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Judgment
The applications for Consent to operate submitted by the appellants for their proposed expansion activities of "Application Laboratories" by adding additional process of "Wet-blue" sample leather to 'Semi-finish" sample leather pieces, under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 were rejected by Orders dated 23.11.2011 by the 2nd respondent, Tamil Nadu State Pollution Control Board on the ground that the expansion activity would amount to setting up new tanning process and would attract the provisions of G.O.(Ms) No. 213 dated 30.03.1989 and G.O.(Ms) No. 127 dated 08.05.1998. Aggrieved by the orders, the appellant challenged the orders before the Appellate Authority, Tamil Nadu Pollution Control Board, as Appeal Nos. 48 and 49 of 2012. The Appellate Authority by common order dated 31.07.2015 dismissed both the appeals holding that the proposed tanning operation being a new one cannot be permitted in view of the law laid down by Hon'ble Supreme Court in Vellore Citizen Welfare Forum Vs. Union of India and others.
The appellant is challenging the orders in these appeals under Section 16 of the National Green Tribunal Act, 2010. Though the appeals are not filed within the prescribed period of limitation, by order in M.A Nos. 326 and 327 of 2015, the delay was already condoned.
The appellant would contend that the Appellate Authority erred in holding that the proposed expansion activities of the appellant is a new unit involving tanning operation and so would attract the prohibition provided in G.O.(Ms) No. 213 dated 30.03.1989 and G.O.(Ms) No. 127 dated 08.05.1998. The appellant would contend that the Appellate Authority should have found that the proposed activity is only adding an additional process to the already permitted activity and therefore it is not a proposal to establish a new unit. It is also contended that the Appellate Authority erred in holding that the proposed expansion activity would be a "Tanning" operation. According to the appellant, the Tamil Nadu State Pollution Control Board (herein after referred to as the Board) had granted Consent to the appellant to operate a "Laboratory", where finished leather samples from semi-finished leather samples are demonstrated and the proposal is only to add another process to demonstrate the process of converting wet blue to semi finished leather sample. The appellant would also contend that the Appellate Authority failed to note that by the proposed expansion activity, the effluent generation would increase only to 0.45 KLD from the original effluent generation of 0.20 KLD and the process is not a tannery operation. It is contended that by the proposed expansion activity, the unit would be producing the same end-product of sample leather pieces and therefore the proposed expansion process will not alter the existing activity for which an order of Consent has only been granted. The appellant would contend that the said process would not amount to tannery. It is also contended that the appellant has installed a Forced Draft Evaporation System which is the latest innovation in Pollution Control Technology which is not disputed by the respondent Board and by adopting the said method, the appellant unit would achieve Zero Liquid Discharge (ZLD) and therefore the objection to the proposed activity is contrary to the principles of Sustainable Development. According to the appellant, the proposed expansion activity is mainly for testing of chemical performance in leather sample pieces and exhibiting it to the clients for sale promotion activity and there is no actual leather production involved in the process. As per the orders of Consent granted to the appellant, the appellant can prepare 150 to 200 pieces per month by dry operation and the proposed expansion is for drum operation (leather testing of wet-blue to crust stage) and the rejection of the applications by applying G.O.Ms No. 213 dated 30.03.1989 and G.O.Ms No. 127 dated 08.05.1998 or in any other regulation is bad and the contention that the proposed expansion activity is a tannery operation is bad in law. The appellant is therefore seeking to set aside both the orders and to direct the Board to grant order of Consent for the proposed expansion. Appeal No. 37 of 2016 is filed against the order of the Appellate Authority in Appeal No. 48 of 2012 and Appeal No. 38 of 2016 is filed against the order of the Appellate Authority in Appeal No. 49 of 2012.
The appellant produced the Detailed Project Report (DPR) as well as the report on Environmental Management Plan for the proposed expansion activity and the Leaflet on Technical EIA Guidance Manual for Leather Skin/Hide Processing Industry, to contend that the process involved in Tanning is different from the proposed activity of the appellant.
Respondents in their reply contended that the appellant unit is located in Thuthipet Village of Ambur Taluk and was granted Consent to Operate a small scale laboratory. The order of Consent to Operate are for finished leather samples 150 - 200 sample pieces per month, Sewage of 0.25 KLD(Disposal on Industries own land), Trade Effluent of 0.2 KLD (Disposal on Solar Evaporation Plant), the process involved in the unit are Hand Spraying-Padding-Ironing and Dry Milling of tanned leather. The unit uses two Spray Booth and one electrical evaporator and also provided the required Anti Pollution Control (APC) measures for the same. The said process generate a Trade Effluent of 0.2 KLD from washing of spray gun nozzles. The order of Consent was valid upto 30.09.2016. While so, on 03.11.2011 the appellant unit submitted an application for the expansion proposal. The various operations involved in its expansion proposal are Hand Spraying-Padding-Ironing and Dry Milling including wet tanning process. The activity therefore comes under wet tanning process, which generates a total Trade Effluent of 0.45 KLD. The disputed unit is located within a distance of 500 m from River Palar, which is included in G.O.(Ms) No. 213 E & F Department dated 30.03.1989 which prohibits setting up of such units, within 1 km from the River Palar. It is also included in G.O.(Ms) No.127 E & F Department dated 08.05.1998 which bans setting up of such units, within 5 km from the River Palar. The proposed expansion activity of the appellant unit attracts the above said G.Os. Therefore the Board rejected the applications by Orders dated 23.11.2011. The appellant challenged these orders before the Hon'ble High Court of Madras in WP. No.1524 of 2012. That Writ Petition was disposed by the Hon'ble High Court observing that the appellant is at liberty to approach the Appellate Authority raising all the contentions. The units filed Appeal Nos.48 and 49 of 2012. The Appellate Authority dismissed the appeals holding that it is for the Government to decide whether to amend G.O.(Ms) No. 213 dated 30.03.1989. The order of rejection of the applications are valid in law.
Learned counsel appearing for the appellant vehemently argued that the Board as well as the Appellate Authority erred in holding that the applications for Consent for their proposed expansion activities to include additional process of "Wet-blue" sample leather to Semi-finished sample leather pieces would attract the ban provided under G.O.Ms. No. 213 dated 30.03.1989. The learned counsel argued that what is prohibited under G.O.Ms. No. 213 as well as G.O.Ms. No. 127 is the tanning activity and when the proposed expansion of the appellant is not a tanning activity, the prohibition provided in G.O.Ms. No. 213 or G.O.Ms. No.127 is not attracted and therefore rejection of the applications for Consent as well as dismissal of the appeals challenging the rejection of the applications for Consent, under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981, are unsustainable in law.
Learned counsel also argued that to attract the bar provided under G.O.Ms. No. 213, the proposed expansion should involve tanning activity and in order to constitute a tanning activity, the whole process for tanning should be there in the process proposed by the appellant. Learned counsel relying on the "Technical EIA Guidance Manual for Leather / Skin / Hide Processing Industry" prepared by the Ministry of Environment Forests and Climate Change (MoEF & CC), Government of India submitted that to make a tanning industry, there should have the process of Pre-tanning, Tanning and Post tanning. The Pre-tanning process comprise Storage, Soaking, Liming, De-liming and Pickling. The Tanning process are of two types Chrome tanning and Vegetable tanning. The Post tanning operations include Sammying to remove excess moisture in the wet blue, the process of Splitting the material into required thickness using splitting machine, Shaving & Trimming the process where semi-finished leather is levelled using the shaving machine, Re-chroming is carried out depending on the quality of wet blue. Re-chroming is carried out to improve the chromium content in the leather. Semi Chroming is carried out in case of vegetable tanned semi-finished leather. Chrome tanning is given depending on the final leather quality, Neutralisation where pH is adjusted to 4.5-6.5, Dyeing is the process of colouring using dyes, acid dyes and basic dyes, Fat Liquoring when Natural/synthetic oils are applied for fat liquoring to impart softness to the leather, and Finishing when phenolics, melamine, acrylics, polymers, naphthalene etc., are used to impart fullness to the leather. The argument is the proposed expansion process of the appellant, is not a tanning process as it provides only the processes of Re-chroming, Neutralisation, Dyeing, Fat Liquoring and Finishing. Learned counsel argued that the proposed expansion is not a manufacture for sale of leather but only to show the process to the client industries and no sale is contemplated in the unit and therefore both Board as well as the Appellate Authority, should have found that the expansion activity does not involve tannery operation and therefore G.O.Ms. No. 213 and G.O.Ms. No.127 are not applicable to the proposed expansion activity.
The Board, on directions produced the entire records relating to the Consent originally granted to the appellant and the application for Consent for the proposed expansion which was rejected as well as the materials produced by the appellant and the orders passed. The District Environmental Engineer (DEE) explained that the proposed expansion process include usage of the chemicals like Chrome, Sodium Formate, Sodium Bi-Carbonate, Acrylic Syntan and therefore the process is highly polluting. The DEE also submitted that the proposed expansion process involve tanning and therefore the bar provided under G.O.Ms. No. 213 and G.O.Ms. No.127 is applicable and the Board in law cannot grant the Consent for the proposed activity, in violation of the Government Orders and if at all, the appellant has to approach the Government for amendment of the Government Orders.
Learned counsel vehemently argued that when the proposed expansion activity would involve the tanning process, as is clear from the admitted facts, the bar provided under G.O.Ms. No.213 and G.O.Ms. No.127 would attract and therefore the Board rejected the application for Consent and the Appellate Authority considered all aspects in the proper prospective and therefore there is no reason to interfere with the orders passed by the Appellate Authority.
The points for consideration are:
(1) Whether the proposed expansion activity of the appellant attracts G.O.Ms. No. 213 dated 30.03.1989 and G.O.Ms. No.127 dated 08.05.1998?
(2) Whether the rejection of the application for proposed expansion activity by the Board and the confirmation of that order by the Appellant Authority, are legal, proper and valid?
Points 1 and 2:
The Government of Tamil Nadu by G.O.Ms.No.1 dated 06.02.1984 ordered that no industry causing serious water pollution should be permitted within 1 kilometre from the embankments of water sources, rivers, streams, dams etc. The Board was directed to furnish a list of such industries to all local bodies. It is thereafter on the request of the Board that the scope of the Government Order may be restricted to reservoirs, rivers and public drinking water sources and that there should be complete ban on location of highly polluting industries within 1 kilometre of certain water resources, G.O.Ms.No.213 dated 30.03.1989 was issued.
The relevant portion of the Government Order reads as follows:
"ENVIRONMENT AND FORESTS (EC-I) DEPARTMENT
G.O.Ms. No:213 Dated the 30th March, 1989.
Read:
(1) G.O. Ms. No:1 Environment Control Dated 6.2.84
(2) From the Member Secretary, Tamilnadu Pollution Control Board Lr. No:BMS(1)/18879/88 Dated:23.08.88.
(3) From the Chairman, Tamilnadu Pollution Control Board Lr. BMS(1)/ 44365/88 Dated:3.1.88 and letter of even no. Dated:30.12.88.
ORDER:-
In the Government Order first read above, the Government have ordered, among other things, that no industry causing serious water pollution should be permitted within one kilometre from the embankments of rivers, streams, dams etc. and that the Tamilnadu Pollution Control Board should furnish a list of such industries to all local bodies. It has been suggested that it is necessary to have a sharper definition for water sources so that ephemeral water collections like rain water ponds, drains sewerages (bio-degradable) etc. may be excluded from the purview of the above order. The Chairman, Tamilnadu Pollution Control Board has stated that the scope of the Government Order may be restricted to reservoirs, rivers and public drinking water sources. He has also stated that there should be a complete ban on location of highly polluting industries within 1 kilometre of certain water sources.
The Government have carefully examined the above suggestions. The government improve a total ban on the setting up of the highly pollution industries mentioned in Annexure-I to this order within one kilometre from the embankments of the water sources mentioned in Annexure II to this order.
The Government also direct that under any circumstance if any highly polluting industry is proposed to be set up within one kilometre from the embankments of water sources other than those mentioned in Annexure-II to this order, the Tamilnadu Pollution Control Board should examine the case and obtain the approval of the Government for it.
The receipt of this order may be acknowledged.
(BY ORDER OF THE GOVERNOR)"
There is no disputes on the fact that the unit of the appellant is within the prohibited distance of 1 kilometre from the river, as provided the G.O.Ms.No.213 dated 30.03.1989.
List of Highly polluting industries provided in Annexure I of G.O.Ms.No.213 reads as follows:
Distilleries
Tanneries, Sago, Sugar, Dairies and Glue
Fertilizer
Plup & Paper (with digestor)
Chemical Units generating trade effluent containing such pollutants which may to pollute air, water and land before treatment and those chemicals which may alter the environmental quality by under going physical, chemical and biological transformation.
Petroleum Refinery
Textile Dyeing Units
Steel Plant (Electroplating, heat treatment etc)
Ceramics
Thermal Power Station
Basic Drug manufacturing Units
Pesticide
Asbestos
Foundries
We are concerned only with in item 2 of Schedule 1 of the G.O.Ms.No.213 dated 30.03.1989. It is also not disputed that if the proposed expansion activity includes the process of tanning, it cannot be permitted within 1 kilometre from the embankment of the river as provided under G.O.Ms.No.213 dated 30.03.1989. The arguments of the learned counsel appearing for the appellant is that the proposed expansion activity would not involve the process of tanning.
Along with the Application for Consent, the appellant has enclosed the report on Environmental Management Plan for the Proposed Diversification Activity. It discloses that the laboratories of the appellant at Ambur was established for testing the efficacy and suitability of the leather finishing chemicals on various types of leathers for their application properties. The Consent obtained by the appellant unit from the Board for testing 200 pieces of testing leather per month, by dry-type testing process. The disputed proposed activity is the wet-drum testing application. The list of chemicals used in "Wet Drum Process", as is clear from the management plan include Formic Acid, Chrome, Chrome Syntan, Synthetic Fat Liquor, Acrylic Syntan, Sodium Formate and Sodium Bi carbonate, apart from Acrylic Syntan, Synthetic Fat liquor, Phenolic Syntan, Malmine Syntan, Vegetable Extract and Dye. It cannot be disputed that most of these chemicals are serious polluting chemicals.
The description of the process in the Management Plan contains the flow sheet describing the wet drum process as follows:
Raw material - Full Chrome and Vegetable tanned Cow; sheep; Goat and Buffalo hide
Addition of Acidic acid Run for 15 minutes
Drain out
Addition of Formic acid Run for 15 minutes
Addition of Chrome and Chrome Syntan and run for 30 minutes
Addition of Formic acid Run for 15 minutes
Addition of Synthetic fat liquor and run for 20 minutes
Addition of Acrylic Syntan and run for 20minutes
Addition of Sodium Formate and Sodium Bi Carbonate and run for 30 minutes
Drain out
Addition of Neutralising Syntan and Sodium Bi Carbonate and run for 30 minutes
Drain out
Addition of Acrylic Syntan and run for 30 minutes
Addition of Synthetic fat liquor and run for 20 minutes
Addition of Phenolic Syntan, Malmine Syntan, Vegetable extract, run for 45 minutes
Addition of Dye and run for 30 minutes
Addition of Synthetic fat liquor, Semi Synthetic fat liquor, Lecithin Fat liquor and Vegetable Liquor and run for 45 minutes
Addition of Formalic Acid and run for 20 minutes
Drain out
As distinct from the Existing Dry-end Testing Process, the activity of Wet drum process involves using chemicals to convert the leather from the putrefying form to the usable form, so that it can be processed further to get the required finished product. As per the manual, specific chemicals will be added to the testing leather piece and processed in the rotating drum for a stipulated period. At the end of the processing cycle, the spent liquid will be drained, the samples will be washed and taken for the quality testing procedures.
In the light of use of all these chemicals, the process and the proposed expansion of the process, make it clear that the appellant's proposal include use of Chrome, which is one of the highly polluting chemicals. Though, the learned counsel appearing for the appellant vehemently argued that the appellant had installed forced Draft Evaporation System, a latest innovation in pollution control technology and would achieve Zero Liquid Discharge it cannot be disputed that the chrome present in the industrial effluent poses a serious threat to ecology and environment. Whatever it be as rightly pointed out by the Board, it is clear that the proposed expansion process include the tanning process. The chemicals which are being used are the one used in the tanning industry. Therefore, though the learned counsel appearing for the appellant vehemently argued that the appellant proposed to set up Ultra Modern Wet drum process, where under there will be Zero Liquid Discharge (ZLD), we cannot agree with the learned counsel appearing for the appellant that the finding of the Appellate Authority confirming the finding of the Board that the proposed expansion process would amount to tannery and therefore the bar provided under G.O.Ms. No.213 dated 30.03.1989 as well as G.O.Ms.No.127, dated 08.5.1998 are attracted. When the process proposed by the appellant include the tanning process, the prohibition provided in G.O.Ms.No.213 would apply. Hence, the Consent cannot be granted to the proposed activity, as the unit is within the prohibited distance of 1 km from the water source. We find no reason whatsoever to interfere with the orders passed by the Appellate Authority in Appeal Nos.48 and 49 of 2012. The Appeals can only be dismissed .
Therefore, the Appeal Nos. 37 and 38 of 2016 are dismissed with no order as to costs.