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Judgment
This application is filed by the 5th respondent in Original Application No.141 of 2013 viz. the project proponent seeking for a modification to our order dated 17.12.2015.
We have heard the learned counsel appearing for the applicant as well as respondents and learned counsel appearing for Pollution Control Board in M.A.No.320 of 2015. We have disposed of the main application by an elaborate order dated 17.12.2015 with the following directions:
''In the result, Application No. 141 of 2013 stands partly allowed with the following directions:
The industrial activities of 5threspondent unit shall be closed forthwith till the SPCB grants renewal of Consent to Operate beyond 30-09-2015 which shall be done by the SPCB strictly in accordance with law, after satisfying that all directions, suggestions of the SPCB in its Status Report filed dated 22-04-2015 and 07-05-2015 are fully and effectively complied with.
The 5th and 6th respondents shall deposit an amount of equal to 10% of annual income from the financial year 2002-03 to 2013-14 for 12 years which shall be deposited with SPCB to be maintained in a separate fund, "Environment Protection Fund, Chenagannoor" and shall be used for the purpose of further remediation as decided by the SPCB.
The 5th and 6th respondents shall strictly adhere to the suggestions and recommendations of the SPCB dated 22-04-2015 which are as follows:
a. To control the escape of particles, it is suggested to install a motorized rotary airlock and to collect the dust generated directly into the bags to avoid escaping of any dust particles.
b. Ambient stations should be setup and monitored by the Company at frequency and from locations to be finalized jointly with the Board.
c. Ground water quality in the neighbourhood should be monitored by the Company at frequency and from locations to be finalized jointly with the Board.
d. Lead in soil within 1km of the factory should be monitored by the Company at frequency and from locations to be finalized jointly with the Board.
e. Further expansion of production capacity from present 16 T/day shall not be permitted in this factory.
f. The overall housekeeping has to be improved. Frequent use of high efficiency particulate air vacuum cleaners (capable of removing particles of micron size) to remove spilled lead compounds inside the plants and premises should be practised.
g. There should be frequent checking and replacement of filter medium in the rain water treatment system.
The 5th and 6th respondents shall also comply with the suggestions of the SPCB in the status report dated 7th May 2015 which is as follows:
"Even though the lead content is within limits, the detection of lead in soil sample from the public storm water drain, into which the rain water from the factory premises discharges, implies the necessity of correct maintenance and operation of the rain water treatment plant in the factory premises. The factory premises have to be cleaned regularly and housekeeping improved. The 5th respondent shall take action for the periodical cleaning of the public drain".
The 2nd respondent shall ensure strict compliance of the above said directions and file annual report to the registry of National Green Tribunal, Southern Zone on or before 31st March of every year commencing from 31-03-2016.
The 5thand 6threspondents are liable to pay cost of Rs. 25,000 to the applicant.''
To arrive at the said conclusion, it is no doubt true that we found that the 5th respondent unit has not got renewed the consent which expired on 30.09.2015. Even though in written arguments submitted on behalf of the project proponent, it was stated by the learned counsel that there was a renewal of "consent to operate" on 27.06.2015 valid up to 30.06.2018, such renewal order was not placed before the Tribunal. This fact we have stated in our order stating that such renewal order was not placed before this Tribunal.
Secondly, the decision was arrived at mainly based on another fact viz., that the project proponent has not registered itself with the MoEF &CC as per the provisions of the Battery (Management & Handling) Rules, 2001. The project proponent in the present application has stated that in fact such registration has been done.
The learned counsel appearing for the project proponent has produced the original renewal order issued by the Kerala State Pollution Control Board. On perusal of the consent renewal order, it is clear that the Board has issued the renewal order stating that the validity of the said order will be reviewed based on the final order to be passed by this Tribunal in Original Application No.141 of 2013. Therefore, the Pollution Control Board has abundantly made it clear that the renewal is not independent of the pendency of the application and is purely based on the final decision to be given by this Tribunal.
It is at this stage when the matter was pending before this Tribunal, the Board has filed two Status Reports dated 22.04.2015 and 07.05.2015 making certain suggestions which are to be followed by the project proponent. We have stated in our order especially in the final portion as elicited above that the Board will be entitled to consider any application for renewal beyond 30.09.2015 strictly in accordance with law only after satisfying that all the conditions in the Status Report of the Board dated 22.04.2015 and 07.05.2015 are fully and effectively complied with.
Therefore, in so far as it relates to the renewal of consent stated to have been given by the Board, we only reiterate that it will be open to the Board to consider in the light of the order passed by us especially taking note of the Status Report of SPCB dated 22.04.2015 and 07.05.2015 and pass orders in accordance with law. We make it clear that while considering the same, the Board shall make necessary modifications based on the final order passed in main Application No.141 of 2013.
In so far as it relates to registration under the Batteries Rules 2001, the learned counsel has now produced the original registration certificate. From the document, we are able to see that there was a registration under the Batteries Act on 09.11.2014 issued by the Central Pollution Control Board as per authorisation of the Ministry of Environment and Forest, Government of India. That registration is valid from 09.11.2004 to 08.11.2006. Thereafter, there was another renewal order given on 18.09.2007. In it, it is stated by the Board regarding the validity period "as per conditions stipulated on Page 2, 3, and 4 of this certificate" which are as follows :
The registration shall cease to be valid in case of expiry of the validity or suspension or cancellation of any of the existing consents under Water (Prevention & Control of Pollution ) Act, 1974 and Air (Prevention & Control of Prevention) Act, 1981 and Authorisation under Hazardous Waste (Management & Handling) Rules, 1989 and as amended issued by the Kerala State Pollution Control Board (SPCB)/ Pollution Control Committee (PCC), and shall remain invalid till consent(s)/ authorisation are obtained.
The Recycler shall submit copies of the valid consents and authorisation also to the auctioneer/seller at the time of each procurement.
The Recycler shall be responsible to ensure that the quantity of the waste(s) procured each time is endorsed in this Pass-Book by the authorised seller/auctioneer.
The registered recycler shall maintain the records of above mentioned Recyclable Wastes procured for recycling and submit the Annual Returns regarding utilisation of such wastes to the Kerala State Pollution Control Board (SPCB)/PCC as per Form 12 of the HW (M & H) Amendment Rules, 2003 by 31st January of every year.
This registration certificate shall be produced at the time of inspection upon request of an officer authorised by the Ministry of Environment & Forests (MoEF)/Central Pollution Control Board (CPCB) or SPCB/PCC.
The Recycler shall not rent/lend/ transfer this registration certificate.
Any change in the recycling technology, disposal facility and equipment as given in the application shall only be carried out with prior permission of CPCB.
Transportation, processing, treatment and disposal of wastes shall be carried out strictly as per the Guidelines on "Management & Handling of Hazardous Wastes, 1991" issued by MoEF and in accordance with the Hazardous Waste (M & H) Rules, 1989, as amended.
The hazardous wastes generated from the recycling process shall be disposed of as per the HW Rules.
The unit should take appropriate and adequate measures to control fugitive emissions such that the Work Zone standards with respect to lead content in particulate and other parameters are met.
The stack emission and ambient air quality for lead content in particulate should not be more than 10 mg/Nm3 & 1.5 mg/m3 ,respectively and the unit should carry out Stack emission and Ambient Air Quality (AAQ) monitoring for lead in particulate, SPM, RSPM, SO2, NOx and monitoring reports should be submitted by the unit to the Kerala (SPCB)/PCC as per the consent conditions.
Soil and ground water from within the industry premises should be analysed for lead at least once a year through a laboratory recognised under the Environment (Protection) Act, 1986, as amended, and the analysis results should be submitted by the unit to CPCB.
Application (in triplicate) for renewal of registration shall be made well in advance, at least two months before expiry, in Form 11 alongwith each of the documents as per requirement of Rule 19 (2) of Hazardous Waste (Management & Handling) Amendment Rules, 2003.
At the time of submission of the application for renewal of registration, the unit should submit a copy of the "Registration-cum-Pass Book" alongwith details of the quantity of product(s) manufactured, process wastes generated, mode of final disposal during the validity period of registration, and a statement showing pointwise compliance status of the above conditions. This information should be supported with Central Excise/Sales Tax details.
The registration may be cancelled or suspended by CBCB as per Rule 19 (8) of the HW Rules, in case the recycler fails to comply with any of the conditions of the registration or with any of the provisions of the Environment (Protection) Act, 1986, as amended or Rules made thereunder.
In addition to above, CPCB may stipulate further conditions, if so required, in the interest of environment protection.
Additional conditions:
i) The unit shall not import any lead bearing wastes without obtaining clearances as specified in Schedule 3 of HW (M & H) Amendment Rules, 2003.
ii) This Registration Certificate is valid subject to terms and conditions specified above, except in case of its cancellation or suspension by CPCB or having become invalid as a result of any action by the SPCB/PCC for any violation of the Water Act/Air Act/ Environment Protection Act or the rules notified thereunder.
Under the Batteries Rules, 2001, Rule 9 which we have already extracted in detail in our original order, in Sub Rule 4 it is stated as follows:
"The Registration granted under this rule shall be in force for a period of two years from the date of issue or from the date of renewal unless suspended or cancelled earlier".
While the Rule is clear that either date of issue or renewal is valid only for two years, we are unable to understand as to how the renewal can be made valid perpetually by the Government of India.
Be that as it may, it is for the Board to consider the same while taking the renewal application of the project proponent. We specifically direct the Board to take the above said fact into consideration while passing such order.
Accordingly, M.A.Mo.320 of 2015 stands ordered and our final order dated 17.12.2015 stands modified only in respect of the first direction which shall be read as follows:
The State Pollution Control Board shall reconsider the application for renewal of the consent to project proponent viz., 5th respondent not only in the light of detailed orders passed by this Tribunal but also the State Pollution Control Board to consider the Status Report dated 22.04.2015 and 07.05.2015 in relation to the full and effective compliance by the project proponent but also in the light of the registration certificate issued under the Batteries Rule 2001 which has been produced before this Tribunal along with copies and pass appropriate orders in accordance with law. Such order shall be passed by the Board expeditiously in any event within a period of four weeks from the date of receipt of copy of this order.
Except the above modification, all other directions which we have given in our order dated 17.12.2015 shall remain intact.