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Judgment
The applicant which is a society registered under Societies Registration Act, 1860 has filed this application mainly seeking certain restrictions on handling of pet coke and use of pet coke as an industrial fuel. The applicant submits that petroleum coke (often called as pet coke) is a carbonaceous solid delivered from oil refinery coker units or other cracker processes. This pet coke can be fuel grade (low in sulphur and metals). Pet coke has over 90% carbon contents and consequently has higher energy, and therefore, pet coke burning emits between 30 to 40% more CO2 than coal, per unit of weight. Applicant further submits that pet coke is a heavy dust which resembles coal and contains various dangerous chemicals and heavy metals, including Chromium, Vanadium, Sulphur and Selenium. According to the applicant, burning of the pet coke poses a significant health risk due to emissions of high concentration of various air pollutants. Applicant alleges that the petroleum industry classifies the pet coke as a refinery by-product which allows it to be excluded from the rigours of various environmental regulations, completely ignoring its dangerous health effects when used as industrial fuel. Applicant further submits that it is a well documented fact that pet coke has very high level of sulphur ranging from 0.5% to 10% (w/w basis), besides significant concentration of various metals. According to applicants, Maharashtra Pollution Control Board has considered the environmental sensitivity of pet coke and has held that if the sulphur content in pet coke is more than 5% then it needs to be categorized as ' hazardous waste' in terms of Schedule-II of Hazardous Waste (Management, Handling & Transboundary Movement) Rules, 2008 (herein after called HW rules). The applicant further relies on WHO documents to demonstrate that SO2 is an outcome of pet coke burning and is a significant air pollutant posing serious health risks to the human beings. According to the Applicant, with such high concentration of sulphur content of pet coke, it would be necessary that pet coke is declared Hazardous waste as per Hazardous Waste Rule, 2008/2016.
The applicant further submit that pet coke being available in abundant quantity due to its significant generation in the Indian refineries, it is comparatively cheaper than the coal and also, has an advantage of very high calorific value. It is easy to handle it for use as a fuel. Pet coke is therefore, increasingly being used illegally without specific permission of the Pollution Control Boards in various industries, particularly, the cement industry, textile, steel, and other industries. The applicant therefore submits that besides the metal compounds present in the coke, the heavy emissions of SO2, is adding to the pollution problems particularly, the adverse effects of SO2 as well as release of dust containing the metal compounds.
The applicant, therefore, has invoked the jurisdiction of this Tribunal under Section 14 and 15 to pray for the following:
(a) To issue appropriate guidelines or direction for handling of pet coke to minimize damage to environment.
(b) To issue direction for ban on usage of Petroleum coke as fuel.
(c) To direct respondents to conduct an inquiry into illegal usage of petroleum coke by industries.
Respondent-1, Ministry of Environment, Forest and Climate Change (herein after called MoEF) has filed an affidavit dated 24th December, 2016 and submitted that they have notified source specific standards for emissions and discharge of environmental pollutants from certain categories of industries, operations and processes, besides the National Ambient Air Quality Standards (NAAQS) from time to time. MoEF submits that the emission standards for cement plants have been notified on 25th August, 2014 which interalia stipulate that the norms shall be applicable even if pet coke is mixed with coal and used for clinker making; provided it has been notified as " an approved fuel" by the concerned State Pollution Control Board/Pollution Control Committee.
Respondent No. 2, CPCB had filed an affidavit on 20th October, 2016 and submitted that specific standards for industries have been notified by MoEF for various air pollutants including PM, SOx and NOx. CPCB, however, records its concern on emissions of Sox, as pet coke has high sulphur content, as compared to coal. Therefore, it submits that efficient sulphur recovery is essential. CPCB further submits that petroleum coke can either be fuel grade or anode grade. The raw petroleum coke coming directly out of coker is referred to as 'green coke' which is generally used as industrial fuel. This green coke is further processed by calcinations process in rotary kiln to manufacture calcined pet coke (CPC) which is of anode grade. As regards to the contention of the applicant to declare the pet coke as a hazardous material under the Hazardous Waste Rule, surprisingly, CPCB record that such contention does not call for any comments from the CPCB. CPCB further submits that pet coke has higher sulphur content and therefore, SO2 emissions generated on its burning is higher. The emission standards for SOx for various categories of industries have been notified and it would be mandatory for the industries to take suitable steps to control its emissions well within norm, even if they are lawfully using pet coke as fuel. The affidavit filed by CPCB does not dispute the alleged ill effects of SO2 as a gaseous pollutant and its adverse health impacts.
CPCB submits that pet coke has been identified as waste for the refinery industries. As per the definition of the waste, under the Hazardous Waste Management Rules, 2016, it means, "a material that is not a product or by product for which a generator has no further use for the purpose of production, transformation and consumption". In this context, by-product means any material i.e. not intended to be produced but gets produced in the process of identical product and is used such. CPCB has, therefore, submitted in order to clarify the issue related to notifying of the pet coke as waste or hazardous waste or by-product waste that the matter needs to be referred to a Technical Review Committee constituted by MoEF & CC in this behalf. CPCB further submits that pet coke shall not be used by any industry without the express permission of the concerned State Pollution Control Board or the Pollution Control Committee. It is, therefore, of the view that considering the higher sulphur content in pet coke which give rise to concerns regarding higher air emissions, efficient sulphur recovery is essential.
We have perused the pleadings and documents submitted by contesting parties and are of the opinion that the issues for consideration of the Tribunal would be whether there is any need to have any restriction on handling of the pet coke including ban on the use of it; and if yes, what restrictions are required to be placed in this regard.
It has been commonly agreed by the parties that pet coke is produced in the petroleum refineries and it is a black solid produced through the thermal decomposition of heavy petroleum process stream and is the residue of this process. This initial product of the coking process, in the petroleum refineries, is commonly called as pet coke. Pet coke is increasingly being used as one of the major alternative fuel, replacing coal due to its high net calorific value. As per the CPCB commissioned report on ' Assessment of air pollution for cement plant using pet coke' which is placed on record, the net calorific value of pet coke, imported coal and Indian coal is 7800-8400, 6500-7500 and 4500-5500 kcal/kg respectively. At the same time, the ash content of these 3 fuels is 0.4-1.0, 7-15 and 25-40% respectively. But more importantly, the sulphur content in these 3 fuels would indicate that the pet coke has the maximum sulphur content from 4.0 to 7.9%. Table 1.1 of this report where the characteristics of pet coke and Indian coal are given is reproduced below:
Pet coke (%)
Imported
Coal
Indian Coal (%)
(%)
Ash Content
0.4-1.0
7-15
25-40
Inherent
0.25-0.5
2-4
1.5-3.5
Moisture
Carbon
81-89
65-75
45-55
Sulphur
4.0-7.9
0.6-1.0
0.5-1.5
Nitrogen
0.6-1.8
1.5-1.7
0.9-1.1
Hydrogen
3.0-3.5
3.5-4.5
4-5
Oxygen
0.5-1.6
6.5-8.5
16-18
Volatile
9.0-11.0
25-31
24-30
Components
Net
Calorific
7800-8400
6500-7500
4500-5500
Value, Kcal/kg
HGI
40-80
49-60
55-65
It is also reported that pet coke has to be grinded very finely in order to enable it to burn completely and to derive maximum calorific value from it.
Though the applicant has alleged that pet coke has significant metal concentrations, but neither CPCB nor MoEF have responded to this specific allegation by referring to any particular range of concentrations of such metals. But at the same time, reference has been made by CPCB about the presence of the heavy metal in pet coke, in various paragraphs of the affidavit.
Reference may be made to the standards notified by Bureau of Indian Standards which are notified through BIS 8502:1994 and the requirements of the petroleum coke, as referred in these standards, are produced below:
Table 1 Requirements for Petroleum Coke
SI
Characteristics
Requirement for
No.
Raw Petroleum
Calcined Petroleum
Coke
Coke
Grade A
Grade B
Grade A
Grade B
(1)
(2)
(3)
(4)
(5)
(6)
i)
Moisture content (as
10
10
-
-
received), percent by
mass, Max
(ii)
Moisture content (after
2-0
2-0
0.1
0.1
initial drying for raw
petroleum coke only),
percent by mass, Max
iii)
Ash, percent by mass,
0.45
0.45
0.5
0.5
Max
iv)
Volatile matter, percent
11.0
11.0
0.4
0.4
by mass, Max
v)
Density:
-
-
To be reported
a)
Vibrated bulk,
g/cm3
b)
b) Real*, g/cm3,
-
-
2.03
2.03
Min
vi)
Fixed carbon, percent by
85.0
85.0
99.0
99.0
mass, Min
vii)
Su!phur total, percent
1.25
2.5
1.25
2.5
by mass, Max
viii)
Trace metals:
0.05
0.05
a)
Silicon (Si),
percent by mass,
To be reported
Max
0.04
0.04
b)
Iron ( Fe )
percent by mass,
do
Max
0.03
c)
Vanadium* ( V ),
do
0.03
percent by mass,
d)
Nickel ( Ni ),
percent, mass
do
To be reported
*For graphite industry a higher real density and low vanadium content product is required; the limits for this may be settled between the purchaser and the supplier.
These standard would indicate that Bureau of Indian Standards have so far not stipulated the concentration of the trace metals which are present in the raw petroleum coke. But at the same time, the calcinated petroleum coke which is produced by further processing the raw petroleum coke is reported to have significant concentration of heavy metals like Vanadium, Nickel and Iron. This would obviously manifest the presence of such metals in raw petroleum coke. United States Environmental Protection Agency (USEPA), on its website, refers to the chemical composition of the petroleum coke and the information available on the website indicate the presence of various metal concentrations in pet coke, as follows Vanadium: 470, Nickel: 180, Iron: 78, Molybdenum: 20, Zinc: 2.2, Berium: 1.8 (in mg/kg dry sediment).
Under these circumstances, it is now necessary to consider the arguments of the applicant related to the pollution potential of pet coke. CPCB in its affidavit dated 20th October, 2016 has submitted that as pet coke has higher sulphur content, the SO2 emissions are likely to be higher. It has further taken the stand that pet coke cannot be used without the permission of the concerned State Pollution Control Board under the provisions of the Air (Prevention and Control of Pollution) Act, 1981. It further submits that the concern regarding the SO2 emissions, pet coke itself contain high sulphur as compared to coal and therefore, efficient sulphur recovery is essential. However, CPCB is of the opinion that the source specific air emissions standards for several industries, including that of SOx, have been notified and therefore, necessary due care has been taken by the MoEF and CPCB to control the ambient air pollution due to excessive SO2 emissions from the industrial sources which are using pet coke as fuel. In other words, CPCB is of the opinion that if the source emissions standards are strictly complied by the industries and effectively enforced by the SPCBs, then there is no potential hazard of using pet coke as fuel. MoEF also has taken similar stand with an additional submission that before using pet coke as a fuel, the concerned SPCB's or PCC's need to notify pet coke as 'an approved fuel' under the provisions of Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as the 'Air Act').
We have perused the relevant provisions of the Air (Prevention and Control of Pollution) Act, 1981and the relevant sections are reproduced below:
"19. Power to declare air pollution control areas -
(3) : If the State Government, after consultation with the State Board, is of opinion that the use of any fuel, other than an approved fuel, in any air pollution control area or part thereof, may cause or is likely to cause air pollution, it may, by notification in the Official Gazette, prohibit the use of such fuel in such area or part thereof with effect from such date (being not less than three months from the date of publication of the notification) as may be specified in the notification.
Restrictions on use of certain industrial plants-
(5) Every person to whom consent has been granted by the State Board under sub-section (4), shall comply with the following conditions, namely -
(i) the control equipment of such specifications as the State Board may approve in this behalf shall be installed and operated in the premises where the industry is carried on or proposed to be carried on;
(ii) (ii) the existing control equipment, if any, shall be altered or replaced in accordance with the directions of the State Board;
(iii) (iii) the control equipment referred to in clause (i) or clause (ii) shall be kept at all times in good running condition;
(iv) (iv) chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall be erected or re-erected in such premises; .and
(v) (v) such other conditions as the State Board, may specify in this behalf."
Reference can also be made to the document published by the MoEF i.e. Corporate Responsibility in Environment Protection (hereinafter referred as CREP document) where specific environment improvement and compliance targets for industries were published by the MoEF in 2003. The CREP document formulated by MOEF/CPCB in 2003 identified the potential pollution caused by the pet coke and stipulated the following:
a. For the oil industry, the petroleum coke having high sulphur content will be sold to /reused by organized industries (having consent from SPCBs), which have systems to control SO2 emissions. This will be ensured by June 2003.
b. For the cement industry, CPCB, NCBM, BIS and Oil refineries will jointly prepare the policy on use of petroleum cokes as fuel in cement kiln by July 2003.
The sum and substance of above discussions would establish that pet coke, due to its high sulphur content besides presence of heavy metals like Vanadium, Cobalt and Nickel is a significant source of air pollution, if used as a fuel. There cannot be any dispute about this fact as both MoEF as well as CPCB have themselves agreed to it. The only issue which requires adjudication by the Tribunal is whether there are any compelling reasons to either put any restriction or ban on the use of pet coke as fuel.
In view of the high sulphur content and presence of heavy metals in pet coke, it would be utmost essential to apply the precautionary principle in the present case. The environmental jurisprudence in such matter is well established and even, Section 20 of the NGT Act requires the Tribunal to apply precautionary principle; principle of sustainable development and polluter pays principle while passing any order or award. Obviously, with the established pollution potential of the pet coke as a fuel, it would be necessary to apply precautionary principle to regulate its use.
The first level of such regulation for use of pet coke can be the effective implementation of provisions of Section 19 (3) of Air Act wherein the State government, after consultation from the state board has to take a decision on use of any fuel.
Undoubtedly, no other fuel, other than the 'approved fuel' can be used without resorting to provisions of Section 19 (3) of the Air Act. The Air Act, clearly defines ' approved fuel' as any fuel approved by the State for the purpose of Air Act.
The second level of safeguards based on precautionary principles would be the effective use of Section 21 (5) of Air Act which mandates the SPCB to specify the pollution control systems wherein the State boards need to approve the air pollution equipment to be installed by the industries. Obviously, this provision empowers the board to stipulate effective and adequate air pollution arrangements, if the pet coke is required to be used as a fuel by the industries. While dealing with these two specific provisions, reference can be made to the minutes of the meeting held by Maharashtra Pollution Control Board, of its working group, on 16th April 2015. The working group of MPCB has deliberated on the pros and cons of using pet coke as a fuel. It is noted from the minutes of the meeting that the working group was of the opinion that due to higher sulphur content of pet coke, the industries need to invest significantly in boiler and associated air pollution control system and therefore, use of pet coke by adhering to pollution control norms, may not be techno-economically viable for small and medium scale Industries. It is also recorded in the minutes that it is necessary to install a caustic media scrubber which again would necessitate high investment, both capital and recurring, by industries. CPCB was also part of this working group. After due deliberation, the MPCB working group has arrived at the following conclusions:
(i) The small and medium scale industries may not afford the cost of installation, further operation and maintenance of pollution control system.
(ii) The modification of boiler having double firing zone, fixed bed of Calcium Oxide, interlocking arrangement with pollution control system etc. may not be affordable to small scale industries.
(iii) Use of pet coke as an alternate fuel may not be advisable in areas identified as Critically Polluted by MoEF, GoI. But, it can be at the most considered for large industry is in non-critical areas where assimilation capacity is available.
Still, no reliable documents or reports have been placed on record either by CPCB or MoEF regarding the use of pet coke by the industries other than the cement plants. The cement plants are generally large scale industries and the use of pet coke in the kiln is fundamentally different from direct use of it as fuel in boilers by other industries. We can safely infer from the recommendations of the group report and also deliberation in the working group of MPCB that the use of pet coke as fuel would require specialized air pollution control systems like alkali media wet scrubbers, besides the conventional air pollution control equipment. Similarly, though the air pollution potential of use of pet coke as industrial fuel is known to be significant, at least since 2003, authorities like CPCB have not carried out any specific study or research regarding the pollution potential of such use of pet coke, like chemical composition of pet coke for metal contents; composition of air emissions; comparison to air emissions while using coal; and the need of specific air pollution control systems.
At this stage, a reference can be made to section 16 and 17 of Air Act where the CPCB and SPCBs have been given very specific mandate. Section 16 (1) squarely entrust CPCB with the responsibility to maintain the ambient air quality in the country, besides conducting specific research activities related to air pollution. SPCBs are required to support such research activities, besides specifying emission standards for various source emissions including the industries. We do not find any such efforts from CPCB in this particular case. The relevant sections are reproduced below:-
"16. Functions of Central Board -
(1) Subject to the provisions of this Act, and without prejudice to the performance, of its functions under the Water (Prevention and Control of Pollution) Act, IL974 (6 of 1974), the main functions of the Central Board shall be to improve the quality of air and to prevent, control or abate air pollution in the country.
(2) In particular and without prejudice to the generality of the foregoing functions, the Central Board may-
(a) advise the Central Government on any matter concerning the improvement of the quality of air and the prevention, control or abatement of air pollution;
(b) plan and cause to be executed a nation-wide programme for the prevention, control or abatement of air pollution;
(c) co-ordinate the activities of the State and resolve disputes among them;
(d) provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of air pollution and prevention, control or abatement of air pollution; 12[(dd) perform such of the function of any State Board as may, be specified in and order made under sub-section (2) of section 18;]
(e) plan and organise the training of persons engaged or to be engaged in programmes for the prevention, control or abatement of air pollution on such terms and conditions as the Central Board may specify;
(f) organise through mass media a comprehensive programme regarding the prevention, control or abatement of air pollution;
(g) collect, compile and publish technical and statistical data relating to air pollution and the measures devised for its effective prevention, control or abatement and prepare manuals, codes or guides relating to prevention, control or abatement of air pollution;
(h) lay down standards for the quality of air.,
(i) collect and disseminate information in respect of matters relating to air pollution;
(j) perform such other functions as may be prescribed.
(3) The Central Board may establish or recognise a laboratory or laboratories to enable the Central Board to perform its functions under this section efficiently.
(4) The Central Board may-
(a) delegate any of its functions under this Act generally or specially to any of the committees appointed by it;
(b) do such other things and perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes Of this Act.
Functions of State Boards -
(1) subject to the provisions of this Act, and without prejudice to the performance of its functions, if any, under the Water (Prevention and Control of Pollution) Act, 1974 (Act 6 of 1974), the functions of a State Board shall be-
(a) to plan a comprehensive programme for the prevention, control or abatement of air pollution and to secure the execution thereof-,
(b) to advise the State Government on any matter concerning the prevention, control or abatement of air pollution;
(c) to collect and disseminate information relating to air pollution;
(d) to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of air pollution and to organise mass-education programme relating thereto;
(e) to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control or abatement of air pollution;
(f) to inspect air pollution control areas at such intervals as it may think necessary, assess the quality of air therein and take steps for the prevention, control or abatement of air pollution in such areas;
(g) to lay down, in consultation with the Central Board and having regard to the standards for the quality of air laid down by the Central Board, standards for emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollutant into the atmosphere from any other source whatsoever not being a ship or an aircraft:
Provided that different standards for emission may be laid down under this clause for different industrial plants having regard to the quantity and composition of emission of air pollutants into the atmosphere from such industrial plants;
(h) to advise the State Government with respect to the suitability of any premises or location for carrying on any industry which is likely to cause air pollution;
(i) to Perform such other functions as may be prescribed or as may, from time to time, be entrusted to it by the Central Board or the State Government;
(j) to do such other things and to perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes of this Act.
(2) A State Board may establish or recognise a laboratory or laboratories to enable the State Board to perform its functions under this section efficiently."
It is also noticed from the replies filed by the Respondents that the prayer of the applicant to declare pet coke as hazardous waste is also not adequately responded, either by the CPCB or MoEF. CPCB has taken a stand that this matter needs to be referred to the technical expert committee constituted by the MoEF for identification of hazardous waste. We do not know why such a reference has not been made by the CPCB to MoEF so far, even when it had thought it necessary to do so.
After arguing the matter in detail, Learned Counsel for the MoEF and CPCB further submitted that a similar issue of use of pet coke in the industry in NCR area and its contribution to the air pollution in NCR area is under consideration of the Apex Court in IA No. 345 in WPC No. 13029 of 1985. A copy of the order dated 6thFebruary 2017 has been placed on record. The relevant paragraphs of this order is reproduced below:
".......The learned Solicitor General has also made a submission with regard to use of pet coke and furnace oil in NCR. He says that meetings have been held in this regard but a final decision has yet not been reached since some substitute has to be found for pet coke and furnace oil. It is submitted by learned Amicus that natural gas and electricity are viable substitute. These should be explored by the concerned bodies".
"We have seen the Report dated 01.02.2017 submitted by Environment Pollution (Prevention & Control) Authority (EPCA). We find that the sulphur content in pet coke and furnace oil is extremely high and that is a major cause of pollution in Delhi and indeed in NCR.
"The learned Solicitor General says that a final decision will be taken with 8 weeks. We are of opinion that so much of time cannot be granted given the urgency in the matter".
"Keeping these facts in mind, we are of opinion that urgent action is required to be taken by the concerned authorities to ensure that air pollution in Delhi is reduced. There is, therefore, great urgency in taking a final decision on the use of pet coke and furnace oil.......".
With respect, it can be noticed from above the order of the Apex Court that there are no specific directions in the matter or stay to the present proceedings. It can also be noticed that the Apex court while recording the high pollution potential of pet coke and furnace oil (FO) with regard to ambient air pollution in Delhi and NCR areas, has opined the need of urgent action by government authorities, which has not been on record even today. The Apex court in that matter is comprehensively hearing ambient air pollution problem in Delhi and NCR area; and particularly the issue of illegal use of pet coke and furnace oil was brought before the Apex court by EPCA, and was not part of action plan prepared by CPCB. The present application is specifically regarding the use of pet coke as industrial fuel across the country. We, therefore, do not find any merit in the arguments advanced by MOEF and CPCB regarding the consideration of issue by the Apex court.
Still however, it is noticed that after the order of the Apex Court, a meeting has been held by the MoEF of all the stakeholders. It is observed from the minutes of the meeting held on 18th January 2017 that while concluding the meeting, the MoEF was of the view that the issue regarding the ban on use of pet coke and furnace oil as industrial fuel and for generation of electricity in Delhi and NCR including its extent, impact and measures/steps for transition towards cleaner fuel may need further discussions. MoEF was required to convene further meetings in this regard at appropriate level to chart out action plan. No records of subsequent efforts taken by MOEF have been placed on record which shows that no action has been taken by the authorities in spite of clear opinion expressed by the Apex court.
In view of the discussion referred above and the documents and the pleadings submitted on record, we dispose of this application with following directions:
(I) The respective State Governments shall take a decision as to whether the Pet coke is 'an approved fuel or not' in terms of Section 19(3) of the Air (Prevention and Control of Pollution) Act, 1981 and notify their decision within a period of two months.
(II) MoEF shall take a decision on classification of pet coke whether it is hazardous waste or not in view of the provisions of the Hazardous Waste Management Rules, 2016 and issue necessary notification/clarification in this regard within a period of 2 months.
(III) The industries which are having necessary consent for use of Pet coke as an industrial fuel or for energy generation can continue to use the same for a period of 2 months. Thereafter, they shall abide by the decisions taken by the State Governments and MoEF, in furtherance of the aforesaid directions no. 1 and 2 respectively. But the industries that do not have any consent for use of Pet coke, the State Pollution Control Boards shall take immediate action against them. Such industries are to be closed down forthwith.
(IV) In furtherance to above direction, the industries which are willing to use pet coke as industrial fuel or for energy generation shall have to obtain necessary consent from SPCB/PCC which shall include specific approval for the Air Pollution Control System required for such use of pet coke as a fuel.
(V) No industry or processes shall use pet coke as fuel without adhering to above conditions. The Central Pollution Control Board shall communicate this direction to all the State Boards/Pollution Control Committees and ensure the compliance, within one month.
The application is disposed of, with no order as to cost.