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Judgment
The issue raised – validity of EC for Vishnugad-Pipalkoti Hydro-Electric Project in Uttrakhand
This is an Appeal under section 16 (h) of the NGT Act against Environment Clearance (EC) dated 26.08.2021 granted by MoEF&CC to the Vishnugad-Pipalkoti Hydro-Electric Project of 444 MW in an area of 141.568 ha by M/s THDC India Limited located at Village Haat, Tehsil Joshimath, District Chamoli, Uttarakhand.
The appellants have stated that Initially EC for the project was granted on 22.08.2007 for ten years, which was extended for three years and has been now extended upto 21.08.2021. However, the project has not been operationalized and is still under construction. The project is funded by the World Bank. Out of total cost of about Rs. 3800 Crores, more than 50% of the cost has already been incurred.
According to the appellant, Cost Benefit Analysis (CBA) is in favour of abandoning the project. Dispensing with of public hearing is not called for nor valid as the project is not completed to the extent of 50 %, as required for such exemption. EAC has not undertaken proper evaluation of the mitigation measures. It has gone by rapid EIA, ignoring the deficiencies, particularly impacts of soil erosion, blasting, decline in water quality, loss of aesthetic values and loss of aquatic biodiversity. These impacts have not been duly evaluated nor included in the CBA. The scope of the project has changed as noted in the EAC Minutes, in comparison to the 2006 DPR, as per information shown by the following table:-
Item
2006 DPR
(Annexure A- 13)
2021 EAC
Minutes (Annexure A-12)
Change
DIVERSION TUNNEL
Length
490
559 m (494 m
tunnel and 65 m cut & cover)
+69 m
Diameter
10
10.5 m, Circular
+0.5m
Gates
10m*10m
4 m * 10.5m,
vertical lift fixed wheel
+58 sqm
Ibvert level
at entry
1228
1224m
-4m
Height
15 m
24 m
+9 m
Length
46 m
40 m
-6 m
Height
6 m
7.5 m
+1.5 m
Top EL
1228
EL 1222.5 m
-5.5
DIVERSION DAM
Length
89.3
98.85 m (NOF
31.85 m, OF 67 m)
+9.55 m
SPILLING ARRANGEMENT
A. Sluices:
Nos.
4
5
+1
Design
Flood
8004
10840 m3/sec
+2836 m
Size of
sluice
6.6*15
7.8m (W) * 16 m (H)
+25.8
B.
Diversion Cum Spillway Tunnel
10
Diameter 10.5 (),
Circular
+0.5 m
Length
490
100 m
-390 m
Design
Discharge
1074
1578 m3/sec
+504
Gate
2+1, 4.1 m * 10
m
2+1 no., 4 m* 10.5
(Vertical lift fixed wheel gate)
+ 1 sqm
(4.1x10>4x10.5)
DESILTING
CHAMBER
Size
350*16m*20.6
m
390m (L) * 16 m (W)
* 21.25 m (H)
+17240
Gates
2.5*2.85
3 Nos. 1.8 m*2.12
m (Vertical lift slide gate)
-3.309
HEAD
RACE TUNNEL
Diameter
8.8 horse shoe
8.8 m Circular
Shape change
Velocity
3.56
3.76 m/sec
+0.2
Bed slope
(average)
1.208
1:121 (upstream of
Maina River 1:321) Downstream of Maina River)
-8.087
UPSTREAM
SURGESHA FT
Height (from
HRT invert)
130
154 m
+24 m
Top EL
1305
1309 m
+4 m
Orifice level
1185
1165 m
-20m
Tunnel
invert
1175
EL 1155 m
-20m
Maximum
surge level
1304
1307.42m
+3.42m
PRESSURE
SHAFT
Length of
each PS
351/36.7
466.4 m/51m
-0.41893466
POWER
HOUSE
Size of P/H
cavern
127*20.3*50
146m*20.3m*48m
+13357.4
Size of
transformer cavern
112*16*24.5
140.3m*15m*25.5
m
+9760.75
Item
1041
EL 1036m
-5
D/S SURGE
TANK
Size
120*12*27
150m (L)*13m (W) *
27 m (H)
+13770
Minimum
surge level
1026.5
1022.37 m
-4.13
TAIL RACE
TUNNEL
a) Size
8.8
9.1 m (), (Circular)
+0.3
d) Min.
TWL
1027.2
1028.2 m (with 10%
load)
+1
e) TRT
invert level
1025
EL 1020.6 (at
Outlet) crest level of weir at outlet is 1027 m.
-4.4
SWITCHYA
RD
e) No. of
bays in the switchyard
8
7 bays
-1
d) Size of
Potyard
40*60m
40m*84m
+960
The appellants have further submitted that the Project has also undergone design review as per THDC progress report of July 2021. The appellant has also presented following tables to show that only 10% of the total constructions have been done and not 50% as claimed:
Table No. 1
S.
No.
Work
Present status of
the project as per CEA July 2021
report (Annexure A-16)
Analysis
Percent
completed
1.
De-silting
chambers
3 De-silting
Chambers benching 40% completed
-
40.0
2.
HRT-TBM commissioned but no progress
Heading excavation of HRT by DBM has been completed 739 out of 960m. TBM has been commissioned. During operation of TBM in the RBM zone, big boulders have been encountered, which has been hampered TBM operation. To overcome this problem two approach adits are being constructed to reach the cutter head.
Length of Head Race Tunnel is 13.4 km. of this (1) 739 m DBM; and nil HRT has been completed as TBM is hampered. Thus 739/13400+ 5.5% is complete
5.5
3.
Tail Race
Tunnel
In TRT, heading
excavation 443 m out of 3070m completed
Although this is
only excavation, yet giving benefit of doubt we may consider 443/3070=14.4%
complete.
14.4
4.
Barrage
-
As per our
information zero work is done. Silence in CEA Progress report confirms this.
0.0
5.
Electro-
mechanical works
Supply works of Rs.
167.60 Crore has been completed.
Total project cost is 4397 Crore.
The cost of
Electro- mechanical works was
473.64 Crores out of project cost of 2031.64 Crore as per TEC
(Annexure A-17) Pro-rata the cost of Electro- mechanical works will be 1024 crore at project cost of 4397 Crore of this
167.60 Crore of 16.3% is
completed.
6.
Average
15.2
Table No. 2
EAC minutes 29th July
2020 Annexure A-6)
THDC progress report
July 2021(Annexure A-14
CEA Report July
2021(Annexure A-16
Physical progress of major
works including Financial progress as on 30th June, 2020 is as under:
· 25% of Civil & Hydro Mechanical works completed.
· 28% of Electro Mechanical works completed.
Overall investment is Rs.
1971.95 Cr.
Total expenditure is 2271.35 Cr.
Vishnugad Pipalkoti
THDC 21.08.2008 4x111-444 MW Broad features Dam – 65m High 89.3 m long, concrete gravity HRT 13.4 Km, 8.8 dia Horse shoe shape P. House Underground 124m X 20.3m x 50m Turbine Francis SWYD – 13.8/420 KV Cost : Original 2491.58 Latest: 4397.8
Procedural History
The matter was first considered on 08.10.2021. Considering the contentions of the appellants, the Tribunal issued notice to MoEF&CC and the Project Proponent (PP) who filed their respective response. The appellants have filed rejoinder and also additional affidavit annexing their suggestions for further mitigation measures. In the light of rival stands, we proceed to determine the issue of validity of EC.
Stand of MoEF&CC
The stand of MoEF&CC is that the proposal was considered by the EAC as a fresh proposal with fresh data about environmental parameters, project profile etc. mentioned in the REIA alongwith the data in the original EIA/EMP report and the salient features of the project. EAC examined all aspects including compliance of environmental safeguards, conditions of the earlier EC, change in scope of the project, need of repeat public hearing, existing environmental conditions and all possible environmental concerns in a holistic manner. Suitable safeguards and measures were suggested while recommending the project for grant of de-novo Environmental Clearance. Fresh evaluation was conducted by EAC in its 15th meeting held on 27.07.2021. ToR’s covered the salient features of the project. Data relating to environmental aspects has been noted along with the mitigation measures and the Environmental Management Plan to be implemented by Forest Department, PP and the Contractor. There are also provisions for Fish Management Plan, e-flow and other specific and general conditions. Standard EC conditions for River Valley and Hydroelectric projects have also been incorporated. Further, there is a note of discussion in the meeting of EAC held on 28.10.2021 and 25.11.2021 to consider the observation of the Tribunal dated 08.10.2021. Fresh EMP involves Capital Cost of Rs. 1291.03 lakhs.
Stand of the PP
The PP has submitted that delay in completion of the project is not attributable to it. Reasons for delay include proceedings for Forest Clearance and seeking EC de-novo. Fresh EC has been granted on 26.08.2021 on the recommendations of the EAC. The PP submitted Draft REIA report prepared by M/s WAPCOS. In the said report, Cost Benefit Ratio has been presented. There is no requirement of fresh EIA or public consultation as scope of the project has not undergone any major change. Only certain components were optimized in the light of site requirement without changing basic design and main parameters. There is no change in
(i) the purpose and installed capacity of the project;
(ii) Height and Top elevation of the Dam;
(iii) Storage capacities and submergence area of the project;
(iv) Hydrology of the project;
(v) Peak Maximum Flood (PMF);
(vi) Design discharge of the project area is same as stipulated in the DPR.
(vii) The project has been implemented to the extent of 53.05% justifying exemption for public hearing as per applicable norms.
MoEF&CC accorded ToR on 02.03.2021 for preparation of EIA/ EMP based on one-season fresh data. Additional conditions have been imposed in light of changed circumstances to take care of potential adverse impact such as sedimentation, fugitive emissions, blasting operations, pollution due to increased vehicular movement etc. The PP has explained that there are no shortcomings in the REIA which considers the impact of soil erosion, blasting, aquatic bio-diversity, water quality, loss of aesthetic values, presence of RET Species.
The PP has undertaken measures which include installation of watch towers, providing logistic assistance to Forest Department for monitoring of Nanda Devi Bio-sphere Reserve (NDBR), Joshimath and Compensatory Afforestation and other works. There is no potential for flooding on account of the project. The riverbed level near the project has not risen. The deposited muck around coffer dam has also been cleared. Mitigation measures also cover slope stabilization measures such as construction of a diversion tunnel, trail race tunnel area etc.
Additional affidavit and rejoinder of the Appellants
The appellants have filed an additional affidavit on 30.03.2022 along with a copy of representation dated 10.11.2021 made to the EAC suggesting further measures for reduction of environmental and social impact of the project. The appellant has also filed rejoinder to the reply of MoEF&CC and the PP reiterating the stand that the project has not been completed to the extent of 50% and thus, public hearing could not be exempted. It is further reiterated that the project should have been appraised as a fresh proposal. Entire process of scoping, public consultation and appraisal should have been undertaken afresh.
We have heard learned Counsel for the parties and considered the rival submissions.
Consideration of rival contentions and finding
On due consideration, we find that EC dated 26.08.2021 by the MoEF&CC for the project is not liable to be interfered except for laying down additional safeguards and conditions in execution of the project.
As already noted, the initial EC was granted on 22.08.2007. Validity of the EC was for 10 years which was further extended for three years. The project is crucial for generation of electricity in remote areas. More than 50% project has been executed. More than Rs.2000 crores of public money spent. Delay in completing the project has been explained. Thus, there is no illegality in exempting public consultation. Fresh appraisal has been conducted with the help of Rapid EIA and presentations of the PP. Significant environmental issues of soil erosions, blasting, water quality, aesthetic values and loss of aquatic biodiversity have been addressed. Fresh EC has been granted after assessment of adverse impacts due to change in the scope of work, mitigation measures proposed by the PP in the EMP laying down appropriate conditions for the EC. There are provisions in the EMP for Disaster Management Measures, strengthening of impediments and other forcible impacts on fragile Himalayan Geomorphology. Concern of obstructing the movement of fisheries which may adversely affect the local communities has also been taken into account. Impact on habitations upstream and downstream areas by flooding, landslides etc. has also been considered. After order of this Tribunal, there have been further deliberations by the EAC in light of observations of this Tribunal, on consideration of concerns raised by the appellants. EAC found that environmental impacts of the Project have been minimized by the conditions laid down in the EC and enhancement of capital cost of the EMP to Rs. 1291.03 lakhs. It may thus be difficult to hold that grant of EC is without considering the impact on environment.
As noted earlier and shown by the response of the MoEF&CC and PP, there has been a fresh appraisal by the EAC based on REIA, exempting public consultation in view of the fact that more than 50 % of the cost of the project had already been initiated. More than Rs. 2000 crores have been invested in the project which has been executed beyond 50%. The EAC has addressed the issues of environmental impacts including soil erosion, declining water quality, loss of aesthetic value, loss of aquatic biodiversity and impact of blasting and made detailed provisions to offset the adverse impact. It is not necessary to reproduce all the measures envisaged in executing the project which are provided in detail in the REIA. There is no procedural illegality in EC dated 26.08.2021, subject to conditions laid down therein. The project is funded by the World Bank.
However, strenuous monitoring mechanism is required to be provided especially for areas prone to landslides and to prevent damage to the dam and other infrastructure.
There is also need to maintain e-flow in accordance with the norms notified by Central Government Notification dated 09.10.2018 issued by Ministry of Water Resources, River Development and Ganga Rejuvenation (NMCG) and directions of the Tribunal dated 25.9.2019 read with further orders dated 3.12.2019 and 07.09.2020 in O.A. No. 425/2019, Vijay Kumar vs. State of Himachal Pradesh. Relevant extracts from the said orders are as follows:-
Order dated 3.12.2019
“4. The recommendations mentioned in the above report (para 5 quoted above) may be duly complied.
As already observed in the order dated 25.09.2019, maintaining minimum flow is necessary for the riverine ecology and such requirement cannot be dispensed with. The SPCB may ensure compliance of such mandate not only for all the units set up after 09.09.2005 when such regime was introduced prospectively, but also to pre-existing units, for future. The order of this Tribunal does not debar such a course. It merely records statement of Counsel for the applicant that the regime is prospective. Once it is held that such flow is necessary for maintaining riverine ecology, there cannot be exemption to any hydroelectric project irrespective the date of setting up for all times to come. All that can be done for the units already set up is not taking any action for the past and putting them to due notice for compliance from a future date. Since it is stated that an appeal i.e. Civil Appeal No. 1657/2018, Bharat Jhunjhunwala vs Pushp Saini & Ors. is pending before the Hon’ble Supreme Court, the present order will be subject to any further order which may be passed in the said appeal.
We are also of the view that similar course of action needs to be adopted with regard to hydroelectric projects in other States, including Uttarakhand, Sikkim, Arunachal Pradesh, West Bengal (North Region), Assam and Jammu & Kashmir.”
Recommendations referred to above have been quoted in earlier para as follows:
“It is submitted that though now Board has issued directions for release of 15 % water to aforementioned 5 non-complying old projects (i.e. BBMB-Pandoh, Shanan Power House, Chamera-I NUIPC, Chamba, Chamera-H-NHPC, Chamba, Baira Siul Chamba) however these old projects have claimed that they are exempted by the State Govt. decision that notification dated 9-9-2005 has prospective effect and such decision was further upheld by this Hon'ble Tribunal vide order dated 20-11-2014. Moreover, they have also intimated that issue of 15% release of water by all HEPs is sub judice in a Civil Appeal No. 1657/2018 titled Bharat Jhunjhunwala vs Pushp Saini & Ors. before the Hon’ble Supreme Court of India. Therefore, it is humbly prayed that the afore-cited order dated 20-11-2014 may be relooked into or modified keeping in view the situation mentioned above, so that release of 15% water from old projects could also be ensured.
It is submitted that the State Board has issued directions to 21 non-complying HEPs less than 25 MW to adopt the mechanism recommended by Joint Committee for release of 15% water from the 1 IP. so that it could be monitored by the State Pollution Control Board. In this regard some of the projects represented that though they are releasing 15% water from HEN however, they require three months time for installation of necessary devices for measurement of 15% flow. Hence it is humbly prayed that three months time may kindly be granted to ensure implementation of recommendations of the Committee for installation of necessary devices for monitoring/measurement of 15% flow of water from HEPs.”
Further, we find it necessary to lay down additional conditions for grant of EC. Capital cost of EMP will stand increased to 10% of the total project cost. There will be six-member Monitoring Cell to oversee execution of mitigation measures to prevent damage to the dam, the infrastructure and the habitation upstream and downstream the dam. It will be headed by the Chief Secretary, Uttarakhand, other Members being nominees of State Disaster Management Authority, MoEF&CC having expertise in dealing with of River Valley Projects, preferably belonging to Uttarakhand, NMCG, G.B. Pant National Institute of Himalayan Environment, Almora, State PCB and Director of Coldwater Fisheries Research, ICAR, Bhimtal, District Nainital, Uttarakhand. The Committee can coopt any other expert/organisation as may be found necessary. It can conduct proceedings on line or otherwise. It may initially meet within one month to take stock of the situation and plan further action and thereafter, it may meet at such intervals as may be decided but not beyond three months. The Monitoring Committee may consider any suggestions from any stake holder, including the appellants and consider fresh measures to ensure compliance of EC conditions and additional conditions laid down by this order and also such other conditions found necessary for mitigation of adverse measures in the course of the project. Its minutes may be placed on the website of the PP.
The appeal is disposed of accordingly.
A copy of this order be forwarded to the Chief Secretary, Uttarakhand, State Disaster Management Authority, MoEF&CC, NMCG, G.B. Pant National Institute of Himalayan Environment, Almora, State PCB and Director, Cold Water Fisheries, ICAR by e-mail for compliance.