AI Structured Summary
Not yet generated for this judgment
Judgment
Since facts and points of law involved are identical, both these OAs, are taken up together for disposal by this common order for reasons of convenience.
This application has been preferred under Section 14 of the National Green Tribunal Act, 2010 by the applicant, Shri Subhas Datta, who is an environmental activist raising substantial questions relating to hazardous damage being caused to the environment by industries engaged in the manufacture and/or processing of Carbon Black which is said to be a known Carcinogenic substance. It is stated that as per the EIA Notification dated 2006, an industry engaged in manufacture and or processing of Carbon Black requires prior environmental clearance.
Without delving into the scientific and technical aspects pertaining to Carbon Black which would not be necessary for the disposal of this application, it will be sufficient to note that the case of the applicant is that the Respondent No. 3, M/s Himadri Chemicals and Industries Limited, is a major manufacturer of Carbon Black. The unit having been set up in July, 2009, it had carried out capacity expansion of about 140% in the year 2011 for which also, as per the applicant, prior environmental clearance was necessary to be obtained under the EIA Notification. It is alleged that the industry does not have such clearance including for its subsequent expansion.
The applicant contends that since Carbon Black industries which the Respondent No.3 manufacturer falls within Entry 5 (e) of the EIA Notification, 2006 which provides for " Petrochemical based processing (processes other than cracking and reformation and not covered under the complexes )" as well as Entry 5 (c) of the Notification providing for "Petrochemical complexes ( industries based on processing of petroleum fractions and natural gas and/or reforming to aromatics)" they necessarily require to obtain prior environmental clearance.
It is alleged that respiratory protection used in the unit is of degraded quality and causes damage to the environment by emitting noxious and toxic gases and carbon particulate matters containing smoke into the air through its Chimneys, discharging effluent in nearby water bodies and causing sound pollution due to operation of heavy machinery.
Based on the above pleadings, the applicant inter alia prays for an order for permanent injunction restraining Respondent No.3 from operating or carrying out with the activities of manufacturing of Carbon Block and to direct the West Bengal Pollution Control Board to withdraw the 'consent to operate' granted to them and to take immediate steps for closure of the unit.
The application has been firmly contested by the Respondent No.3, the Project Proponent who in their reply, while denying all material allegations, has stated that under the EIA Notification, 2006, only such Carbon Black manufacturing units using petroleum based oil as raw material require environmental clearance. The process of Carbon Black manufacturing adopted by Respondent No.3 does not involve use of any petroleum product as raw material but only coal tar based feed stock and, quite contrary to what has been stated by the applicant, Carbon Black does not contribute to form carcinogenetic evidence on human. It is also averred that since the process of its manufacture is the latest in the world, there is no emission of toxic fumes in excess of the permissible limit. The unit neither generates any solid waste nor does it not make the water dirty or toxic and the air emitted from the plant is not harmful.
Before proceeding further, it is relevant to note that this Original Application was initially filed before the Principal Bench, at New Delhi and by order dated 5.10.2014, it was transferred to this bench before which it appeared for the first time on 23/05/2014.
Original Application No. 109/2014/PB/26/EZ which is also under consideration in the present proceeding, was filed before the Principal Bench just after Original Application No.77/2014/PB/1/EZ and in both the cases, identical questions arise and are directed primarily against Respondent No.3. Thus vide Order dated 10.10.2014, it was directed that both the cases be heard together which has also been noted in Order dated 31.05.2015.In Original Application No. 109/2014/PB/26/EZ, vide order dated 08.07.2014, direction had been issued upon the Central Pollution Control Board to inspect the industry of the Respondent No.3 (Respondent No.5 in Original Application No. 109/2014/PB/26/EZ) and ascertain as to whether or not they had taken the necessary measures for checking air, water pollution and pollution caused by hazardous waste generated by the industry and also as to whether the industry was discharging effluent into the drains leading to the agricultural fields or other water bodies in the vicinity. The Central Pollution Control Board (CPCB) and the West Bengal Pollution Control Board (WBPCB) had also conducted a joint inspection in terms of order dated 14. 8.2014 passed in Original Application No. 77/2014/PB/26/EZ and, as per the reports submitted by them, the unit was found to be compliant with the laws and was a zero discharge unit. We reproduce the concluding part of the report of the Central Pollution Control Board for convenience : -
"The inspection report is enclosed herewith as Annexure-I. Following are the conclusions made by CPCB :
Water pollution
The Industry is utilizing all its effluent after treatment for quenching purpose in carbon black process and thus maintaining zero discharge. Only through separate line domestic effluent is being discharged into Nayanjali drain.
Air pollution
Thus industry has installed scrubbing system at venting points in reactors and storage tanks in all five nos. Of scrubbing system has been installed. Seal pots to scrub the vapour from low temperature storage tanks has been provided. Distillation process is carried out under vacuum and vacuum system has been connected to the scrubbing system.
Opacity meter in stacks has been provided to check the dust monitoring.
In SNF plant to collect the dust from the dyers, bag filters has been provided after the cyclone.
Hazardous Waste
The industry is having arrangement with Ramky Environment Engineers which is approved hazardous waste management agency for disposal of all solid waste and solid waste generated from the plants is transported to the secured landfill sites periodically.
Based on the inspection the following recommendation is being made:
The industry should get its consent revised and only one outlet should be mentioned in the consent to operate."
Thus, the CPCB report clearly reveals that the unit maintains zero discharge utilizing all its effluent after treatment for quenching purpose in carbon black process. The domestic effluent is discharged through separate pipe line into Nayanjali drain. Air pollution is controlled by scrubbers, bag filters etc. The hazardous solid wastes are disposed of through approved hazardous waste management agency and solid wastes generated from the plants are transported to the secured land fill sites periodically.
As observed earlier, pursuant to our direction dated 14.8.2014, a joint Team of Scientists and Engineers from CPCB and WBSPCB carried out another inspection on 27th and 28th August 2014 in presence of the officials of M/s Himadri Chemicals and Industries Limited and filed a detailed report annexed at page 728 of the OA with the following conclusion :-
"The Hon'ble NGT vide its order dated August 14,2014 has directed CPCB and WBPCB to see that the project proponent manufacturing units confirm to the pollution norms and file a status report on the next date of hearing. In compliance of above directions, the industry was monitored on August 27-28, 2014 and found to by complying with the air emission norms in all the eight stacks. The industry is not discharging any effluent into the drain. The treated effluent collected and used for quenching purpose also found to be complying with the norms. As per the order of the WBPCB dated March 26, 2014, the industry has constructed tanker yard inside its premises to stop parking of tanker on the outside service road and thereby, to prevent contamination of the canal water due to washing of the tankers on the said service road."
Sd/- Somnath Naryan Sd/ Paritosh Kumar
Senior Environmental Engineer, WBPCB Additional Director, CPCB "
The report thus finds reiteration of the one submitted by the CPCB that the industry is not discharging any effluent and, therefore, maintains zero discharge.
It may be relevant to bring on record few facts based on the affidavit filed by the WBPCB at page 926 on the past performance of the unit during 2010 upon receipt of complaint against M/s Himadri Chemicals and Industries Ltd., the Respondent No.3, for causing environmental hazards, the WBPCB had held a hearing in the matter on 23.3.2010 and considering the inspection report of the Chief Engineer (Operation and Execution), the unit was directed to comply with the environmental norms and to install pollution control system within 31.5.2010. The record of proceedings of the hearing dated. 23.3.2010 and the inspection report reads as such, -
1.
Date of hearing with time
23-03-2010 at 16.00 hrs.
2.
Purpose of hearing
To discuss about the alleged environmental hazards generated by M/s Himadri Chemical Industries, having its factory at Durgapur Expressway, Vill. & P.O. Mohistikari, P.S. Haripal, Dist. Hooghly, W.B. (Registered Office 1t 23A, Netaji Subhas Road, (8th Floor), Suit No. 15, Kolkata - 700 001.)
3.
Venue of the hearing
Hearing Room 4th Floor, "Paribesh Bhawan", Salt Lake, Kolkata.
RECORD OF PROCEEDINGS
Department of Environment and West Bengal Pollution Control Board (hereinafter will be referred to as the 'State Board'), received public complaints against M/s Himadri Chemical Industries, situated at Durgapur Expressway, Vill. & P.O. Mohistikari, P.S. Haripal, Dist. Hooghly, W.B., for causing serious environmental hazards in the surrounding areas.
2.In view of the aforementioned scenario, State Board arranged a hearing on 23.03.2010 to example the issue and check the status of compliance of environmental norms. During hearing, Shri Santanu Chatterjee, Vice President HRD Admn., Shri Sk. Ajijul Haque, DGM-Process, Shri Swapan Bhadra, Executive and Shri S. Chakraborty, Jt. President, appeared on behalf of M/s Himadri Chemicals Industries.
3.Shri Subrata Ghosh, Chief Engineer (Operation & Execution) of the State Board visited the industry personally taking into consideration of the gravity of the situation. During inspection it was palpably pr5oved that the unit has not yet complied with the statutory environmental norms. It is also observed that there is problem of sound pollution and also pungent smell generated from the manufacturing processed which engulfed the surrounding areas.
There is no doubt that smell is a positive nuisance as observed by Hon'ble Supreme Court in connection with Matter No. 3727 of 1985 (M.C. Mehta-vs-Union of India & Ors.)
4.During hearing, the analysis report of effluent discharged from the industry is placed on record. Copy of the same is also handed over to the industry wherein it is observed that the discharged parameter of oil and grease is 2057.0 mg/l against the permissible value of 10 mg/L. Apart from oil and grease, the industry has also failed to meet the norms in respect of other parameter4s. In this connection, it is worthwhile to mention that Hon'ble Supreme Court of India in connection with Matter No. 3727 of 1985 (M.C. Mehta -vs- Union of India & Ors.), closed down number of industries for violation of envir5onmental norms. Hon'ble Supreme Court also observed that the units who failed to erect pollution control system have no right to operate.
5.Considering the Hon'ble Supreme Court order, it is a fit case for closure. But as it is learnt that almost 300 (three hundred) workers are working in the said industry and considering the fate of the workers we are restraining ourselves from issuing closure order against the said unit at this stage.
The unit committed during hearing that the said industry will meet the environmental norms within a period of two months and also adopt required pollution control system. The Managing Director of the unit is directed to submit an undertaking stating therein that they will comply with all the environmental norms and will erect pollution control system within 31-05-2010 peremptorily.
Today industry appeared without any explanation and reply in respect of the allegation made against them by the affected people of the area where industry is situated.
Hence, industry is directed to submit their explanation against the complaint made against them within seven days from hereof. Thereafter, the matter will once again be heard on 30-04-2010 at 1600 hrs.
In the meantime, State Board will constitute a committee involving outside experts to visit the site to examine the entire issue as raised by the complainants. The Committee may be consisting of the following members:-
a) Prof. Arunava Majumdar, Ex. Director, All India Institute of Hygiene & Public Health.
b) Dr. Aniruddha Mukherjee, Prof. & Head of the Department, Environment Science of Calcutta University.
c) Shri Somenath Narayan, Senior Environmental Engineer, Kankinara Circle Office, W.B. Pollution Control Board.
Shri Narayan, will act as Convener of the Committee. The said Committee will visit the site to investigate the entire matter, specially considering the contents of the complaint and submit report on or before 30-04-2010.
Presently, the unit is directed to submit a Bank Guarantee of Rs.25,00,000/- (Rupees Twenty Five Lacs) only, and also submit a 'Pollution Cost' of Rs.5,00,000/- (Rupees Five Lacs) only, within seven days from hereof. The 'Pollution Cost; will be utilised for environmental upgradation of the concerned area.
REPORT
Department of Environment and West Bengal Pollution Control Board received public complaints against M/s Himadri Chemical Industries, situated at Durgapur Expressway, Vill. & P.O. Mohistikari, P.S. Haripal, Dist. Hooghly, W.B. for causing serious environmental hazards in the surrounding areas.
In view of the afore-mentioned scenario, West Bengal Pollution Control Board arranged a hearing on 23.03.2010 to examine the issue and check the status of compliance of environmental norms. In the said hearing, a committee was constituted with the following members to visit the site to examine the entire issue as raised by the complainants.
a) Prof. Arunava Majumdar, Ex. Director, All India Institute of Hygiene & Public Health.
b) Dr. Aniruddha Mukherjee, Prof. & Head of the Department, Environment Science of Calcutta University.
c) Shri Somenath Narayan, Senior Environmental Engineer, Kankinara Circle Office, W.B. Pollution Control Board(Convener of the Committee).
A letter vide Memo No. 1765/SL/WBP/2010/H dated 01.04.2010 in this respect was issued to the Members of the Committee by West Bengal Pollution Control Board. Accordingly, the committee members visited the site on 24.04.2010 at 10-30 A.M.
M/s Himadri Chemicals and Industries Limited, was established in 2005. The unit utilizes the following raw material (Ref. Documents submitted to West Bengal Pollution Control Board).
Raw Materials
Quantity per Month
Coal Tar/Coal Tar Pitch
7500 M.T.
Heavy & Light Creosote Oil
1350 M.T
Coal Tar Distillate
8300 M.T
HSD
390 Lt.
The unit produces the following:-
Product
Production capacity per month
Average Production per month
Coal Tar Pitch
5000 M.T.
4700 M.T.
Heavy & Light Creosote Oil
5350 M.T.
2000 M.T.
Crude Napthalene
570 M.T.
350 M.T.
Carbon Black
4167 M.T.
4000 m.t.
Tail Gas
31252500 Nm3
31252500 Nm3
The unit is a Special Red Category Industry. It has coal tar distillation system. The industry draws ground water in the tune of 125 m3/day. The unit has an Effluent Treatment Plant (ETP) which comprised of the following:-
. Oil separation
. Anaerobic Treatment of Effluent
. Physico-Chemcial Treatment
. Setting Chamber
. Aeration Tank
. Secondary Clarifter
. Filtration
The air pollution control devices include four bag houses and scrubber.
The following observations could be made after visiting the site:-
i. There is no flow measuring device in Effluent Treatment Plant and as a result quantum of effluent getting discharged from the factory could not be measured.
ii. The Effluent Treatment Plant functions is batch process.
iii. The layout of Effluent Treatment Plant was found to be erratic as functioning of the Effluent Treatment Plant depends on pumping at different stages.
iv. There are two anaerobic tanks after equalizations tank. The detention time of anaerobic reactor was found to be inadequate. The performance of anaerobic tank could not be assessed at site for want of monitoring data.
v. The acration tanks (2 Nos.) were found to be operating under batch system. The diffused aerators were not producing find bubbles to achieve higher oxygen transfer efficiency. The officials of the industry stated that they have augmented the blower capacity from 200 m3 air per hour to 600 m3 air per hour already though West Bengal Pollution Control Board hasdirected to increase the blower capacity to 800 m3 air per hour. The oxygen transfer efficiency in diffused aeration system depends on bubble size and depth of water. The industry must estimate the blower capacity considering the bubble size and depth of aeration tank as well as oxygen requirement in the reactor. The D.O. could not be measured at site during inspection. The industry must make arrangement for regular monitoring of D.O. in the aeration tank in the interest of Effluent Treatment Plant.
vi. The aeration tank operate under extended aeration system.
The supervisor of the Effluent Treatment Plant stated that MLSS of 2500 mg/1 is maintained in the aeration tank. But the said person was found to be ignorant about MLSS. It seems that the industry is not paying proper attention for better functioning of Effluent Treatment Plant. Further they never monitored D.O. in the aeration tank.
vii. The secondary clarifier was found to be at higher level than the aeration secondary clarifier for settling. It is doubtful whether requisite return sludge is added in the aeration tank. During site inspection no bacteria culture tank was found in the Effluent Treatment Plant.
viii. The Effluent Treatment Plant has arrangement to by-pass the unit operat5ions of treatment plant.
ix. The aerobic reactor could not function properly so far due to inadequate oxygen supply through diffused aerator. Hence, there could be chances of discharge of partially treated waste water in the nearby canal.
x. The treated effluent is initially added in the cooling pond and the over flow is discharged in the outlet drain. During inspection, no discharge of waste water was coming out from the cooli9ng pond. However, in the outlet surface drain waste water flow was detected. So there remains a possibility of water mixing with the treated effluent.
xi. Severe noise pollution was detected in and around the Effluent Treatment Plant. At a distance of 6 metre from the blower the sound was measured as 92 decibel.
xii. There is a problem of sound pollution in the factory. The representative of the factory stated during the inspection that if three reactors are operation then so und pollution will be lesser. However, at present two reactors are mostly operated at a time and accordingly sound pollution could be higher.
During inspection the sound measured at the factory boundary between 61 and 66 decibels.
xiii. There is odour problem in and around the factory. Odour problem may cause severity due to short coming of pollution control system as well as release of tail gas. However, on the day of inspection of odour problem was minimum.
xiv. The air pollution control devices were found to be functioning during the inspection. There was no on line emission monitoring system. Extent of air pollution could not be assessed during the inspection.
xv. The treated effluent from the factory initially gets discharged in Nayanjuli and then crosses the Durgapur Expressway through a culvert and flows along opposite direction. The land owners opposite to the factory (other side of Durgapur Expressway) may be using the water for irrigation. Hence untreated/partially treated effluent if discharged may cause damage to the crops. It may be commented that earlier when Effluent Treatment Plant was not working properly (aeration was inadequate) partially treated waste water might have discharged in the Nayanjuli and that may have caused problem to the cultivators.
xvi. There is a risk of odour problem if proper attention is not paid for operation and maintenance of all the units. Such problems could be intermittent and would depend on climate condition.
xvii. The plantation in the factory was found to be inadequate.
xvii. The committee member during the inspection could not meet the complainants as they were absent, even though they were informed by the Convener5 of the Committee. The letter of complaints was placed before the committee members by the Convener. However, damage could not be ascertained during one day visit. It may require more visits, inspections and discussions with the complainants and others for assessing the damage.
RECOMMENDATIONS:
Oil and grease trap and API oil separator must be installed immediately.
The performance of Anaerobic Reactor in the Effluent Treatment Plant should be assessed and a report in this regard may be submitted to West Bengal Pollution Control Board.
The functioning of Aeration tanks (aerobic reactor)must be assessed on regular basis and following parameters are to be tested and documented.
. pH
. Input and output BOD
. Input and output COD
. Input and output Phenol
. Input and output NH4-N
. Input and output Cyanide
. D.O. of aeration tank.
MLSS and MLVSS in Aeration Tank.
The aeration system may be improved considering oxygen requirement in the Aeration Tank.
Flow measurement devices are to be installed at different places of Effluent Treatment Plant as well as final outlet point.
The outlet drain from Effluent Treatment Plant should remain separated from storm drain.
Bacteria Culture Tank may be developed for Effluent Treatment Plant so that bacteria could be charged in the Aeration Tank at regular interval.
The sound pollution in and around Effluent Treatment Plant must be stopped immediately.
Efforts need to be taken by the industry to keep noise level in the Ambient Air within the permissible limit.
Tail Gas should not get escaped from the factory and accordingly the factory authority should be more vigilant.
As reason for odour problem is known to the factory management so all efforts need to be taken to control the same and to keep within tolerance limit.
A green belt around the factory may be initiated immediately. More plantations are recommended.
The laboratory may be upgraded immediately.
The industry may submit status of pollution control with respect to air, water, noise etc. Fortnightly to the Pollution Control Board.
`West Bengal Pollution Control Board may assess status of pollution control with all respect on monthly basis.
This report may be treated a Interim. Report as the complainants could not be met during the inspection. Further, it can be mentioned that the said unit has started its production in the year 2005 and previous inspection reports of the State Board dated 13-01-2010 and 10-03-2010 are also annexed herewith which palpably prove that the said unit appears to be very reluctant to adopt pollution control system since its inception. There is no doubt that discharged polluted water from the said unit affected the surroundings badly. However, further diagnosis is required in this regard and some surprise inspection is necessary to oversee the functioning of pollution control system adopted by the unit at present, which is still appears to be far from satisfactory level.
Sd/- Sd/- Sd/-
(Somnath Narayan) (Prof.Aniruddha Mukherjee) (Prof.Arunabha Majumdar)
Sr. Environmental Head, Deptt. of Environmental All India Institute of Hygiene
Engineer .WBPCB Science, Cal. University & Public Health "
However, subsequent inspection undertaken on 7.3.2011 by the scientists of the State Pollution Control Board, as annexed at page 960-961, revealed that air and water quality parameters of the samples collected on 7.3.2011 were within the prescribed norms of CPCB. The Record of Proceedings dated. 24.5.2011 as annexed at page 963 reads as follows :-
"Record of Proceedings dated 24.05.2011
(Re: W.P. NO. 6852 (W) of 2011)
The representatives on behalf of M/s Himadri Chemical Industries, Durgapur Express Way, Vill. & P.O. Mohistikari, P.S. Haripal, Dist. Hooghly, West Bengal appeared and made their submission in details.
The State Board has caused an inspection on 07.03.2011 and during inspection samples were drawn in respect of both air and water. From the analysis report of the said collected sample it appears that all the parameters are within the prescribed norms of CPCB. But the unit has not yet applied for NOC for the expansion of their project.
In view of the repeated complaint against the said unit and considering the precautionary principle, we are in view that the unit should install some machines for 24 Hrs. Measuring of the air quality and the industry should submit such report to the State Board every month. Such Air Quality Monitoring Stations should be installed within 10th June, 2011 positively. For installation of such Air Quality Monitoring Stations the said unit is at liberty to take assistance from any of the recognised laboratory of the State Board, if situation so demands. The unit should take full responsibility in all respect regarding installation of such Air Quality Monitoring Stations. We make it clear that the State Board will make some surprise visit to see the activities of such Monitoring Stations. The concerned Regional Office may inspect the said unit from time to time and submit report.
Regarding expansion programme of the said unit, it is made clear the same will be considered only after obtaining analysis report regarding the activities of the said unit. Till such period the unit must not take any steps towards its expansion. Formal order will be issued in due course.
Sd/-
(Biswajit Mukherjee)
Chief Law Officer"
Thus, although the 2010 report of the WBPCB on the performance of the Unit was not at all satisfactory, the subsequent inspections conducted separately by the West Bengal Pollution Control Board (WBPCB) and the Central Pollution Control Board (CPCB) and thereafter the Joint inspection carried out by the CPCB and WBPCB, did not detect non-compliance on any of the pollution norms by the unit
. Since the inspections were carried out by Experts from the independent Statutory Bodies, we do not find any reason as to why the reports should not be accepted .
Another incident that requires mention, though peripheral is that during pendency of the application, MA No. 04/2014/EZ was filed by some villagers of the area seeking to be impleaded as interveners in the OA as persons affected by the pollution alleged to have been caused by the Project Proponent which we allowed as it was felt that their presence could be of assistance for arriving at an appropriate decision. Similar application being MA No. 07/2014/EZ filed by another group seeking the same relief but in support of the Project Proponent, was also allowed vide order dated 14.08.2016.
On 14.08.2016, Learned Senior Counsel representing the first group of villagers submitted that EIA Notification 2006 required petrochemical process units to obtain prior Environmental Clearance and, the Respondent No. 3, being a petrochemical based unit, should not be allowed to carry on with their operation until Environmental Clearance was obtained by them from the MOEF. Rebutting such contention, Mr. Raj Panjwani, Ld. Senior Counsel appearing for the Project Proponent on the other hand argued that their unit is coal tar based, and the amended notification issued by MOEF dt. 25.06.2014 for the first time included coal tar processing units for obtaining prior Environmental Clearance which would be applicable only prospectively and emphasised that the amended provision would not apply to the coal tar-based units existing prior to the amendment .
However, we noticed that in Order dated 29.03.2011 of MoEF granting EC to another industry viz. M/s Continental Industries, Gaziabad, UP, it contained a condition which in conflict with the above position which reads as follows:-
"5.0 . All the carbon black manufacturing units are covered under petrochemical based processing units and listed at S.N. 5(c) under category 'A' due to location outside notified industrial area and apprised at the central level."
In view of the incongruity we, by order dated 14.08.2014, inter alia, directed the MoEF to clarify the position, particularly in relation to condition No. 5 in the EC letter issued to M/s Continental Industries Limited dated 29.3.2011 and its origin. However, no satisfactory reply was forthcoming from the MoEF except for Mr. Somnath Bose Learned Counsel appearing for the Ministry to vaguely submit on 12.09.2016 that a notification had been issued in the year, 2014. The EC condition being in apparent conflict with the EIA Notification which could not be explained by the MoEF, in our considered opinion need not delay as further.
We may, therefore, now advert on the point of Mandatory requirement of prior Environmental Clearance by the unit which is the sole prayer of the main Applicant, Mr. Subhas Datta. Before we deal with this aspect, it may be relevant to discuss on the different operational units of the plant. M/s Himadri Chemicals and Industries Ltd. has three different units set up at Mouza & Village Mahistikary, PO & PS Haripal, Dist. Hooghly, which are as under :-
Sl.No .
Unit
Year of Start Commissioning of construction
Latest consent to operate Granted on
1.
Coal Tar Pitch
2004 2006
22.04.2014
2.
Carbon Black
2008 2010
-do
3
12 MW CPP
2009 2010
-do-
The nature and character of the three units may be set out below :-
1.Coal Tar Plant (Installed Capacity- 3,22,000 TPA): Coal Tar (a mixture of Aromatic Hydrocarbons) is procured from various steel plants and also imported, which is a by-product of Coke Oven Plant, wherein coking coal is converted to low-ash metallurgical coke. It is stored in the storage tanks of capacity 60,000 m3 of Coal Tar. The Coal Tar is distilled under vacuum with complete close loop system to obtain different by-products viz., carbon black oil, coal tar pitch, naphthalene and other oils. As informed by the project, all these by-products are partly used in the plant and partly sold to different customers. Waste water generated from different units is treated in the CETP and Water Recycle Plant (WRP) and is mainly used for quenching of Carbon black.
Carbon Black (Installed Capacity- 1,20,000 TPA): It is manufactured from carbon Black Oil obtained from the Coal Tar unit is pyrolized in a specially designed refractory lined reactor between 1900o C to 2000o C temperature. The Carbon Black laden gas transferred through different heat exchangers and separated in multi-stager bag filters. The filtered gas in also called as Tail Gas goes to combustion of boiler to generate steam and is ultimately used for power generation in the steam turbine. The separated Carbon Black is then palletized, dried and is packed either in one ton HDPE bags or 25 kg paper bags to different customers.
As per the documents provided, the project has obtained the technical-know how for setting up of Carbon Black Unit from PVTI Carbon Black Limited, Chennai. On review of the documents, it has been found that the reactors are specifically designed to use only Coal Tar based feedstock as raw material to manufacture carbon black. Further, it has also been mentioned in the documents that in these reactors, petroleum based Carbon Black Feed Stock (CBFS) cannot be used either directly or can be blended with Coal Tar feedstock for manufacturing of Carbon Black. The average aggregate particular of Carbon Black range from 18-32 mm and is supplied to all the Tyre Manufacturers and Rubber & Plastics Products Manufacturers.
3.Captive Power Plant (CPP) (Capacity- 12MW): The Tail Gas (4,700 m3/h) from the Reactor outlet which generally consists of C, CO, CO2, C2H2,, H2 and H2O is taken to the Boiler (59TPH) for generation of steam. Then the steam is used in the Turbine for power generation. The condensate water is routed to the Cooling Tower whose COC is stated to be 6. The Boiler is connected to 73.95 m stack height through which gaseous emission is discharged.
The EIA Notification 2006 provides a list of industries which require prior environmental clearance from the MOEF (if falls under 'A' category) or SEIAA (if falls under 'B' category). Section. 2 of EIA Notification 2006 which provide for this reads as such :-
"2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:
(i) All new projects or activities listed in the Schedule to this notification;
(ii) (ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;
(iii) (iii) Any change in product - mix in an existing manufacturing unit included in Schedule beyond the specified range......"
Thus, as would appear from the above, only in the cases of new projects or activities, expansion and modernization of existing projects or any change in product-mix in an existing manufacturing unit mentioned in Schedule will attract the provision of EIA. A perusal of the Schedule reveals that out of the three units of M/s Himadri Chemicals & Industries Ltd., Thermal Power Plant (TPP) is listed against 1(d) of the Schedule. Under 5(c) and 5(e) Petrochemical complexes (industries based on processing of petroleum fractions & natural gas and/or reforming to aromatics) and petrochemicals based processing (processes other than cracking & reformation and not covered under the complexes) Located outside the notified industrial area/ estate - Located in a notified industrial area/ estate respectively, are listed. The applicants contend that since the project proponent is using petro-chemical based raw materials for the manufacturing of carbon black, it attracts the provision of EIA Notification 2006 and thus requires prior EC from MOEF a position which is opposed firmly by the project proponent contending that it is a coal-tar based unit and not petrochemical based.
Subsequently, by a notification published in the gazette of India dated. 25th June, 2014, the Govt. of India amended the EIA Notification 2006 incorporating the coal-tar processing units under list 4(b) falling under 'B' category and exempting the Thermal power Plants using waste heat boilers without any auxiliary fuel from the purview of EIA Notification, 2006 as would be apparent from the general conditions against 2(d) of the amendment. Thus, it is now clear that only the coal-tar based Carbon Black unit of the project proponent comes under the ambit of EIA Notification, 2006.
Having held so the next important question that would require determination is the date from which the amendment notification would be applicable in respect of the carbon black unit Respondent No.3, M/s Himadri Chemicals Pvt. Ltd.
Before going into this aspect, it would be relevant to traverse through the affidavit of MoEF at page 698 of the OA.
In the descriptive report on status of compliance to conditions of environmental clearance and environmental management, it is revealed that the scientists of the Regional Office of MOEFF at Bhubaneswar conducted a site visit of the Respondent industry on 23.8.2014 and made the following other observations :
"Other Observations :
The applicability of EIA Notification, 2006 has to be interpreted in terms of obtaining prior environmental clearance to produce coal tar pitch and carbon black from liquid coal tar, by-product of coke oven plant. As per the schedule of list of projects of activities requiring prior environmental clearance, there is a notification dated 25.06.2014 wherein Coal Tar Processing Units come under 4 b(ii) of EIA Notification, 2006.
The project has increased their production of different products from the year 2012-13 to 2013-14 which is a serious violation. The project should have obtained prior references from the Ministry of Environment, Forest and Climate Change regarding applicability of EIA Notification, 2006 of this project.
While the works are exposed to the reactors, the project should ensure that they should wear heart resistant aprons regularly to avoid any occupational health hazards due to exposure to hot environment.
Uploading of 6 monthly compliance report along with the monitoring data is mandatory as per EIA Notification 2006 and the same has not yet been done.
Immediate attention of the project is required for uploading of the same to maintain transparency with the general public.
The project should submit a copy of the environmental Statement in Form V to the Regional Office while submitting the six compliance report.
One Environmental Engineer should be engaged in the plant to look after the matter relating to various environmental pollution control measures.
Rainwater harvesting structures should be designed scientifically based on last 20 years rainfall data of the nearest IMD station.
Sd/- Dr. S.Kerketta
Scientist-"E". "
The observations against serial Nos. 1 and 2 are important in the context of seeking EC by the project proponent. Although at serial no.2, it is stated that the project in increasing its production from the year 2012-13 to 2013-14 without obtaining prior EC from MoEF, was a serious violation, however in serial No.1 coal tar processing units is stated to be falling under 4(b)(II) of EIA Notification 2006 after it was amended by notification dated 25.06.2014. At page 702 of the report under "Carbon Black (paragraph-2), it is mentioned that carbon black is manufactured from Coal Tar unit. A bare reading of Sec. 2 of EIA Notification 2006 would reveal that prior to the notification dated. 23.8.2014, only petrochemical-based units face within the ambit of EIA Notification 2006 while Coal tar-based units were outside its purview . The Project Proponent obtained from the WBPCB consent to establish Carbon Black unit during 2008, consent to operate in the year 2009 and consent to operate for expansion of Carbon Black unit on 5.7.2013, which is much before the amending Notification was issued by MOEF listing Coal-Tar based units under EIA Notification 2006.
On the principle of retrospective applicability of the office memorandum dated. 25.6.2014, we may refer to the decision of the Hon'ble Orissa High Court in RVW PET No. 218/2011 in Vedanta Aluminium Ltd. -v- Union of India while interpreting the office Memorandum dated 16.11.2010 as being prospective in nature. The para 16 of the judgement reads as such :
" 16. Further, the office memorandum dt. 16.11.2010 nowhere states that it is applicable retrospectively". Therefore, in absence of such stipulation the office memorandum is applicable only prospectively even if assuming that the same has the sanction of law........."
Reference may also be made to the decision of the Apex Court in State of Rajasthan -vs- Basant Agrotech (India) Ltd. Reported in (2013) 15 SCC page 1 ( paragraph 18-25) wherein it has been held that in the absence of conferment of express power to issue retrospective notification/direction, the Govt. i.e., the delegated authority, has no power to issue a notification/direction with retrospective effect.
Therefore, we have no hesitation to hold that the memorandum of MoEF dated. 25.6.2014 incorporating coal-tar based units under entry 4(b)(ii) of the Schedule in EIA Notification 2006, can only be prospective in nature, never retrospective.
During the pendency of the application, in pursuance of our direction parted in order dated 14.08.2014, the application of the Project Proponent seeking EC was considered by SEIAA. The Ministry, in its letter dated. 2.2.2016 addressed to the Project Proponent, was of the view that since the unit was established prior to 25.6.2014, the operation of the unit cannot be treated as a violation. The minutes dt. 16-17.12.2015 of item 2.7.9 at pages 68-69 of SEIAA document annexed at page 1078-1079 reads as under :-
"2.7.9 Proposed Carbon Black -15,000 MT/Month, Coal Tar Pitch-25,000 MT/Month, Napthalene-4000 MT/Month, S.N.F./Dispersing agent Phenol based-7500 MT/month, Tail Gas-7,00,000,00 NM3/Month (for 15000 TPM of Carbon Black Manufacture) at village Mahistikary, Taluka Haripal, District Hooghly, West Bengal by M/s Himadri Chemicals and Industries Ltd-confirmation of TOR.
The proposal was considered in 46th EAC meeting for industry-2 held during 20-21st August 2015 wherein the Committee noted that a court case No. 77/2014/PB/`/EZ against the project is pending in the NGT, wherein the Hon'ble Court has directed the Company to obtain the environmental clearance for the existing carbon black unit. In this regard, the committee was of the view that under these circumstances the proposal is treated for the post facto Environmental Clearance. The Committee further added so as whether it is to be considered as a case of violation before considering the environmental clearance. Accordingly the proposal was referred to the Ministry for taking view.
Further proposal examined in the Ministry and it is observed that the Carbon Black was introduced in the EIA, Notification's schedule on 25.06.2014. While, the unit was established prior to 25.06.2014. Therefore, it cannot be treated as a case of violation. In this background, the proposal is again referred to EAC for consideration of Terms of Reference. The Committee in its 2nd EAC meeting held during 16-17th December 2015 recommended the same TOR which has been issued to PP electronically along with Public hearing in addition to following additional TOR.
I A separate chapter on status of compliance of Environmental Conditions granted by State to be provided. As per circular dated 30th May, 2012 issued by MoEF, a certified report by RO, MoEF on status of compliance of conditions on existing unit to be provided in EIA-EMP report."
For the reasons aforesaid we do not find any merit in both the original applications.
In the result both the applications and connected MAs are dismissed. No order as to cost.