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Judgment
This appeal is directed against the Environmental Clearance (EC) granted by State Level Environment Impact Assessment Authority (SEIAA) dated 23.12.2014 for the proposed I X 48 MW imported coal based Thermal Power Plant at S.F.No.149 & 150, Vadamugam Kangeyam Village, Avinashi Taluk, Tiruppur District in favour of the 4th respondent, Project Proponent M/S.IG3 Infra Limited.
The appeal is preferred by the appellant society, which is stated to have got registered to promote environmental education to prevent pollution and to improve agriculture. According to the appellant-society, the impugned Environmental Clearance (EC) granted by the 2nd respondent (SEIAA), is in violation of law and without proper appraisal of the project. Further the 2nd respondent has not considered the cumulative impact of the project and failed to consider the report on the Environmental Impact Assessment (EIA), which according to the appellant is inchoate and incomplete.
The appellant has raised various issues including that the Terms of Reference (ToR) prepared for the Project Proponent is not specific and the EIA report is not in conformity with the ToR, apart from the fact that the data which have been collected by the Project Proponent through its consultant, was prior to ToR issued, which is against the EIA notification.
The appellant further raised an issue that the public hearing conducted on 30.08.2012 was not proper and there was no wide publicity given and in any event, the objections raised in the public hearing have not been considered by the 2nd respondent, SEIAA.
The appellant also proceeds to state that the EIA report has not been prepared by proper assessment of the impact of the Thermal Power Plant and on the other hand, the Project Proponent has mechanically listed out various baseline data collected to assess ambient environment standards even before the issuance of ToR. The report is silent even on the impact of bottom ash and nothing is stated about the ash pond. In addition to that, the crucial aspects like effect of Ozone gases, Radio Activity, cumulative impact of the plant etc, have not been assessed by the EIA, apart from the fact that the flora and fauna of the region have not been assessed. The Expert Appraisal Committee (EAC) failed to see that the EIA report is for a cogeneration plant of mixed fuel namely, Coal and Biomass whereas the clearance granted was exclusively for coal based Thermal Power Plant. There is lack of proper appraisal by the State Level Expert Appraisal Committee (SEAC), which has failed to consider that the Project Proponent has not even obtained clearance for SEZ but is proceeding to set up a multi plant co generation facility together with the proposed textile park and therefore, the thermal Power Plant is not a stand alone project but forms part of SEZ. The appellant has also relied upon various decisions of the Tribunal to show that in cases of failure of proper cumulative impact assessment, the EC is not sustainable. The study has not been properly done regarding the radiation of fly ash emitted by the power plant by way of burning coal for electricity. The Ozone is the secondary air pollutant with high concentrations of NOx and VOCs. The failure of the SEAC in applying its mind is clear from the fact that SEAC was having 19 items in the agenda for a day, which is humanly not possible for making proper assessment for these 19 items. There is no coal linkage, which is mandatory, for consideration of Environmental Clearance (EC) for such plants. It is the further case of the appellant that the project area has not been properly assessed for impact since the Project Proponent has made assessment only within the project area, instead of assessing 10 km radius from the boundary of the plant. In an earlier application filed before the Tribunal in A.No.149 of 2013, the 4th respondent has filed an affidavit on 19.11.2014 undertaking that the appellant will not carry on any construction activity till necessary permissions are obtained from the 3rd respondent, The Tamil Nadu State Pollution Control Board. According to the appellant, the Project Proponent has committed breach of the same. Raising various legal issues, the appellant has challenged the impugned EC.
The 2nd respondent, SEIAA, has filed its reply, which was adopted by the 1st respondent, in which it is stated that while the appeal is devoid of any merits and liable to be dismissed, the project proposal was originally submitted to the MoEF for grant of EC for the proposed Thermal Power Plant, in the absence of SEIAA functioning in Tamil Nadu , the ToR was issued by the MoEF on 26.04.2012. The proposal was placed before the EAC in its 38th meeting held on 12th and 13th December, 2011 and it was deferred on the ground that the Project Proponent should first examine the action plans prepared by the Tamil Nadu Pollution Control Board in Tirupur area. Thereafter, the Project Proponent has obtained the views of the District Environmental Engineer/TNPCB at Tirupur and forwarded the same to the MoEF, which has placed the proposal before the 44th meeting of EAC held on 5th and 6th of March 2012 and ToR was prescribed for EIA and EMP. It is also stated that the study has been done for both types of fuel i.e. 100% coal or combination of coal and Biomass and therefore, it is not correct to say that the study of the project was of different description and that it was inchoate and incomplete. EIA study was submitted by the project Proponent to the 2nd respondent and public hearing was conducted on 30.08.2012 and thereafter, the proposal was appraised by SEAC during its 39th meeting held on 02.05.2013, wherein it was decided to call for certain additional details. After the details were furnished on 21.06.2013, the proposal was again placed before SEAC in its 42nd meeting held on 24th and 25th of July 2013 and the Committee after due consideration of all the points, recommended for grant of EC after obtaining certain details.
The recommendations were placed before the meeting of the 2nd respondent held on 23.09.2013. The 2nd respondent after a detailed discussion, decided and called for the EC for SEZ and it was observed that the EC has not been issued for SEZ. It is also not correct to state that the Power Plant was an integrated part of SEZ since the records show otherwise. The proposal was referred back to SEAC again and the Committee in its 45th meeting held on 29th and 30th October, 2013 called for the above said clarification from the Project Proponent and the status about the compliance of Consent to Establish (CTE) apart from the status of EC for SEZ Textile Park etc. As no response was received, a reminder was sent on 21.05.2014, for which there was no answer from the Project Proponent regarding the query raised by the 2nd respondent. It was in those circumstances, the Tamil Nadu Pollution Control Board was again addressed regarding the condition imposed for Consent to Establish given to the Textile Park.
The 3rd respondent has given Consent to Establish the Unit on condition that it shall ensure no industrial activity other than the proposed activity, namely, V12 garment manufacturing, loom units, automated bed liner unit, Textile processing unit and sewing thread winding units in TS No.142, 143, 149, 150 and 151 of Vadamugam Kangeyampalayam Village, Perunthurai Taluk, Erode District. It was also clearly mentioned that the Unit shall not house any industry including power plant belonging to category A or B of EIA notification, 2006. The subject was again placed before the 62nd meeting of SEAC held on 26.11.2014 and the Committee after a detailed discussion decided to recommend the 2nd respondent to consider the issuance of EC with conditions that the Project Proponent shall take all necessary steps to obtain suitable amendment from the 3rd respondent, Tamil Nadu Pollution Control Board or to delete the condition imposed by it in CTE to the Textile park in SEZ so as to permit power plant on the designated SEZ textile park. It is also stated that EIA study has been properly done by the Project Proponent before the issuance of ToR and in fact, the study has been done prior and after the issuance of ToR and it does not vitiate the process of issuance of EC. The EIA report was prepared by accredited consultant and the report on fuel was further sought by the Committee and examined. The power plant to be located in the SEZ area will not house any category projects. It is also stated that the Project Proponent has furnished documents for supply of water from the new Tiruppur Development Corporation. The minutes of the Public hearing and responses were placed before the SEAC and were examined and the project was approved only after verification and complete satisfaction of the assessment of impact study along with scientific and technical safeguards.
The 3rd respondent, Tamil Nadu Pollution Control Board in its reply has stated that the 4th respondent, which is a Public Limited Company has established the Textile specific Special Economic Zone (SEZ) at Vadamugam Kangeyampalayam village, Uthukuli Taluk, Tirupur District in Tamil Nadu. SEZ is spread over around 256 acres of unclassified land. M/s. Great Indian Linen & Textile Infrastructure Company (P) Ltd who is a co-developer of the 4th respondent, took lease of 115.93 acres of land for 99 years from the 4th respondent, and its main business is to establish Infrastructure facilities like road, water, building, uninterrupted power supply for export oriented textile manufacturing unit in the SEZ and that was approved by the Ministry of Textiles, Government of India.
The said Great Indian Linen & Textile Infrastructure Company (P) Ltd has obtained Consent for Establishment under Water (Prevention and Control of Pollution) Act 1974 for construction of Textile Buildings vide the Consent Order No.4449 dated 02.06.2008 with a validity period upto 02.06.2010 and that was further extended upto 09.12.2016. To overcome the power crisis faced by the manufacturing unit in the SEZ, the 4th respondent has proposed to have 1 X 48 MW multi fuel based thermal power plant at the same Textile Park in the SEZ in SF No.149 and 150 comprising of around 15 acres for their internal use. The Unit authorities have applied for EC for the proposed power project to the MoEF, New Delhi and the Committee accepted the project and released the ToR on 26.04.2012. The Committee advised to conduct Rapid Environmental Impact Assessment (REIA) study and the public hearing. Accordingly, the REIA study was conducted and the public hearing was carried out on 30.08.2012 and the 4th respondent has submitted EIA report along with its documents, seeking EC for setting up of 1 X 48MW multi fuel based thermal power plant at S.F.Nos.149 & 150, Vadamugam Kangeyampalayam Village, Uthukul Taluk, Tirupur District. The SEIAA has granted EC on 23.12.2014 with a validity for five years subject to various conditions.
The appellant has filed an application in 149 of 2013 (SZ) before the National Green Tribunal, Southern Zone, Chennai seeking an order to restrain the 4th respondent M/S.IG3 Infra Limited herein and M/S. The Great Indian Linen & Textile Infrastructure Company (P) Ltd., from carrying out any construction activity in S.No.149 and 150 Vadamugam Kangeyampalayam Village, Chengapalli,Tiruppur District unless and until they comply with pollution laws. In that application, the 4th respondent, M/S. The Great Indian Linen & Textile Infrastructure Company (P) Ltd., has filed an affidavit of undertaking to the effect that they would not carry out any construction activities in the said Thermal Power Plant until they get necessary permission from the Tamil Nadu Pollution Control Board (Board). The said undertaking was recorded and the application was closed. It is stated that the 4th respondent has filed an application through on line for the issuance of Consent to Establish the Unit to the Board with a proposal that the Unit will have 1 X 48 MW power plant and to use imported coal of 652 tonnes per day. The Unit proposed to consume 576 KLD of water for cooling, boiler feed and 24 KLD of water for domestic purposes. It will generate 68 KLD of trade effluent and 12 KLD of sewage effluent. The Sewage was proposed to be treated through septic tank and soak pit arrangements and the trade effluent will be treated through Effluent Treatment Plant (ETP). The proposed ETP consists of Equalising tank for DM water, Neutralizing water tank for softener, clarifier, activated Carbon Filter, Ultra Filtration Unit, RO Unit and Solar Evaporation plant. It was also proposed to use the treated effluent for fly ash quenching, dust suppression and cleaning purposes. The Unit also proposed to install Electro Static Precipitator (ESP) with stack of 76 m height to the boiler with adequate acoustic measures and the unit was proposed to collect fly ash from ESP through silo arrangement and dispose to RMC and fly ash for brick manufacturing. The proposed site was inspected by the Joint Chief Environmental Engineer (Monitoring) TNPCB, Coimbatore and District Environmental Engineer, TNPCB, Tiruppur (North) on 17.03.2015 and 26.03.2015 and submitted their report with recommendations to the Board. Subsequently, the Board has issued the Consent to establish on 17.07.2015.
The 4th respondent, Project Proponent filed a reply in which it has raised a preliminary objection that while EC was granted to the 4th respondent on 23.12.2014, the present appeal has been filed on 20.05.2015 and as per Section 16 of the NGT Act, 2010, an appeal should be filed within a period of 30 days from the date of communication of the order. The Memorandum of Appeal clearly states in the column relating to limitation, that the cause of action arose on 23.12.2014. However, the clearance was not communicated and the limitation was calculated from the date of reply by SEIAA under RTI Act and there is no specific date mentioned as to when the communication was received under the RTI Act.
According to the Project Proponent, the conditions contemplated in the EC should be communicated to the Block Development Officer and to the MoEF and the same has been effected on 21.01.2015 and 28.01.2015 respectively and in the meantime, the clearance has been widely circulated in the News papers on 29.12.2014 and 30.12.2014. The EC was also uploaded by the Project Proponent in its website as per conditions and therefore, according to the Project Proponent, the appeal has not been filed within the time stipulated under the NGT Act, 2010.
While dealing with the merits of the case, it is stated by the Project Proponent that the present project is a Multi Fuel Co-generation Power Plant facility for the generation of 1 X 48 MW power at Vadamugam Kangeyam Palayam Village, Avinashi Taluk, Tirupur District, Tamil Nadu and as contemplated in the EIA Notification 2006, the 4th respondent has applied for EC in proper form in the year 2011-12. There has been persisting harassment by certain motivated persons agitating against the project.
It is stated that the present appellant has earlier filed an application in A.No.149 of 2013 praying to retrain the 4th respondent from constructing any power plant and the respondent has filed an undertaking that it will not carry on any construction activity without Consent under the Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act, 1981 and therefore, the said application stood disposed on 19.11.2014. Thereafter, the present EC granted has also been questioned by the same applicant here. It is also stated that based on the proposal, ToR was released on 26.04.2012 and EIA report and EMP were prepared by M/s. Vimta Labs an accredited agency and the impact assessment study was also done and it was evaluated in the 44th meeting of SEAC held on 06.03.2012 when certain additional project specific ToR was issued. The public hearing procedure was followed and the public hearing was conducted on 30.08.2012 and thereafter, on the recommendation of SEAC, EC was granted as per EIA Notification 2006. It is stated that the study has been made for both type of fuel i.e. 100% coal and combination of coal and biomass and therefore, it is wrong to state that the study was made on different description. The said study was made with relevant to Tirupur area and action plan was prepared by the Tamil Nadu Pollution Control Board which was examined by the Project Proponent. It was observed that the project is 15 kms away from the Tirupur Clusters and it is situated in the upstream of River Noyal. It is also stated that as per the point XXXIII of the ToR, EIA study should be carried out during non-monsoon. It cannot be stated that the EIA study have been completed before the ToR, as the same has been conducted till 15.05.2012 based on the additional ToR given in the 44th meeting of EAC in March, 2012 in order to completely satisfy the assessment study. The Project Proponent as a precaution has studied from 15.02.2012 upto 15.05.2012 and the same will not vitiate the EC process.
The public hearing was attended by about 1500 people and the same was conducted by TNPCB presided over by the District Collector. The notice for the public hearing was given in "Thina Thanthi" and "Indian Express" on 25.07.2012 and the executive summary of the project was placed both in English and Tamil in various required places including Panchayat Office and Block Development Office. The details with respect to the utilisation of bottom ash and the specifications of the ash pond have been studied and presented to the SEAC and TNPCB. There is no Red Category industry within a radius of 3 km from the project site and there is no basis for the allegation that cumulative impact assessment has not been done. As per the agreement for imported coal, there there is no trace of radioactive elements. The project itself is only for 48 MW capacity where traces of depletion of Ozone impacting gases are less than negligible and they are only speculative. Therefore, the assessment has been done elaborately by following the procedure. It cannot be said that there is no application of mind. It is stated that coal supply agreement has been made for 4,80,000 MT and to be supplied in shipments of 40,000 MT. Therefore, it is wrong to say that the agreement entered is only for 40,000 MT.
It is the contention of Mr.T.Mohan, learned counsel appearing for the appellant that while ToR was issued on 26.04.2012, the Project Proponent has admittedly collected base line data even from 15.02.2012, eventhough it went on upto 15.05.2012. The Collection of such base line data before the issuance of ToR by the EAC, is not permissible, as per the provisions of EIA Notification, 2006. He also referred to a judgment of the National Green Tribunal (SZ) in Appeal No.172,173 and 174 of 2013 (Sree Ranganathan K.P. VS The Union of India and others) - called as Aranmula Airport case, wherein the Tribunal has made an observation that the practice of collecting data before the finalisation of ToR by the EAC is untenable in the eye of law.
It is his further submission that while conducting public hearing on 30.08.2012, the same was not done by following the procedure explained in the EIA Notification 2006. According to him, before conducting the public hearing, there was no proper notification with the result, the public stake holders, who are likely to be affected by the project, were unable to participate. His further contention is that the appraisal done by SEAC is not valid in law and as an Expert Body, the appraisal should have been done meticulously by considering the particulars mentioned in the proposal of the Project Proponent, apart from any draft EIA if supplied. The EAC and SEAC which appraised the project again and again on various dates of meeting, on considering the fact that proper particulars have not been furnished by the Project Proponent, instead of rejecting the proposals, have repeatedly given time to the Project Proponent and re-appraised the proposals repeatedly. It is his submission that the EC applied was for both the Power Plant and SEZ and therefore the co-generation plant cannot be said to be a stand alone project. Even in respect of the co-generation plant, the nature of fuel, which is proposed to be used, has not been properly identified by the Project Proponent and therefore there was possibility for the Project Proponent to use different quality of fuel in the boiler, which may result in enormous environmental issue and the said crucial aspect has not been considered by SEAC and therefore it has to be held that the EC was granted by non application of mind.
According to the learned counsel, the EIA prepared on the proposal was that it is a co-generation plant, coal as well as biomass will be utilized without mentioning as to which fuel is to be used specifically and in spite of it, the impugned EC has been granted for 100% imported coal as well as biomass, however the effect of biomass has not been studied properly in the EIA. It is his submission that many number of projects, which are mega projects, have been considered in no point of time by the EAC by total non application of mind. It is his further submission that the study in EIA was restricted only to fly ash and not bottom ash and EIA report does not mention anything about the ash pond or ash management, particularly the bottom ash. The presence of two Reserve Forests has been mentioned by the Project Proponent as situated within 6 km radius in Form 1, but the EIA study which is expected to make the study about the impact within 10 km of project, has not been done properly. The study should have been upto 10 km from the project site and cannot include the area covered by the project itself and therefore, the 10 km study on the project site has not been properly made by the EIA.
The learned counsel has also submitted that the study has not been made referring to the effect of radio activity and heavy metal contents of coal. That apart, it is the case of the counsel that the effect of emission of ozone gases from burning of coal has not been studied. In addition to that, he submitted that the lack of sampling points for monitoring AAQ, ground water quality and ecological parameter are not proper. The very fact that the public hearing on the materials thereto, were not discussed in the impugned EC show that it is by non application of mind and as per the judgment of the High Court of Delhi in Utkarsh Mandal Vs. Union of India and others (W.P.(C).No.9340 of 2009), the entire process is vitiated. It is his submission that EIA report filed by the Project Proponent is silent on the environmental impact study and even the quality of coal has not been mentioned. He also submitted that EAC proceedings regarding the appraisal of the project are vitiated for the reason that no reason for accepting the proposal was given. According to the learned counsel, while granting EC, EAC as well as the regulatory authority must give proper reasons. The learned counsel also relied upon various judgments to substantiate his contention that the mandatory procedures contemplated under EIA notification 2006, ought to have been followed. He also relied upon the judgment of the Hon'ble Supreme Court in May George Vs. Special Tahsildar and Others, 2010 (13) Supreme Court Cases 98 to substantiate his contention that the mandatory duty of authorities are to be considered based on the purport and ambit of the statutory requirements and provision of law. He also relied upon an earlier decision of this Tribunal (SZ) in Samata and another Vs. The Union of India in Appeal No. 9 of 2011 dated 13.12.2013 to substantiate his contention that in the event of reason not being given in the order, particularly the details of public hearing, the EC stands vitiated.
Per contra, it is the contention of Mrs. Nalini Chidambaram, learned Senior Counsel appearing for the 4th respondent, Project Proponent, that while admittedly ToR was granted on 24.04.2012, the study made covers the subsequent period upto 15th May 2012. Even though before ToR, certain base line data were collected , such data will not vitiate the EC unless it is evident that there are some grave errors. From the relevant material, it can be noted that it is a green field project, the AAQ status and water status are same till the project construction to be started. In fact, the Project Proponent had to study prior to ToR with relevant to Tirupur area and an action plan was prepared by the Tamil Nadu State Pollution Control Board and that was considered and examined by the Project Proponent while preparing EIA report. It was found that the Project was 15 Km away from Tirupur Clusters and located in the upstream of River Noyal and therefore, there will be no impact on the river or on the AAQ (Ambient Air Quality) of the area. She has also submitted that study made prior to issuance of ToR, was as a precautionary measure. Moreover, as per point No. XXXIII of the ToR, study should have been carried out during non monsoon season. Since the project is green field project, the AAQ status and the water status are the same till the construction is started and such AAQ study should be carried out in all seasons due to utilisation of coal as a fuel and that was as per the advise of the SEAC.
She also submitted that in respect of the public hearing, the same was conducted by the authorities by giving public notice and in fact, a large number of people numbering around 1500 have participated in the public hearing conducted by the Board, presided over by the Collector. The notice for public hearing was published in "Daily Thanthi" (Tamil) and "Indian Express" (English) on 25.07.2012 by giving 30 days' advance notice to the people. The executive summary about the project both in English and Tamil language, have also been placed in various places including the Panchayat Office and BDO Office and therefore, it cannot be stated that the public hearing has not been done in accordance with law. She also submitted that the EIA report was project specific and deals with the respective utilisation of bottom ash and the specifications of ash pond was studied and presented to the SEAC. The land requirements for SEZ have been given as per the query raised by the Board and the details have been submitted to SEAC and the Board. Regarding the extraction of ground water, it was very clear in EIA report that there will be no extraction of ground water and the approval has been received from NTADCL for supply of water of 1 MLD, which is over and above the required quantity of 600 KLD and according to her, there are no Red category industries situated within a radius of 3 KMs from the project site and therefore, there is no basis to state that the cumulative impact assessment has not been done. It is her further submission that the data collected were in proximate to ToR and according to her, the data collection is only directory in nature and not mandatory by relying upon the judgment reported in 2010, (13) Supreme Court Cases page 98 (May George VS Special Tahsildar and others).
According to her, the observations made by the NGT (SZ) in Aranmula judgment is not applicable to the facts and circumstances of the present case. She would vehemently contend that the project being only for 48 MW, the traces of depletion of Ozone impacting gases are less than negligible and it is speculative for the appellant to magnify the same. It is her case that the project relates to the power plant and is only a stand alone project and it has nothing to do with the SEZ, even though the purpose is to supply electricity to SEZ area. In fact, SEAC in its 42nd meeting has clearly found that there was no record to show that the power plant is an integral part of SEZ for Textile Park. The stand alone project of power plant is only in respect of S.No.149 and 150 and in fact, the land in S.No.150, which was originally handed over to M/S.Great Indian Lenin and Textile Infrastructure Co. Pvt.Ltd. by way of lease by the Project Proponent, was again handed over to the Project Proponent and therefore, the project was appraised as an individual project in accordance with the EIA Notification 2006 and SEZ has nothing to do with that, which has separately applied for EC. Therefore, she submitted that the contention of the appellant that it was an integrated project of SEZ as well as power plant, is unfounded. She also submitted that it is not as if the EAC has recommended for issuance of EC in a single meeting or over night but it was considered on many meetings calling for many particulars, which itself would show that there is proper application of mind. She has stated that elaborate reasons are required only in cases where the appraisal of EAC/SEAC was rejected by the regulatory authority or not recommended by EAC/SEAC and in cases where a positive recommendation is given in accordance with EIA report and EAC/SEAC recommendations, the conditions themselves will constitute reason and there is no necessity for giving separate and elaborate reasoning for the same. She has also relied upon the provisions of EIA Notification 2006, apart from the judgment reported in 1974 (1) Supreme Court Cases,345 (Pooran Mal VS The Director of Inspection(Investigation), New Delhi and others, and the Aranmula Judgment given by the NGT (SZ) Bench.
She also submitted that there are no statutory violations committed by the Project Proponent and since it is a small project for the purpose of producing 48 MW power with insignificant impact of Ozone gases, merely because data collection started before ToR, EC cannot be set aside.
Mr.Syed Nurullah Sherif, learned counsel appearing for respondents 1 and 2, has submitted that the collection of baseline data during non-monsoon period is standard in ToR in respect of these projects. According to him, the SEAC has considered various issues of different data and with complete application of mind, based on which recommendations were made to the regulatory authority, which has issued the impugned EC and there is no necessity for interfering with the EC issued by the regulatory authority. That is also the submission made by Mrs.H.Yasmeen Ali, appearing for the Board.
We have heard the learned counsel appearing for the appellant as well as the respondents including the learned Senior Counsel appearing for the Project Proponent in detail, referred to the entire pleadings, documents and judgments referred to by both the counsel and given our anxious thoughts to the issues involved in this case.
The main issue which has to be decided on the facts of the present case is as to whether the impugned EC granted by the second respondent SEIAA dated 23.12.2014, is in accordance with law or not. It is true that initially the Project Proponent has raised the issue of maintainability on the basis of limitation, which was subsequently given up by the learned Senior counsel appearing for the Project Proponent and therefore, we have heard both the learned counsel on the merits of the appeal.
While deciding about the validity or otherwise of the impugned EC granted by SEIAA dated 23.12.2014, various issues have been raised by the counsel for the appellant and we will be referring to the contentions raised by the parties topic-wise and give our decisions.
Discussions and findings:
Data collection before the ToR:
While referring to the above said issue raised by the learned counsel, it is necessary to refer relevant provisions of the EIA Notification 2006 issued by the Government of India exercising its statutory powers conferred under Section 3 (2) of the Environment (Protection) Act 1986 r/w clause (v)(d) of the sub-rule 3 of Rule 5 of the Environment (Protection) Rules 1986. The statutory rule, contemplates the requirement of prior Environmental Clearance for the new projects and activities listed in the Schedule to the Notification, in respect of which, it is not in dispute that the proposed project is a new project and one among the activities listed in the Schedule. The proposed project being Thermal Power Plant, producing less than 500 MW, is covered under 'B' category, for which, the 2nd respondent, SEIAA is the authority to consider and grant EC, which is also not in dispute.
Out of the four stages of prior Environmental Clearance process for new projects, the first stage of "Screening" will apply to the facts of the present case, which means that the SEAC by referring to the contents of Form-1, given by the Project Proponent in the form of proposal, has to determine whether or not the Project requires further environmental studies for the preparation of EIA prior to grant of EC for appraisal. Stage 1, Screening and the statutory procedure to be followed are explained in the EIA Notification.
It follows the second stage - "Scoping": It contemplates the SEAC, in respect of 'B' category projects, to determine the detailed and comprehensive Terms of Reference (ToR) addressing all relevant environmental concerns for the preparation of EIA report in respect of the project or activity, for which prior EC is sought. Therefore, the primary source of determining the ToR is the information mentioned by the applicant in Form 1/Form-1 A including Terms of Reference proposed by the Project Proponent if any. In fact, while settling the ToR, the SEAC itself can make a site visit by a sub-group and it is based on those materials including any suggested ToR furnished by the Project Proponent , the SEAC shall determine the ToR. In this case admittedly at that point of time, ToR was prescribed by the EAC as SEAC was not in function in the State.
The clause relating to "Scoping" also contemplates that in cases where ToR not finalised or conveyed to the Project Proponent within 60 days of the receipt of Form 1, the ToR suggested by the Project Proponent shall be deemed to be a final ToR approved for EIA studies. Even at this stage, the SEAC can recommend the regulatory authority to reject the proposal. In such event, it must convey the reasons for the same and shall be communicated to the Project Proponent in writing within 60 days of the receipt of the application. For a proper appreciation of the entire Scoping stage, it is necessary to reproduce the contents of EIA Notification 2006. Stage 2, Scoping stood originally, as follows:
"II. Stage.2: Scoping: - 1. "Scoping" refers to the process by which the Expert Appraisal Committee in the case of Category 'A' projects or activities, and State Level Expert Appraisal Committee in the case of Category "B-1" projects or activities, including applications for expansion and / or modernisation and or change in product mix of existing projects or activities, determine detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought. The Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall determine the Terms of Reference on the basis of the information furnished in the prescribed application Form 1/ Form 1-A including Terms of Reference proposed by the applicant, a site visit by the sub-group of Expert Appraisal Committee or State Level Expert Appraisal Committee concerned only if considered necessary by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, Terms of Reference suggested by the applicant if furnished and other information that may be available with the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. All projects and (Activities listed as Category 'B' in item 8 (a) of the Schedule (building and construction projects) shall not require Scoping and will be appraised on the basis of Form 1/Form-1 A and the conceptual plan.
ii. The Terms of Reference (TOR) shall be conveyed to the applicant by the Expert Appraisal Committee or State Level Expert Appraisal Committee as concerned within sixty days of the receipt of Form 1. In the case of Category A Hydroelectric projects Item 1(c)(i) of the Schedule the Terms of Reference shall be conveyed along with the clearance for pre-construction activities. If the Terms of Reference are not finalised and conveyed to the applicant within sixty days of the receipt of Form 1, the Terms of Reference suggested by the applicant shall be deemed as the final Terms of Reference approved for the EIA studies. The approved Terms of Reference shall be displayed on the website of the Ministry of Enviornment and Forests and the concerned State Level Environment Impact Assessment Authority.
iii. Applications for prior environmental clearance may be rejected by the regulatory authority concerned on the recommendation of the EAC or SEAC concerned at this stage itself. In case of such rejection, the decision together with reasons for the same shall be communicated to the applicant in writing within sixty days of the receipt of the application".
Amendment notifications to scoping were issued on 04.04.2011 (SO695(E)), 22.08.2013 (SO2559(E)) 26.02.2014 (SO562(E)), 03.02.2015 (SO382(E)) and 10.04.2015 (SO (E)).
By the amendment effected from 04.04.2011, standardisation of ToR for identified projects were introduced by the MoEF. Two consultants were engaged by the Ministry for preparing Sector Specific EIA manuals namely, Administrative Staff College of India, Hyderabad and IL & FS, for 11 sectors and 27 sectors respectively.
The EIA manual prepared by IL & FS, Hyderabad has included "Thermal"as the first project among 27 for preparing model ToR which are sector specific and directed the Project Proponents to use them for preparing EIA/EMP. Thus standardisation of model ToR was introduced. The clause relating to "Scoping" in paragraph 7 of EIA Notification 2006, was ultimately amended on the above said dates. As on date, the Clause relating to Scoping in EIA Notification 2006, is as follows:
"II. Stage (2)-Scoping:
(i). "Scoping" : refer to the process to determine detailed and comprehensive Terms of Reference (ToR) addressing all relevant environmental concerns for the preparation of an Environmental Impact Assessment (EIA) Report in respect of project or activity for which environmental clearance is sought. Standard ToR developed by the Ministry in consultation with the sector specific Expert Appraisal Committees shall be the deemed approval ToR for the projects or activities. The standard Terms of Reference are displayed on the website of the Ministry of Environment, Forest and Climate Change:
Provided that the Expert Appraisal Committee (EAC) or State Expert Appraisal Committee (SEAC) may finalise amendment, if found necessary for a project within thirty days of the acceptance of application Form I or Form IA. These standard ToR shall enable Project Proponent to commence preparation of and Environment Impact Assessment Report after successful online submission and registration of the application:
Provided further that, the Expert Appraisal Committee (EAC) or State Expert Appraisal Committee (SEAC) may stipulate additional Terms of reference, if found necessary, within thirty days of the acceptance of application in the specified Form I or Form IA and the Project Proponent shall carry out the EIA study based on the standard ToRs as well as the additional ToR, if any, stipulated by EAC/SEAC:
Provided also that the following shall not require scoping:
(i) all projects and activities listed under Category 'B' against item 8 (a) of the Schedule;
(ii) all Highway projects in border States covered under entry (i) of column (3) and entry (ii) of column (4) against item 7 (f) of the Schedule;
(ii) all Highway expansion projects covered under entry (ii) of column (3) and entry (ii) of column (4) against item 7 (f) of the Schedule;
Provided also that-
A.the projects and activities referred in the clause
(i) shall be apprised on the basis of Form I of Form IA and the conceptual plan;
B. the projects referred to in clause (ii) shall prepare EIA and EMP report on the basis of standard ToR specified by Ministry of Environment, Forest and Climate Change.
(ii). Applications for prior environmental clearance may be rejected by the regulatory authority concerned on the recommendation of the EAC or SEAC concerned at this stage itself. In case of such rejection, the decision together with reasons for the same shall be communicated to the applicant in writing within sixty days of the receipt of the application.
(iii). Applications for prior environmental clearance may be rejected by the regulatory authority concerned on the recommendation of the EAC or SEAC concerned at this stage itself. In case of such rejection, the decision together with reasons for the same shall be communicated to the applicant in writing within sixty days of the receipt of the application.
Therefore, it is clear that Scoping clause as stood today enables a Project Proponent to commence preparation of EIA report after successful online application made for EC.
The statutory Notification relating to "Scoping" clause as originally stood does not in any way prohibit the Project Proponent from collecting any material or data before ToR is issued by the SEAC. On the other hand, a careful reading of the entire stage of "Scoping" and the EIA Notification 2006, makes it abundantly clear that it is purely based on the information submitted in Form 1 and in cases where a suggested ToR is submitted by the Project Proponent including any suggestions made by the Sub-group of the SEAC, the ToR shall be determined and there is no whisper anywhere that it is only after ToR is issued, the data collection should be made by the Project Proponent. This position is made abundantly clear after amendment dated 04.04.2011 till 10.04.2015 that standardised Form of ToR can be used for making EIA study. It is true that the data collections made by the Project Proponent after ToR is granted by the SEAC, will be more relevant for preparing the EIA report by the Project Proponent, for appraisal by SEAC, which is final stage of either recommending or not recommending for the issuance of EC by the regulatory authority.
32 . In the case of Sreeranganthan K.P VS The Union of India represented by its Secretary, Ministry of Environment and Forests and Climate Change, New Delhi and others (Aranmula Air Port Case) in Appeal Nos.172, 173 and 174 of 2013 etc. the National Green Tribunal, (SZ) in its common judgment dated 28.05.2014,while deciding about the validity of EC granted to M/s.KGS Aranmula International Airport Limited to set up an Airport at Mallapuzhassery, Kidangannur village, Kozhencherry Taluk, Pathanamthitta District, Kerala State, has raised various points, out of which, Point No.5 relates to whether the EC granted to the Project Proponent by the MoEF & CC is liable to be set aside for non application of mind by EAC in making the appraisal. In that case, while deciding the said issue, the Tribunal has found that even without a final EIA report, other materials were taken up for appraisal by the EAC and hence, both the appraisal by the EAC and the consequent clearance by MoEF & CC were presumed to be invalid. There can be no dispute about the same. There can be no appraisal under EIA Notification 2006 without proper and final EIA report, which has undergone the stage of public consultation and without any final EIA report, the EAC has no jurisdiction to go into the appraisal. It was after deciding that, the Tribunal has made certain observations in paragraph 161 , which is as follows:
"The practice of collecting data even before the finalisation of ToR by the EAC and the communication of the same to the project proponent is untenable in the eyes of law and it also sends wrong procedural signals. Accepting such a procedure is bound to set very unhealthy precedent, instead of deprecating the practice, the EAC, in the instant case, has given its seal of approval. We direct the concerned officials of MoEF to take note of this and initiate procedural reform(s) to discourage this practice."
The said reference, in our considered view, is not a point decided by the Tribunal but a passing comment on the facts and circumstances of that case, wherein EAC has taken up certain materials for appraisal even before the final EIA report was made available by the Project Proponent. But that observation is certainly not applicable to the facts and circumstances of the present case. It is not the case of any one before us, that SEAC before recommending for issuance of EC, has taken some materials into consideration, which does not form part of the final EIA report prepared by the Project Proponent. On the other hand, the case of the appellant is that the Project Proponent has chosen to collect data for the preparation of EIA report before the issuance of ToR by SEAC. It is clear that the ToR was formally released on 26.04.2012, while admittedly the Project Proponent has collected materials from 15.02.2012, upto 15.05.2012, based upon which the Project Proponent prepared EIA report. The reason given by the Project Proponent for collecting such baseline data before the issuance of ToR by SEAC is that it was collected as a precautionary measure, taking into consideration the ground reality and to have an accurate study. It appears that the Project Proponent in its eagerness to avoid the loss of one season of monsoon, has started collecting baseline data during non monsoon season commencing from 15.02.2012 without waiting for the release of formal ToR, which was done on 26.04.2012. It remains a fact that even after ToR was issued, the data collection continued upto 15.05.2012, based on which the Project Proponent has prepared its EIA report.
This is not a case where EIA report has been prepared by the Project Proponent purely based on the baseline data collected before the issuance of ToR. In any event, all these materials were collected before and after ToR was issued and were very much available before SEAC for proper appraisal. Considering the location and magnitude of the project, in our opinion, this may not be having any significant influence on the appraisal of the project and may not vitiate the whole process of granting the EC though technically commencement of collection of data will be normally done after the release of ToR. However, after amendment by introducing Project specific standardised ToR, collection of such data is permissible. Even if the Project Proponent was aware of the nature of ToR, going to be issued during deliberations held in the 44th SEAC meeting in March 2012, the same cannot be said to be an appropriate method. It is true that the ToR provide an analytical framework on the basis of which the EIA studies are conducted and therefore, it is not a meaningless or empty formality. But on the facts and circumstances of the present case, it is not even the case of the appellant that the baseline data collected by the Project Proponent has not identified the environmental concerns, with reference to which, EIA studies are conducted. Even though as we have stated earlier, collection of baseline date after ToR granted by SEAC is the most appropriate method, since that will enable the Project Proponent to collect relevant materials for the purpose of preparing EIA report, on the factual matrix of the present case, we are of the considered view that this has no abnormal effect of declaring the EC as a nullity.
Taking into consideration the later amendments in respect of "Scoping" and also the provision as stood originally we can safely conclude that collection of data after TOR is issued by EAC can only be directory, eventhough the EAC while appraising the project should not carryon such appraisal before final EIA report. The purpose of settling TOR is to have a focussed study in respect of the proposed project while preparing EIA report. In May George VS Special Tahsildar and others 2010 (13) SCC, 98, the Apex Court has considered the situation where a provision is to be treated either mandatory or directory depending upon the context in which the provision used. The Supreme Court, after analysis held as follows:
While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.
In Dattatraya Moreshwar v. State of Bombay this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgement is quoted below: (AIR p. 185, para 7)
"7...... It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."
A Constitution Bench of this Court in State of U.P. v. Babu Ram Upadhya decided the issue observing: (AIR p.765, para 29)
"29......For ascertaining the real intention of the legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statue provides for a contingency of the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."
In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur and State of Mysore v V.K. Kangan, this Court held that as to whether a provisions is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the lawmaker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from constructing it in one way or the other (SCC p.899, para 10).
In Sharif-ud-Din v. Abdul Gani Lone this Court held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance with the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provisions has to be constructed as mandatory."
In the light of the above said judicial dictum we are of the view that collection of data before ToR issued in this case does not nullify the impugned EC.
EAC failed to give reasons for accepting the appraisal while undertaking the appraisal and repeated giving of time by EAC to the Project Proponent is not permissible as per EIA Notification, 2006.
As stated above, it is the contention of the learned counsel appearing for the appellant that the EAC as well as the impugned EC has not given any reason and therefore, it should be construed as that of non application of mind by the statutory authority. The records show that SEAC in its various meetings held on 2nd May, 2013, 24th and 25th July, 2013, 29th and 30th October, 2013, 25th September, 2014, 26th November, 2014 and 12th December, 2014 has considered the proposal on various occasions and found, based on the presentation made by the Project Proponent, that a detailed study has to be made in respect of various aspects. For example, in the 37th meeting of SEAC dated 22nd March, 2013, the SEAC has deferred the proposal directing the Project Proponent to make studies including the detailed analysis regarding the environmental issues. Likewise, in a subsequent meeting, the SEAC, while considering the status of Consent Order and compliance of the Tamil Nadu Pollution Control Board for the co-generation power plant, the SEAC has found that the issue as to whether the power plant is meant for any captive use other than the Textile Park, SEZ at Vadamugam Kangeyapalaym Village, Avinashi Taluk and the particulars furnished to the SEIAA was not adequate and in the 60th meeting of SEAC, the Committee again deferred to entertain the particulars furnished by the Project Proponent regarding the letter from the Tamil Nadu Pollution Control Board stating that the conditions put by the Board have to be removed or amended so as to permit the power plant in the premises.
Therefore, in these successive meetings successively, the SEAC has found various points for clarification and the question here is as to whether when once the SEAC is satisfied that certain particulars are not furnished to its satisfaction, instead of deferring to some other day and giving opportunity to the Project Proponent, the SEAC should straightaway recommend the regulatory authority for rejecting the proposal.
While construing the above said aspect, it is relevant to note the fourth stage, namely, "Appraisal" and the statutory obligations of EAC or SEAC under paragraph 7 (iv) of the EIA notification 2006.
(i) Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority concerned for grant of environmental clearance. This appraisal shall be made by Expert Appraisal Committee or State Level Expert Appraisal Committee concerned in a transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorized representative. On conclusion of this proceeding, the Expert Appraisal Committee or State level Expert Appraisal Committee concerned shall make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance, together with reasons for the same.
(ii) The appraisal of all projects or activities which are not required to undergo public consultation, or submit an Environment Impact Assessment report, shall be carried out on the basis of the prescribed application Form 1 and Form 1A as applicable, any other relevant validated information available and the site visit wherever the same is considered as necessary by the Expert Appraisal Committee of State level Expert Appraisal Committee concerned.
(iii) The appraisal [an application shall be] completed by the Expert Appraisal Committee or State level Expert Appraisal Committee concerned within sixty days of the receipt of the final Environment Impact Assessment report and other documents or the receipt of Form 1 and Form 1A, where public consultation is nor necessary and the recommendations of the Expert Appraisal Committee of State level Expert Appraisal Committee shall be placed before the competent authority for a final decision within the next fifteen days. The prescribed procedure for appraisal is given in Appendix V;
The procedure to be followed for "Appraisal" is given in Appendix V of EIA Notification, which is as follows:
"1.The applicant shall apply to the concerned regulatory authority through a simple communication enclosing the following documents where public consultations are mandatory:
Final Environment Impact Assessment Report [20 (Twenty) hard copies and 1 (one) soft copy]
A copy of the video tape or CD of the public hearing proceedings
A copy of final layout plan (20 copies)
A copy of the project feasibility report (1 copy)
The Final EIA Report and the other relevant documents submitted by the applicant shall be scrutinized in office within 30 days from the date of its receipt by the concerned Regulatory Authority strictly with reference to the ToR and the inadequacies noted shall be communicated electronically or otherwise in a single set to the Members of the EAC/SEAC enclosing a copy each of the Final EIA Report including the public proceedings and other public response received along with a copy of Form-1 or Form 1A and scheduled date of the EAC/SEAC meeting for considering the proposal.
Where a public consultation is not mandatory, the appraisal shall be made on the basis of the prescribed application Form 1 and Environmental Impact Assessment Report, in the case of all projects and activities (other than Item 8 of the Schedule), except in case where the said project and activities falls under category 'B2', and in the case of 8(a) and (8b) of the schedule, considering its unique project cycle, the EAC or SEAC concerned shall appraise projects or activities on the basis of Form 1, Form 1A, conceptual plan and the EIA report [required only for projects listed under 8(b)] make recommendations on the project regarding grant of environmental clearance or otherwise stipulate the conditions for environmental clearance.]
Every application shall be placed before the EAC/SEAC and its appraisal completed within 60 days of its receipt with require documents / details in the prescribed manner.
The applicant shall be informed at least 15 (fifteen) days prior to the scheduled date of the EAC/SEAC meeting for considering the project proposal.
The minutes of the EAC/SEAC meeting shall be finalized within 5 working days of the meeting and displayed on the website of the concerned regulatory authority. In case the project or activity is recommended for grant of EC, then the minutes shall clearly list out the specific environmental safeguards and conditions. In case the recommendations are for rejection, the reasons for the same shall also be explicitly stated."
A close reading of the above said provisions relating to appraisal as well as the procedure to be followed by the EAC or SEAC during appraisal, as per the EIA Notification makes it abundantly clear that the proceedings of the EAC or SEAC must be transparent and EAC or SEAC has definite right to call for further necessary clarifications from the Project Proponent either in person or through an authorised representative. Therefore, the contention raised by the learned counsel for the appellant that SEAC itself when it is not satisfied, after referring to the various records including Form I, EIA studies and public consultation materials, should reject the proposal outright, is not sustainable and not in accordance with the provisions of EIA Notification 2006.
The learned counsel also has raised an issue that even for recommending the proposal to the regulatory authority for issuance of EC, it is the duty of the SEAC to assign reasons. According to him, the non-assigning of reasons will make the recommendation of SEAC as well as the ultimate order of the regulatory authority as void. In our considered view, this is also not a correct proposition based on the contents of EIA Notification, 2006 as well as the Appendix itself.
The contention of the learned counsel appearing for the appellant, by relying on the decision of a Division Bench of the Hon'ble High Court of Delhi in Utkarsh Mandal VS Union of India, (2009 X AD (Delhi) 365) which is in the context of the mandatory requirement of holding the public hearings to invite objections. It is true that the High Court has observed that failure to give reasons would render the decision vulnerable to attack on the ground of non application of mind. But, in our view, the statute itself, particularly, the appendix V Class 6 makes it clear that the reasons are to be elaborately given in cases of rejection of the proposal which, of course, is to enable the affected party to approach the higher forum. In cases where the recommendation is in conformity with the proposal, only if the conditions are not prescribed, the same can be construed as non application of mind and that is not the case on the facts and circumstances of the present case. Therefore, the decision relied upon by the learned counsel for the appellant is not applicable to the facts and circumstances of the present case.
In the process of "Appraisal", as we have elicited above, the notification makes it abundantly clear that while recommending grant of EC, it is the duty of SEAC or EAC to stipulate terms and conditions and while rejecting the application for prior EC, it must contain reasons, for such rejection. That has also been made abundantly clear in Appendix 5, clause 6 elicited above, which states that in case the Project or activity is recommended for grant of EC, then the minutes shall clearly list out the specific environmental safeguards and conditions and in case the recommendations are for rejection, the reasons for the same shall also be explicitly stated. Therefore, a bare reading of the EIA Notification 2006, makes it clear that in cases of rejection, the reasons must be spelt out clearly by the recommending authority to the regulatory authority but in cases of recommending or granting EC, the conditions stipulated, specific and general, themselves will constitute reasons and there is no necessity for giving separate reason for recommending or grant of EC.
Therefore, insofar as the above said point is concerned, we are of the view that either the recommendations of SEAC or the impugned EC, is not suffering for want of application of mind or for not giving any reasons. The said point is answered against the appellant.
EIA report relates to co-generation plant and coal as well as biomass to be utilised. But EC given only for 100% imported coal based thermal power project:
In the above said head, it is the contention of the learned counsel for the appellant that the EIA study made by the Project Proponent is for co-generation plant for utilisation of coal as well as biomass. But in the impugned EC, it relates exclusively to the proposed 1 X 48 MW imported coal based Thermal Power Plant in S.F.No.149 and 150 and therefore, according to the learned counsel, there is contradiction between the EIA study made by the Project Proponent and the EC granted.
It is true that as it is seen in the EIA report wherein the Project Proponent while giving salient features of the proposed power plant has mentioned in respect of fuel as "imported coal and biomass 100% coal or (2) combination of coal and biomass (based on the availability). In respect of fuel requirement in the EIA study, the Project Proponent has stated that as the proposed boiler is multi-fuel option, Project Proponent considered to use imported coal or combination of coal and biomass. The total fuel requirement is stated to be about 652 TPD and the imported coal will be sourced from Indonesia. It is further stated that the combination of coal and biomass is used based on the availability. The EIA has given two options: Option 1- with imported coal of 80% and biomass 20% and Option 2: imported coal of 100%. While giving the stack details and emission rates, it is stated that the fuel consumption in respect of power boiler as TPH (unit), 22.15 (imported coal)
Later, the Project Proponent converted the proposal exclusively for utilising the imported coal and after considering the proposals and based on the subsequent information submitted by the Project Proponent from time to time, appraisal was done and EC was granted exclusively for using imported coal. The impugned EC makes it clear in the conditions for construction phase that only 100% imported coal from Indoneshia shall be used as fuel for power plant and no other fuel including domestic coal/Indian coal or biomass shall be used in the power plant. Therefore, the objection raised by the appellant that such deviation will vitiate the process of granting EC, in our view, is not of that much grave, which may lead to severe implications affecting the environment warranting to come to a conclusion that EC is liable to be set aside.
Considering the installed capacity of the project and irrespective of the source of fuel whether it is coal or biomass, the emissions standards need to be maintained and as both biomass and coal are carbon based, the deviation cannot be said to be the change of concept of the project itself. Moreover, the basic parameters to be considered while carrying base line environmental monitoring on the impact of the project will not get altered whether it is biomass or coal based. AAQ data consisting of SPM (PM 10), RSPM (PM 2.5), SO2, NOx, Hg,O3 (Ground level) have been taken into account and if the unit goes exclusively for 100% imported coal as the fuel, the deviation will be insignificant and this fact has been taken into account by the SEAC at the time of appraisal. Therefore, the deviation cannot be a cause for setting aside the EC. The point raised by the appellant is answered accordingly.
Further contention of the learned counsel for the appellant is that EIA report does not mention anything about PM 2.5 and that the said data has not been taken for collection of baseline AAQ levels, which form part of EIA report, is not correct for the reason that in fact, the EIA report contains PM 2.5 data at plant site and other monitoring stations and they are sufficient to understand the environmental impact on air quality to be caused due to the establishment of the unit. On a factual assertion there is no Red Category unit within a radius of 3 kms from the project site and therefore, cumulative impact assessment in this case cannot be compared to an industry located in a cluster of industries. The location of AAQ monitoring stations have been fixed upon the wind pattern during the pre-monsoon season and therefore, the anticipated result and direction is based upon the scientific and mathematical modelling and only on that basis, the sampling study was done. A perusal of the minutes of the successive SEAC meetings reveal that most of the issues, which the appellant has raised subsequently, were examined before recommending for grant of EC.
Presence of two Reserve Forests within 6 km radius disclosed in Form - 1 but not assessed under EIA study and that the effect of radioactivity and heavy metal contents of coal to be sourced not studied:
In respect of the contention regarding the two Reserve Forests ToR states that location of National Park, Sanctuaries, Elephant/Tiger Reserve, if any, within 10 kms of the project shall be specified and marked on the map . The Form-1 proposal given by the Project Proponent states about the existence of two Reserve Forests located at a distance of 6 km. Further, it states that there is no National Park, Wildlife Sanctuary, Elephant/Tiger Reserve within 10 kms of the project site. The records show that even the Reserve Forests are far away from the project site at a distance of 6 to 6.5 kms and do not fall under ecologically sensitive area and therefore, there is no effect of the project on flora and fauna and therefore, the apprehension of the appellant about the presence of the same in the EIA study, on the factual matrix of the case, is clearly unfounded. Further, the fact remains that there are no Red category industries within a radius of 3 km from the project site and therefore, there is no substance in alleging that no cumulative assessment study has been done.
Insofar as it relates to the effect of radio activity, heavy metal contents of coal, it is the clear case of the Project Proponent that the project is dependant primarily on the imported coal, which does not contain any radioactive material and the said information was submitted by a test report to SEAC at the stage of appraisal. The study of radioactivity - Nuclear radiation does not have the domain under the Environmental Laws and under Section 52 of the Air (Prevention and Control of Pollution) Act 1981, which states as under:
"Section 52: Effect of other Laws: Save as otherwise provided by or under the Atomic Energy Act, 1962 (33 of 1962) in relation to radioactive air pollution the provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act".
The radioactivity is being regulated and monitored by the Department of Atomic Energy, for studying the effect of nuclear radiation from the coal powered thermal power plant, there are no standards for radioactivity from coal ash. Monitoring and regulation of presence of radioactive materials is covered under the Atomic Energy Act 1962 and the activity being regulated by the Department of Atomic Energy, Government of India and the said Act is not within the purview of the National Green Tribunal Act, 2010.
In the case of Krishi Vigyan Arogya Sansthan and others VS Ministry of Environment and Forests, Government of India and others, in the judgment rendered in Appeal No.7 of 2011, dated 20th September, 2011, while considering the contention that by virtue of the project there is a cause for increased level of nuclear radiation in and around the Thermal Power Plant, the National Green Tribunal has given directions to the MoEF and CC to obtain the national standards prescribed, with regard to the nuclear radiation from the coal fired Thermal Power Plant, if not already available, from the Department of Atomic Energy, Government of India regarding the permissible standard of radiation in residential, industrial and ecologically sensitive areas of the country and in the absence of any such standard prescribed so far, it cannot be contended that the SEAC has not made any reference on the possible nuclear radioactivity from the burning of coal to be used for the proposed project and therefore, it cannot be said that the effect of radioactive pollution level was not considered by the EAC. Even in respect of the effect of the emission of ozone gases from the burning of coal alleged to have been not studied, it is a clear case of the Project Proponent that the proposed project being only for 48 MW capacity, the effect is negligible and therefore, the apprehension of the appellant in this regard is merely speculative.
EIA report does not mention about ash pond and ash management apart from bottom ash:
In one of the conditions of ToR issued by SEAC, namely, Condition No.XVIII, it stipulates that study regarding the details of 100% fly ash utilisation plan as per the latest fly ash Utilization Notification of Government of India along with firm agreements / MoU with contracting parties including other usages etc shall be made and the plan shall also include disposal method/mechanism of bottom ash. The EIA study in Annexure 12, which contains the Coal Supply Agreement, between the seller from Dubai and the 4th respondent, the Project Proponent, dated 15.07.2012 and 10.08.2012, apart from Certificate of Sampling and analysis, stamped by the CIF FO Tuticorin Port, India , makes it clear that the testing and analysis also states that the coal contains no radioactive material and the capacity is also prescribed. The apprehension of the appellant is that the EIA report is silent about the impact of bottom ash and it does not even talk about the ash pond or land required. However, the records show that the details of utilisation of bottom ash and specific impact of ash were studied and presented to the TNPCB and SEAC along with details of land required for the purpose. Moreover, as per the stipulation of the notification of MoEF and CC, Thermal Power Plants have to necessarily utilise 100% fly ash within four years from the date of commissioning the unit and this applies to the Project Proponent herein and in as much as, the proposed capacity of the unit is only for 48 MW, it can make efforts to utilise 100% fly ash in the year of commissioning itself to avoid storage of fly ash and consequent pollution effects. This, in our view, will take care of the concern expressed by the appellant in respect of fly ash management.
The last but not the least point raised is as to whether 1 X 48 MW plant, is a stand alone project or it is connected with SEZ Textile Park. The proposal given by the Project Proponent for EC in respect of 1 X 48 MW Power project was placed before EAC for setting up of textile park in the area notified as Special Economic Zone (SEZ) by the Ministry of Commerce dated 09.06.2008 in respect of S.F.Nos.126, 129, 132, 135,136, 137, 138, 139, 140, 144, 151, 161, 165, 167, 171, 209, 216-218, 229, 232, 235,237 of Vadamugam Kangayampalayam Village, Avinashi Taluk, Tiruppur District . The project location in respect of SEZ does not include S.F.No.149 and 150. The appraisal for EC in respect of SEZ was made on 30th October 2015 . However, in respect of the proposal for EC for 1 X 48 MW imported coal based Thermal Power Plant, the proposal was dated 03.10.2011 and that relates to S.F.No.149 and 150, of Kangayampalayam Village, Avinashi Taluk, Tiruppur District proposed by the same Project Proponent. In the proposal, Form 1, the project area was stated to be 15 acres out of which 20371 sq.m was marked for green belt development. It is true that the said proposal in respect of 48 MW Thermal Power Plant on imported coal based, is situated within the notified Textile SEZ by the Ministry of Commerce and Industry. But the fact remains as it is seen in the impugned EC itself that the proposal in respect of S.F.No.149 and 150 was only for the power project 1 X 48 MW. The ToR for EIA and EMP report was also issued by the Government of India on 26.04.2012 only for 1 X 48 MW biomass and imported coal based cogeneration plant at Vadamugam Kangayampalayam Village, Avinashi Taluk, Tiruppur District and in fact, the EIA study has been made by the Project Proponent only for the proposed 1 X 48 MW co-generation power plant. The impugned EC also makes it clear that the proposal for 1 X 48 MW Thermal Power Plant was considered independent of SEZ Textile Park and restricting the Power Plant only in respect of SF No.149 and 150. There is no doubt in our mind to hold that the Power Plant is a stand alone project and not integrated with SEZ Textile Park even though the purpose of the Power Plant may be to supply power to SEZ. Accordingly, we hold that the impugned EC which relates only to 1 X 48 MW power plant, has nothing to do with the SEZ Textile Park and therefore, it is a stand alone project.
We have given our findings in respect of various points raised by the appellant while challenging the impugned EC granted by SEAC and we have taken the overall holistic view of the entire consideration to arrive at a conclusion that the EC granted to the project of the 4th respondent, Project Proponent for 1 X 48 MW Thermal Power Plant cannot be stated to be either not valid or against the provisions of EIA Notification, 2006. For all the reasons stated above, we do not find any reason to interfere with the impugned EC granted by the 2nd respondent, SIEAA in favour of the 4th respondent, Project Proponent and accordingly, the appeal fails and the same is dismissed. However, there shall be no order as to cost.