16 ha land.
According to the answering respondent, it is working with respondent Nos.3, 4 and 7 to clean up and reforest the area of 9 ha beyond the boundary wall for which it requires permission from the Forest Department.
36. In the year 2007, a complaint was lodged against the answering respondent for damaging 25 ha of forest land for which penalty of Rs.17,84,000 for afforesting double the measurement of damaged land i.e. 50 ha was recovered from the answering respondent. The answering respondent had moved an application under Section 2 of the Forest (Conservation) Act, 1980 for diversion of 16 ha out of 25 ha of forest land which was allowed subject to deposit of Rs.94,20,000 towards penal compensatory afforestation over 50 ha in the damaged/degraded land, which has also been duly paid by the answering respondent. The answering respondent has lifted completely the dumped material from the said area and has restored it, which is clear from the perusal of the photographs annexed as Annexure-R8/12. It has also undertaken steps to plant a green cover alongside the boundary wall as required by respondent No.1. It is further mentioned that the copper slag, which is a byproduct of the copper smelting process, is an essential raw material for certain industries. The copper slag is a substitute for sand in the construction industry. The total quantity of copper slag produced by the answering respondent per day measures approx.. 3000 metric ton and that the entire quantity of copper slag produced by the answering respondent in a year is disposed of by supply to the cement NPJ Page 95 of 172 industry, road/highway construction industry and abrasive products industry. In the recent years, the answering respondent has disposed of more than 100% of the copper slag generated in a year, by supply to other industries and there is no disposal of copper slag within the Birla Copper unit or outside its premises. The details of the inspections made by respondent No.1-GPCB and the remedial action taken by the answering respondent have been given in tabular form in paragraph No.51 of the affidavit-reply.
37. According to the answering respondent, on 08.11.2021, respondent No.1-GPCB had conducted follow-up inspection when queries related to the issues of stack emissions, deposit of copper slag beyond the boundary of the answering respondent, waterlogging in the reserved forest area and details regarding generation and disposal of arsenic waste were raised. The answering respondent has duly responded to all the queries, which are annexed as Annexure-R8/22.
38. From the side of respondent No.8/Project Proponent, written submissions have been filed on 05.01.2024, which contain entire case in brief, including relevant parts of the Joint Committee report, response to the points raised by the applicant in respect of the Joint Committee and point-
wise response to that has also been given by them. The said submissions are at pages 2211 to 2292 of the paper-book. It would be appropriate for us to take relevant paragraphs from the written submissions with respect to what has been stated about the Joint Committee report as well as against the objections raised by the applicant, which are as follows.
39. It is recorded that the Joint Committee examined various records, including contemporaneous inspection reports of the Forest Department and evaluated the reasons for presence of copper slag in reserve forest area situated at the northern boundary of Dahej unit, concluding that the same was on account of water run-off incident that occurred in 2009 due to heavy rainfall and that respondent No.8 had shown intention to remove this slag and remediate the affected area at their own cost.
NPJ Page 96 of 17240. It is further mentioned that the Joint Committee undertook comprehensive assessment and scientific evaluation to ascertain the impact of presence of copper slag on various environmental aspects in the reserve forest area. To ascertain the impact of copper slag on vegetation density and character of forests in reserve forest area, the Joint Committee decided to obtain land-use land-cover pattern maps and satellite imagery of the reserve forest area since 2022 till date, from the reputed remote sensing agency, which was obtained from Bhaskaracharya National Institute for Space Applications and Geo-informatics ("BISAG", for short), Ministry of Electronics and Information Technology, Govt. of India, based in Gandhinagar, Gujarat.
After assessment and examining the satellite imagery obtained from BISAG, the Joint Committee concluded that the presence of copper slag in reserve forest area has had significantly less impact on the health of surrounding vegetation and the scarce vegetation found in the said low-lying reserve forest area is on account of prolonged ponding/stagnation of rainwater which accumulates post monsoon as there is no drainage for monsoon accumulation in the said reserve forest area. The Joint Committee undertook two sites of soil sampling and its exercise has been conducted on 18/19- 02.2022 and 30/31.03.2022. The Joint Committee undertook water sampling and analysis during the inspection conducted on 18/19.02.2022 and after evaluation, concluded that there was no contamination of water which accumulated, in the low-lying reserve forest area after monsoon. On the basis of the aforesaid evaluation, the assessment of Environmental Damage Compensation (EDC) on account of soil pollution due to presence of copper slag in forest area was undertaken by the NEERI, which was adopted by the Joint Committee.
41. It is stated that the Joint Committee undertook detailed assessment of past non-compliances in respect of operations of Dahej Unit for a period of five years during the period September, 2016 to September, 2021 as per directions of the NGT dated 05.01.2022.
NPJ Page 97 of 17242. Further, the written submissions filed by respondent No.8 contain the summary of the entire Joint Committee report and answers to the deficiencies/lacunae found by the Joint Committee therein against respondent No.8 have been given as well as whatever objections were raised by the applicant against the Joint Committee and otherwise have also been responded to by respondent No.8 in the said written submissions in summary form, which are being re-produced hereunder for the sake of convenience:
―15. Joint Committee undertook detailed assessment and evaluation of past non- compliances in relation to conduct of operations at Dahej Unit for a period of 5 years during September 2016 - September 2021 as directed by NGT vide Order dated 05.01.2022, inter-alia examining the following information and records:
[Minutes of JC Meetings -- Vol. IX pq. 1516-1524; Inspection-cum-Monitoring Report -- Vol. IX pq. 1625-16851
(i) Compliance with CCA conditions: Year-wise annual consumption and generation data mapped against CCA limits for the period 2016 till 2021 --raw material, water, fuel, products, by-products, effluents, hazardous wastes;
Mass/material balance data of end-to-end manufacturing activity, consisting of raw material input to product / by-product / waste (solid, liquid, gaseous) output; CCA compliance status for 2016-2021.
(ii) Environmental audit reports submitted by R-8/HIL to R-1/GPCB in prescribed Form V as per Rule 14 of the EP Rules 1986 during 20162021.
(iii) Reports of Schedule I environmental audits of Dahej. Unit conducted by third party agency appointed by R-1/GPCB for the period 2016-2021 along with compliance status of recommendations and observations.
(iv) Compliance with EC conditions: EC compliance status for 2016-2021;
Environmental management plan compliances in terms of CCA and EC conditions; comparison between 2009 EC and 2017 EC
(v) Compliance of observations made by regulatory authorities during inspections for the period 2016-2021: Compliance status vis-a-vis all inspection reports of GPCB, CPCB and Forest Department, including Show Cause Notices, Notice of Directions, Closure Directions issued by R-1/GPCB and R-6/CPCB during 2016 - 2021.
(vi) Action Taken Report was submitted by R-8/HIL to Joint Committee detailing compliance status against all GPCB Inspection Reports during 2016-2021 and details of action taken in respect of observations and recommendations made by R-1/GPCB and R-6/CPCB during each inspection along with details of supporting documentation furnished contemporaneously.
(vii) Hazardous waste and other waste management processes: Details regarding hazardous waste and other waste generation, management, and disposal during 2016-2021. Details regarding hazardous waste generation per unit of product output.
NPJ Page 98 of 172(viii) Details of third-party agencies to whom hazardous waste or other waste has been disposed and the relevant permissions for such disposal under Rule 9 of HWM Rules 2016.
(ix) Details of all 8 SLF sites along with capacity and closure details, export permissions.
(x) Details regarding phosphogypsum and copper slag management --
generation, handling, management, disposal, sale and sector-wise sale, as applicable.
(xi) Air quality and water quality management processes: Details of air quality improvement projects -- RCC roads, upgradation of infrastructure at coal handling area, road sweeping machines etc.
(xii) Details regarding water consumption, wastewater generation and treated wastewater disposal (KUday). Details regarding water consumption and wastewater generation per unit of product output.
(xiii) Details regarding wastewater treatment and sludge composition and generation from various sources, including quantity generated, collection, treatment, storage, handling, disposal and management.
16. R-8/HIL furnished the aforesaid information and records as per the directions of Joint Committee, vide HIL's correspondences dated 28.01.2022, 07.02.2022, 08.02.2022, 09.02.2022, 24.02.2022, 03.03.2022, 12.03.2022 and 13.03.2022. The aforesaid information and records were examined, evaluated and deliberated by the Joint Committee over the course of four Meetings held on 21.01.2022, 01.02.2022, 15.02.2022 and 14.03.2022 and two inspections held on 18-19.02.2022 and 30- 31.03.2022.
17. In addition to the above, the environment audit of Birla Copper conducted by Joint Committee during the inspections on 18-19.02.2022 and 30-31.03.2022 included assessment, verification and monitoring of the following:
(i) Status of mangroves p pq. 1446-1448; 1451-1453; 1454-1455; 167216741
(ii) On-ground inspection of all areas / units of interest in and around Dahej Unit, including SLF sites, phophogypsum storage yard, coal yard, Tertiary Water Recycling Unit, Fertilizer Plant, Sulphuric Acid Plant-1, Refinery-1 Plant, Smelter-1 and Smelter-
3 Plants, Precious metal recovery plant, CRZ areas, reserve forest area, captive jetty, copper slag management and disposal [p pg. 1446-1476]
(iii) Monitoring of Ambient Air Quality, source emissions of stacks, ETP, groundwater at SLF sites, leachate management [Inspection-cum-Monitoring Report -- Vol. IX pq. 1651-16631
(iv) Verification of operational status and compliances undertaken by R-8/HIL vis- a-vis 31 allegations made in the OA p pq. 1633-1638]
(v) Photographic comparison of operational status & compliances undertaken vis-à-vis observations and recommendations made by R-1/GPCB during inspection conducted on 18.03.2021 p pq. 1639-1641] NPJ Page 99 of 172
(vi) Audit of Environment Management Systems, including wastewater management, air pollution management, hazardous and other waste management, including details of SLFs, storage facilities for wastes, CHWTSDF arrangements, export permissions p pq. 1642-1651]
(vii) Verification of measures undertaken by R-8/HIL to improve AAQ standards by ensuring reduction of particulate matter and fugitive emissions, including provision for concrete internal roads, RCC roads with end-to-end carpeting, barricades, fencing, deployment of 3 high volume truck mounted road sweeper machines and 9 portable mechanized road & floor sweeping machines p, pq. 1674-1676; 16811
(viii) Verification of coal handling measures undertaken by R-8/HIL to reduce fugitive emissions, including establishment of covered conveyor belts for coal and other bulk materials from jetty to the pant, covered containment wall and high raised wind screens around coal yard, dust suppression using mobile mist cannons, provisions for garland drains, 34 nos. of peripheral sprinklers, dry fogger machine in coal yard [p. pg. 1676-16791
18. After undertaking comprehensive on-ground inspection, monitoring and environmental audit of Dahej Unit and taking into consideration relevant records and information, the Joint Committee concluded that:
(i) Operations at Dahej Unit are currently compliant with the prescribed environmental norms and parameters and there are no contraventions / violations on the part of R- 8/HIL in respect of 31 allegations raised in the OA [© pg. 1437-14421.
(ii) R-8/HIL is compliant with all conditions and parameters specified under the CCA dated 30.05.2020 granted by R-1/GPCB to R-8/HIL pq. 1477-
14901 19 .A detailed list of dates and sequence of events is annexed herewith as Annexure 88/33.
III. EDC ASSESSMENT BY JOINT COMMITTEE:
20. The Joint Committee determined that Environment Damage Compensation ("EDC") of INR 5,53,79,292/- ought to be imposed on Dahej Unit under the following heads:
A. EDC for soil pollution in reserve forest area on account of copper slag run-off incident in 2009 - INR 2,47,79,292/- pq. 1491-14961. The 2 assessment of impacted area (7061 m ) and EDC assessment for soil pollution was undertaken by NEERI [NEER' Report pg. 1589-1593] B. EDC for air pollution, water pollution and other non-compliances observed during 2016-2021 -- INR 3,06,00,000/- M pq. 1496-15001. The said EDC for non- compliances was computed as per the Methodology for Assessing Environmental Compensation issued by CPCB in 2019 ("CPCB Methodology").NPJ Page 100 of 172
21. As further detailed infra, the EDC assessment has been undertaken by the Joint Committee by applying well-established and judicially recognized principles for determination of EDC to the factual matrix of the instant case, including the polluter pays principle and the principle of ensuring restoration with element of deterrence [JC Report -- Vol. IX Q pq. 1433, 1516].
22. Responses of R-8/HIL to the above EDC assessment undertaken by the Joint Committee as well as Applicant's objections thereto are set out hereunder:
A. EDC Assessment for soil pollution in reserve forest area: [JC Report ft pg. 1443-1446; pg. 1449-1451; pq. 1491-1496]
23. At the outset, it is respectfully submitted that the Joint Committee has undertaken a comprehensive and scientific evaluation exercise to ascertain the environmental impact of presence of copper slag in the reserve forest area situated outside the north boundary of Dahej. Unit.
24. The evaluation and assessment exercise undertaken by the Joint Committee is summarized hereunder for ease of reference:
(i) Evaluation of reasons for presence of copper slag in reserve forest area:
25. During the inspection conducted on 30-31.03.2022, the Joint Committee examined relevant records (including contemporaneous inspections conducted by the Forest Department) and concluded that: [(@, pq. 1444-14451
(a) the presence of copper slag in the low-lying catchment area of the reserve forest area situated at the northern boundary of Dahej Unit was on account of a water run- off incident that occurred in 2009 due to heavy rainfall.
(b) during that time, the northern boundary of Dahej Unit was not demarcated with a solid boundary wall and only security fencing was in place, as the proposal for diversion of 16 Ha. reserve forest area submitted by R-8/HIL in 2006 was pending consideration with the Forest Department.
(c) In 2013, R-8/HIL deposited an amount of INR 94.2 lakhs towards penal compensatory afforestation over 50 Ha. area (i.e., more than double the 16 Ha. forest area to be diverted in favour of R-8/HIL).
(d) Pursuant to grant of requisite approvals by the Forest Department in 201516, R- 8/HIL cleaned up the copper slag lying in the 16 Ha. diverted area and constructed a solid boundary wall to the north of the said 16 Ha. diverted area.
(e) During the inspection on 30-31.03.2022, Joint Committee inspected the reserve forest area in question and observed that copper slag was spread in reserve forest area beyond the boundary wall over the length of approx. 100m and width varying from 5m to 10m p pq. 14451.
NPJ Page 101 of 17226. It is clear from the above factual findings recorded by the Joint Committee that this is not a case where R-8/HIL has deliberately or intentionally "dumped" copper slag in reserve forest area with ulterior objectives of evading obligations for disposal of copper slag as per applicable regulations. The presence of copper slag in reserve forest area was on account due to heavy rainfall in 2009, and R-8/HIL has consistently and transparently acknowledged accountability towards remediation and restoration at its own costs as per the polluter pays principle and has been requesting the Forest Department to grant requisite permissions for removal of copper slag from reserve forest area since August 2021. The Joint Committee also recorded that R-8/HIL has "...shown intention to remove slag and remediate the affected area, if needed, at their own expense..." [(@, pg. 1446).
27. It is submitted that the non-deliberate and unintentional nature of presence of copper slag in reserve forest area due to accidental run off incident from Dahej Unit during heavy rainfall in 2009, the non-hazardous nature of copper slag, and the subsequent transparent conduct of R-8/HIL acknowledging accountability for restoration and remediation of impacted area at own cost are relevant factors which have been duly taken into consideration by the Joint Committee for EDC assessment.
28. Further, the Joint Committee has undertaken comprehensive assessment and evaluation of the impact of presence of copper slag on various environmental aspects in the reserve forest area, such as - (a) impact on vegetation density and character of forest area; (ii) impact on soil; (iii) impact on water which accumulates in the low-lying forest area during monsoon. The aforesaid assessment and evaluation undertaken by Joint Committee is briefly summarized hereunder:
(ii) Assessment of impact on vegetation density in reserve forest area:
29. In order to assess the impact of copper slag on vegetation density and character of forests in reserve forest area, the Joint Committee during the 2nd Meeting held on 01.02.2022 [JC Report -- Vol. IX no. 1518-1519]: decided to obtain land- use land-cover pattern maps and satellite imagery of the reserve forest area in question from the reputed remote sensing agency BISAG [i.e., Bhaskaracharya National Institute for Space Applications and Geo-informatics ("BISAG"), Ministry of Electronics and Information Technology, Government of India - based in Gandhinagar, Gujarat].
30. During the 3rd Meeting held on 15.02.2022 [JC Report -- Vol. IX pq. 1518- 1519], the land-use land-cover pattern map details were discussed by the Joint Committee, and it was decided to expedite the process of obtaining satellite imagery of the forest land in question, i.e., compartment no. 596 of village Dahej, Tahsil Vagra, District Bharuch from BISAG.
31. This aspect was further deliberated during the 4th Meeting of Joint Committee held on 14.03.2022 [JC Report -- Vol. IX pq. 1522-1524] and the relevant portions from the said 4th Minutes of Meeting are reproduced hereunder:
"During presentation Dr. Yogesh Kumar, Scientist `C' from MOEFCC has informed that BISAG has submitted the Satellite map (LISS IV and Sentinel) as per the area of NPJ Page 102 of 172 interest (AO0 provided by the forest department. The false colour composite (FCC) image since 2004 up to 2021 has inferred that the dumping of copper slag in the reserve forest has significantly less impact on the health of surrounding vegetation. The area near the boundary was found low lying area which results in ponding of water thus a scarce vegetation was found."
(emphasis added)
32. Further, during the inspection on 30-31.03.2022, the Joint Committee after conducting on-ground inspection observed that the reserve forest area in question is a "...low lying area and acts as a natural catchment from surrounding area and doesn't have any further drainage for monsoon accumulation. Forest Department mentioned that the water stagnates for almost 6 months post monsoon." [JC Report -- Vol. IX pq. 1445-1446]
33. It is clear from the above that the Joint Committee, after examining satellite imagery obtained from the reputed remote sensing agency BISAG for the period 2004 till 2021 has concluded that the presence of copper slag in reserve forest area has had "significantly less impact on the health of surrounding vegetation". The Joint Committee has also found that the scarce vegetation found in the said low-lying reserve forest area is on account of prolonged ponding / stagnation of rainwater which accumulates post monsoon as there is no drainage for monsoon accumulation in the said reserve forest area.
(iii) Assessment of potential water contamination in reserve forest area:
34. In order to assess and evaluate the potential contamination of water in reserve forest area, the Joint Inspection Team (comprising representatives of R-1/GPCB and R-6/CPCB) undertook water sampling and analysis during the inspection conducted on 18-19.02.2022 [Inspection-cum-Monitoring Report -- Vol. IX pq. 1664-1667]:
a) Two water samples were collected by the Joint Inspection Team in the presence of officials of Forest Department, Govt. of Gujarat from two shallow water ponding locations in reserve forest area -- one sample adjacent to the boundary wall of Dahej Unit and second sample about 100m away from the boundary wall pg. 1664].
b) The water samples were sent to an environmental laboratory approved by R-6/CPCB as per Section 12 of EPA 1986 [( pg. 16651.
c) Even though the Joint Inspection Team found that the "source of shall water ponding in the reserve forest area is mainly rainwater...", the analysis results of water samples were compared against the "General Standards for discharge of environmental pollutants (effluents) in Inland surface water, land for irrigation and marine coastal areas"
prescribed by R-6/CPCB under Schedule VI of EP Rules 1986 [( pg. 1665-1666].
d) After the aforesaid evaluation and analysis, the Joint Inspection Team concluded that "...most of the monitored parameters are meeting the said NPJ Page 103 of 172 standards" pg. 1667]. Further, concentrations of contaminants / heavy metals such as Arsenic, Chromium, Lead, Molybdenum, Mercury, Sulphide, Antimony, Cobalt and Cyanide in both water samples was found to be Below Detection Limit (BDL) [j pg.
1667].
e) Further, Joint Inspection Team concluded that the higher concentrations of BOD (Biochemical Oxygen Demand) and COD (Chemical Oxygen Demand) in the water samples "...may be due to decay of plants and 2225 vegetation around the water ponding and also due to the excreta of wild animals in that area which was observed during the visit." pa. 1667]
f) Furthermore, Joint Inspection Team concluded that the presence of high TDS in the water samples "...may be due to the salinity of the area because of coastal effect." [(el, pg. 1667]
35. It is clear from the above that the Joint Committee, after evaluating the analysis results of water samples collected from shallow rainwater ponding observed in February 2022 in the low-lying reserve forest area, concluded that there is no water contamination in reserve forest area on account of presence of copper slag or operations at Dahej Unit.
36. Further during the inspection on 30-31.03.2022, the Joint Committee observed that the low-lying forest area acts as a natural catchment for surface water runoff from surrounding area during monsoons and does not have any further drainage for monsoon accumulation pg. 14451. The Joint Committee observed that the low-lying forest area was completely dry by March 2022 upon evaporation of monsoon accumulation pq. 1445-1446].
37. It is thus clear above the comprehensive and scientific evaluation undertaken by the Joint Committee that presence of copper slag or operations of Dahej Unit have not resulted in water contamination in reserve forest area.
(iv) Assessment of potential soil contamination in reserve forest area:
38. In order to assess and evaluate the potential contamination of soil in reserve forest area, the Joint Committee undertook two sets of soil sampling and analysis exercises during the inspections conducted on 18-19.02.2022 and 3031.03.2022. The evaluation and assessment exercise undertaken by Joint Committee is briefly set out hereunder:
39. The first soil sampling and analysis exercise was undertaken during the inspection by the Joint Inspection Team (comprising representatives of R-1/GPCB and R-6/CPCB) on 18-19.02.2022 [Inspection-cum-Monitoring Report -- Vol. IX pg. 1667-1672]:
a) Soil samples were collected from a total of eight locations - seven locations in reserve forest area and 1 location within factory premises. Two sets of samples were collected from each location -- one sample from a depth of 0.5m and the other sample from a depth of 1.5m pq. 16677.
b) The soil samples were collected in the presence of officials of Forest Department, Govt. of Gujarat and as per the sampling protocol prescribed under Guidelines for Identification, Inspection and Assessment of Contaminated Sites prepared by R-6/CPCB in NPJ Page 104 of 172 June 2020, based on the Guidance document for assessment and remediation of contaminated sites issued by R-7/MOEFCC pq. 16677.
c) The soil samples were sent to an environmental laboratory approved by R-6/CPCB as per Section 12 of EPA 1986 [ pq. 1669].
d) In order to draw a conclusion as to whether the affected area should be regarded as a contaminated site, the analysis results of soil samples
e) pq. 1669-1672] were compared with widely used and internationally recognized screening / response level standards (i.e., Dutch Intervention Standards 2009 and Canadian Soil Quality Guidelines) for heavy metals and contaminants, such as Arsenic, Anitmony, Chromium, Copper, Cobalt, Cadmium, Iron, Lead, Manganese, Molybdenum, Mercury, Nickel, Zinc n pq. 1670-1671].
f) After the aforesaid evaluation and analysis, it was found that concentrations of heavy metals in all the soil samples were within the intervention value of
g) Dutch Standards pq. 1671]. The aforesaid scientific evaluation establishes that the soil in the affected area cannot be deemed to suffer from contamination on account of heavy metals.
h) Concentrations of copper in few samples were found to be exceeding the Canadian Soil Quality Standards and it was recommended that copper slag in reserve forest area should be removed on priority [p. pg. 1671-1672]. It is a matter of record that R-8/HIL has transparently acknowledged accountability for remediation and restoration and has been requesting permission from the Forest Department, Govt. of Gujarat for evacuation of copper slag from reserve forest area and had also submitted an action plan which is pending approval since 2021 [R-8/HIL Addl. Docs -- Vol. VIII pq. 1346-1347; 1332-1333].
40. The second soil sampling and analysis exercise was undertaken during the inspection by Joint Committee on 30-31.03.2022 [JC Report -- Vol. IX pg. 1449-1451]:
a) Representatives of R-6/CPCB, R-1/GPCB, R-7/MOEFCC, NEERI and R-3/Forest Department, Govt. of Gujarat undertook soil sampling at 10 different locations in the reserve forest area to evaluate presence of metals and for chemical species determination of soil. Two soil samples were collected from each of the 10 locations, one sample from ground level and one sample from a depth of 0.5m [p pg. 1449- 1450].
b) Nine sets of samples were collected from the impacted low lying reserve forest area and one set of samples of native soil were collected from a faraway location in reserve forest area (near Bhootnath temple) to establish control site and for comparison p pg. 1449-14501 NPJ Page 105 of 172
41. Upon evaluation of analysis results, it was found that while concentrations of heavy metals / contaminants in soil samples were within the Dutch intervention standards, the concentrations of heavy metals in soil samples collected from the impacted area were higher than the concentrations in native soil samples. Accordingly, the Joint Committee deputed NEERI to undertake EDC assessment for soil pollution in reserve forest area.
(v) EDC Assessment by NEERI for soil pollution in reserve forest area:
42. On the basis of the soil sampling and analysis exercises undertaken by the Joint Committee, EDC assessment for soil pollution in reserve forest area was undertaken by the domain expert, NEERI [JC Report-- Vol. IX pq. 1491-1496; 1589-1593]
43. NEERI adopted the Impact Pathway Analysis (IPA) Approach to determine the external costs of soil pollution in reserve forest area due to the copper slag runoff incident. The methodology for EDC assessment adopted by NEERI is briefly set out hereunder:
44. NEERI undertook identification of impacted area on the basis of thorough on-
ground physical inspections, evaluation of topography or reserve forest area, analysis of soil samples and evaluation of other relevant records such as satellite imagery of reserve forest area obtained from BISAG. The relevant excerpts from Joint Committee Report regarding identification of impacted area are reproduced hereunder for ease of reference: p pp. 1491- 1492] "10.1.1 Methodology In this study, the land environment damages are taken in account by the impact pathway analysis. For this, the soil sampling for different chemical species was carried out in the dumping area where the copper slag was dumped. During field survey it is realized that the area where slag was dumped, is a low lying area and the surface run-off during rain accumulates in this region. In a first look, the clean-up measure would be to remove the top soil and create a depression that would allow rain water to accumulate, which can be used by the local fauna in the vicinity. As per the records, the area along the boundary wall for a distance of about 150 m and a width of 100 m was used for slap dumping. However, as a precautionary measure, the area from boundary wall up to the dry patch, where water is accumulated during rain is considered impacted. If the identified patch is cleaned, the area can be considered to be fully cleared of old dump and its impact. The identified area is marked on Gooale map and given below:
NPJ Page 106 of 172(emphasis added)
45. On the basis of the above assessment, the impacted area has been estimated by NEERI as 7061 m2 [(a7 pq. 14941.
46. After identification of impacted area, NEERI undertook Environmental Externalities Valuation, and the methodology Fig.: Likely impacted area near the boundary wall of plant marked on Google map adopted by NEERI is briefly summarized hereunder:
a) The concentration of heavy metals / contaminants (Arsenic, Copper, Chromium, Cadmium, Nickel, Zinc, Lead, Molybdenum, Manganese) in soil samples collected from impacted area were compared against the concentrations found in native soil samples, and the impacts were quantified by measuring the difference in metal concentrations between soil in impacted area and native soil Dq. 1492-1493]
b) To be on the safer side, the minimum concentration of metals / contaminants out of two native soil samples were considered as representative of native soil pg. 14941.
c) .Out of the 9 sampling locations in impacted area (i.e., 18 samples and analysis results), the maximum value of each metal / contaminant was taken as representative of the entire impacted area and compared with native soil values for EDC assessment pq.
1494].
47. In other words, NEERI has considered the highest concentration of metals / contaminants out of 18 soil samples collected from impacted area and compared the said values against the minimum concentration of metals / contaminants out of the two native soil samples [© pg. 1493- 1494].
48. Thereafter, NEERI carried out Damage Cost Estimation by adopting the control cost methodology pq. 1493-1494], which is briefly summarized hereunder:
(a) The impacted area 7061 m2 was considered to be cleaned up-to a depth of 1 m, and therefore the total volume of soil to be removed is calculated at 7061 m 3. The density of soil is considered as 1602.80 kg/m3. On this basis, NEERI estimated the total weight of soil to be removed at 11317370.80 kg.NPJ Page 107 of 172
(i.e., 11,317.3708 MT) pq. 1494].
(b) The contaminants in soil were assigned the cost of per pollutant damage as per the benefits (or costs) transfer valuation method pq. 1493].
(c) The environmental cost for each element was determined as per environmental pricing for pollutants as available for Netherlands (in Euro per kg.). The central value was considered in order to account for variation in concentration over the impacted area of 7061 m2.
(d) The environmental costs of pollutants determined as per Dutch reference in Euro/kg. were converted to Indian Rupees by applying appropriate exchange rates as of 2015 (as the said Dutch reference estimates were prepared in 2015 by CE Delft as per Environment Price Handbook 2017). The said environmental cost was thereafter adjusted for inflation as of 2022.
49. On this basis, NEERI computed EDC for soil pollution in reserve forest area at INR 2,47,79,292/- pg. 1494-1495] and the Joint Committee recommended that the said EDC amount should be paid by R-8/HIL pq. 1501].
(vi) Remediation and Restoration Plan recommended by Joint Committee:
50. In addition to the above EDC assessment, the Joint Committee also proposed a Remediation and Restoration Plan [JC Report -- Vol. IX @ pa. 1500-1501], recommending that approx. 11,317.38 MT soil should be removed from 7061 m2 impacted area of reserve forest and disposed of by R-8/HIL in accordance with the provisions of HWM Rules 2016 after obtaining prior permission from the Forest Department, Govt. of Gujarat and under intimation to R-1/GPCB. The Joint Committee further recommended that an equivalent volume of fresh soil to suit the local condition should be refilled in the excavated area by R-8/HI L.
(vii) Concluding submissions on EDC assessment for soil pollution in reserve forest area:
51. It is respectfully submitted that NEERI and the Joint Committee have undertaken a comprehensive and scientific evaluation exercise for assessment of EDC for soil pollution in reserve forest area. The Joint Committee has concluded after thorough on-ground inspection, scientific evaluation, and examination of satellite imagery during 2004-2021 from remote sensing agency BISAG that presence of copper slag in reserve forest area has had negligible / significantly less impact on the health of vegetation in the reserve forest area. The Joint Committee has undertaken water sampling and analysis in reserve forest area and concluded on the basis of analysis results that the water accumulation in the low-lying reserve forest area due to monsoons does not suffer from contamination. Further, the EDC assessment for soil pollution undertaken by NEERI and the Joint Committee and the Remediation and Restoration Plan recommended by the Joint Committee is based on scientific rationale, evaluation and assessment and is in accordance with the judicially recognized principles for EDC assessment, including the polluter pays principle, the principle of ensuring restoration with element of deterrence, the principle of sustainable development and the doctrine of proportionality.
NPJ Page 108 of 17252. In light of the above, R-8/HIL undertakes to deposit INR 2,47,79,292/- assessed as EDC for soil pollution in reserve forest area by Joint Committee with R-1/GPCB or R-3/Forest Department as may be directed by this Hon'ble Tribunal.
Further, R-8/HIL also undertakes to implement the Remediation and Restoration Plan as recommended by the Joint Committee at its own costs and expenses, and under the directions and supervision of regulatory authorities, including R-1/GPCB and R-3/Forest Department, Govt. of Gujarat or as may be directed. R-8/HIL has undertaken an internal cost estimation for implementation of the Remediation and Restoration Plan recommended by the Joint Committee, and the break-up of the internal cost estimation is as under:
S No Details of Activity Estimated Cost
(INR lakhs)
1. Removal of soil from impacted area in reserve forest 21.18
2. Cost of new Soil 56.5
3. Filling cost of new Soil in evacuated area 5.0
4. Landfill cost at 3rd Party TSDF 127
Total 209.68
(INR 2.0968
Crores)
53. Subject to grant of requisite approvals by R-3/Forest Department and directions of this Hon'ble Tribunal or regulatory authorities in this regard, R-8/HIL is committed to implement the Remediation and Restoration Plan recommended by the Joint Committee and is willing to earmark funds as per the aforesaid estimation or as directed.
54. As recommended by the Joint Committee [p. pg. 1501], R-3/Forest Department, Govt. of Gujarat may be directed to permit R-8/HIL to implement the Restoration and Remediation Plan in the reserve forest area.
B. EDC Assessment for air pollution, water pollution and past non-compliances observed during 2016-2021: [JC Report - Vol. IX pa. 14961500]
55. It is relevant to reiterate at the outset that the Joint Committee, after conducting thorough on- ground assessment, monitoring and comprehensive environmental audit of Dahej Unit over the course of two inspections (conducted on 1819.02.2022 & 30-31.03.2022) and upon detailed examination of relevant records and information and deliberation over the course of 4 Meetings, has concluded that:
(i) Operations at Dahej Unit undertaken by R-8/HIL are currently compliant with CCA conditions imposed under Air Act, Water Act, and Hazardous Waste Management Rules as per CCA dated 30.09.2020 [CCA Compliance Status -- Vol. IX pq. 1477-1490] NPJ Page 109 of 172
(ii) With respect to 31 allegations raised by Applicant in the instant OA, the operations at Dahej Unit are currently compliant with environmental norms and regulations [JC Report Vol. IX pq. 1437-1442]
56. It is thus clear from the above that non-compliances observed in the operations of Dahej Unit in the past (during 2016-2021) have been addressed and closed as of 2021 and R-8/HIL has been found compliant with environmental norms and regulations after comprehensive environmental audit conducted by the Joint Committee during February and March 2022.
57. The Joint Committee has carried out EDC assessment for air pollution, water pollution and past non-compliances during 2016-2021 on the basis of the "Methodology for Assessing Environmental Compensation and Action Plan to Utilized the Fund" issued by R-6/CPCB in 2019 ("CPCB EDC Methodology"). A copy of the CPCB EDC Methodology is annexed herewith as Annexure R8/34.
58. The CPCB EDC Methodology has been developed by R-6/CPCB pursuant to directions issued by NGT in several cases regarding the need for objective criteria for determination of EDC, and in consultation with expert institutions such as The Energy and Resources Institute (TERI), Centre for Science and Environment-India (CSE-India), Institute for Economic Growth, etc. The CPCB Methodology has been developed by R-6/CPCB based on the Polluter Pays principle, the principle of sustainable development and doctrine of proportionality. The CPCB EDC Methodology identifies 6 categories of cases for levy of EDC and prescribes separate formulae for the said categories.
59. The Joint Committee, after conducting comprehensive technical assessment and evaluation of past non-compliances observed during 2016-2021 and review of compliance / closure status, concluded that the past non-compliances observed in the operations of Dahej Unit during 2016- 2021 fall into the following 3 categories identified in the CPCB EDC Methodology: [JC Report-- Vol. IX 14971:
(a) "Discharges in violation of consent conditions, mainly prescribed standards / consent limits.
(b) Not complying with the directions issued, such as direction for closure due to non-
installation of OCEMS, non-adherence to the action plans submitted etc.
(c) Intentional avoidance of data submission or data manipulation by tampering the Online Continuous Emission / Effluent Monitoring systems."
60. The formula for EDC assessment for the aforesaid categories of cases / non-compliances as per the CPCB EDC Methodology is based on the Pollution Index (PI). The relevant excerpts from the CPCB EDC Methodology are reproduced hereunder for ease of reference:
"1.3.1 In the instances as mentioned at a, b and c above, Pollution Index may be used as a basis to levy the Environmental Compensation. CPCB has published guidelines for categorization of industries into Red, Orange, Green and White NPJ Page 110 of 172 based on concept of Pollution Index (PI). The Pollution Index is arrived after considering quantity & quality of emissions/ effluents generated, types of hazardous wastes generated and consumption of resources. Pollution Index of an industrial sector is a numerical number in the range of 0 to 100 and can be represented as follows:
P/ = f (Water Pollution Score, Air Pollution Score & HW Generation Score) Pollution Index is a number from 0 to 100 and increasing value of PI denotes the increasing degree of pollution hazard from the industrial sector.
CPCB has issued directions to all SPCBs/PCCs on 07.03.2016 to adopt the methodology and follow guidelines prepared by CPCB for categorization of industrial sectors into Red, Orange, Green and White.
The concept of Pollution Index, which was deliberated widely with all stakeholders and agreed, shall be used for calculating Environmental Compensation. This may help in implementation of such provision throughout the country, a successful initiative in vital field of industrial pollution control.
After considering various factors including the policy implementation issues, Committee has come up with following formula for levying the Environmental Compensation in instances as mentioned at a, b and c including non-compliance of the environmental standards / violation of directions.
The Environmental Compensation shall be based on the following formula: EC =PI*N*R*S*LF Where:
EC is Environmental Compensation in ₹ PI = Pollution Index of industrial sector N = Number of days of violation took place R = Factor in Rupees (₹) for EC S = Factor for scale of operation LF = Location factor The formula incorporates the anticipated severity of environmental pollution in terms of Pollution Index, duration of violation in terms of number of days, scale of operation in terms of micro & small/medium/large industry and location in terms of proximity to the large habitations."
(emphasis added)
61. The Joint Committee has determined that the aforesaid formula prescribed under the CPCB EDC Methodology based on Pollution Index is appropriate for EDC assessment considering the nature of past non-compliances and the facts and circumstances of the instant case, based on the following rationale: [JC Report -- Vol. IX (@ pg. 1497-1498] NPJ Page 111 of 172 "Pollution Index (PI) is based on the CPCB guidelines on Revised Classification of Industrial Sectors under Red, Orange, Green and White Categories (2016). It is derived as a function of emissions (air pollutants), effluents (water pollutants), hazardous wastes generated and consumption of resources.
For each component e.g. for air pollution, emissions are taken into account for the parameters namely PM, CO, NOx, SOx, Heavy Metals, Benzene, Ammonia and other toxic parameters relevant to the industry.
For water pollution, effluent discharge in terms of the parameters namely pH, TSS, NH3- N, BOD, Phenol and other toxic pollutants relevant to the industry are considered to compute the score.
For hazardous wastes (land fillable, incinerable, recyclable) as generated by the industry is considered.
This suggests that all the components relevant to the industry are considered in the DCA method based on pollution index. The method is inclusive of the chemical contamination in various media."
(emphasis added)
62. Accordingly, the Joint Committee has undertaken EDC estimation as per the formula prescribed under CPCB EDC Methodology as follows: pa. 1498- 1500]:
EC = Pl* N* R*S*LF Parameter Value Remarks of R-8/HIL taken by JC PI - 80 As per the CPCB EDC Methodology, PI is a number between 0-100 to be applied as per classification of industry as Red, Pollution Orange or Green as per CPCB Classification Guidelines Index issued in 2016; CPCB has suggested PI to be taken as 80 for Red category industries.
Joint Committee has considered PI as 80 in this case, as Dahej Unit is classified as a Red category industry as per CPCB Classification Guidelines 2016 [R-8/HIL Reply
-- Vol. III pa. 851-909] NPJ Page 112 of 172 N- 1020 As per the CPCB EDC Methodology, N is the number of Number of days between the day on which violation is observed / days due date of direction's compliance and the day of violation compliance verified by CPCB/SPCB/PCC. As detailed took place infra, the factual and technical assessment for considering N as 1020 days has been undertaken by the Joint Committee comprising domain experts after thorough examination and evaluation of relevant R -- factor 250 records andCPCB As per the does not EDC warrant interference.
Methodology, R is suggested as
in Rupees minimum 100 and maximum 500; further, R is suggested
for EDC
to be considered as 250 in cases of violations of
standards.
Joint Committee has considered R as INR 250 as
suggested in the CPCB EDC Methodology.
S - factor 1.5 As per the CPCB EDC Methodology, S is suggested to
for scale of be taken as 0.5 for micro; 1 for small and 1.5 for large
operations scale industrial units.
Joint Committee has taken S as 1.5 as Dahej Unit is a
large-scale industrial unit.
LF -- 1 As per the CPCB EDC Methodology, LF may vary
location between 1 to 2 on the basis of proximity of industrial unit
factor to nearby populated areas.
Joint Committee has taken LF as 1 as per the CPCB
EDC Methodology as Dahej Unit is situated >10 km.
from municipal boundary of the town.
EDC = PI (80) * N (1020) * R (250) * S (1.5) * LF (1) = INR 3,06,00,000 [i.e., INR 3.06 Crores]
63. Pertinently, the Joint Committee has undertaken a comprehensive examination and evaluation of relevant records and information to assess and evaluate past non-compliances observed during 2016-2021 and compliance / closure status with respect to said non-compliances. The records and information examined by the Joint Committee are briefly set out hereunder:
a) Details pertaining to compliance status with CCA conditions:
(i) Year-wise annual consumption and generation data mapped against CCA limits for the period 2016 till 2021 -- raw material, water, fuel, products, by-products, effluents, hazardous wastes.
(ii) Mass/material balance data of end-to-end manufacturing activity, consisting of raw material input to product / by-product / waste (solid, liquid, gaseous) output.
(iii) CCA compliance status for 2016-2021.
(iv) Environmental audit reports submitted by R-8/HIL to R-1/GPCB in prescribed Form V as per Rule 14 of the EP Rules 1986 during 20162021.
NPJ Page 113 of 172
(v) Reports of Schedule I environmental audits of Dahej Unit conducted by third party agency appointed by R-1/GPCB for the period 20162021 along with compliance status of recommendations and observations.
(vi) Details regarding fuel consumption, including data pertaining to fuel consumption per unit of product output.
(vii) Details of OCEMS data and calibration details.
b) Details pertaining to compliance status with EC conditions:
(viii) EC compliance status for 2016-2021.
(ix) Environmental management plan compliances in terms of CCA and EC conditions.
c) Details pertaining to compliance status with observations and inspections by reaulatory authorities during 2016-2021:
(x) Compliance status vis-a-vis all inspection reports of GPCB, CPCB and Forest Department, including Show Cause Notices, Notice of Directions, Closure Directions issued by R-1/GPCB and R-6/CPCB during 2016 - 2021.
(xi) Action Taken Report submitted by R-8/HIL detailing compliance status against all GPCB Inspection Reports during 2016-2021 and details of action taken in respect of observations and recommendations made by R-1/GPCB and R-6/CPCB during each inspection along with details of supporting documentation furnished contemporaneously.
d) Details of hazardous waste and other waste management processes:
(xii) Details regarding hazardous waste and other waste generation, management and disposal during 2016-2021. Details regarding hazardous waste generation per unit of product output.
(xiii) Details of third-party agencies to whom hazardous waste or other waste has been disposed and the relevant permissions for such disposal under Rule 9 of HWM Rules 2016.
(xiv) Details of all 8 SLF sites along with capacity and closure details, export permissions.
(xv) Details regarding phosphogypsum and copper slag management --generation, handling, management, disposal, sale and sector-wise sale, as applicable.
e) Details of air quality and water quality management processes:
(xv) Details of air quality improvement projects -- RCC roads, upgradation of infrastructure at coal handling area, road sweeping machines etc. (xvi) Details regarding water consumption, wastewater generation and treated wastewater disposal (KL/day). Details regarding water consumption and wastewater generation per unit of product output.
NPJ Page 114 of 172 (xviii) Details regarding wastewater treatment and sludge composition and generation from various sources, including quantity generated, collection, treatment, storage, handling, disposal and management.
(xix) ETP & STP details and flow diagrams, details of tertiary water recycling unit etc. (xx) Details regarding water consumption, effluent generation, domestic effluents etc. along with dates of amendment in CCA quantity.
64. Further, it is a matter of record that:
(i) the aforesaid records and information have been furnished by R-8/HIL to R-1/GPCB and R-6/CPCB as per the directions of the Joint Committee through R-8/HIL's correspondences dated 28.01.2022, 07.02.2022, 08.02.2022, 09.02.2022, 24.02.2022, 03.03.2022, 12.03.2022 and 13.03.2022. A chart tabulating the records and information submitted by R-8/HIL to the Joint Committee is annexed herewith as Annexure R8/35.
(ii) the aforesaid records and information have been extensively deliberated, verified, evaluated, and examined by the Joint Committee over the course of 4 Meetings held on 21.01.2022, 01.02.2022, 15.02.2022 and 14.03.2022 and 2 inspections held on 18- 19.02.2022 and 30-31.02.2022.
65. It is reiterated that the aforesaid records, documents and information furnished by R-8/HIL pertaining to compliance status and action taken by R-6/HIL with respect to observations and inspections during 2016-2021 were verified by the Joint Inspection Team (comprising representatives of R-1/GPCB and R-6/CPCB) during the inspection conducted on 18-19.02.2022. Thereafter, during the 4th Meeting of Joint Committee held on 14.03.2022, R-6/CPCB made a detailed presentation to the Joint Committee on the compliance status and action taken by R-8/HIL with respect to past non-compliances observed during inspections conducted between 2016-2021. Thereafter, the Joint Committee conducted the inspection on 30-31.03.2022 to undertake further environmental audit and inter alia confirmed the compliance / closure status with respect to past non-compliances observed during 2016-2021.
66. Regarding EDC assessment for past non-compliances, it is also relevant to reiterate that as per the directions of the Joint Committee, R-8/HIL had furnished compliance / closure status with respect of observations in all GPCB inspection reports, SCNs, NODs, CDs issued during 2016- 2021 in the form of an Action Taken Report to R-1/GPCB and R-6/CPCB on 09.02.2022 and 03.03.2022. The said Action Taken Report sets out the compliance / closure status with respect to each observation made in each GPCB inspection report issued during 20162021. The compliance / closure status of past non-compliances has been duly verified by the Joint Inspection Team (comprising representatives of R-1/GPCB and R-6/CPCB) during the inspection conducted on 18- 19.02.2022 and by the Joint Committee during the inspection conducted on 30-31.03.2022.
67. While assessing the total number of days for which non-compliances persisted during 2016-2021 as 1020 days, the Joint Committee comprising regulatory authorities such as R- 1/GPCB, R-6/CPCB, R-3/Forest Department (which made the observations during inspections) as well as domain experts from NEERI Nagpur and IIT Gandhinagar has undertaken a technical and elaborate exercise with due application of mind and after taking into account relevant NPJ Page 115 of 172 considerations. In this context, it is relevant to note that the observations recorded in GPCB inspection reports can be classified into the following three categories:
(I) Non-compliances / violations of CCA conditions and environmental standards (for eg., fugitive emissions or effluent discharge higher than prescribed limits;
instances of waste management contrary to prescribed standards). Such non- compliances / violations of CCA conditions were rectified and evidence of compliance has been contemporaneously furnished by R-8/HIL to R-1/GPCB in respect of each non- compliance / violation.
(ii) Operational inefficiencies observed during inspections (for eg., minor leakages, dusting due to operations, ponding of wastewater, water logging etc.) which are addressed / closed immediately on the same day after taking requisite corrective steps.
(iii) Recommendations / suggestions by R-1/GPCB (for eg., improve stone pitching on SLF embankment, improve housekeeping, improve air pollution control mechanisms in coal handling area, improve stormwater drainage system etc.) -- these recommendations / suggestions may be directed to be implemented over the short-term, medium term or long-term and are not in the nature of non-compliances / violations of CCA conditions or environmental standards.
68. Every inspection report may contain observations comprising of non-compliances / violations; operational inefficiencies; and recommendations. The Joint Committee after comprehensive evaluation and due application of mind has taken into consideration non- compliances / violations for EDC assessment, as operational inefficiencies / recommendations / suggestions noted by R-1/GPCB are not amenable to classification as non-compliances / violations and are not liable to be considered for EDC assessment.
69. In this context, it is also relevant to reiterate that in consultation with regulatory authorities, R- 6/CPCB vide Directions dated 07.03.2016 has categorized industries into red, orange, green and white category based on the relative pollution potential of the industrial sectors and grouping based on use of raw materials, manufacturing process and pollutants likely to be generated. The copper industry has been categorized under the red category in the said CPCB Directions. It is submitted that the purpose of categorization is not to isolate red category industries for closure but to prompt industrial sectors to adopt cleaner technologies ultimately resulting in generation of fewer pollutants. The categorization seeks to strike a balance between economic development and environmental concerns as per the principles of sustainable development, permitting red category industries to operate under a stricter regulatory framework in acknowledgement of the contribution of such industries to economic development, employment generation as well as revenue augmentation for the State. Routine inspections of red category industries by R-1/GPCB (once every three months) are built into the regulatory framework in acknowledgement of the potential impact of these industries on the environment, with the objective being not to close such industries, but to make sustained efforts to monitor and regulate the emissions from such industries. The alarmist tone of the Applicant by contending that all observations in all Inspection Reports issued by R-1/GPCB report non-compliances / contraventions in this case completely ignores the fact that such NPJ Page 116 of 172 inspections are conducted regularly, and the regulatory authorities in discharge of their statutory functions make observations during such routine inspections, not all of which are amenable to categorization as non-compliances or violations of environmental norms.
70. The Joint Committee has duly verified and evaluated the compliance / closure status in respect of the past non-compliances / violations during 2016-2021. In this context, it is relevant to note the following:
(i) It is a matter of record that R-8/HIL contemporaneously submitted replies to all GPCB Inspection Reports, SCNs and Closure Directions, addressing the observations and furnishing compliance status along with evidence of compliance / closure of observations.
(ii) As per the internal processes of R-1/GPCB, observations during inspections are made by regional officials and compliance status as furnished by R-8/HIL are verified by the said regional officials. However, the SCNs, NODs, Closure Directions are issued by the Member Secretary of R-1/GPCB subsequently as per internal protocols, and in some instances even after duly verifying compliance / closure status. The issuance of SCNs, NODs, Closure Directions by R-1/GPCB in respect of some observations by itself does not constitute evidence of continuing non-compliances.
71. In light of the above, the Joint Committee after comprehensive evaluation and due application of mind has in some instances considered the Compliance Date as the date on which evidence of compliance has been furnished by R-8/HIL through replies and verified by regional officers of R-1/GPCB. Whereas in some other instances, the Joint Committee has rejected R- 8/HIL's submissions regarding compliance on a particular date and instead considered the Compliance Date as the date on which observations were closed in the records of R-1/GPCB upon issuance of SCNs, NODs, Closure Directions etc. The relevant observations of the Joint Committee in this regard are reproduced hereunder for ease of reference: FJC Report pa. 1498- 14991:
"N, number of days for which violation took place is the period between the day of violation observed and the day of compliance verified by GPCB. As per the data provided by GPCB on the violations observed through inspection and complaints raised by the residents and NGOs, the number of violations are considered from the datfel of issue till the date of compliance or till the effective date of closure of the unit.
The violations of the industry observed by GPCB and the date of action taken/ compliance of the violations for the period from November 2016 till November 2021 are considered for calculation of N (Number of days). The details of the same is given in Annexure-12 for reference. The abstract from the details containing the violations observed date and the compliance date and the calculation for the number of days for which violation took place (N) are summarized and given in table below for ready reference:
Table: Calculation for number of days of violations NPJ Page 117 of 172 Violations observed on date as No. of days of Compliance Date per the record of GPCB noncompliance 08/11/2016 11/11/2016 4 07/02/2017 10/02/2017 4 11/02/2017 17/07/2017 157 18/02/2017 22/02/2017 5 27/02/2017 02/03/2017 4 01/04/2017 12/05/2017 42 13/06/2018 29/09/2018 82 30/07/2019 31/08/2019 32 10/08/2019 31/08/2019 22 19/09/2019 24/01/2020 128 09/10/2019 24/01/2020 108 08/11/2019 03/02/2020 88 24/06/2020 05/10/2020 104 18/02/2021 20/03/2021 31 18/03/2021 04/09/2021 19/03/2021 04/09/2021 170 05/08/2021 04/09/2021 31 08/11/2021 16/11/2021 8 Total number of days 1020 * The damage cost assessment for the soil pollution caused due to the dumping of copper slag by the industry in the forest area is calculated separately and given in section 10.1 above and hence not considered in this section to avoid duplication of the cost assessment."
(emphasis added)
72. It is submitted that the EDC assessment for past non-compliances observed during 2016- 2021 have been computed by the Joint Committee on the basis of the CPCB EDC Methodology which is the appropriate methodology for EDC assessment in the facts and circumstances of this case, and is in accordance with judicially recognized principles and criteria for EDC assessment, including the Polluter Pays principle, the principle of restoration with element of deterrence, the principle of sustainable development and the doctrine of proportionality.
IV. RESPONSES TO APPLICANT'S WRITTEN SUBMISSIONS / OBJECTIONS TO THE JOINT COMMITTEE REPORT:
73. Except to the extent specifically admitted hereinafter, all the averments and allegations made in the Applicant's WS / Objections to the Joint Committee Report are denied in toto as being misconceived, untenable and unsustainable. Nothing contained in the Applicant's WS / Objections shall be deemed to be admitted by R-8/HIL for want of specific traverse. The averments made in the reply dated 17.11.2021 filed by R-8/HIL and the short note on arguments filed on 16.05.2023 are reiterated in their entirety and may be read as part and parcel of t he instant written submissions.
74. R-8/HIL craves leave to submit an issue-wise response to the averments made in the Applicant's WS / Objections as under:
NPJ Page 118 of 172A. Responses to Applicant's Objections regarding EDC assessment undertaken by Joint Committee:
75. The Applicant's contention [©, pare 2. og. 1717 of Applicant's WS] that the EDC assessment by the Joint Committee is contrary to directions passed by NGT vide Order dated 05.01.2022 are denied as being incorrect and contrary to the record. It is submitted that the Joint Committee has discharged functions as directed by NGT vide Order dated 05.01.2022 and undertaken EDC assessment in a rational and scientific manner after thorough on-ground inspections, monitoring and comprehensive environmental audit of Dahej Unit and examination of relevant records. Pertinently, the Joint Committee has expressly recorded that the EDC assessment has been undertaken "...on principle of restoration with element of deterrence..." and by taking into consideration "...the deterrent factor of cost of environment damage." [JC Report -- Vol. IX @ pg. 1433; 1516]
76. Detailed submissions made supra regarding the rational, scientific, and comprehensive evaluation exercise undertaken by the Joint Committee for EDC assessment after inspections, monitoring and environmental audit of Dahej Unit are reiterated in their entirety and are not being repeated herein for the sake of brevity. It is however reiterated at the cost of repetition that the EDC assessment undertaken by the Joint Committee for soil pollution in reserve forest area as well as for past non-compliances is based on scientific and rational criteria and is in accordance with judicially recognized principles and criteria for EDC assessment, including the Polluter Pays principle, the principle of restoration with element of deterrence, principle of sustainable development and doctrine of proportionality.
77. It is submitted EDC assessment by Joint Committee constitutes a sufficient deterrent factor in the facts and circumstances of the instant case. As substantiated supra, R-8/HIL is a responsible corporate citizen and has been committed to implement a robust Environment, Social and Governance to ensure that operations at Dahej. Unit are conducted in an environmentally sustainable manner. It is respectfully submitted that the factum of imposition EDC on Dahej Unit is in itself a deterrent factor for R-8/HIL irrespective of the quantum of such EDC imposition.
78. Being conscious of Environmental, Social and Governance obligations as a responsible corporate citizen, R-8/HIL has, ever since commencement of operations at Dahej Unit in 1998, sought to identify and invest in upgradation of technology and processes so as to mitigate the environmental impact and ensure sustainable operations at Dahej Unit to the best extent possible. R-8/HIL has undertaken several projects pertaining to air quality improvement, water quality improvement, hazardous waste & solid waste improvement, and other sustainability measures as part of an ongoing process since commencement of operations in 1998 till date. As detailed infra, during the period 2014-2023, R-8/HIL has undertaken several environmental quality improvement and upgradation projects at an expenditure of approximately INR 450 Crores. Further, R-8/HIL has committed to a further expenditure of approximately INR 500 Crores for environment quality improvement and upgradation projects vide MOU dated 20.12.2023 signed with the Government of Gujarat. A copy of the MOU dated 20.12.2023 signed between R-8/HIL and Government of Gujarat is annexed herewith as Annexure R-8/36.
NPJ Page 119 of 17279. Pertinently, since April 2020, R-8/HIL has voluntarily shut down the Phosphoric Acid Plant (PAP) and Di-Ammonium Phosphate Plant (DAP) to reduce the environmental impact of operations at Dahej Unit. The closure of PAP and DAP have permanently addressed several past observations raised by R-1/GPCB in relation to fugitive emissions and spillages from cooling tower of PAP and DAP. The permanent closure of PAP and DAP have also resulted in a complete stoppage of phosphogypsum generation and spent acid generation. The permanent closure of PAP and DAP has been verified by the Joint Inspection Team during the inspection on 18-19.02.2022 [ pg. 1682; 1680] as well as by the Joint Committee during the inspection on 30-31.03.2022 [© pg. 1465; 1459; 1438- 1440]. The regulatory authorities including R-6/CPCB have acknowledged that closure of PAP and DAP have resulted in addressing the issue of spillages from cooling tower of PAP and reduction of emissions pq. 15231.
80. Details of the environmental improvement and upgradation projects undertaken by R-8/HIL at Dahej Unit during the period 2014 till date segregated into air quality / water quality / waste management / sustainability projects are as under:
A. Air Quality Improvement Projects SN Description Expenditure (INR Crores)
1. Installation of Tail Gas Scrubber for Sulphuric Acid plant 34 commissioned during 2019: World class technology from Dupont, USA. High efficiency caustic based three stage scrubber system with reverse jet technology. Resulting in efficient SO2 capturing.
2. Installation of High Frequency Transformer (HFTR) for ESPs 9 in Captive Power Plant commissioned in 2022: Resulting in improved collection efficiency at ESPs
3. Automated Limestone feeding system in CPP commissioned in 1 2021: Manual Limestone feeding system to an automated one. Improved control of SO2
4. Wind Breaking wall around coal storage area constructed 11 during 2021: Total running length of 1.1 km. Prevents fugitive dust
5. Ventilation Bag filters for Transfer Tower and crusher in the 7 coal handling area of captive power plant installed during 2021: Dust will be auto transferred back into coal feeding system. Control the fugitive emissions due to coal handling and transportation.
6. Sprinkler system at all the sides of coal yard (34 Nos) and at 1.5 tripper conveyor system to ensure no fugitive emission. Commissioned in 2021.
7. Mist Canon system for coal discharge installed during 2020:
To ensure no fugitive emission
8. Coal yard garland drains constructed during 2021: to ensure complete handling of coal runoff water NPJ Page 120 of 172
9. Improvement in fly-ash loading system commissioned during 0.75 2021: In Fly Ash Loading Stations retractable chute has been installed to eliminate dust while loading in Bulkers for transportation
10. Dust Free Lime Dosing system installed during 2019: 3 Installed a pneumatic system for lime handling instead of lime bags at ETP Plant. Eliminated the manual lime handling practice thereby greatly mitigating fugitive emission and
11. Upgradation of Conveyor reduction of dusty spillages system across the Dahej. Unit 14.75 commissioned during 2022: Upgradation of more than 20 Nos of scrapping systems of conveyors with latest technologies for better efficiency
12. ESP Upgradation in Smelter-1 commissioned during 2023: 17.5 ESPs have been upgraded from Mild Steel to Stainless Steel to ensure better efficiency and reliability
13. ESP Upgradation in Smelter-3 commissioned during 2021: 20 ESPs have been upgraded from Mild Steel to Stainless Steel to ensure better efficiency and reliability
14. Scrubber upgradation in Smelter-1 commissioned during 11 2023 to ensure better efficiency and reliability
15. To meet global best standards of stack emissions at smelters at 2 Cr. incurred Dahej Unit, R-8/HIL has engaged M/s GCT LLC which is a USA for due based company providing engineering solutions for diligence study.
designing a system which will ensure that Dahej Unit
5 Cr. incurred
establishes the global benchmark best standard for dust, for basic fugitive and off-gas management. Due diligence has been engineering completed in 2022. Basic engineering is under progress. as on date, with further This project for Smelter-1 is divided into three phases - expenditure Phase I and Phase II with proposed capital expenditure of INR of 9 Cr.
415 Crores is targeted to be completed by 2025. Phase III is planned for
proposed to be completed by 2026 with further proposed basic
capital expenditure of INR 49 crores. engineering.
Total
Similar due diligence study is in process for Smelter-3 with proposed
proposed capital expenditure of INR 3 Crores proposed to be capital
completed by end of 2023. expenditure
to be incurred
for this
project over
three phases
by 2026 --
INR 464 Crores
Crores
NPJ Page 121 of 172
B. Water Quality Improvement Projects:
SN Description Expenditure
(INR Crores)
1 Reverse Osmosis Plant commissioned during 2014: Dahej 23
Unit is the first Copper Smelter in the world to recycle 100% effluent.
2. Tertiary Water Recycling Unit commissioned during 2023: 51 Dahej Unit is in the process of commissioning Sea Water RO and MVR evaporator. After that Dahej Unit will be the 1s' copper smelter in the world to install a reject evaporation system.
3. Membrane Bio-reactor plant commissioned during 2015: 4.4 Dahej Unit uses the world's most sustainable and advanced membrane bioreactor technology in the STP which converts Sewage water into potable water
4. Desalination plant installed and commissioned by GIDC with 114 investments from various industries wherein R-8/HIL is a major stakeholder. R-8/HIL has started procuring desalinated water from said plant in 2022 and this has reduced the fresh water consumption by 10,000 m3/day
5. Revamping and improvement of Storm Water Drains and 15 Cr.
Process Water Drains undertaken from 2019 onwards: Incurred till Multiple projects implemented for revamping of storm and date. process water drains inside and on the peripheral premises. Further More than 18km length of drains are revamped. expenditure
6. Improved Water Management -- Upgradation of Sumps and provisioned Pumps undertaken from 2019 onwards to ensure total on yearly containment of contaminated water and no intermixing with basis. storm water
7. In the process engineering and executing water treatment 42 Cr.
plant that will result in recycling of blowdown water as well as [estimated --
project sewage water as soft water. This will further reduce proposed to dependency of fresh water. Engineering phase ongoing. be completed Total proposal capital expenditure for these projects is INR by 2025] 42 Crores. Targeted to be completed by 2025.
NPJ Page 122 of 172C. Solid waste & hazardous waste management improvement projects:
SN Description Expenditure
(INR Crores)
1. Gypsum Yard Covering Approx. INR 5
Crores per year
Phosphogypsum yard covered with impermeable HDPE liner over an area of 2.4 Hectare from 2020 onwards before every monsoon to Already ensure contamination free environment management.
incurred INR
15 Crores
since 2020 till
date.
2. SLF covering with HDPE liner over an area of 2.3 Hectare from 2020 INR 15 lakhs
onwards before every monsoon to ensure contamination free per year environment management.
Already
incurred INR
45 lakhs since
2020 till date.
3. Gypsum yard closure and redevelopment: The entire stock of Work Order for
phosphogypsum is targeted to be evacuated within 2 years.
INR 55 lakhs Further, NEERI has been approached for providing an action plan for issued to entire yard closure and redevelopment. Order has been placed and NEERI team has already visited the site once. NEERI for conducting pre-
feasibility study NPJ Page 123 of 172 D. Other sustainability measures and projects:
SN Description Expenditure
(INR Crores)
1. R-8/HIL has entered into arrangements for contracted 15
capacity of 20 MW hybrid solar plant. R-8/HIL has
commenced procuring solar energy from 2023 to reduce the in- house power generation to greener grid power and solar power.
2. Oxyfuel burners installed in system in 2023 to eliminate Furnace 15 Oil and to increase the use of greener fuel
3. Compliant with 33% green belt development. Out of total 327 0.25 Hectare area, 117 Hectare area is green belt. In addition to this plantation is being undertaken over an additional 7 Hectare area, comprising of 11000 trees. 3500 trees have already been planted
4. Signed MoUs with authorized recyclers in 2023 for co-processing hazardous waste other than ETP gypsum which is currently disposed into own SLFs. GPCB has granted requisite statutory approvals for disposal of ETP gypsum to cement manufacturing.
As per the co-processing arrangement executed by R-8/HIL with a cement manufacturing plant based in Jamnagar, whereby hazardous waste including ETP gypsum generated at Dahej Unit will be utilized as raw material for cement manufacturing.
This will ensure that dependency on captive SLFs will reduce to a minimum, as ETP gypsum constitutes approx.
99.8% of the total hazardous waste currently being disposed of in own SLF. Going forward, Dahej Unit will eliminate the disposal of waste into SLF, which is one of the identified sustainability targets scheduled to commence by October 2023.
NPJ Page 124 of 17281. It is clear from the above that R-8/HIL has voluntarily undertaken considerable measures to mitigate the environmental impact of operations at Dahej Unit and to ensure environmentally sustainable operations. The EDC assessed by the Joint Committee constitutes a sufficient deterrent factor as R- 8/HIL has demonstrated commitment and taken concrete and verifiable measures to mitigate environmental impact of operations, to ensure that past non- compliances observed during 2016-2021 do not recur, and to ensure that operations at Dahej Unit not only comply with statutory norms but set best-in- industry benchmarks.
B. This is not a fit case for imposition of EDC on the basis of turnover:
82. The Applicant's contention M para 4, pq. 1722 of Applicant's WS1 that EDC in this case "...is required to be reassessed based upon a percentage of the annual turnover..." of Dahej Unit is denied as being entirely misconceived, untenable and unsustainable. The purported "financial documents" allegedly obtained by the Applicant from the website of R-8/HIL and placed on record as Annexure A/5 [Vol. X pq. 2195-2197] along with Applicant's WS are denied. The said purported "financial documents" do not pertain to the Dahej Unit of R- 8/HIL.
83. It is respectfully submitted that the Courts and Tribunals have devised various principles and criteria over the years for imposition of EDC on industries, taking into consideration several factors including the nature of violations / non- compliances, conduct of project proponents, damage caused to environment, element of restoration / remediation, the polluter pays principle, the principle of absolute / strict liability, the principle of sustainable development and the doctrine of proportionality. Imposition of EDC on the basis of turnover / project cost has been undertaken in cases where project proponents have conducted operations without valid statutory approvals and clearances or in cases of egregious violations of environmental regulations where it has been found that project proponents have exhibited "totally intransigent and unapologetic behaviour" and wanton disregard for environmental norms. None of the judicially recognized criteria for imposition of EDC on the basis of turnover are satisfied in this case.
84. Since commencement of operations in 1998, R-8/HIL has undertaken operations at Dahej Unit after obtaining requisite statutory approvals and clearances, including NPJ Page 125 of 172 EC granted by R-7/MOEFCC and consents and authorizations granted by R-1/GPCB under Air Act, Water Act, EPA 1986 and hazardous waste management rules made thereunder. R-8/HIL has also obtained requisite statutory approvals for expansion and capacity augmentation from time to time. The said statutory approvals and clearances have also been renewed from time to time by regulatory authorities as per applicable laws and continue to remain valid and subsisting as on date. The details of statutory approvals and compliance with conditions specified thereat have been duly verified by the Joint Committee [(d t)(1. 1631-1632: 1477-1490].
85. Thus, operations at Dahej Unit have been undertaken by R-8/HIL since 1998 till date under valid and subsisting statutory approvals and clearances. It is respectfully submitted that the primary criterion for imposition of EDC on the basis of turnover, i.e., conduct of operations without valid statutory approvals and clearances, is not attracted in the instant case. It is thus respectfully submitted that this is not a fit case for imposition of EDC upon R-8/HIL on the basis of turnover of Dahej Unit.
86. The judgments relied upon by the Applicant in support of its contention regarding imposition of EDC on the basis of turnover are distinguishable and not applicable to the facts and circumstances of the instant case. The Supreme Court decisions in Sterlite Industries (India) Ltd. v. Union of India (2013) 4 SCC 575 and Goel Ganga Developers India Pvt. Ltd. v. Union of India (2018) 18 SCC 257 relied upon by the Applicant [@ para 2-4 of Applicant's WS] are distinguishable and not applicable to the instant case, as evident from the following:
NPJ Page 126 of 172Judgment relied upon by Applicant Factual matrix in case of Dahej Unit Sterlite Industries (India) Ltd. v. Union of (i) Since commencement of operations India (2013) 4 SCC 575: in 1998 till date, operations at Dahej
(i) In Sterlite, the project proponent was Unit have been undertaken only found to have operated without valid after obtaining requisite statutory consents, approvals and renewals approvals and clearances, including under Air Act and Water Act for a EC and consents and authorizations "fairly long period" during 1997-2012 under Air Act, Water Act, EPA 1986 P, para 45]. and hazardous waste management
(ii) Expert agencies such as NEERI and rules made thereunder. R-8/HIL has TNPCB had found extensive also obtained requisite statutory environmental damage on account approvals and clearances for of operations of Sterlite unit [@ para expansion and capacity 42-45]. augmentation. The said statutory Goel Ganga Developers India Pvt. Ltd. v. approvals and clearances have also Union of India (2018) 18 SCC 257: been renewed from time to time as The project proponent was found to have per applicable laws and continue to raised construction in violation of the remain valid and subsisting as on Environmental Clearance granted for the date.
project and also in violation of the (ii) Expert agencies such as NEERI and various municipal laws. The project R-1/GPCB and R-6/CPCB have proponent was found to have raised over the course of two inspections NPJ Page 127 of 172 construction over an area of 1,00,002.25 and comprehensive environmental sq. mts. against the built-up area of audits conducted during February 57,658.42 sq. mts. permitted under the and March 2022 found that EC dated 04.04.2008 KW para 11. 25. operations at Dahej Unit are 27]. compliant with CCA conditions and environmental regulations.
Instead of 12 buildings permitted under
(iii) Regarding past non-compliances, the EC, project proponent had R-8/HIL has taken credible and constructed 18; instead of 552 flats verifiable corrective measures and permitted under EC, 807 flats were addressed all non-compliances constructed and two more buildings observed during 2016-2021. R-
having 454 flats were proposed under 8/HIL has voluntarily shut down the expansion plans para 64]. PAP and DAP since April 2020 onwards and also undertaken The conduct of project proponent was several improvement / upgradation found to be totally intransigent and projects to reduce environmental unapologetic [@ para 64, 66].
impact of operations.
(iv) R-8/HIL has transparently acknowledged accountability for remediation and restoration of the soil in the reserve forest area due to accidental copper slag run-off incident and has undertaken to deposit EDC as determined by Joint Committee and implement the remediation and restoration plan at own costs.
NPJ Page 128 of 172Copies of Supreme Court Judgments in Sterlite Industries (India) Ltd. V. Union of India (2013) 4 SCC 475 and Goel Ganga Developers India Pvt. Ltd. V. Union of India (2018) 18 SCC 257 are annexed herewith as Annexure R8/37 and Annexure R8/38 respectively.
87. In light of the above, the Applicant's contention regarding determination and imposition of EDC on the basis of turnover of Dahej Unit are misconceived and liable to be rejected. It is reiterated that the EDC assessment undertaken by the Joint Committee in this case -- (i) for soil pollution in reserve forest area as determined by NEERI and (ii) for past non-compliances as determined in terms of the CPCB EDC Methodology -- has been undertaken after comprehensive scientific evaluation by the Joint Committee comprising regulatory authorities (R-1/CPCB, R-6/CPCB, R-7/MOEFCC, R-3/Forest Department, Govt. of Gujarat) as well as domain experts (NEERI Nagpur and IIT Gandhinagar). The EDC assessment by Joint Committee is in accordance with judicially recognized principles and criteria, including polluter pays principle, the principle of restoration with element of deterrence, the principles of sustainable development and the doctrine of proportionality. In addition to the EDC assessment, the Restoration and Remediation Plan recommended by the Joint Committee further makes provision for remediation and restoration of reserve forest area to be undertaken by R-8/HIL at its own costs and expenses, and under the supervision of regulatory authorities.
88. The Applicant's objections p para 2, pa. 1719 of Applicant's WS] to the adoption of the CPCB EDC Methodology by the Joint Committee for EDC assessment with respect to past non-compliances are denied as being misconceived and untenable. The Applicant's reliance on the Judgment dated 24.01.2022 passed by NGT in OA No. 64/2016 titled Akhil Bhartiya Mengela Samaj Parishad & Ors. v. Maharashtra Pollution Control Board & Ors. ("ABMSP Judgment") [Applicant's WS - Vol. X pa. 1790-2119] is misconceived and untenable. The Applicant has suppressed the fact that in several civil appeals preferred against the said ABMSP Judgment, the Supreme Court has granted stay on the said ABMSP judgment as well as directions regarding determination and deposit of EDC, including vide Orders dated 27.04.2022, 03.06.2022, 15.07.2022, 29.07.2022, 05.09.2022, 12.09.2022, 04.11.2022, 18.11.2022, 16.12.2022 and 08.05.2023. The Applicant's reliance on the observations made by NGT in ABSMP Judgment are thus untenable. Copies of Orders dated 27.04.2022, 03.06.2022, 15.07.2022, 29.07.2022, 05.09.2022, 12.09.2022, 04.11.2022, 18.11.2022, 16.12.2022 and 08.05.2023 passed by Supreme Court are annexed herewith as Annexure 88/39 (Collv.).
89. In any event and without prejudice to the above, the NGT in aforesaid ABSMP case was concerned with a factual matrix which is distinguishable from the instant case. In ABMSP case, several industries situated in the Tarapur Industrial Area set up by Maharashtra Industrial Development Corporation ("Tarapur !MC") were found to have discharged polluted industrial effluents in the Arabian sea at Navapur and other waterbodies as well as mangroves in the area continuously for over two decades [© para 189-190]. Further, it was found that the Common Effluent Treatment Plant (CETP) at Tarapur MIDC had capacity of only 25 MLD whereas industrial effluent discharge was more than 33 MLD. It was found that the industrial units had "persistently damaged" the environment and caused land degradation, contamination of groundwater, surface water and waterbodies in an already critically polluted area para 815]. Even in such a NPJ Page 129 of 172 grave factual matrix where environmental damage through discharge of untreated polluted effluents was found to have been caused persistently over decades, NGT did not apply turnover / project cost as the criterion for EDC assessment, holding that EDC on the basis of turnover would be excessive and place a "...very heavy burden"
upon industries [(CD, para 817]. NGT instead directed that the EDC determined by the Committee in ABMSP case (on the basis of CPCB EDC Methodology with additional features @ pare 430. 451-472) would be enhanced depending on the number of violations observed para 848, 851-852]. Consequently, the ABMSP Judgment relied upon by the Applicant does not support the Applicant's contention that EDC ought to be imposed in this case on the basis of turnover of Dahej Unit.
90. The CPCB EDC Methodology has been adopted, accepted and approved by NGT in several cases, including the following:
(i) Hanuman Ram v. State of Rajasthan & Ors., 2021 SCC Online NGT 4038
-- NGT CZ Bhopal - Judgment dt. 09.08.2021: A bleaching and dyeing textile industry in Dist. Jalore, Rajasthan was found to have discharged untreated effluents resulting in groundwater contamination and had extracted groundwater without NOC from Central Ground Water Authority (CGWA) [© para 1. 3]. The Committee constituted by NGT determined EDC on the basis of CPCB EDC Methodology [@ para 3]. NGT held that:
(a) A settled line of precedents by Courts in India has recognized the following principles as cornerstones of environmental jurisprudence --the precautionary principle, the polluter pays principle and sustainable development para 12].
(b) While applying the principle of sustainable development, the principle of proportionality has to be kept in mind para 15j.
(c) NGT confirmed the EDC assessment undertaken by Joint Committeeon the basis of CPCB EDC Methodology para 16].
(ii) Protection of Environment and Public Service Committee v. Union of India & Ors., MANU/GT/0294/2022 -- NGT WZ Pune -- Judgment dt. 14.11.2022: 14 industries in Gir-Somnath & Junagadh districts in Gujarat were found to have carried out illegal and unauthorized mining of limestone on a large scale without NPJ Page 130 of 172 prior Environment Clearance [para 1. 3. 44]. The Joint Committees and Expert Committee constituted by NGT computed EDC by three different modes para 45]: (a) as per the CPCB EDC Methodology;
(ii) as per Guidelines issued by SEAC-SEIAA for assessment of ecological damage in cases were prior EC was not obtained; (iii) as per resolution passed by Industries & Mines Department, Govt. of Gujarat for EDC assessment in cases of illegal mining, storage and transportation. Thereafter the matter was referred to IIT Gandhinagar for reassessment of environmental impact and EDC. The Expert Committee recommended that the average of the aforesaid three modes of computation be taken for EDC.
NGT determined final EDC as the average of the aforesaid three modes (including CPCB EDC Methodology) and computed EDC for the period 2016- 17 to 2018-19 VW, para 47-48].
(iii) Shailesh Singh v. State of UP & Ors. 2021 SCC Online NGT 1104 -- NGT PB Delhi -- Judgment dt. 18.03.2021: Activities by several industrial units in Rampur District, Uttar Pradesh were found to have polluted Kosi river and adjoining areas p para 1-2]. Allegations pertained to illegal extraction of groundwater, effluent discharge with treatment at ETP, improper disposal of solid waste. Committees constituted by NGT computed EDC as per the CPCB EDC Methodology pa. 14. 20]. NGT accepted the Committee Reports and directed regulatory authorities to recover EDC from industries in question [para 13-14, pa. 42]. Vide Order dated 29.06.2021, Supreme Court dismissed the civil appeal (CA No. 1784/2021) filed against the said NGT Judgment.
(iv) Srinath Mishra v. State of Odisha & Ors. 2021 SCC Online NGT 644 -- NGT PB Delhi -- Judgment dt. 04.01.2021: Project proponent of a road widening project in Odisha (NH-16) was found to have illegally extracted minor minerals including soil from nearby villages and forest areas without obtaining EC [© para 1-2]. The Committee constituted by NGT determined EDC on the basis of Orissa Minor Mineral Concession Rules, 2016 and the CPCB EDC Methodology. NGT accepted the Committee Report and directed regulatory authorities to recover EDC from project proponent [g para 6-7].
NPJ Page 131 of 172(v) Syed Arshad Nasar v. Union of India & Ors. MANU/GT/0316/2022 - NGT PB Delhi -- Judgment dt. 30.11.2022: Stone crushing and chip processing units operating in Sahebganj District, Jharkhand were found to be operating without requisite emission control systems, without environment impact assessment, and it was found that unregulated mining and stone crusher activities had resulted in unchecked environmental pollution [( para 2-3, 10]. NGT directed JSPCB to assess EDC for non-compliant operations of stone crusher as per the CPCB EDC Methodology and also for illegal stone mining as per prescribed pq. 4-5, 8]. NGT accepted the observations and recommendations in the Committee reports and directed statutory authorities to proceed against the industries for past violations para 12].
Copies of NGT Judgments in Hanuman Ram v. State of Rajasthan & Ors., 2021 SCC Online NGT 4038, Protection of Environment and Public Service Committee v. Union of India & Ors., MANU/GT/0294/2022, Shailesh Singh v. State of UP & Ors. 2021 SCC Online NGT 1104, Srinath Mishra v. State of Odisha & Ors. 2021 SCC Online NGT 644, Syed Arshad Nasar v. Union of India & Ors. MANU/GT/0316/2022 are annexed herewith as Annexure R8/40, Annexure R8/41, Annexure R8/42, Annexure 88/43, Annexure 88/44 respectively.
91. It is evident from the above that the CPCB EDC Methodology has been accepted by NGT in several cases and the adoption thereof by the Joint Committee in the facts and circumstances of the instant case is based on judicially recognized principles and criteria.
92. The Applicant's reliance oara 3, pa. 1720 of Applicant's WS] on the EDC assessment based on turnover undertaken by the Committee constituted by NGT vide Order dated 18.01.2022 in OA No. 5/2022 titled Brackish Water Research Centre v. GPCB & Ors. ("Hikal case") is entirely misplaced and misconceived. It is submitted that excerpts of the Joint Committee Report filed before NGT (and accepted by NGT vide Order dated 24.03.2023) in Hikal case has been placed on record by the Applicant as Annexure A/3 to the Applicant's WS pa. 2120- 2181] solely to cause prejudice. As evident from the Hikal Joint Committee Report, the facts and circumstances of the Hikal case are entirely distinguishable from the instant case:
NPJ Page 132 of 172(i) In the Hikal case, an industrial unit (Hikal Ltd.) was found to have illegally, deliberately and repeatedly disposed of hazardous waste (sodium hydro sulphide) through unauthorized contractors in a natural drain in GIDC Sachin, Gujarat with the ulterior objectives of saving costs of scientific disposal of such hazardous waste (through incineration). Such illegal disposal of hazardous waste (sodium hydro sulphide) in the natural drain resulted in release of poisonous gas through chemical reaction, on account of which 6 innocent people died and 23 others were injured.
(ii) The Hikal Joint Committee considered the "Guidelines on Implementing Liabilities for Environmental Damages due to Handling & Disposal of Hazardous Waste and Penalty" issued by CPCB in 2016 and the Enforcement Framework for Effective Implementation of HWM Rules 2016 issued by CPCB in July 2019 ("2019 EDC framework for hazardous waste") and found that EDC as per the said 2019 Framework was inappropriate in the facts and circumstances of the said case, as the same was lower even than the cost of incineration (approx. INR 1 crores) sought to be illegally saved by Hikal Ltd. through such illegal disposal of hazardous waste.
(iii) Considering the gravity of the violations and illegal activities in Hikal case, the Joint Committee recommended imposition of EDC on the basis of turnover.
93. Since the Applicant has quoted para 122 & 123 of the Hikal Joint Committee Report out of context in the Applicant's WS Para 3. Dq. 1720-1721], R-8/HIL craves leave to refer and rely upon relevant excerpts from the Hikal Joint Committee Report as reproduced hereunder, which clearly establishes that the Hikal case is distinguishable from the facts and circumstances of the instant case:
"VIII. Summary of the Report: [@ pg. 2130] From the report received from the MPCB it is clear that Hikal Ltd, supplied 5 tankers on different dates of the sodium hydro sulphide. The last tanker sent on 31st December, 2021, was detained by Sangam Enviro private limited and thereafter as detailed in the report, the Sangam NPJ Page 133 of 172 transferred the chemical from the tanker number GJ-06-BT-6421 in a tanker number GJ-06-ZZ 6221. The part played by the persons in transferring the said hazardous waste is discussed in detail in the report. It will be noted that even police seized some video footage indicating the entry and departure of the tankers and entry of the persons on the vehicle.
In all on different 5 dates and through different vehicles/takers, sodium hydro sulphide was supplied to Sangam Enviro private limited.
[pg. 2131-2132] It is interesting to note that the communication between the high officials of Hikal Ltd itself indicates that they wanted to disclose of the material. namely sodium hydrosulphide collected at the earliest. and the cost indicated by the company engaged in incineration at the rate of Rs. 71.000/- ner ton was found very heavy. Therefore, a suggestion was made to contact Sangam Enviro Private limited. If the company was required to incinerate the generation of sodium hydrosulphide, it was required to pay more than Rs.1,50,00,000 (One crore Fifty lakhs only). This aspect is discussed in detail. It is very clear that to save the high cost, the Sodium Hydro Sulphide was given for disposal in violation of the provisions contained in the environmental laws.
[pg. 2137]
106. In the trip when the carrier disposed of such hazardous liquid NaHS in the open drain in Sachin GIDC. Due to some reactions with the existing acidic condition in the Sachin GIDC Drain which resulted in generation of poisonous gase/s which took the life of 6 innocent persons and caused injury to many as said earlier. In view of this, the police investigated and found active involvement of the Hikal Ltd, and its officers and the carrier and others. In detail it has been pointed out as to how and at what places hazardous liquid the NaHS was disposed of. Thus, this is a deliberate and engineered act in conspiracy to save huge money....
107. Therefore, in a case like this how the amount of compensation and environmental damages should be assessed?
108. The easiest mode to calculate in a matter like this where it is clear from the correspondence of the officers amongst themselves that the sum of Rs.71,000/- per MT will be the cost of the incineration it is easy to calculate what amount has been saved by the generator. 141.550 MT (total disposal through Sangam) X Rs. 71,000 will come to Rs,1,00,50,050/- (Rs. One Crore fifty thousand fifty only). The generator.NPJ Page 134 of 172
Hikal Ltd has saved this amount of Rs.100.50,050/-. This amount is illegally retained by it which it was not entitled to retain.
[pg. 2139]
113. When a polluter is noticed to have acted systematically or in an organised manner the amount determined in fixed quotients and in rupees etc. is very lenient. in the instant case on account of throwing the hazardous waste through a flexible hose pipe. a cloud of poisonous gas generated and the wind moved that strong poisonous cloud towards the nearby factory which affected a number of persons. Six died and 23 sustained injuries and were hospitalised for a couple of days and even after discharge from the hospital all injured could not join the duty. The hazardous waste which was liquid, Sodium Hydro Sulphide entering the natural drain on account of other effluent reacted and that generated poisonous gas and. in the drain, caused damage to the water of the drain, soil, and other than human lives in the water and caused pollution. In different tankers on different dates and different places the hazardous waste was discharged, which aspect has been discussed earlier must be kept in mind.
[pg. 2142]
118. When the industry is found disposing of the hazardous waste illegally and systematically to earn wrongful gain, how the compensation is to be arrived at? For the complete year the industry has disposed of the hazardous waste illegally. About the earlier years the Committee has no figures. However, as pointed out by the Tribunal in paragraph 496" Here, Respondents Proponents have been crossing limits/standards and releasing polluted effluents lust for their commercial interests and thereby compromising ecological sustenance and health of society. Determination of compensation, this must correlate the level of industrial/commercial activities of such Pollutants i.e., volume of business."
(emphasis added)
94. It is in the aforesaid context that the Hikal Joint Committee determined EDC at INR 15.05 Crores (i.e., 5% of the turnover of Taloja unit of Hikal Ltd.) at para 122 and 123 of the Hikal Joint Committee Report quoted out of context by the Applicant para 3 of Applicant's WS]. It is respectfully submitted that the EDC assessment in Hikal case cannot be made applicable in the facts and circumstances of the instant case. Hikal Ltd. was found to have illegally, systematically, deliberately engineered illegal disposal of hazardous waste for commercial interest, for wrongful gain and with the objective of saving costs of scientific disposal of such hazardous waste. This is not so in the case of Dahej Unit. The past non-compliances observed during 2016-2021 or the accidental run- NPJ Page 135 of 172 off of copper slag in reserve forest area due to heavy monsoons in 2009 were not "deliberately engineered" for commercial interests and had occasioned on account of exigencies arising due to the complex nature of operations. None of the past non-compliances observed during 2016-2021 in respect of Dahej Unit or copper slag run-off incident of 2009 can be categorized as having been "engineered" with the objective of gaining any sort of economic benefit. In fact, as detailed infra, R- 8/HIL has voluntarily undertaken significant upgradation / improvements projects at an expenditure of over INR 450 Crores to reduce environmental impact of operations at Dahej Unit during 2014 till date and further expenditure of approximately INR 500 Crores is planned to be undertaken in the next five years under the MOU dated 20.12.2023 signed between R-8/HIL and Government of Gujarat. The CPCB EDC Methodology adopted for ED assessment in respect of past non-compliances observed during 2016-2021 in this case was also not under consideration in the Hikal case.
95. In light of the above, determination and imposition of EDC on the basis of turnover of Dahej Unit as sought by the Applicant in the instant case would be highly excessive, arbitrary, irrational, unreasonable and contrary to the doctrine of proportionality and principles of sustainable development which form part of the environmental jurisprudence.
96. Further, the Applicant's reliance [© para 4. pg. 1721-1722 of Applicant's WS] on NGT Judgment dt. 23.11.2022 in OA No. 137/2021 titled Aarti Sharma v. State of Jammu & Kashmir ("Aarti Sharma case') is also misplaced and misconceived. The Applicant has suppressed the fact that Hon'ble Supreme Court vide Order dated 15.12.2022 in CA No. 9112/2022 has granted stay on the direction to deposit EDC passed by NGT in Aarti Sharma case. A copy of the Order dated 15.12.2022 is annexed herewith as Annexure R8/45.
97. In any event and without prejudice to the above, the Aarti Sharma case pertained to illegal operation of stone crushers in Rajouri District, J&K pare 1]. It was found that stone crusher units had undertaken illegal mining on riverbanks of Tavi River and illegal groundwater extraction, causing air pollution, water pollution, lowering of groundwater level, land degradation, loss of flora and fauna NPJ Page 136 of 172 etc. para 4, 7]. The District Magistrate had already imposed penalty of INR 7 Crores on one of the units for illegal operations and also recovered penalty for illegal mining para 5]. The Monitoring Committee submitted a report recommending reassessment of EDC. However, NGT after considering the gravity of environmental damage caused due to illegal mining assessed "interim compensation" at INR 7 Crores for two units (already determined by District Magistrate for one unit). The said direction to deposit EDC has been stayed by Supreme Court vide Order dated 15.11.2022 as stated above. Evidently, the NGT judgment in Aarti Sharma is distinguishable and not applicable to the facts and circumstances of the instant case. Methodology for EDC assessment in cases of illegal mining cannot be made applicable to this case, as the same would be arbitrary, irrational and unreasonable.
98. In this context, it is also relevant to note that imposition of EDC on the basis of turnover would have severely adverse consequences not only on the operations and viability of Dahej Unit, but also on the economy and livelihoods, inter alia on account of the following reasons:
(i) Dahej Unit is the largest producer of refined copper in the country and meets 43% of the total copper requirement of the country. Refined copper is recognized as a strategic metal of the 21st century and is widely used in critical sectors such as Power, Automotive, Electronics & Telecommunication, Railways, Construction, Electric Vehicle, Renewables, clean energy platforms and Defence. Operations at Dahej Unit contribute significantly to several strategic sectors which have a significant bearing on the state of the economy.
(ii) Dahej Unit employs 378 Management Grade Employees, 1110 Operational Grade and Local Management Staff from nearby villages including Lakhigram and Dahej and 3500 Contract Manpower. In addition, the Dahej Unit generates ancillary business opportunities for approximately 114 contractors and thousands of contract workers.
(iii) Dahej Unit also contributes significant revenues to the State in the form of taxes and other statutory dues. During 2016-21, the Dahej Unit has deposited INR 12,706 Crores in taxes and statutory dues. Further, the Dahej Unit has deposited INR 4,862 Crores and INR 6,145 Crores in NPJ Page 137 of 172 taxes and statutory dues during FY 2021-22 and FY 2022-23 respectively.
The year-wise breakup of the contribution of Dahej Unit to economy in the form of taxes and statutory dues is as under: [R-8/HIL Reply - Vol. Ill pg. 828]:
Year Contribution to economy (INR Crores)
2016-17 1,909
2017-18 1,909
2018-19 3,025
2019-20 2,852
2020-21 3,011
2021-22 4,862
2022-23 6,145
Total 23,713
99. Dahej Unit has also contributed to upgradation of local infrastructure and facilities and community development through CSR activities. Details regarding CSR expenditure incurred by R-8/HIL since 2016 onwards were also furnished to the Joint Committee on 04.01.2022 and 09.02.2022. As detailed in R-8/HIL Reply [Vol. Ill Cad oa. 829], during 2016-21, R-8/HIL has undertaken the following CSR activities:
Under Infrastructure Initiatives, R-8/HIL has constructed 123 houses for below poverty line families at Dahej & Lakhigam villages, a community hall at Lakhigam, a computer training centre for the students of primary school at Dahej and a total investment of around INR 203 lakhs.
(ii) Under health infrastructure, R-8/HIL has constructed 241 toilet blocks at Dahej & Lakhigam at an investment of approx. INR 31.75 lakhs.
(iii) R-8/HIL has constructed drainage system at Lakhigam village at an investment of approx. INR 150 lakhs.
(iv) R-8/HIL provides 24*7 ambulance service and emergency medical services for the villagers.
(v) R-8/HIL also provides drinking water facilities through pipeline for the villagers of Lakhigam.
(vi) R-8/HIL has been organizing primary health checkup camps in every 15 days at Lakhigam and Dahej & multi-speciality health checkup camps NPJ Page 138 of 172 every year. Eye screening & Cataract operation camps have been organized by Respondent No. 8 for the people of both villages every year.
(vii) Under Education initiative, the Respondent No. 8 has provided education material support to the 3,000 students of Lakhigam & Dahej. To promote digital literacy in the area Respondent No. 8 has started the Tablab project targeting around 600 students at Government primary school of Lakhigam and Dahej.
100. Under sustainable livelihood initiative, the Respondent No. 8 has provided skill trainings in sewing to 400 women and beauty parlour training to 100 women of Lakhigam & Dahej. Additionally around 06 Self Help Groups have been formed consisting of 72 women of Lakhigam and Dahej.Further, HIL already has plans in place to undertake several sustainability projects in the villages around the Dahej Unit, including establishment of waste water treatment plant at Lakhigam village, integrated system for sustainable management of biodegradable and plastic waste at Lakhigam village, installation of solar energy systems at educational institutes in Lakhigam and Dahej villages, renovation of Lakhabawa Temple at Lakhigam village and construction of a community hall with kitchen and sanitation facilities at Dahej village as per proposals annexed herewith as Annexure R8/46.
101. In light of the facts and circumstances stated above, it is respectfully submitted that this is not a fit case for imposition of EDC on the basis of turnover or for closure of Dahej Unit as prayed for by the Applicant.
C. Responses to Applicant's objections regarding EDC assessment for soil pollution in reserve forest area:
102. The Applicant's objections at para 5 of Applicant's WS mi. 1722-17241 2 regarding the determination of impacted area as 7061 m in the reserve forest by the Joint Committee and NEERI are categorically denied as being entirely baseless and without any merit whatsoever. Detailed submissions supra with respect to EDC assessment for soil pollution undertaken by the Joint Committee are reiterated in their entirety and are not being repeated herein for the sake of brevity.
NPJ Page 139 of 172103. According to the Applicant, "...in actual the area for the damage due to the release of the wastewater is 26,200 m2." In support of the said objection, Applicant relies upon Google Images from 2004 onwards [OA pq. 386] to contend that: [para 5, pg. 1722-1723 of Applicant's WS] "...NEERI has failed to take into account the Goggle Images annexed to the OA for the years 2004 onwards (Page 386), consistently show the increase in the degraded area that is affected by the dumping of Copper Slag and wastewater from the unit. the comparison of degraded land on google earth with the NEERI image is showing clearly polluted area. It has come on record that the affected/impacted area is low lying area and that is why the accumulation of wastewater is there in the area and as such on account of the topography the accumulated wasterwater has over the years spread over an area of 26,200 m2 of Reserved Forest and the same is evident from the Gooqle Images. The spread of these metals pollution due to ground water and rain is always there. Thus, taking into account the impacted area of 26,200 m2 the compensation amount will be Rs 9,19,44,122.7 Approx. The NEERI in its report has failed to see this spread of poisonous metals in soil and presence of it within 7061 m2 area and has itself said "likely impacted area". The site has to be monitored until it's within the safe range as the native soil, though there is no such recommendation in the report. ..."
(emphasis added)
104. It is respectfully submitted that each and every limb of the aforesaid narrative sought to be peddled by the Applicant is ex facie contrary to the record, entirely baseless and without any merit whatsoever. R-8/HIL craves leave to reiterate the comprehensive evaluation and assessment exercise undertaken by the Joint Committee and NEERI to determine the environmental impact of copper slag in the reserve forest area.
105. As detailed supra, in order to assess the impact of copper slag on vegetation density and character of forests in reserve forest area, the Joint Committee during the 2nd Meeting held on 01.02.2022 [JC Report -- Vol. IX pq. 1518- 1519] decided to obtain land-use land-cover ("LU / LC") pattern maps and NPJ Page 140 of 172 satellite imagery of the reserve forest area in question from the reputed remote sensing agency BISAG [i.e., Bhaskaracharya National Institute for Space Applications and Geo-informatics ("BISAG"), Ministry of Electronics and Information Technology, Government of India - based in Gandhinagar, Gujarat].
106. During the 3rd Meeting held on 15.02.2022 [JC Report -- Vol. IX pq. 1518- 1519], the land-use land-cover pattern map details were discussed by the Joint Committee and it was decided to expedite the process of obtaining satellite imagery of the forest land in question, i.e., compartment no. 596 of village Dahej, Tahsil Vaara, District Bharuch from BISAG.
107. This aspect was further deliberated during the 4th Meeting of Joint Committee held on 14.03.2022 [JC Report -- Vol. IX pq. 1522-1524] and the relevant portions from the said 4th Minutes of Meeting are reproduced hereunder:
"During presentation Dr. Yogesh Kumar, Scientist `C' from MOEFCC has informed that BISAG has submitted the Satellite map (LISS IV and Sentinel) as per the area of interest (AO1) provided by the forest department. The false colour composite (FCC) image since 2004 up to 2021 has inferred that the dumping of copper slag in the reserve forest has significantly less impact on the health of surrounding vegetation. The area near the boundary was found low lying area which results in pondinq of water thus a scarce vegetation was found."
(emphasis added)
108. Further, during the inspection on 30-31.03.2022, the Joint Committee after conducting on-ground inspection inter alia observed that the reserve forest area in question is a "...low lying area and acts as a natural catchment from surrounding area and doesn't have any further drainage for monsoon accumulation. Forest Department mentioned that the water stagnates for almost 6 months post monsoon." [JC Report-- Vol. IX pg. 1445-1446]
109. It is clear from the above that the Joint Committee, after examining satellite imagery obtained from the reputed remote sensing agency BISAG for the period 2004 till 2021 has concluded that the presence of copper slag in reserve forest area has had "significantly less impact on the health of surrounding vegetation". The Joint Committee has also found that the scarce vegetation found in the said low-lying NPJ Page 141 of 172 reserve forest area is on account of prolonged ponding I stagnation of rainwater which accumulates post monsoon as there is no drainage for monsoon accumulation in the said reserve forest area.
110. Further, in order to assess the impact of copper slag on water quality in reserve forest area, the Joint Inspection Team (comprising representatives of R- 1/GPCB and R-6/CPCB) collected water samples from two locations in reserve forest area during the inspection on 18-19.02.2022. The Joint Inspection Team expressly observed that the "source of shall water ponding in the reserve forest area is mainly rainwater...". The analysis results of water samples were compared against the standards prescribed by R-6/CPCB under Schedule VI of EP Rules 1986 pq. 1665-1666] and it was concluded that "...most of the monitored parameters are meeting the said standards" pp. 1667]. Further, concentrations of contaminants / heavy metals such as Arsenic, Chromium, Lead, Molybdenum, Mercury, Sulphide, Antimony, Cobalt and Cyanide in both water samples was found to be Below Detection Limit (BDL) pg. 1667].
111. Further, in order to assess the impact of copper slag on soil quality in reserve forest area, soil sampling exercises were carried out during the inspection conducted by Joint Inspection Team on 18-19.02.2022 as well as during the inspection conducted by Joint Committee on 30-31.03.2022. After analysis of results, it was concluded that the soil in the reserve forest area could not be considered contaminated as the concentrations of metals were within the intervention values prescribed under widely used and internationally recognized screening / response standards (the Dutch standards). Concentrations of copper were found exceeding the Canadian Soil Quality parameters in some samples, and hence it was recommended to remove the copper slag on priority.
112. After undertaking the aforesaid comprehensive assessment and evaluation, the Joint Committee deputed the domain expert agency NEERI to undertake EDC assessment for soil pollution in reserve forest area. NEERI determined EDC by taking the highest concentration of metals / contaminants out of 18 soil samples collected from impacted area and compared the said values against the minimum concentration of metals / contaminants out of the two native soil samples p pq. 1493-14941 Thereafter, NEERI conducted Environmental Externalities Valuation NPJ Page 142 of 172 and Damage Cost Estimation based on rational and scientific parameters and criteria, which assessment and evaluation was adopted by the Joint Committee.
113. It is evident from the above that on the one hand, the Joint Committee has undertaken comprehensive on-ground inspections of the reserve forest area (twice), analysed the water samples and soil samples collected from reserve forest area (twice), and examined satellite imagery data obtained from the reputed remote sensing agency BISAG to determine the impacted area and assessed the impact of copper slag on vegetation, water as well as soil quality parameters. On the other hand, the Applicant seeks to make wild and baseless allegations and insinuations regarding the "polluted area" in reserve forest by relying upon unauthenticated Google Images and unilateral, uncorroborated Google Earth calculations which have no scientific or rational basis whatsoever and purports to object to the aforesaid comprehensive assessment and evaluation exercise undertaken by the Joint Committee on such flimsy and irrational grounds.
114. According to the Joint Committee, the impacted area as assessed by the expert agency NEERI after comprehensive and scientific evaluation of authentic and validated analysis reports, data, information and records is 7061 m2:
NPJ Page 143 of 172115. Whereas the Applicant's assessment of the impacted area allegedly as 26,200 m2 is solely based on unauthenticated Google Images, unilateral, unverified, uncorroborated calculations through Google Earth software and the Applicant's whims and fancies:
116. Contrary to the Applicant's allegations, the Joint Committee after conducting thorough on-ground inspections and scientific evaluation of authentic and validated analysis reports, data, information and records has found that:
(i) Scarcity of vegetation in the reserve forest area in question is on account of prolonged ponding / stagnation of rainwater post monsoon. There is no impact of copper slag on the vegetation in the reserve forest area.
(ii) There is no discharge of wastewater by Dahej Unit into the reserve forest area. A solid boundary wall constructed during 2015-16 separates the reserve forest area from the plant premises.
(iii) There is absolutely no question of "accumulated wastewater"
spreading over an area of 26,200 m2 as blithely alleged by the Applicant. During the inspection conducted on 18-19.02.2022, the Joint Inspection Team (comprising representatives of R-1/GPCB and R-6/CPCB) expressly observed that the shallow water ponding observed in the reserve forest area was rainwater (and not wastewater as wrongly alleged by the NPJ Page 144 of 172 Applicant). During the inspection conducted on 30-31.03.2022, the Joint Committee observed that the entire reserve forest area was dry upon evaporation of monsoon accumulation of rainwater.
(vi) The concentration of heavy metals in the soil and water samples analysed by the Joint Inspection Team were within the intervention values of widely used screening / response standards for identification of contaminated sites and / or within prescribed standards. Hence, the soil or water in the reserve forest area cannot be considered contaminated on account of "poisonous metals" as wrongly alleged by the Applicant.
(vii) The Joint Committee has in fact recommended removal of 11317.38 MT from 7061 m2 impacted area and refilling the said excavated area with fresh soil.
The Joint Committee has clearly observed that "...if the identified patch is cleaned, the area can be considered to be fully cleared on old dump and its impact." [fth, pg. 1492]
(viii) In case the Applicant's objections were to be accepted, restoration and remediation would entail flattening the entire 26,200 m 2 reserve forest area, cutting all trees / natural formations standing thereon, and thereafter removal of soil to the depth of lm from the entire 26,200 m 2 reserve forest area. It is respectfully submitted that instead of aiding restoration / remediation of reserve forest area, implementation of the Applicant's suggestions would result in severely adverse environmental impacts on the reserve forest area.
117. In light of the above, the Applicant's computation of EDC for soil pollution at INR 9,19,44,127 on the misconceived and baseless premise that the extent of impacted area is allegedly 26,200m2 and Applicant's objections regarding EDC for soil pollution as assessed by the Joint Committee are without any rational basis, untenable, unsustainable and are hence liable to be rejected.
D. Responses to Applicant's obiections reaardina EDC assessment for past non-compliances:
118. The Applicant's objections at para 7 of Applicant's WS Da. 1725-1726] with respect to the EDC assessment undertaken by Joint Committee regarding past non-compliances observed during 2016-2021 are denied as being misconceived NPJ Page 145 of 172 and untenable. Detailed submissions supra with respect to the comprehensive assessment and evaluation exercise undertaken by the Joint Committee in this regard are reiterated in their entirety and are not being repeated herein for the sake of brevity.
119. The Applicant's objections with respect to EDC assessment for past non- compliances undertaken by the Joint Committee and issue-wises responses of R-8/HIL are tabulated hereunder for ease of reference:
NPJ Page 146 of 172 NPJ Page 147 of 172 NPJ Page 148 of 172 NPJ Page 149 of 172 [NPJ] Page 150 of 172 [NPJ] Page 151 of 172 [NPJ] Page 152 of 172 [NPJ] Page 153 of 172 [NPJ] Page 154 of 172 V. MISCELLANEOUS SUBMISSIONS:
A. Responses to Applicant's allegations pertaining to CRZ areas:
120. The Applicant's objections at para 6 of Applicant's WS pq. 17241that the Joint
Committee allegedly "... has not done any assessment of environment damage to the CRZ area for the construction of the road, for dumping of copper slag and fly ash" are categorically denied as being blatantly and deliberately misleading, vexatious and untenable. R-8/HIL has neither constructed any road in CRZ area nor dumped copper slag or fly ash in CRZ area as maliciously sought to be insinuated by the Applicant in the paragraph under reply. Joint Committee undertook on-ground inspection of the CRZ areas during both inspections conducted on 18-19.02.2022 and 30-31.03.2022 and the relevant factual findings of the Joint Committee are reproduced hereunder for ease of reference:
Findings in Joint Committee Report [Vol. IX pq. 1446-1448; 1451-14531 "7.2 Visit to Sterling Jetty Area At the coastal area of Bhootnath Mahadev temple, which is located to the north of HINDALCO plant, a rubble pitched road was part of complaint about disposal of copper slag at CRZ area. The said rubble pitched road and the coastline location were not approachable by vehicle and committee visited the said location through a narrow walkway passina through the forest for about 2 Kms from the Boothnath temple. The possibility mentioned was the approach road for sterling port. The approach road for proposed port was likely under construction in the year 2010-11 from Dahej GMB port area. Birla copper had mentioned that in the year 2010-11, around 79658 MT copper slag was sold to M/s. Sterling Port Ltd. for the construction activity and related sales documents were submitted to GPCB. It is understood that M/s. Sterling Port Ltd. has utilized the purchased copper slag for road construction for the proposed jetty in the past. Further onwards the unit has not supplied any copper slag to M/s. Sterling Port Ltd.
During the visit, it is observed that the road construction activity of the proposed jetty has been abandoned half-way and mangroves developed densely in either side of the said abandoned road and wild animals like Neelgai was also observed in that area. On the road, no traces of slag were found as the top layer of the road is already rubble pitched. Besides the under-construction road, heaps of rubble were found. Photographs taken during the visit showing the abandoned jetty road and the densely grown mangroves on either side of the said road are given in below...."
Findings in Inspection-cum-Monitoring Report [Vol. IX pg. 1672-1674] "6.0 Other Observations [NPJ] Page 155 of 172 As per detail furnished by the unit, they have supplied total 79658.95 MT of copper slag to M/s Sterling Port Ltd., Dahej during 2009-11. It is understood that M/s. Sterling Port Ltd. has utilized the purchased copper slag for road construction for their proposed jetty in the past. Further onwards the unit has not supplied any copper slat to M/s. Sterling Port Ltd.
During the present visit, it is observed that the road construction activity of the proposed jetty has been abandoned half-way and mangroves developed densely in either side of the said abandoned road. Photographs taken during the visit showing the abandoned jetty road and the densely grown mangroves on either side of the said road are given in below....
The unit has a captive Jetty in the Gulf of Khambhat and an approach road has been constructed from the industry premises to the said Jetty. During the visit, dense mangrove vegetation was seen on either side of the Jetty road in the CRZ area. Photographs taken during the visit, showing densely grown mangroves on either side of the Jetty road is given below."
(emphasis added)
121. It is evident from the above factual findings made by the Joint Committee after on-ground inspections and examination of relevant records that:
(i) The construction of the road in question in the CRZ area was being undertaken during 2010-
11 by a third-party company (M/s. Sterling Port Limited) for road construction to their proposed jetty.
(ii) R-8/HIL supplied 79658 MT copper slag to M/s. Sterling Port Ltd. during 2010-11 for road construction to the proposed jetty of Sterling Port Ltd. and related sales documents were submitted to R-1/GPCB. R-8/HIL has not supplied any copper slag to Sterling Port Ltd. thereafter.
(iii) Road construction activity of the proposed jetty of Sterling Port Ltd. was abandoned half-way and mangroves had developed densely on either side of the said abandoned road.
122. In light of the above, it is reiterated that R-8/HIL has neither constructed any road in CRZ area nor dumped copper slag or fly ash in CRZ area as maliciously sought to be insinuated by the Applicant at para 6 of Applicant's WS. [Vol. X (W, oq. 1724].
123. Further, the supply of copper slag by R-8/HIL to Sterling Port Ltd. for road construction is in accordance with directions issued by regulatory authorities including R-1/GPCB, R-6/CPCB and R- 7/MOEFCC, which expressly envisage and permit use of copper slag for road construction without the requirement of obtaining approval for such supply from R-1/GPCB as copper slag is non- hazardous by-product. In fact, R-6/CPCB has issued draft "Guidelines on Management of Pyro- metallurgical Slags (Copper Smelters)" in May 2023, which expressly envisage and permit use of copper slag for road construction.
[NPJ] Page 156 of 172124. Consequently, the Applicant's averments at para 11-13 of Applicant's WS [Vol. X (cry pa 1728] that there was "...no permission on record for disposal..." of 79658 MT copper slag by R-8/HIL to Sterling Port Ltd. during 2010-11 is denied as being contrary to law. The EC and CCA granted in favour of HIL by R-7/MOEFCC and R-1/GPCB expressly permit and envisage use of copper slag for road construction without the requirement of obtaining approval / permission from R-1/GPCB or any other authority for sale of such non-hazardous by-products.
125. The Joint Committee's conclusion that "it was apparent that copper slag has been utilized as per its intended use and practice" is thus in accordance with applicable laws and any averment to the contrary in Applicant's WS is denied. Applicant's allegation at para 13 of Applicant's WS that the Joint Committee allegedly did not enquire "...as to the use of copper slag in road and other thing" is also denied as being ex facie contrary to the record. The observations and findings of the Joint Committee on "slag management" at Dahej Unit are expressly recorded under a separate Section 8.0 in the Joint Committee Report [Vol. IX op. 1474-1476]. It is evident from a bare perusal of the said section that Joint Committee has inter alia assessed and recorded details of copper slag generation and sale undertaken by R-8/HIL since FY 2009-10 till FY 2020-21, and details of infrastructure for storage of copper slag in slag yard at Dahej Unit. Joint Committee has also assessed the end use of copper slag, expressly recording that R-8/HIL is "...selling the copper slag to cement industries as raw material, read mix cement as aggregate, to road and construction activities and to abrasive industries" [Vol. IX pa. 1474]
126. Applicant's further objections at para 11-13 of Applicant's WS [Vol. X Da. 17281 that Joint Committee has purportedly not recorded any violation or computed EDC on R-8/HIL in relation to copper slag purportedly lying abandoned in CRZ area or "recommended measures for lifting and shifting of these materials" are denied as being entirely baseless, without merit and contrary to law. It is reiterated that the one-time supply of copper slag by R-8/HIL to Sterling Port Ltd. in relation to road construction for the proposed jetty of Sterling Port Ltd. in 201011 was in accordance with applicable laws and statutory approvals granted in favour of R-8/HIL and did not require approval / permission from R-1/GPCB or any other regulatory authority. R-8/HIL was not responsible for obtaining permission for construction of the said road in CRZ area, which, if mandated, was in any event required to be obtained by the entity constructing the said road (Sterling Port Ltd.) for accessing its own proposed jetty. R-8/HIL cannot be made responsible for copper slag or fly ash which may have been left abandoned in the CRZ area by unrelated third parties during road construction. The insinuation at para 12 of Applicant's WS that there is no "fly ash management plan" with R-8/HIL and "...no approval of GPCB under Flyash Notification" is also denied. It is reiterated at the cost of repetition that all details regarding fly ash management were also provided to the Joint Committee by R-8/HIL and have been duly examined and evaluated by Joint Committee.
127. Applicant's allegations at para 9 of Applicant's WS [Vol. X aJ pq. 1727] that there is "illegal construction of the silos in CRZ NDZ areas" that were allegedly not visited by the Joint Committee are denied as being baseless, without merit and designed solely to cause prejudice. There is no illegal construction of "silos" or any other structures in the CRZ NDZ areas and the Joint Committee visited all areas of interest / concern at Dahej Unit. The unauthenticated Google Image reproduced at [NPJ] Page 157 of 172 para 9 of Applicant's WS is specifically denied. The portions which the Applicant has unilaterally circled in red in the said Google Image and which the Applicant wrongly describes as "illegal construction in NDZ of CRZ" were conveyor and ancillary systems for the purposes of the accessing the captive jetty of Dahej Unit, and R-8/HIL was permitted to construct such ancillary systems for accessing the jetty by GMB.
B. Responses to other miscellaneous allegations:
128. Applicant's allegations at para 10 of Applicant's WS [Vol. X @ pg. 1727] regarding Inorganic Acid (Spent Acids) are denied as being incomprehensible. As stated by the Applicant itself, the CCA prescribes the limit of 66,960 TPA of Inorganic Acid, which the Joint Committee has also verified [Vol. IX @ pq. 1489 -- mentioned as "internal page 59" by Applicant in the paragraph under reply]. It is reiterated that R-8/HIL has furnished, and Joint Committee has examined and assessed, the entire mass/material balance data of end-to-end manufacturing activity, consisting of raw material input to product / by-product / waste (solid, liquid, gaseous) output for the period 2016-2021 in respect of Dahej unit. Any averment to the contrary is denied.
129. Applicant's allegations at para 6 of Applicant's WS [Vol. X @ pg. 1724] that "...it has come on record that production of the unit is more than CCA quantities but there is no damage compensation for violation of CCA conditions..." is denied as being without basis and untenable. Joint Committee after assessment of the CCA compliance status has expressly recorded that "...the products and by products have been produced as per consent order, which are within the limit mentioned in CCA. Form V shows production details within consented capacity" [Vol. IX pq. 1477].
130. Applicant's allegations at para 8 of Applicant's WS [Vol. X @ pg. 1726] regarding alleged contradictions in relation to arsenic disposal between the Joint Committee Report and Inspection Reports of GPCB are entirely baseless, vexatious, misleading and untenable. Joint Committee has conducted on-ground inspections (twice) and comprehensively assessed the relevant records and information in relation to arsenic disposal as well. The Joint Committee's conclusion as regards the Applicant's allegation in relation to "dumping of arsenic bearing sludge in captive TSDF site without encapsulation" are reproduced hereunder: [Vol. IX @ pg. 1438, 1634]:
"Arsenic Bearing residue (containing 10 to 15 % Arsenic) generated from the refinery plant is recycled in the smelting furnace and there is no disposal of this Arsenic bearing residue. ETP sludge generated contains 1.5 to 2 % of arsenic. It is informed that the arsenic content ETP sludge is in stable salt form and which doesn't leach. ETP sludge is disposed in own captive SLF. Samples of leachate from leachate collection sumps of operational SLF - 8A and 8B was collected to check the arsenic content in leachate of SLF.
The analysis results of the samples collected from the sump no.01 and sump no. 05 attached to SLF 8 reveals that the Arsenic concentrations are BDL and 0.4mq/L in sump no. 01 & 05 respectively.[NPJ] Page 158 of 172
The leachate being collected in the leachate collection sumps are further treated in the ETP of the unit."
(emphasis added)
131. Applicant's allegations at para 14 & para 15 of Applicant's WS [Vol. X pg.
1728] insinuating that the "...Joint Committee did nothing..." in relation to concerns purportedly raised by Joint Committee members Shri Nishchal Joshi (GCZMA) and Dr VK Shrivastava (SEIAA) are entirely and deliberately misleading, baseless, and solely designed to cause prejudice. The observations cited in the paragraph under reply were made by the concerned members during the 1st Meeting of the Joint Committee held on 21.01.2022 [Vol. /X pg. 15161. Thereafter, three Meetings of the Joint Committee were held, and two inspections of Dahej Unit were held by Joint Committee members, wherein all information and records sought by the concerned members were furnished by R-8/HIL, including in relation to the issues raised by the concerned members cited in the paragraph under reply. The concerned members were present during the inspection of Dahej. Unit on 30-31.03.2023 and evaluated, assessed, deliberated all issues of concern, including in relation to assessment for soil pollution in reserve forest area and environment management plan and comprehensive environmental audit of Dahej Unit. All the members of the Joint Committee have signed the Joint Committee Report. Consequently, the Applicant's insinuation that the "Joint Committee did nothing" with respect to concerns purportedly raised by the said Joint Committee members amounts to ridiculing the comprehensive evaluation and assessment undertaken by the Joint Committee.
132. Applicant's allegations at para 16-18 of Applicant's WS [Vol. X @ pq. 1729] insinuating that the "...Joint Committee did nothing..." and that the Joint Committee "... has taken no action..." in relation to concerns purportedly raised by Joint Committee members Dr. Yogesh Kumar (MOEFCC), Dr Chinmay Ghoroi (IIT Gandhinagar) and Mr. Sonawane are entirely and deliberately misleading, baseless, and solely designed to cause prejudice. The observations cited in the paragraph under reply were made by the concerned members during the 2nd Meeting of the Joint Committee held on 01.02.2022 0. Thereafter, two Meetings of the Joint Committee were held, and two inspections of Dahej Unit were held by Joint Committee members, wherein all information and records sought by the concerned members were furnished by R-8/HIL, including in relation to the issues raised by the concerned members cited in the paragraph under reply. The concerned members were also present during the inspection of Dahej Unit on 30-31.03.2023 and evaluated, assessed, deliberated all issues of concern, including in relation to coal consumption and production. All the members of the Joint Committee have signed the Joint Committee Report. Consequently, the Applicant's insinuation that the "Joint Committee did nothing" with respect to concerns purportedly raised by the said Joint Committee members amounts to ridiculing the comprehensive evaluation and assessment undertaken by the Joint Committee.
133. Applicant's allegations at para 19 of Applicant's WS [Vol. X @ pq. 1729] insinuating that the Joint Committee did not make a recommendation on the suggestion of Hon'ble Chairman of the Joint Committee regarding surprise checks on deep sea discharges are entirely and deliberately misleading, baseless, and solely designed to cause prejudice. Regular inspections and monitoring of all units of Dahej Unit is already within the mandate of regulatory authorities and the Joint [NPJ] Page 159 of 172 Committee is not obliged to issue directions to recommend that statutory authorities must discharge their statutory responsibilities. Such frivolous objections are nothing but a reprehensible attempt on the part of the Applicant to somehow find non-existent discrepancies in the Joint Committee Report and only establish that the findings, observations, and recommendations of the Joint Committee Report do not in fact warrant interference.
134.Applicant's allegations at para 20 of Applicant's WS [Vol. X pq. 1730] that the Joint Committee observed the quantity of phosphogypsum (PG) at phosphogypsum yard but "...did enquire as to its utilisation plan needed as per EC condition and approved by the CPCB..." is a matter of record, and hence admitted. Joint Committee visited the phosphogysum yard during both the inspections and evaluated all relevant records in relation to its disposal [Vol. IX alb pa. 1458-1459; 1680]. Joint Committee also verified that upon closure of the Fertilizer Plant [comprising Phosphoric Acid Plant (PAP) and Di-ammonium Phosphate Plant (DAP) which generated PG sludge] since April 2020 by R- 8/HIL, there is no generation of phosphogypsum and that the phosphogypsum yard is completely covered with HDPE liner. Joint Committee also verified that the old PG stock is sent to cement industries and for use as fertilizers. [Vol. IX pg. 1440. 1458-1459. 1465: R-8/HIL Reply-- Vol. III are 24-29. 41-421
135. Applicant's allegations at para 21 of Applicant's WS [Vol. X pg. 1730], that the Joint Committee allegedly gave "...unscientific and arbitrary advice..." to R-8/HIL regarding use of leachate and ETP treated effluent for dust suppression at SLF sites or that the "...Committee has not gone into characteristics of leachate from TSDF..." are categorically denied. The said suggestion made by the Joint Committee is one of the methods prescribed under the applicable guidelines for management of SLF sites. In any event, R-8/HIL does not use leachate or ETP treated effluent for dust suppression at SLF sites at Dahej Unit and hence Applicant's objections to the Joint Committee's suggestion in this regard are meaningless. Further, the Joint Committee has inspected, evaluated and verified all aspects pertaining to TSDF at Dahej. Unit and any averment to the contrary is denied.
136.The Applicant's submissions at para 22 of Applicant's WS are denied.
VI. CONCLUSION:
In light of the facts and circumstances stated above, it is respectfully prayed that the recommendations made by the Joint Committee vide Joint Committee Report submitted before NGT in May 2022 do not warrant interference and the Applicant's objections to the Joint Committee Report are liable to be rejected. The Joint Committee Report may be adopted and necessary directions may be issued to the official Respondents to grant requisite approvals for implementation of the Remediation and Restoration Plan recommended by the Joint Committee.‖
43. We have heard the arguments of the learned counsel for the parties and perused the record.[NPJ] Page 160 of 172
44. From the side of the applicant, learned counsel Ms. Shilpa Chohan has argued by drawing our attention to the Joint Committee report that at page 1438 serial No. 5 in the table in point No. 6.0, under the head "current status with respect to violation mentioned in the application"
pertains to dumping of arsenic bearing sludge in captive TSDF site without encapsulation, It is urged that as per CC&A dated 30.09.2020 at page 269 of the paper-book, the condition imposed was that Arsenic bearing sludge, As-CU precipitate would be collected in closed stainless steel vessel, thereafter it would be recycled, treatment/encapsulation would be done and disposed of at own SLF site/common TSDF of BEIL. This argument is being made because in the Joint Committee report at page 1438, compliance status does not reveal about the encapsulation having been done about Arsenic bearing sludge.
45. Thereafter, our attention was drawn to page 1443 of the paper- book wherein a reference is made of visit to 16 hectare area of the unit of respondent No.8 and adjacent forest area, wherein it is recorded that the Forest Department made a survey and found that the construction of boundary wall in the northern direction to 16 Ha acquired land was made. During construction of the boundary wall, the answering respondent's unit had inadvertently left the copper slag which had spread along the boundary at some sections marginally and the copper slag was beyond the boundary line. During the visit, it was observed that the copper slag had spread in the forest area along boundary wall to the length of about 100 mtrs and width varying from 5 mtrs to 10 mtrs area. The photographs of the said area have also been shown in this report. The industry has shown intention to remove slag and remediate the affected area, at its own expenses after getting due permission from Forest Department. It is also recorded that the answering respondent has been asking for permission from Forest Department since August, 2021. The soil samples in the forest [NPJ] Page 161 of 172 land area where copper slag was found lying were also collected, mainly in the area is located to northern side of the industry premises. The result of the samples taken is given at point 10.1.2 of Joint Committee Report, which shows contamination in the said soil and at point 10.1.3 of the Report, the estimation of the environmental damage has been made to the tune of Rs.2,47,79,292.
46. Having drawn our attention to the above, it was argued by the learned counsel for the applicant that the said contaminated copper slag is lying there and that on the pretext of respondent No.8 not getting permission from the Forest Department, the same is lying there.
47. Thereafter, the learned counsel for the applicant drew our attention to point No.7.2 of the said report regarding visit to Sterling Jetty area. According to the Report, a visit to Sterling Jetty was made by the Joint Committee. It is recorded that at the coastal area of Bhootnath Mahadev temple, which is located to the north of respondent No.8's unit, rubble pitched road was part of complaint about disposal of copper slag in CRZ area. The said rubble pitched road and the coastline location were not approachable by vehicle. The approach road for proposed port was likely under construction in the year 2010-11 from Dahej GMB port area. Birla Copper had mentioned that in the year 2010-11, around 79658 MT copper slag was sold to M/s Sterling Port Ltd for the construction activity and related sales documents were submitted to GPCB. M/s Sterling Port Ltd has utilized the purchased copper slag for road construction for the proposed jetty in the past. Respondent No.8 has not supplied any copper slag to M/s Sterling Port Ltd. On visit by the Committee, the road construction activity of the proposed jetty has been abandoned half-way and mangroves developed densely on either side of the said abandoned road. On the road, no traces of slag were found as the top layer of the road is already rubble pitched. Besides the under-construction road, heaps of [NPJ] Page 162 of 172 rubble were found. Photographs showing the abandoned jetty road and densely grown mangroves were also shown/annexed with the report.
48. The learned counsel for the applicant after having drawn our attention to the above passage from the report, tried to convince us that there was copper slag found in the CRZ area because the approach road was being constructed to approach the proposed jetty of M/s Sterling Port Ltd. We make it clear that M/s Sterling Pvt Ltd is not made party to this proceeding and the only act of respondent No.8 appears to be that they had sold their copper slag to M/s Sterling Pvt Ltd and that the same was to be used in construction of approach road. Therefore, how the learned counsel is trying to say that it should be treated to be violation on the part of respondent No.8/Project Proponent is not understandable.
49. The next argument raised by the learned counsel for the applicant is that condition No.2 (e) of the CC&A dated 30.09.2022, which provides that the unit shall strictly follow the Fly Ash Notification for disposal of generated ash, has not been complied with and it should be treated to be violation. We had enquired from the learned counsel as to what is this Notification and whether the same has been annexed with the application, to which she has responded that it is not annexed with the application, but a copy of the same was given by learned counsel for respondent No.8. Perusal of the said Notification dated 31.12.2021 issued by the MoEF&CC relates to ash utilization from coal or lignite thermal power plants. But the plant in question with which we are dealing is copper smelting plant and not coal or lignite thermal power plant. Therefore, in our opinion these guidelines will not be applicable here in the present case. However, we may mention here that the thermal power plant has been cast responsibility to dispose fly ash and bottom ash in a manner prescribed therein. In this Notification at A (2) (iii), the construction of road and flyover embankment, Ash and Geo-polymer based construction material has been mentioned, [NPJ] Page 163 of 172 which appears to state that fly ash could be used in construction of roads and fly over embankment, etc. We do not find that the applicant is going to be benefitted by this Notification as is being pressed by the learned counsel for the applicant. On the contrary, we find that this Notification might go against the applicant because even if it is found to be applicable in the present case, the Copper Smelting unit which had sold copper slag to M/s Sterling Pvt Ltd for constructing the approach road leading to the Jetty port, in that road construction, the provision of this Notification provided under B (1) clearly lays down that for road construction and flyover embankments, it is mandatory to utilize the ash. Therefore, we do not find any violation on the part of respondent No.8.
50. We have also got "Guidelines For Use of Iron, Steel and Copper Slag in Construction of Rural Roads" issued by Indian Road Congress (IRC) in the year 2018, which makes it clear that these guidelines have been prepared by the Indian Road Congress for use of copper slag in building of roads for the benefit of rural road construction. Therefore, the argument of the learned counsel for the applicant that the copper slag was allowed to be used for construction for making the approach road to the Jetty Port by M/s Sterling Pvt Ltd should be treated to be violation, does not appear to be good enough argument.
51. Next our attention is drawn by the learned counsel for the applicant to the visit made by the Joint Committee to Phosphogypsum yard and at point 7.9, it is recorded that the phosphogypsum yard is utilized for storage of phosphogypsum which is generated during the operations of phosphoric acid plant. The said yard is having impervious liner with leachate collection system. The main argument made in this regard by the learned counsel is that this report would indicate at page 1459 of the paper-book that the Committee had found the phosphogypsum to have been covered by tarpaulin and in order to ensure that tarpaulin keeps covering the [NPJ] Page 164 of 172 phosphogypsum, upon tarpaulin are placed bags full of copper slag so that tarpaulin would not fly away due to breeze and that such copper stag held in the bags was likely to contaminate the area in question during rainy season when through the mixing in water, copper slag would flow on soil in the adjoining area. It was explained by the representative of respondent No.8 that the weight which was kept on the tarpaulin containing copper slag was filled in bags from which no amount of copper slag would come out even during rainy season, the said bags being waterproof.
52. Thereafter learned counsel for the applicant drew our attention to the damage cost assessment at point 10.1 and in this regard, the main objection which has been raised by the learned counsel that 7061 m2 area is said to have been found contaminated, as much smaller area is shown by the Committee. In fact, the said area is 26,200 m2. We have already dealt with this point earlier in paragraph 21 above.
53. We find that the written submissions which have been filed from the side of respondent No.8 have been recorded by us above. Considering the argument raised by the learned counsel for the applicant in that regard and the reply given thereto by the Project Proponent/respondent No.8 in orderly manner, it would be appropriate for us to deal with these arguments advanced by the applicant and the replies given thereto by respondent No.8 and whether we agree with the same or disagree with it.
54. First of all, we will deal with the applicant's objections regarding EDC assessment undertaken by the Joint Committee and how they have been dealt with by respondent No.8/Project Proponent.
55. The applicant's contention regarding EDC assessment done by the Joint Committee is contrary to the order dated 05.01.2022 passed by NGT. In this regard, it is stated by respondent No.8 that the Joint Committee [NPJ] Page 165 of 172 discharged its functions as directed by NGT vide order dated 05.01.2022 and has undertaken EDC assessment in a rational and scientific manner after thorough on-ground inspections, monitoring and comprehensive environmental audit of Dahej unit and examination of relevant records. The Joint Committee has undertaken the EDC assessment on principle of `restoration with element of deterrence'. The Joint Committee had studied soil pollution in the reserve forest area as well as for the past non=- compliance which is based on scientific study. The EDC assessed by the Joint Committee constitutes sufficient deterrent factor for respondent No.8. The case in hand is not a fit case for imposition of EDC on the basis of turnover as is being pressed by the applicant because the EDC on the basis of turnover/project cost has been imposed in cases where project proponents have conducted operations without valid statutory approvals and clearances or in cases of egregious violations of environmental regulations where it has been found that project proponents have exhibited `totally intransigent and unapologetic behaviour'. But in the case in hand, respondent No.8 has undertaken operations at Dahej unit after obtaining the statutory approvals including EC granted by MoEF&CC and requisite statutory approvals for expansion and capacity augmentation. The judments of the Hon'ble Supreme Court in the cases of Sterlite Industries (India) Ltd v. Union of India; (2013)4 SCC 575 and Goel Ganga Developers India Pvt. Ltd v. Union of India (2018)18 SCC 257, relied upon the learned counsel for the applicant, are distinguishable because in case of Sterlite Industries (India) Ltd (supra), the Project Proponent was found to have operated without valid consents, approvals and renewals under the Air Act and Water Act for a `fairly long period' during 1997-2012 and expert agencies such as NEERI and TNPCB had found extensive environmental damage on account of operations of Sterlite unit while in case of Goel Ganga Developers India Pvt. Ltd (supra), the Project Proponent was found to have raised construction in violation of the [NPJ] Page 166 of 172 Environmental Clearance granted for the project and also in violation of various municipal laws and the Project Proponent had been found to have raised construction over an area of 1,00,002.25 sq.mtrs against the approved built-up area of 57,658.42 sq.mtrs in EC. Besides that, instead of 12 buildings permitted under the EC, Project Proponent had constructed 18 and instead of 552 flats permitted under the EC, it had constructed 807 flats and two more buildings having 454 flats were proposed for expansion plan. This conduct of the Project Proponent was found to be absolutely intransigent and unapologetic. As against this, the conduct of respondent No.8 in the present case shows that they have taken all statutory approvals and clearances, including EC, consents and authorizations under the Air Act, Water Act, Environment (Protection) Act and Hazardous Waste Management Rules. The expert agencies such as NEERI, GPCB and CPCB have, over the period, been conducting inspections and have found the unit of respondent No.8 compliant. Regarding past non-compliances, respondent No.8 has taken credible measures and has even gone to the extent of shutting down PAP and DAP units since April, 2020 and reduced environmental impact of operations. It was on account of accidental copper slag run-off incident the soil in forest area got contaminated for which respondent No.8 is ready to take remedial steps and restore the same at its own cost. Therefore, Principle on the basis of which the EDC, which was realized in the cases of Sterlite Industries (India) Ltd. (supra) and Goel Ganga Developers India Pvt. Ltd. (supra) should not be applicable here.
We are totally in agreement with the argument raised by the learned counsel for respondent No.8. We find that the EDC assessed by the Joint Committee is in accordance with judicially recognized principles of `Polluter Pays', `restoration with element of deterrence', `sustainable development' and doctrine of proportionality.
[NPJ] Page 167 of 17256. With respect to applicant's objection regarding assessment of EDC pertaining to soil pollution in reserve forest, it is submitted that the applicant's version is that the actual area where the damage was caused, where release of the wastewater happened is 26,200 m2 while the Joint Committee has arrived on the conclusion that the same is only 7061 m2.
In this regard, it is submitted by respondent No.8 that the applicant has relied upon the Google images from 2004 onwards to contend that NEERI has failed to take into account the Google images from the year 2004 onwards which showed consistent increase in the degraded area affected by the dumping of Copper Slag and wastewater from the unit. Even though the comparison of degraded land on google earth with the NEERI image is showing clearly polluted area, affected area is low lying area and that is why the accumulation of wastewater has spread over an area of 26,200 m2 of reserve forest, which is evident from the Google image. It is further submitted by respondent No.8 that the stand taken by the applicant is not correct because in order to assess impact of the copper slag on vegetation density and character of forests, the Joint Committee had decided to obtain land-use land-cover pattern maps and satellite imagery of the reserve forest area in question from the reputed remote sensing agency namely Bhaskaracharya National Institute for Space Applications and Geo-
informatics (BISAG) and False Colour Composite (FCC) image since 2004 upto 2021 and inferred that the dumping of copper slag in the reserve forest has significantly less impact on the health of surrounding vegetation.
The area near the boundary was found low lying area which resulted in ponding of water. Hence, scarce vegetation was found and it was concluded that the scares vegetation in the said low lying area was on account of prolonged ponding/stagnation of rainwater which accumulated post monsoon and that impacted area was ultimately found to be 7061 m2 based on scientific method.
[NPJ] Page 168 of 17257. It is also recorded in these written submissions of respondent No.8 that the Joint Committee did not find any reason of accumulated wastewater spreading over an area of 26,200 m2 as alleged by the applicant. The highly expert agency such as NEERI having calculated the affected area to be 7061 m2 cannot be disbelieved by us simply because the applicant has not presented report of any expert agency/institute of equal stature. Hence we do not find any substance in the argument of the learned counsel for the applicant with respect to there being any proof of larger area adversely affected by the activity of respondent No.8. We are of the view that the area shown affected as 7061 m2 is found to be correctly assessed by the Joint Committee and the EDC has been rightly calculated.
58. Next we take up the responses to the applicant's objection regarding EDC assessment for past non-compliances. In this regard, the main allegation leveled by the learned counsel for the applicant is that 18 inspections which were made by respondent No.1-GPCB on different dates were not taken into consideration by the Joint Committee in respect of number of days for which calculations were made, but the same were found to be in 15 in number because there were several repetitions made. We have thoroughly dealt with this point earlier supra, but suffice it to say that respondent No.8's response to it is that these inspections were done from time to time by respondent No.1-GPCB wherein several directions were given, which was the procedure, and had been promptly complied with by respondent No.8. Hence there was no reason as to why any violation for any number of days should be treated to have been omitted by the Joint Committee based on these inspections only. We find this explanation given by respondent No.8 to be proper and we do not find any force in the argument of the learned counsel for the applicant in this regard.
59. The issue, which, after having heard learned counsel for both parties, was found still outstanding, was as to why respondent No.8/ Project [NPJ] Page 169 of 172 Proponent did not take remedial measures for the area of 9 Ha beyond the wall of respondent No.8 in the forest area which was found to be contaminated being low-lying area where the copper slag was found to be there, which needed to be taken care of (remediated) and re-filling of the said land was required to be done by the clear soil. For this, the learned counsel for respondent No.8 has taken a defence that the permission was required to be given by the Forest Department to approach that area for carrying out cleaning and there was no permission granted though they were ready to clear the same. At the stage of argument, we had also made query to learned counsel for respondent No.8 as to how much time would it take to remediate the said area, to which he responded that it would depend as to when the permission would be granted by the Forest Department and thereafter, timeline would be given, but even then, the action plan has been submitted by the learned counsel for respondent No.8, which is as follows:
S.NO Proposals for remediation Timelines
1 Evacuation of copper slag and soil from reserve Subject to grant of
forest area: requisite
permissions are
granted by R-
3/Forest
R-8/HIL is committed to implement the Remediation
Department:
and Restoration Plan proposed by Joint Committee,
which entails removal of 11317.38 MT soil from 7061 Granulated slag
m2 impacted area and refilling the said excavated area removal from the top with fresh soil. [JC Report - Vol. IX @ pg. 1500-1501] soil in impacted area can be completed within a week.
The internal cost estimation of implementation of Remediation and Restoration Plan:
Further, HIL Estimated Cost undertakes to Details of Activity SNO (INR lakhs) remove 11317.38 MT Removal of soil from of soil and remediate 1 impacted area in 21.18 the impacted area as reserve forest recommended by Cost of new Soil 56.25 Joint Committee 2 within 6 months Filling cost of new (excluding July-
5.0 January on account
3 Soil in evacuated
area of monsoon
[NPJ] Page 170 of 172
rainwater
accumulation).
Landfill cost at 3rd 127 Further, HIL
4 Party TSDF undertakes to
deposit the EDC for
209.68 soil pollution
(INR 2.0968 assessed by Joint
Total Committee (INR 2.47
Crores)
Crores) with
regulatory
authorities as
directed.
HIL is willing to earmark funds as per above
estimation and so far required to ensure remediation.
2 Removal of entire stock of phosphogypsum Once NEERI's
stored in phosphogypsum yard: evacuation plan is
finalized, the
entire stock of
NEERI has been appointed for providing an action phosphogypsum
plan for entire phosphogypsum yard closure and is targeted to be
redevelopment. Order has been placed and NEERI evacuated by
team has already been engaged to conduct the June 2015.
scientific evaluation.
3 The implementation of the above proposals within
timelines can be monitored by R-1/GPCB.
60. We expect that whenever request is made by respondent No.8/ Project Proponent to the Forest Department regarding permission to be given for approaching the area in question for remediation, that would be granted forthwith so that no further delay happens in carryi8ng out the said remediation/cleaning activities as per the action plan cited above.
61. We dispose of this Original Application with following directions:
(A) The amount of Environmental Damage Compensation (EDC) calculated by the Joint Committee to the tune of Rs.5,53,79,292.00 shall be deposited by respondent No.8/Project Proponent with [NPJ] Page 171 of 172 respondent No.1-GPCB within one month from the date of uploading of this order and the same shall be utilized by GPCB for improvement of environment in the area in question.
(B) The total area of 7061 sq.mtrs of the forest land, which is found to have been affected by the copper slag adjoining to the boundary wall of respondent No.8's unit shall be remediated in terms of the action plan which has been submitted by respondent No.8, cited above in para No.58 and that respondent No.8/Project Proponent shall bear the entire financial burden in respect of this task.Respondent No.3, PCCF, shall grant necessary permissions expeditiously. (C) The action taken/compliance report shall be submitted by respondent No.8/Project Proponent to the Registrar of this Tribunal within two months after expiry of the period of action plan cited above in para No.58.
42. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM May 08, 2024 O.A. No.70 OF 2021(WZ) npj [NPJ] Page 172 of 172