Gadhadhar Samal vs Odisha Pollution Control Board And Ors

This application has been preferred by the applicant alleging that the respondent No. 3, M/s National Thermal Power Corporation which operates Talcher Thermal Power Plant and generates 460 MW of electricity from its six units, was causing pollution of the river Nandira, a tributary of Brahmani river in Odisha, by discharging fly ash water.

The applicant emphasises on the following issues raised in the application :

I. Discharge of untreated effluent to Nandira River : Ash effluents flying in the air is a common phenomenon in the area to which local people have become accustomed. But, now a days, the effluents of chlorine plant and the ash mixed water have been drained out to Nandira directly. The people of Dashanali, Jhadiamba, Tolakulundi, Gurujanguli, Khulua, Diga, Bhogabereni, Abhimanyupur and Anandbazar areas are using the nullah water for their daily consumption. On the other hand, the nullah, which submerges with river Brahmani, pollutes the river water also. Thousands of people living on the banks of river Brahmani from Talcher to Jajpur are also consuming the contaminated water. As a result, they are affected by different diseases.

II. Slurry Ash-Pipe Breach : It is further submitted that the Ash Pipe breach is a regular phenomenon and the respondent company could not bring improvement in the situation all these years. On 10th July 2016, a similar ash breach has been reported at Ghantapada where damage has been caused to property and environment. Further the media (New Indian Express, 11/07/2016) report suggests that "An ash slurry-carrying pipeline of NTPC's Talcher thermal Power Station (TTPS) burst this morning releasing slurry in and around near Talcher Central Colony. The slurry submerged the Talcher South Balanda road and entered some shops. Local residents protested and demanded action against erring officials responsible for this. This was not the first time that the ash pipeline had leaked and affected the area. Earlier, the pipeline of the power plant burst nearing Jaganathapur village and released ash-water for several times, villagers alleged."

The media report further quoted the reaction of a shop owner that says "All of a sudden, a heavy flow of ash water came into our shops. The water rushed into my hotel room, kitchen and flooded my entire shop. We demand compensation from NTPC for the losses. Copy of the newspaper clipping dated 11.7.2016 and 13.7.2016 annexed hereunto as annexure-7.

III. Dumping of Ash slurry in the abandoned coal pit without adequate safeguard :

The voids (South Balanda, Jagannath Colliery) are being filled without protective lining and in some other abandoned coal pits the fly ash are in dry condition and causing air pollution. There are no piezometers and ash level indicator on the filled void. There is serious threat of polluting the underground water. Further the respondent company keeps on raising the height which also poses a threat to life and property of adjoining villages.

IV. Fly ash Ponds Not properly Maintained : There has been some fly ash ponds where the ashes are dumped completely in dry condition and that causes air pollution in the locality. Further there has been no adequate plantation around the Ash ponds. Also pond has breached previously and such occurrence cannot be avoided looking at the negligence in terms of adopting the protective measures. The untreated ash water is being directly discharged from the ash pond into the Nullah that joins with Nandira just 100 mtres away and then Nandira river joins with Brahmani 2 Kms away at Kamalang (Haturipal)village. Further the Ash pipe has been provisioned with leakages wilfully to reduce the pressure in Ash pond by allowing the untreated ash water into nullah, and

V. Endangering the River Ecosystem : That because of the discharge of the untreated waste water including ash, the Brahmani river bed and Nandira is being highly silted and polluted and increasing the frequency of flood in Nandira river."

Based on the above, it is alleged by the applicant as following -

"(a) That the respondent company has been continuously violating the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution ) Act, 1981 in broad day light with least respect to the laws of the land.

(b) That the discharge of untreated ash water into the river is polluting the river as well as deposition of ash in the river/streams/rivulets is leading to the slow death of river eco-system.

(c) That causing damage to the natural ecosystem is against the principles of Public Trust and Sustainable Development.

(d) That the damage to the river ecology warrants invoking of polluter pays principle.

Thus the following reliefs have been sought for in the application :-

"i. Restrain the State Pollution Control Board from renewing the Consent to Operate order.

ii. Direct the Company respondent to restore the land and water bodies to its original condition.

i. Constitute an independent fact finding committee to assess the impact of pollution caused by the company respondent.

ii. Fix the accountability of the public authorities for their inaction and who has allowed the private respondent to violate the environment norms and initiate criminal proceedings against all those under Environment Protection Act, 1986;

iii. Impose exemplary penalty for grossly violating the environment norms and causing environmental pollution and inconvenience to general public.

iv. Direct appropriate authority to initiate criminal proceedings against the company respondent for violating the provisions of Air Act, Water Act and Environment Protection Act.

v. Pass such other orders/directions as may be deemed fit and proper (including appropriately moulding the reliefs) in the bona fide interests of justice."

Upon notice being issued to the respondents, affidavits -in-opposition were filed by the respondents No. 2 and 3 viz. District Collector, Angul and National Thermal Power Corporation respectively.

We may deal with the affidavit-in-opposition filed on behalf of the Respondent No. 3, National Thermal Power Corporation first since the allegations are directed against them.

While responding to the various allegations contained in the OA, more particularly the aspects indicated above, it has been averred by the Respondent No. 3 in their affidavit-in-opposition as follows on each of the allegations:-

"6. With reference to paragraphs 1 to 11 of the said original application, I deny the contention therein, save and except what are matters of record. The answering respondent has already explained in the preceding paragraphs as to how the ash with water is discharged and recycled into the TTPS. In spite of resistance from the village people demanding employment in the TTPS, the respondent No. 3 has taken all care and measures to maintain and protect the pipelines and the area near the ash pond. The latest position will be reflected from the report prepared on 29th September, 2016 in the presence of the applicant himself. A copy of the same is annexed hereto and marked as Annexure "R-8". Therefore, no cause of action survives at the instance of the applicant regarding the subject matter. It is stated that the purported report dated 23rd May, 2016 of the Thesildar Talcher was prepared without informing the respondent No. 3. There are specialised expert bodies, i.e., agencies engaged to maintain the pollution parameters. The specialized expert body, namely the Odisha Pollution Control Board has already certified that the water in the Nandira rivulet was confirming to the pollution standards. Nobody has ever complained regarding discharge of polluted affluent into the Nandira rivulet or about the functioning of TTPS causing environmental pollution. Records maintained with TTPS reveal that the applicant is the sole complainant regarding pollution issue in respect of operation of TTPS. The local villagers have not complained about the same.

Regarding the contention made in paragraph 12 of the said original application, it is submitted that the same are baseless and misconceived. The original application is not about air pollution. It is denied that effluents of chlorine and ash mixed water are drained to Nandira rivulet directly. The answering respondent relies upon the report dated 18th December, 2015 prepared by the representative of the Odisha Pollution Control Board in this regard.

Regarding the slurry ash pipe breach, it is stated that the issue has been immediately addressed and the leakage has been repaired by experts. There are several compliance reports filed thereafter by the respondent No. 3 which have already been annexed to this affidavit. The incident which occurred on 10th July, 2016 owing to leakage of the pipeline carrying ash with water from the TTPS to the void mine has also been addressed. The pipeline is of 300 millimetre diameter and tit is wholly impractical for anybody to contend that leakage from a pipeline through a single 300 millimetre long and 10-12 millimetres wide crack would cause the entire area to be filled up with slurry or such slurry would submerge the Talcher -South Balanda Road. The media reports are not based on cogent evidence, and are unreliable. At the most there could be a discharge of 6 cubic meters of ash approximately.

In any event after the accident of 10th July, 2016, the respondent No. 3 has submitted a new and modernized/improved action plan for maintenance of pipelines to the Odisha State Pollution Control Board.

Regarding dumping of ash slurry in the abandoned coal pit, it is stated that adequate safeguards and measures have been taken by the respondent No. 3 to transport the same through pipelines. The periodical Consent to Operate as issued by the Odisha State Pollution Control Board is a clear indication of the answering respondent's confirming to the norms. That apart, the decanted water is carried back to the TTPS and the deposited fly ash, once reaches upto a certain height in the pit, will be covered with a layer of clay. Thereafter, the area will be afforested by respondent No. 3. As many as about 1.89 lacs of plants have been planted so far on and near the ash pond. Similarly, afforestation has been carried out around the void mine where ash is being deposited, by Mahanadi Coalfields Limited. It is place worthy in this context that the mine is being managed by Mahanadi Coalfields Limited with which the respondent No. 3 has an agreement. The safety of the mines is done by Mahanadi Coalfields Limited under the provisions of the Mines Act and various safety regulation framed thereunder.

Regarding the allegation of non-maintenance of fly ash pond, it is stated that the same is being regularly maintained by experts. The ash water is discharged to the ash pond, if at all required in case of emergency. The Odisha State Pollution Control Board has issued Consent to Operate of TTPS, subject to the conditions for discharge of ash with water in the ash pond.

Regarding the allegation of endangering the river ecosystem, the contention therein are wholly denied. It is also denied that the Brahmani River and the Nandira rivulet is being silted and polluted resulting in the increasing frequency of flood as alleged."

As would appear from the above pleadings which specifically address all the allegations, it is found that the contentions of the applicant do not appear to be substantiated.

The only allegation that appears to have some substance is with regard to the breach in the slurry ash pipe which has also been dealt with in paragraph 8 of the affidavit-in-opposition of respondent No. 3 reproduced above. The fact that the respondent No. 3 has proposed a new modernised/improved action plan for maintenance of the pipeline to the State PCB takes care of any future threat of such breach in slurry ash pipeline from recurring.

The applicant in his rejoinder has not denied or contradicted any of the facts in the affidavit-in-opposition of the respondent No. 3 except to question the correctness of the report on test of the water samples taken by the State PCB on the ground that the samples had been taken during the rainy period.

It would be relevant to note that by order dated 1.9.16, we had directed the State PCB, i.e. Respondent No. 1, to take the following action :-

"In the meanwhile, the State PCB, viz. Respondent No. 1, shall inspect the area in question and verify on the fact stated in the application and submit a report in this regard. In the event the allegation is found to be true the State PCB is at liberty to take necessary steps in exercise of the powers vested with them."

In compliance to the aforesaid direction the State Board had carried out an inspection of the respondent No. 3 Thermal Power Plant on 15.9.2016 and after verification, a detailed report was submitted by an affidavit filed on 19.10.2016. The report of the State PCB being relevant is reproduced in extenso below :-

"Environmental Pollution Control Measures adopted by the industry :-

The ESPs have been provided at all 6 units. In order to further control the stack emission in unit V & VI, the industry has already completed the retrofitting and augmentation of ESPs of unit V and for unit-VI, it is under progress.

The industry has installed PLC based Ammonia Flue Gas Conditioning system(AFGC) in all four units ( 4x60 MW of state-I) to control the particulate matter emission from the stacks.

For waste water treatment the unit has provided coal settling tank ( having 2 chambers & each chamber having 4 compartments receives waste water containing coal dust from the coal yard area, ash from ESP area & ash handling system.

The industry has provided 2 Nos. of waste water re-circulation sump for reuse of treated water. And also industry is having two nos. of ash water reservoir of AWR-I & AWR-II of capacity around 8137 m3 and 3270 m3 respectively. The decanted water from the reservoir is pumped to stage-I and stage-II ash slurry making tanks for making ash slurry. The industry has laid down 12 km long pipelines for discharging the ash in lean slurry form from the plant site to mine void of South Balanda coal mine of MCL.

For treatment of domestic waste water of the township and industry, the common STP of 2.65 MLD is operational. The treated water of STP is used for horticulture purpose.

Issues raised on the application :-

The area in the application was inspected and present status is given as follows :-

Observations :-

Discharge of untreated effluent of Nandira river :- The stack emissions and Ambient air quality were measured during last inspection on dtd. 12.08.2016 and dtd. 21.06.2016 and the particulate matter in stack and respirable particulate matter are within prescribed standard. The analysis result is enclosed (Annexure-I to Annexure-IV). The applicant has alleged specifically about the discharge of untreated effluents to Nandira River. There was no discharge of untreated effluents from the plant premises to outside. In order to ascertain the discharge of untreated effluents to Nandira Nallah, water samples were collected from upstream and downstream of M/s TTPS (NTPC), Talcher of Nandira River and analysis result is enclosed ( Annexure-IX). The analysis result reveals that the water quality is within designated best use ( class-C) water.

Slurry ash pipeline Breach :- There was a leakage occurred in the 1A series pipeline of stage-II near the coal transfer point No.2 on dtd. 10.07.2016 which was inspected and during inspection it was learnt that due to this leakage ash slurry has been spread over to nearby road area and coal conveyer line. The industry has detected the leakage and stopped the discharge of ash into mine void at 7.30 AM on dtd. 10.07.2016 as verified from the record f the industry. A direction was issued to the industry vide Board's letter No. 2466 dtd. 12.07.2016 for immediate action and remedial measures. The industry has replied to the direction vide their letter dtd.19.07.2016 with action plan as a part of compliance ( Annexure-V & VI).

Dumping of ash slurry in abandoned coal pit without adequate safeguard :- The industry has made provision to dispose the ash generated from the industry into mine void of Soputh Balanda coal mine of MCL in lean slurry form. The industry has laid down 12 km long pipelines for discharging the ash in lean slurry form from the plant site to mine void of South Balanda coal mine of MCL. The unit has installed 3 Nos. of pumps of 500 m3/hr capacity each for the ash water recirculation pipe lien for re use in plant. On the day of inspection it was observed that the ash generated from the industry is being discharged into mine void of South Balanda coal mine of MCL in lean slurry form. The industry has provided two nos. of piezometric well near the Quarry-3B and near Checkdam of the mine void. The ground water samples were collected from the tubewell surrounding of the mine void during year November, 2014 to assess the impact of mine void ash disposal on the ground water during a study conducted by a committee constituted by Hon'ble NGT on dtd. 10.11.2014 did. 24.12.2014 and dtd. 07.01.2015 with Member Secretary, CPCB as chairman of the committee. The committee has submitted its report during January 2015 stating that all values are within permissible levels of BIS guidelines expect total Iron. The Total Iron concentration exceeds which may be attributed to geogenic factor.

Fly ash ponds not properly maintained :- The industry is also having contingency ash pond ( lagoon-I) of around capacity 2.70 lakh M3 which was not in operation during inspection. The industry has provided decantation well inside the ash pond, after decantation the water moves to the settling lagoon by gravity flow. After settling it goes to the plant by pumping for reuse. The industry has disposed ash to the contingency ash pond ( Lagoon-I) during the period from dtd. 30.11.2015 to dtd. 04.12.2016 during maintenance of slurry pipeline leading to Mine void and due to some problem in submersible pump at mine void as intimated by the plant representative. During inspection on dtd. 16.12.2015 and verification of records of Ash handling plant, it was revealed that the industry has disposed the ash into contingency ash pond from dtd. 30-.11.2015 to dtd. 04.12.2015 fro five to six hours on an average per day due to motor problem in the submersible pump at the abandoned quarry No. 2 of South Balanda coal mine of MCL.

During the inspection on dtd. 16.12.2015 ti was also observed that there was a circular opening of about 4 inch dia. In the return water pipeline of contingency ash pond and ash water might have been discharged through this opening to a small channel. A direction was issued to the industry vide this office letter No. 3870 dtd. 26.12.2015. The industry has completely stopped discharge and repaired leakage as per compliance letter submitted on dtd. 02.01.2016 ( Annexure-VII & VIII).

Endangering the river Ecosystem :- The water samples were collected from different locations of Nandira River and Brahmani River for analysis. The water samples were collected from Nandira River at upstream of M/s TTPS (NTPC), Talcher near Jagannathpur village downstream of M/s TTPS (NTPC), Talcher near NH-23 culvert in order to assess the impact of M/s TTPS (NTPC), Talcher. The water quality parameters i.e pH, DO and BOD are within that of Designated Best use ( Class-C) river water. The water samples were collected from other sampling locations i.e Nandira river after mixing with Santhapada nallah and before mixing with Brahmani River and from Brahmani river. The water quality analysis report is enclosed in Annexure-IX. The water quality parameters i.e pH, DO and BOD at above locations and Brahmani river at Upstream and downstream of Nandira river mixing point are within that of Designated Best use (Class-C) river water."

It would appear from the above, that the report of the State PCB confirms the contentions of the respondent No. 3 in their affidavit-in-opposition reproduced earlier. We do not find any reason as to why we should doubt the correctness of the report of the State PCB which is an independent statutory authority.

Therefore, in our considered view, the allegations contained in the OA are evidently not based on correct facts.

For the reasons stated above, we find no merit in the original application.

It is accordingly dismissed.

In the facts and circumstances, no order as to costs.