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National Green Tribunal
Vinod R. Patel vs Gujarat State Level Impact ... on 18 December, 2012
           BEFORE THE NATIONAL GREEN TRIBUNAL
               PRINCIPAL BENCH, NEW DELHI

                         Appeal No. 25 of 2011
                      Tuesday, December 18, 2012

   Quorum:

1. Hon'ble Justice V.R. Kingaonkar
   (Judicial Member)

2. Hon'ble Dr. Devendra Kumar Agrawal
   (Expert Member)

   B E T W E E N:

1. Vinod R. Patel
   R/o Shakti Nagar,
   Madhapar Navavas
   Taluka-Bhuj, District - Kutch
   Gujarat

2. Jadavji K Dabasai
   Madhapar
   Taluka - Bhuj, District - Kutch
   Gujarat

3. Ashok N Patel
   Mondra Road
   Taluka-Bhuj, District - Kutch
   Gujarat

4. Premji D Bhudia
   Madhapar Navavas
   Taluka-Bhuj, District - Kutch
   Gujarat

5. Valji K Dabasia
   Sriji Traders
   Kukma
   Taluka-Bhuj
   Gujarat
                                                   ....Appellants

                             Page 1 of 18
                                              AND


1. State Level Environment Impact
   Assessment Authority, Gujarat
   Through Member Secretary
   Paryavaran Bhawan
   Sector - 10A, Gandhinagar
   Gujarat

2. Gujarat Pollution Control Board
   Through Member Secretary
   Paryavaran Bhawan
   Sector - 10A, Gandhinagar
   Gujarat

3. M/s Alumina Refinery Ltd.
   Through its Director
   Plot No. 94/1, 94/2
   Kukma, Bhuj - Anjar Highway,
   Kukma, Reladi Moti, Bhuj
   District Kutch,
   Gujarat
                                                     .....Respondents


  (Advocates appeared: Mr. Ritwick Dutta, Mr. Rahul Choudhary
  along with Srilekha Sridhar For Appellants, Mrs. Hemantika
  Wahi, Mr. Satyabrata Panda along with Mr. Vaibhav A. Vyas for
  Respondent Nos. 1 and 2, Mr. Udai V.S. Rathore for Respondent
  No.3).



                             JUDGMENT

1. This Appeal is filed, under Section 18(1) read with Section 14(1) and Section 16 (h) of the National Green Tribunal Act, 2010, challenging Environmental Clearance (hereinafter referred to as 'EC') granted by the State Level Environment Impact Assessment Authority Page 2 of 18 (hereinafter referred to as 'SEIAA') of Gujarat for setting up of the Alumina Refinery Plant in Gujarat on 19th February, 2012.

2. The Appellants claim to be farmers in the proximity of proposed project who apprehend adverse impact due to the setting up of the Refinery project. The Project involves setting up of a Specialty Alumina Chemical manufacturing unit at village Reladi in Taluka Bhuj, District Kutch to manufacture Alumina Trihydrate, Activates alumina, Calcined Alumina and Sodium Aluminate.

3. The Appeal has been filed seeking quashing of the EC on main ground that despite participation by the Appellants in the public hearing and raising concern regarding likely adverse environmental impact due to the Project, the SEIAA had gone ahead and granted EC to the said Project. The brief facts about the Project are that the Terms of Reference (hereinafter referred to as 'ToR') for preparation of Rapid Environment Impact Assessment Report (referred to as 'REIA') were prescribed by the SEIAA on 04th June, 2010 and EIA Report was prepared on 27th March, 2010, by Unistar Environment and Research Land Pvt. Ltd., a non-accredited consultant based on rapid assessment carried out in 5 kms radius. The public hearing for the Project was conducted on 21st June, 2011 and accordingly appraisal by SEIAA was done in meetings held on18th August, 2011 and 15th November, 2011 before recommending the Project for grant of EC.

4. The Appeal had been filed on the other grounds that the REIA has been carried out in 5 kms. radius only, the socio-economic data in the REIA Report is incorrect, water consumption is under-estimated, Page 3 of 18 impact due to increase of traffic, waste generation has not been done properly, and views expressed during public hearing were not properly considered at the appraisal. Subsequently, by way of amendment application dated 24th August, 2012, the Appellants raised the issues pertaining to the following:-

a. Categorization of the project should be under 3(a) instead of 2(b) of the Schedule to EIA Notification; b. Land use/ classification of area is wrong; c. SOx and NOx emissions are under-estimated; d. REIA Report fails to assess the impact for major water pipeline which is a new project in itself; e. Water consumption shown for the project is under-estimated; f. Impact of Hazardous Red mud is not analyzed;
g. There is no provision for red-mud storage, handling and disposal; and h. Opposition of the people has been ignored during appraisal.

5. The Respondents filed their replies strongly repudiating the allegations made in the Memorandum of Appeal and subsequent Affidavit. The Respondents stressed that due procedure prescribed in the EIA Notification 2006 has been followed strictly while recommending the Project for grant of EC and the apprehensions raised by the Appellants are based on misleading figures and facts and that the Appellants are trying to mislead the Tribunal.

6. After elaborate hearing to all the parties, we propose to dispose of this appeal by examining the following main questions:-

Page 4 of 18

I. Whether the categorization of the Project in Category 3(a) instead of Category 2(b) of the schedule to EIA notification, 2006 by the SEIAA is proper or not?

II. Whether rapid REIA Report was prepared in accordance with the EIA Notification 2006?

(a) Whether water consumption for the Project is grossly under-stated?

(b) Whether land use / classification of the study area is incorrect?

(c) Whether emission calculation for particulate matter, Sox and NOx emissions are incorrect?

(d) Whether impact of hazardous red-mud is properly considered?

III. Whether the views expressed in the public hearing were taken into account while granting the EC and proper appraisal of the Project was carried out by SEIAA?

7. Whether the categorization of the Project in Category 3(a) instead of Category 2(b) of the schedule to EIA notification 2006 by the SEIAA is proper or not?

Before entering the arena of examining this question, it would be prudent to note that the Project Proponent originally applied for ToR to the SEIAA on 27th March, 2010 under B1 Category for which no EIA study is needed. Perusal of the EIA notification 2006 and its schedule shows that projects are initially classified into category 'A' and 'B' projects based on threshold limit of area/production/investment for various type of project activity and Page 5 of 18 their likely impacts. Category 'A' projects are projects that require prior EC from the Central government in MoEF based on the recommendation of an Expert Appraisal Committee. Whereas Category B projects require prior EC from State Level Expert Appraisal Committee (hereinafter after referred as 'SEAC') based on the recommendation of SEIAA. The procedure stipulates that the SEAC based on screening of the proposed project determines whether or not the project/activity requires EIA for further appraisal prior to grant of EC depending on the nature and location of project/activity. Accordingly, those projects that do not require further EIA studies are categorized as B1, whereas all the other projects are termed as Category B2 and require further EIA studies. The entry against item no. 2(b) in the scheduled the EIA notification pertains to Mineral Beneficiation, where it is stated that for production of more than 0.1 million ton/annum mineral thorough put, the project is Category A and for lesser production, the project is Category B project. Whereas entry against item no. 3(a) pertains to metallurgical Industries (ferrous and non-ferrous). A perusal of the records shows that SEIAA/SEAC upon giving hearing to the Project Proponent on 4th June, 2010 considered the proposal and decided to consider it in category B2 and accordingly issued a detailed and vigorous ToR for the EIA study for safeguarding all possible environmental threats. In this context, the Appellant stated that since the documents pertaining to these aspects were not available in the public domain and hence they obtained various documents like Pre-feasibility Report and Minutes of the Meeting etc. regarding the Project under RTI and accordingly they came to know that the Project Proponent submitted Pre-feasibility report along with Form-I as per prescribed procedure in EIA Notification 2006 on 27th April, 2010 to SEAC giving details of the Project. According to their understanding, since the process involved Page 6 of 18 in manufacturing of Alumina is almost identical to the Bayer Process (a process for producing specialty grade powder of alumina) and hence should be considered as a metallurgical process and is not merely a mineral beneficiation process. Given this fact, the Project is required to be considered under category A Project by following scheduled the EIA Notification 2006 as per entry against item no. 3(a) i.e. Metallurgical Process. The Appellant relied on definition of Mineral Beneficiation as proposed in U.S. Environmental Protection Agency and the definition of Bayer Process as provided in McGraw Hill Science and Technology Dictionary. In their reply, the Respondents stated that the schedule to the EIA Notification itself proposes a classification for EC with respect to the Mining, Mineral beneficiation and Metallurgy Project against entry nos. 1(a), 2(b) and 3(a) respectively. The Respondent Nos. 1 and 2 submitted that the Project Proponent had specifically stated in its proposal and various supporting documents that the process involved in the Project and the final product from the Project were non-metallurgical aluminum and therefore their product falls under non-metallurgical chemical compound. However, to ascertain the position, the Respondent No. 1 sought clarifications and accordingly invited views from independent autonomous research and academic institution of repute i.e. MS University of Baroda. In this regard, the Respondent Nos. 1 and 2 also placed heavy reliance on MoEF's Technical Guidelines Manual for Metallurgical Industry August 2010; MoEF's Environmental Impact Assessment Manual for Mineral Beneficiation February, 2010; and Central Glass and Ceramic Research Institute (CGCRI), Ahemdabad publications and argued that since the process proposed to be undertaken by the Project Proponent is non-metallurgical one it does not falls under the category of metallurgical industry and hence Page 7 of 18 the same was considered as Category B2 project against entry at item no. 2(b) i.e. Mineral Beneficiation to schedule of EIA notification.

8. Respondent No. 3 elaborated the definition of Beneficiate as provided in New Shorter Oxford Dictionary (On Historical principles) 1993 and the other documents as stated by the Respondent Nos. 1 and 2 and also provided in the final REIA report.

9. It is submitted that the steps involved under this modified Bayer Process include final products as Alumina Trihydrate, Activates alumina, Calcined Alumina and Sodium Aluminate, which are non - metallurgical. The technological partner of the Project Proponent, M/s NALCO (A Navratna Company) have also certified that the process adopted in the present Project is for the production of various aluminum products from bauxite ore as being non-metallurgical one. The Learned Counsel argued that it is the misconception of the Appellants and the Appeal is filed with ulterior motives and is driven by malice. It is argued that the Appellants are trying to compare the present Project with a fully integrated aluminum plant, which is meant for production of aluminum, which is a metal.

Given the understanding and explanation, we are of the considered opinion that the Project Proponent's Industry is certainly a non-metallurgical one and squarely falls under Category B2 against entry no. 2(b) of schedule to EIA notification as decided by the SEIAA .

Page 8 of 18

10. Whether rapid REIA Report was prepared in accordance with the EIA Notification 2006?

Apart from the issues relating to water consumption, land use / classification of the study area, emission calculation SOx and NOx emissions and socio-economic profiling in the impact zone the Appellants also argued that the REIA Report was prepared by a non- accredited consultant and is strangely predated even to the grant of ToR and that the Report presents baseline data for 5 km radius only. The Respondents submitted that even though the Project Proponent had applied for consideration of his application under B1 category, however SEIAA and SEAC felt it appropriate to consider the Project under B1 Category and accordingly prescribed ToR for REIA study covering 5 km radius. According to them, the area of influence for EIA study is neither set out under the EIA Notification of 2006 nor is suggested under any of the guidelines issued by MoEF. The area of influence for EIA study in the instant case, is prescribed in accordance with the categorization, nature, size and anticipated level of pollution likely to be created by the Project. SEAC taking into account the fact that there would be no industrial waste water discharge and that total re-use of the hazardous waste is since proposed, therefore, 5 kms radius area of influence for the REIA study is appropriate, and also stated that the prescription is the same as that is adopted by the Expert Appraisal Committee of MoEF for the projects of similar size and nature. With regard to the averments regarding improper socio- economic profiling and argument that around 40,000 farmers are likely to be affected by the Project in the area of influence of 10 kms, the Respondents argued that they have presented the socio-economic data for the study area of 5 km based on available information from secondary sources such as Census, Revenue Records, etc. The REIA Page 9 of 18 Report was prepared by Unistar Environment and Research Land Pvt. Ltd., which is an accredited EIA Consultant Organization, therefore the allegations of the Appellants are not true.

11. Upon giving due consideration to the facts placed before us, we are of the opinion that except contention of the Appellant regarding socio-economic profiling, which we have dealt subsequently, there is not much substantive force regarding any environmental threats from the proposed project.

12. Whether water consumption for the Project is grossly under-stated?

The Appellants argued that the water requirements of 100 KLD as provided in the REIA Report is incorrect. To clarify the point, it was stated that based on the information available on internet and literature it is well known that Alumina Refinery requires approximately 2000 liters water per ton of alumina product. Therefore, for the proposed Alumina Refinery, which is to produce 25524 tons per year alumina equivalent to 70 per ton aluminum per day, would need about 140 KLD of water for its plant operation as against the 50 KLD water as mentioned in REIA Report. Considering the need for water for other uses, therefore, the water requirement would be 190 KLD per day. The Learned Counsel for the Respondent No. 3 i.e. Project Proponent clarified that the figures for water consumption shown by the Appellant is for a fully integrated aluminum plant whereas the instant Project is of much small capacity and would need much less quantity of water because in fully integrated aluminum plant owing to operation difficulties high pressure filter press is not used and therefore they use continuous pan Page 10 of 18 type and drum type filtration where capacity of filtration is very high and efficiency is very low. Whereas, in the present case, high pressure filtration is proposed to be used and maximum amount of liquid would be recovered, making more water available for recycling. Thereby, the water requirement is only upto the tune of evaporation losses and other miscellaneous losses. In view of the said facts, the assumption of the Appellants that despite of ban on exploitation of ground water and agreements of the Project Proponent with Gujarat Water Infrastructure Ltd. Gandhi Nagar for 100 KLD water per day. Thus, the Project would meet its water requirement and that water requirement is under-estimated, is untrue.

13. A perusal of the records and the arguments put forth provides a clear understanding and we are of the view that the averments made by the Appellants are incorrect. However, it would be appropriate to state that Respondent No. 1 and Respondent No. 2 should carryout periodic monitoring to ensure the compliances with respect to ban on use of ground water.

14. The contention of the appellants regarding environmental impact of laying of pipeline for the proposed project again appears to be incorrect. Undoubtedly, this Tribunal has expressed concerns a number of times that environmental impacts associated with other major infrastructural needs of any industry/activity should be viewed comprehensively, but that does not mean that all such issues are to be considered in each and every case. If that is the intention, one would be required to examine even issues associated with power supply, man power sourcing, their food requirements, etc. etc. putting no end to the issues that would be required to be examined in each project while granting EC. To clarify the position, in the instant case, it is expected Page 11 of 18 that M/s Gujarat Infrastructure Ltd. is laying down its pipeline and this shall be examined as per the provisions of law; therefore, clubbing the environmental impacts of laying this pipeline of 100 KLD only with the present project would only cause more confusion.

15. Whether land use / classification of the study area as presented in REIA report is incorrect?

The Appellants allege that REIA Report grossly under estimates the extent of prime agricultural land around the project area. It is alleged that total number of farmers in 10 kms. area of influence is around 40,000 and their documentation from google earth imagery of 21st January, 2012, and data from web-site of local government department, it is seen that agricultural land is the predominant fertile land surrounding the Project site in all the directions. They also relied on the data collected regarding crops grown and area under horticulture use. They also relied upon the various certificates received by the farmers of adjoining area from various agro centric government schemes, wherein it is seen that farmers have adopted agro farming and horticultural plantation, techniques and latest irrigation technologies. It is their main contention that the REIA Repot totally overlooks latest technological developments in agricultural lands adopted by the farmers of surrounding area. The Project Proponent, i.e. Respondent No. 3, produced land records from Mamlatdar, Bhuj Office for the years 2009-2010, 2010-2011 and 2011-2012 which indicate that the total numbers of farmers in 5 kms. area of influence from the Project site is around 4000 only. The land records classify the lands under the heading of Jarayat (rain fed agriculture) and Bagayat (irrigated). The records clearly show that none of the land in area of influence of 5 kms. is categorized under Page 12 of 18 Bagayat. Therefore, it is argued that area of influence of 5 kms. does not have prime agricultural land wherein intensive agriculture is being practiced and plantation of horticultural crops (dates, kesar, mangoes, pomegranate, grapes etc.) is being carried out. Such contention is further substantiated by the fact that the land use/ land cover based on National Remote Sensing Center LISS III IMAGE provided in the REIA Report shows that crop land in 5 kms area of influence is around 13.33% and plantation land is around 3.31% of the total area. They also stated that during appraisal of the Project, the SEAC directed the project proponent to revise the land use/ land cover using latest satellite data and accordingly the REIA Report was updated using the satellite data of 20.02.2009.

16. We are of the opinion that of course the data provided regarding land use/ land cover using satellite imagery is acceptable. However, the data regarding number of people residing in even 5 kms. area of influence zone, and that of agricultural practices, totally rely upon the secondary data collected from various Government Departments. It is expected that during preparation of REIA Report, the Environmental Consultants should gather some primary material with respect to the socio-economic data in the Project area and do carry out some preliminary survey to understand the basic needs of the people in the Project area so that appropriate environmental management plan is formulated. In the instant case, nothing of this sort appears to have been conducted. Therefore, we propose to give certain directions as given infra.

Page 13 of 18

17. Whether calculations for SOx and NOx emissions are incorrect?

The Appellants state that the REIA air quality impact assessment grossly under-estimate the particulate matter and SOx/NOx emissions from lignite combustion. It is highlighted that the particulate matter emissions would depend upon the ash content whereas the SOx emissions would depend upon on the sulphur dioxide of lignite consumed. Taking the data of lignite fuel available for use in boilers in India from NTPC, the Appellants went on to show that for the project configuration, the Project would emit only 34.4 kg of particulate matter per day thereby requiring 98.8% control of particulate emission, which is extremely unreasonable assumption. They also show that the SOx emissions would be at a rate of 4200 kg per day which again appears to be unreasonable assumption considering the sulphur content of lignite in the country. The Project Proponent stated that the Appellants have grossly exaggerated calculation because the REIA Report clearly gives the source of lignite coal to be used in the Project and gives specification about its chemical composition, sulphur, nitrate, carbon, oxygen content, etc. It was also brought to our notice that during appraisal of the Project, the SEAC examined the details and sought clarifications in this context. The Project Proponent had clarified that it is proposed to use ceramic filters having efficiency of greater than 99% for controlling the particulate emissions. So also placed on record material showing that the proposed filters to be used have 99% plus efficiency.

18. Giving a due consideration to the arguments of the Appellant and the Respondents, we are of the opinion that of course the Project Proponent has made efforts to indicate that particulate matter and Page 14 of 18 SOx/NOx emissions would be in the range as suggested in the REIA Report. However, there is nothing available on record except the literature of the manufacture of the imported ceramic filters to suggest that the proposed measures for emission control would be effective to the tune being projected. In this direction, we have made suggestion infra.

19. Whether impact of hazardous red-mud is properly done?

The main contention of the Appellants in this regard is that the REIA Report fails to provide adequate details regarding the chemical characteristics of high volume waste (red-mud) likely to be generated from the Alumina Plant. It is their case that Project Proponent claims that 100% red-mud will be utilized for manufacture of bricks or cement. In the absence of non-availability of any such documentation to the Appellant, it is argued that any inability or incapacity of the cement/bricks industry to use the red-mud would force the Project Proponent to store the red-mud and this may create other environmental hazards. Accordingly, they submit that the REIA Report fails to provide adequate details of design and location of storage facilities for the red-mud and also that the REIA report fails to provide details of disposal facilities for contaminated runoff emanating from red-mud disposal facilities. The Respondent No. 3 argued that the Appellants are trying to mislead the Tribunal for the simple reason that REIA Report itself provides the details that the red- mud to be generated in the proposed Project will be in the form of cake not in the form of slurry, which means that area and volume requirement for storing red-mud would be greatly reduced. It is also proposed to store the red-mud cakes as bagged material in designated Page 15 of 18 storage area lined with impervious flooring. The Project Proponent already has red-mud utilization agreements from nearby industries. It is stated that the red-mud from the plant cannot be as such classified as hazardous waste having adverse environmental impact because Schedule I under Rule 3(I) of Hazardous Wastes (Management, Handling and Trans Boundary Movement) Rules, 2008 clearly note that "The high volume low effect wastes such as fly ash, phosphogypsum, red-mud, slag are excluded from the category of hazardous wastes. Separate guidelines on the Management of these wastes shall be issued by CPCB". In this context, the Project Proponent also placed on record literature on red-mud utilization and its advantages; (A writing from The Mineral, Metals and Material Society, 2008);

20. Based on the perusal of records, arguments of all the parties, we are of the opinion that the contention of the appellant is based on mis-conception. However, we feel it appropriate to suggest that in view of limited space availability for storing red-mud cakes, it is very important to have continuous tie-up with brick/cement industry. Respondent No.1 and Respondent No. 2 should ensure this by incorporation of the same as one of the pre-conditions in the EC apart from carrying out regular monitoring of waste/leachate generation, if any.

21. Whether the views expressed in the public hearing were taken into account while granting the EC and proper appraisal of the Project was carried by SEIAA?

A bare perusal of the records of public hearing and the minutes of meeting for appraisal of the project by SEIAA on various Page 16 of 18 dates clearly reveal that the SEIAA did not merely accept the statements/ documents produced by the Project Proponent and sought for various clarifications and imposed several conditions, as felt appropriate, except the issue of concerns raised by progressive farmers to the extent that proper remedial measures/ Management Plan shall be carved out for them.

22. In view of the discussions made above in our opinion, except the issue of concerns of progressive farmers of area of influence all the issues raised by the Appellant are based on their mis- understanding. Accordingly, the Appeal is dismissed with following directions:-

(1) GPCB should carry out periodic monitoring to ensure the compliances of :-

        (a)    A ban on use of ground water for the Project;

        (b)    Particulate matter, SOx and NOx emissions levels in

different directions at different distances on seasonal basis during operation of the project at the cost of Project Proponent for submission to SEIAA for imposing additional conditions, if necessary;

(c) Monitor the efficacy of ceramic filters by drawing sample from emissions before and after filtration; and submission to SEIAA for imposing additional conditions, if any;

(d) Monitor the utilization and storage of red-mud cake on atleast monthly basis; and submission to SEIAA for imposing additional conditions, if any;

Page 17 of 18

(e) Regular monitoring of waste/ leachate generation, if any, from the red-mud cake storage facility; and submission to SEIAA for imposing additional conditions, if any;

(2) The Project Proponent shall engage environmental consultant based on ToR approved by SEIAA for conducting primary socio-economic survey in the area of influence wherein special attention shall be paid to cover details of progressive farmers and their cultivation practices. Consultative meetings in the villages/settlements of the area of influence would be held with the farmers to understand their concerns and suggest appropriate measures for not only environmental protection but for also their socio-economic upliftment such that the industry is seen as a Socially Responsible enterprise. The comprehensive report so prepared along with the Management Plan with financial provisions shall be placed before the SEIAA for modifying additional conditions in the EC.

The parties to bear their own costs.





(Dr. Devendra Kumar Agrawal)                (Justice V.R. Kingaonkar)
 Expert Member                               Judicial Member




                            Page 18 of 18