BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI (PRINCIPAL BENCH)

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1 1 BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI (PRINCIPAL BENCH) NGT Appeal No.1/2011(T) NEAA Appeal No.13/2009 IN THE MATTER OF S.K. Naik Former Secretary, Government of India, Ministry of Health and Family Welfare R/o D-II/156, Kaka Nagar, New Delhi Appellant Versus 1. Jain Steel and Power Limited, Village Durlaga, District Jharsuguda, Orrisa 2. Ministry of Environment & Forests, Paryavaran Bhawan, CGO Complex. Lodhi Road, New Delhi State Pollution Control Board, Orissa Paribesh Bhavan, A/118, Nikanthanagar, Unit VIII Bhubaneshwar Airports Authority of India Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi Respondents

2 2 Counsel for Appellant: 1. Mr. Atul Nanda, Sr. Advocate 2. Mr. J.N. Patel Counsel for Respondent(s): 1. Mr. C. Mukund for R 1 2. Ms. Neelam Rathore for R 2 3. Mr. Ashok Kumar Panda, Sr. Advocate Mr. Swetaketu Mishra for R 3 4. Mr. Digvijay Rai for R 4 JUDGMENT PRESENT: Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member) Dated 22 nd November, 2012 Shri S.K. Naik (former Secretary, Government of India, Ministry of Health and Family Welfare, New Delhi) filed this appeal under Section 11(1) of National Environment Appellate Authority (NEAA) Act, 1997 assailing the Environment Clearance (EC) dated 29 th December, 2008 accorded to M/s Jain Steel & Power Ltd. (JSPL), Village Durlaga, Distt, Jharsuguda, Odisha (R-1) by the Ministry of Environment & Forests (MoEF) (Respondent No-2).

3 3 2. The project in question comprises of an Integrated Steel Plant, DRI (1,10,000 TPA), Steel Melting Shop (50,000 TPA) with Induction Furnace, Ladle Refining Furnace and Continuous Caster Route and Captive Power Plant (8 MW). It is alleged by the Appellant that despite representations made by the Appellant and other residents of the locality the project has been accorded EC on the basis of extraneous considerations, without following the mandatory requirements of law. To substantiate the allegations made, it is specifically pleaded that the location of the plant, is in proximity to human settlements, residential areas, water bodies and Schools in Durlaga Village in Jharsuguda District, causes a threat to environment and ecology. It is also alleged that excess land was acquired near to the State Highways and approach path to the Jharsuguda Airport to show favour to the Project Proponent, though the land required for the project is much less. The guidelines for siting of industries framed by the authorities were followed more in its breach than in its compliance. Several other allegations are also made, but as the order relates back to 2008 and the project is commissioned long back and as this Appeal can be disposed of otherwise, we refrain from entering into arena of controversies, with

4 4 regard to the proprieties or otherwise of the EC granted long back, being fait-accompli situation. 3. It appears the Project site is located in close proximity to the Airport and is coming on the way of approach funnel zone of the aircrafts. The Airport Authority of India (AAI) however had granted NOC on 9 th May, 2005 to the project subject to certain conditions. One of the conditions imposed was with regard to use of oil fired or electric fired furnace which was obligatory within 8 kms of the Aerodrome, and the said technique was required to be adopted. For the sake of brevity and better understanding the NOC granted by the AAI with the conditions imposed is quoted herein below : (1) Please refer to your letter no. dated on the subject mentioned above. (2) This office has no objection to the construction of the proposed Chimney By Jala Sponge Pvt. Ltd. (sick) hereinafter referred to as the applicant(s) at location khata No. 54, Plot No. 1359, khata No. 56, Plot No. 1366, 1465, 1466 Durlaga, Jharsuguda, Orrisa to height 62.00/M (in figures) Sixty Two Deci Zero / meters (in words) ABOVE

5 5 GROUND LEVEL, so that the top of the proposed structure when erected shall not exceed / M. (site Elevation) M/ (Height of the structure) i.e / M. ABOVE MAIN SEA LEVEL. (3) This no objection certificate is being issued on the express understanding that the site-elevation reduced level (height above mean sea level) vis /M, relative location of the proposed Bldg./Structure & its distance and Bearings from the ARP/Runway ends, as tendered by the applicant(s) are correct. If, however, at any stage it is established that the said data as tendered by the said applicant is actually different from the one tendered & which could adversely affect aircraft operations, the structure or part(s) thereof in respect of which this NOC is being issued will have to be demolished at his own cost as may be directed by the Airports Authority of India (N.A. Division). The applicant(s) is/are therefore advised in his/their own interest to verify the elevation and other data furnished for the site, before embarking on the proposed construction.

6 6 (4). The issue of the NOC is further subject to the provisions of Section 9-A of the Indian Aircraft Act, 1934 and those of any notifications issued thereunder from time to time and under which the applicant may be called upon by the Airports Authority of India (N.A. Division) to demolish in whole or in part the structure now being authorised vide this NOC. (5). No radio/tv Antenna, lighting arresters, staircase, Mumtee, Overhead water tank and attachments of fixtures of any kind shall project above the height indicated in para 2. (6). The use of oil fired of electric furnace is obligatory, within 8 Kms. of the Aerodrome. (7). The certificate is valid for a period of four years from the date of its issue. If the building/structure/chimney is not constructed & completed within the above mentioned period of four years he will be required to obtain a fresh No Objection Certificate from the Chairman Airports Authority of India and/or the G.M. (Aero) Eastern Region. The date of completion of Building/Structure/Chimney

7 7 should be intimated to the AAI and/or General Manager (Aero) Eastern Region. (8). No light or a combination of lights which by reason of its intensity, configuration of colour may cause confusion with the aeronautical round lights of the Airport shall be installed at the site at any time during or after the construction of the building. 4. Perusal of the records reveal that on 3 rd November, 2008 the Collector, Jharsuguda wrote to the AAI, calling upon them for conducting correct assessment about the performance of different conditions imposed in the NOC more specifically with regard to the use of oil fired or electric furnace. The records reveal that the JSPL had informed the AAI that it would not use coal as a fuel but use the same as a reducing agent for Iron Ore. Basing upon such undertaking NOC was issued. But then it appears that to raise the temperature in the rotary kiln, the required heat has to be produced by burning of coal inside the kiln and as such, the undertaking given by the Project Proponent to the effect that coal would not be used as fuel does not appear to be the correct position.

8 8 5. Sponge Iron Plants are known to have potential to cause significant air pollution as they may emit quite a lot of black smoke and particulates from the stack which ultimately dissipate in the adjoining areas. According to the affidavit filed, it appears that the AAI had issued the NOC on the undertaking given by JSPL that they will not use coal as a fuel and the period of the NOC was only for four years. That apart pollution related issues arising out of use of coal being essential ingredients in feed stock in the furnace the same have been left to the State Pollution Control Board (SPCB), Odisha for deciding and monitoring its impact on the ambient environment. 6. From the documents produced it appears that the Sponge Iron Plant in question is having rotary kiln process and would utilize 1,32,000 coal tonnes per annum (TPA) which is a significant quantity of coal consumption in this plant. In addition, 1,76,000 TPA of Iron Ore and 3300 TPA of Dolomite will be used in the rotary kiln as raw material. Under this scenario of coal consumption, it becomes difficult to accept that the Project Proponent will be able to comply with the stipulations made under condition No.6 subject to which the NOC was accorded. In fact, whether usage of coal will be violating the condition imposed by the AAI and whether it would lead to significant air

9 9 pollution in the vicinity needs to be critically examined by regulatory body. 7. Consent Order given by SPCB, Odisha dated 30 th May, 2009 which was valid upto 31 st March, One of the special conditions for air pollution control stipulated in the said order is as follows: (Condition No. A-1/2) To avoid generation of black smoke / dense particulate matter emission from ABC stack during start up period of the kilns, oil firing shall be continued till the desired temperature of flue gas is achieved to run ESP system. Under no circumstances coal firing shall be started if the gas is not routed through ESP. However, in practice, this condition appears to be difficult to be achieved in view of availability of inconsistent and poor quality of coal which may require frequent oil firing to maintain the desired temperature inside the kiln and as such may result in the emissions of black smoke and ultrafine particulates. This aspect needs to be critically examined by a Competent Authority, i.e. CPCB including the adequacy of pollution control measures provided / envisaged.

10 10 8. It has been submitted that the Project is now closed from 17 th February, 2012 due to non-supply of iron ore and other raw materials. We, therefore, direct that the project should not be allowed to be reopened till the relevant issues pertaining to the likely emissions of smoke and particulates and its impact on air pollution adjoining to the Airport are critically evaluated. 9. From the project file submitted by MoEF, it is seen that a letter was addressed to JSPL by MoEF on 1 st August, 2011 seeking clarification on the acquisition of excess land and whether there is any change in project profile. From the correspondence which took place between MoEF and JSPL, it is not clear, as to what further action has been taken by MoEF in this regard, we, therefore, direct the MoEF to take necessary action in this regard and direct to utilise the excess land for the purpose of afforestation. We also direct CPCB to examine whether the JSPL have provided necessary facilities and measures to comply with the Consent Conditions stipulated by SPCB, Odisha and conditions imposed by AAI (specially Condition No.6 of NOC in view of use of coal). SPCB, Odisha will provide necessary assistance to CPCB to investigate the matter. It appears the

11 11 Jharsuguda air strip has acquired importance by afflux of time. For safety of the air traffic, we also direct AAI to re-examine the Chimney height in view of more advance technology now being available including retrofitting measures to have smokeless stack, if the same is causing obstruction in the operation of the Airport. Till the report of CPCB and fresh clearance from AAI are available and submitted to MoEF for review, the plant will not be allowed to operate. CPCB and AAI should submit their reports to MoEF within a period of 2 months hence and MoEF will take a final decision within one month thereafter regarding re-commissioning of the said plant. With the above directions and observations the Appeal is disposed of. Parties to bear their own costs. Dr. G.K. Pandey Expert Member Justice A.S. Naidu Acting Chairperson