Page 1 of 23

N A T I O N A L G R E E N T R I B U N A L

PRINCIPAL BENCH, NEW DELHI

Appeal No. 12/2011

Wednesday, the 30th day of May, 2012

Quorum:

1. Hon’ble Shri Justice C. V. Ramulu (Judicial Member)

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

B E T W E E N: 1. Ossie Fernandes

Co-Convenor, Coastal Action Network, 10, Thomas Nagar, Saidpet, Chennai – 600 015

2. Vangakadal Meen Thozhilalar Sangam, Rep. by its Secretary, 28, Kariyankudi Chetty Street, Velippalayam, Nagapattinam District

3. S. Chithravei, S/o Samikkannu, 240, North Street, Nambiyar Nagar – 611 001 Nagapattinam District

4. T. Kumar, S/o Thangavelu (Late) Main Road, Vellakkovil, Tharangambadi Post & Taluk – 609 313 Nagapattinam District …. Appellant

Page 2 of 23

A N D: 1. Ministry of Environment & Forests,

Rep. by its Secretary CGO Complex, Lodhi Road, New Delhi – 110 003

2. The Tamil Nadu Pollution Control Board Rep. by its Chairman, Anna Salai, Chennai - 32

3. The Member Secretary,

Tamil Nadu Pollution Control Board, Anna Salai, Chennai – 32

4. The District Environmental Engineer, Tamil Nadu Pollution Control Board, First Floor, 61 West Gate Main Road, Melakottai Vasal, Nagapattinam – 611 001

5. The District Collector, Nagapattinam District, District Collectorate Master Complex – 611 003 Nagapattinam

6. M/s Chettinad Power Corporation Private Limited, Rep. by its Managing Director, Rani Seethai Building, 603, Anna Salari, Chennai …. Respondents

(Advocates appeared: Mr. T. Mohan with Mr. Gautam Narayan and Ms. Asmita Singh for appellants, Ms. Neelam Rathore with Mr. Prasoon Sharma for Respondent - 1, Mr. S. Gurukrishna Kumar, Additional Advocate General, Tamil Nadu with Mr. K. S. Saravanan and Mr. A Prasanna Venkat for Respondent - 2, 3 & 4, Mr. M. Anbalagan for Respondent - 5 and Mr. C. S. Vaidyanathan with Mr. G. Umapathy and Mr. T. Balaji for Respondent - 6).

Page 3 of 23

J U D G M E N T (Judgment delivered by the bench)

1. This appeal is filed being aggrieved by the order dated 20.01.2011, in file No. J-13012/89/2009-IA.II (T), on the file of the Ministry of Environment & Forests, Government of India (Respondent No. 1) (in short MoEF, GoI), where under Environmental Clearance (in short EC) in favour of the Respondent No. 6, was granted, for establishing 1200 (2X600) MW Thermal Power Plant at Erukkattanchery, Kazhiappanallur and Manickapangu villages, Tarangambadi Taluk, Nagapattinam District, Tamil Nadu. 2. According to the appellants, appellant No. 1 is the Co-convenor of Coastal Action Network, which consists of group of organizations, fishing communities, environmental activists and lawyers. The objective of the network is to ensure protection of the environment and bio-diversity in coastal area and protection of livelihood of the persons living in the area. Appellant No. 2 is a trade union and it has nearly 3005 members on its rolls and appellant No. 3 is a fisherman from Nambiar Nagar Village, which is considered as head village of 64 fishing villages, in Nagapattinam and Karaikal Districts. Fishing is the sole source of livelihood for 90% of the population in these villages. Appellant No. 4 is a resident of Vellakkovil which is a fishing village near Tarangambadi, Nagapattinam District and is situated near the proposed Power Plant. Appellant Nos. 3 & 4 had appeared before the Public Hearing (for short PH) panel constituted to conduct PH under the EIA Notification, 2006.

The PH, as per EIA Notification, 2006, needs to be conducted at the project site or in its close proximity, so that, the persons having a stake in the environmental aspects of the project can effectively participate. The PH has to be conducted in a transparent manner ensuring widest possible public participation. The venue for conducting the PH was not suitable and was located in an interior place at distance of more than 5 km and no proper conveyance / transport facilities were provided for the public to participate. In spite of there being lot of opposition for conducting a farcical hearing, by using police force, the ritual of PH was declared to have been completed, without even drawing the summary of the proceedings and making it available to the public in the local language.

Further, there was substantial violation of the Terms of Reference (for short ToR) in the draft Environmental Impact Assessment (for short EIA) report

Page 4 of 23

preparation for the purpose of conducting PH. The draft EIA and the final EIA reports were not in tune with each other as per the ToR awarded by the MoEF, GoI. What were not available in the draft EIA report cannot be included in the final EIA report when the ToR has not been amended. The public, therefore, will not have opportunity of knowing the contents of final EIA report, if the draft EIA report used for PH is not as per awarded ToR. Whatever is available in the draft EIA report are construed to be the scheme and accordingly objections are raised. When the final EIA report came out, it was found to be altogether different which gave scope for raising various objections as to environment and ecology. The adverse impact based on the baseline data was not properly analysed. The data was collected before and after the PH was conducted. Thus, the appellants and other public had been denied of the complete information required to be furnished to them before conducting the PH.

The Expert Appraisal Committee (for short EAC) has not dealt with the objections raised and deficiencies pointed out in the PH. The appellants, in fact, approached the Hon’ble High Court of Madras, by filing Writ Petition No. 11081 of 2010 and MP No. 1 of 2010 and a committee consisting of (3) advocates was constituted to supervise the PH and submit a report. After submission of the report, the WP was disposed of with some directions. Even those directions were ignored and no opportunity was given by EAC to the appellants. There was also violation of Coastal Regulation Zone (for short CRZ) Regulations. There was no proper study of water requirement for the project. The sea water, after use, is proposed to be let into the deep sea. There is no plan showing how the water would be cooled and what is the surface land available for this purpose and at what degree (steamed water) would be let into the sea and how the temperature would be brought down to 50C above the normal temperature and what are the environmental effects on the sea bio-diversity. No proper planning of the disposal of the fly ash and bottom ash is proposed and Corporate Responsibility for Environment Protection (for short CREP) Guidelines were not followed.

Marshy and agricultural lands were allotted for location of the project and it cannot be said that these lands are Tsunami affected salty lands and no more useful for agriculture or horticulture purpose. There is also discrepancy as to the use of percentage of the local coal and imported coal. The local coal, if used in toto, there is every likelihood that it may produce more ash and there is no proper planning for disposal of such ash generated. The Archaeological Survey of India was not consulted to clear the environmental and ecological effect on the village gate which is 300 years old. The rare

Page 5 of 23

species like the turtles, etc. were not taken care of while granting the EC. The conditions imposed in the EC as a precautionary measure are incapable of showing the correct measures taken for the purpose of satisfying the principles of sustainable development. 3. Whereas, it is the case of the respondents that the PH was conducted as per the procedure prescribed under the EIA Notification, 2006. In fact, before the PH could be conducted, the appellants 3 & 4, filed WP No. 11081 of 2010 before the Hon’ble High Court of Madras and the Hon’ble High Court appointed a committee and in the presence of the committee, the PH was conducted in a very convenient place within 3 km from the project site and in fact, the committee had submitted its report holding that everything went off peacefully in the PH and all facilities were provided by the authority concerned including the transport/ conveyance to the participants and there was adequate representation of the local people in the PH and the proceedings were recorded in writing and at the end of the proceedings summary of the proceedings were drawn in local language and the same was made known to the public present. Absolutely there was no illegality or irregularity in conducting the PH. It is not true to say that there was any inconsistency in the draft EIA report and the final EIA report. The data furnished by the project proponent and EIA consultant was taken into consideration in the draft EIA report, since immediately after submitting the proposal for award of ToR, EIA consultant initiated baseline data collection; however, only some data had to be collected after the PH, to duly comply with the awarded ToR. It is not possible to collect every data before the PH. The salient features are to be collected and submitted - therefore the study was conducted for recording certain features after the PH. There is no dispute as to correctness of the data collected before or after the PH. Nor it is stated that it is not sufficient. In fact, in the PH, the view point of the appellant was also taken into consideration. The whole PH was a participatory one and it cannot be said to be farcical one. The consent to establish granted by the State Pollution Control Board, which was revoked, was again restored - there cannot be any issue in this regard.

The agricultural lands were rendered saline and became useless for agriculture or horticulture, due to sever Tsunami effect in the area. The ambient air quality was monitored in the baseline data. Further, CRZ and State Archaeological Department permissions were obtained. The distance between river Cauvery was directed to be maintained. The present project is located at a far off distance from the cluster of other projects proposed. Therefore, there is no necessity of conducting a Cumulative Impact Study, as those projects

Page 6 of 23

have not been cleared as on the date of the present one. All the issues were deliberated in the EAC and based on the critical review, mitigating measures were suggested to be in tune with the principles of sustainable development and precautionary measures.

The appellants are trying to pick up something here and there and impress upon the Tribunal that the EC granted in favour of respondent No. 6 is environmentally not sustainable, without there being any reliable evidence either oral or documentary. No likelihood of environmental or ecological threat has been pleaded or brought to the notice of this Tribunal. Therefore, the appeal is devoid of merits and is liable to be dismissed with costs. 4. Whereas, the learned standing counsel Ms. Neelam Rathore, appearing for the respondent No. 1 supported the grant of EC in favour of Respondent No. 6. According to her, absolutely there is no illegality or irregularity in grant of EC under challenge. All the procedure as required under the EIA Notification, 2006 have been followed scrupulously and the PH was conducted following the principles of natural justice. The EAC also evaluated the final EIA report and after considering the various aspects of the project, recommended for grant of EC. The Tamil Nadu Pollution Control Board also filed reply and counsel for Respondent Nos. 2 to 4 submitted that the PH was conducted in consonance with the procedure prescribed under EIA Notification, 2006, in the presence of the three member committee appointed by the Hon’ble High Court of Madras. Further, the three member committee also submitted its report to the Hon’ble High Court holding that the PH was conducted in a fair and proper manner and the WP itself was deposed of finally. 5. We have given our earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record including the original record relating to the grant of EC and CRZ in this appeal and also viewed the PH CDs, with the help of a Tamil knowing person. The following points arise for consideration:

1. Whether the PH was conducted as per the procedure prescribed under EIA Notification, 2006 or not?

2. Whether there is any inconsistency in the draft EIA report and final EIA report which resulted in denial of opportunity to the public that participated in the PH and whether it resulted in threat to the environment and ecology?

Page 7 of 23

3. Whether the EAC has committed any error in recommending the grant of

EC which might result in environment and ecological threat? 6. Point No. 1:

Whether the PH was conducted as per the procedure prescribed under EIA Notification, 2006 or not?

The learned counsel for the appellants Shri T. Mohan, vehemently argued that the PH was farcical and there was no transparency and no true public participation. It was conducted at distance of 5 km which is inconvenient to the affected people. No transport facilities were provided to the general public. The photographs placed before the Tribunal showing that the transport facilities were provided are not the vehicles used for transportation of the local people. They are all the vehicles meant for the officials of the project proponent except one State Transport Bus. The affected people, when they were speaking against the project, were snubbed and at one point of time, slogans were raised against the supporters of the project and vice-versa. There was lathi charge by police and people opposing the project had to show their back and practically PH was conducted in the presence of only those who support the project. The committee members also could not record the proceedings properly and submit a proper report before the Hon’ble High Court of Madras. The appellants, in fact, filed their objections to the report submitted by the committee of advocates. The WP was disposed of directing the MoEF, GoI to give opportunity to the appellants in the EAC and finalize the proceedings. This was not followed as required by the order of Hon’ble High Court of Madras in the WP No. 11081 of 2010 and MP No. 1 dated 25.06.2010. PH proceedings were also not properly recorded by the authority conducting PH and at the end of the PH, the summary was not prepared and read out in the meeting. The learned counsel also stated that since there was no consistency in the draft EIA report and the final EIA report, the public was not aware of the information and effective representation could not be made by them before PH Authority and for this reason also, the PH conducted on 21st May 2010 becomes invalid.

After hearing the learned counsel for the respondent and looking into the original record and viewing the CDs relating to the PH, we are of the opinion that the PH conducted on 21.05.2010 does not suffer from any substantial irregularity calling for our interference.

Page 8 of 23

There is no dispute that the PH was conducted in the presence of a committee consisting of (3) advocates appointed by the Hon’ble High Court of Madras. There is also no dispute that the committee had submitted its report stating that the PH was conducted at a very convenient place and transport facilities were provided and as many as (379) people participated and a good number of them ventilated their objections and/or views. The appellants also participated in the PH and expressed their views about the project. All the views expressed by the public participating in the PH were recorded. Of course, there was slogan shouting by the supporters and opposers of the project even before PH started and thereafter. The administration had to request the people, repeatedly, to maintain calm to enable them to conduct PH properly. There was some commotion in the meeting and the police had to use force. The project was equally supported and opposed by the people present in the meeting, but there were hardly any objections raised as to environmental impact of the project in the area, etc. --- mostly the objections revolved around the loss of land and payment of compensation, etc. apart from three-four objections pertaining to cumulative impact of all proposed thermal plants, fishing rights, marine biodiversity impacts and livelihood aspects. The supporters stated that it is for the benefit of the society at large and the electrical energy is very much required for the irrigation of the agricultural lands even, apart from domestic and industrial purpose.

It is apt to note the order of the Hon’ble High Court of Madras, after submission of the report by the committee, while disposing of the WP, which reads as under:

“5. When the writ petition came up for admission, the Division Bench of

this Court on 20th May 2010 directed the respondent to proceed with the public hearing on 21.05.2010. A Committee comprising of three learned counsel viz., (i) Mr. R. Saravana Kumar, (ii) Mr. B. Kumarasamy and (iii) Mr. R. Kannan were appointed to monitor the hearing and the fifth respondent was directed to arrange transport facilities from various points like Tharangambadi, Poraiyur, Poompuhar, Karuvananthapuram, Karuvengadu, Anandamangalam, Vanagiri and other requisite places from 6.00 am on 21st May 2010. It was directed that the transport facility shall be made available till the completion of the public hearing which will facilitate the return of the public to their respective places.

6. Accordingly, the Committees Members attended the public hearing and filed a report. The second and third respondents have filed their minutes of the meeting of the public hearing to the first respondent for their consideration on 27.5.2010. The petitioner submitted that the meeting was not conducted in a proper manner and the transport and other

Page 9 of 23

facilities were not provided and they had not complied with the directions issued by the Division Bench of this Court. He also filed his objections to the report of the Advocate Commissioners.

7. The only prayer in the writ petition is to give a direction to the respondents to shift the venue of the public hearing of the proposed 1200 MW Coal Based Thermal Power Plant by M/s. Chettinad Power Corporation Private Limited to be held on 21.05.10 from the open ground located at Kazhiyappanallur village, Tharangambadi Taluk, Nagapattinam District, to a neutral place so that the representatives of the fishing communities from the nearby villages can participate in the public hearing and express their views freely.

8. Mr. Ramanlal learned counsel appearing for the Pollution Control Board would submit that the respondent 2 and 3 have already submitted the minutes of the public hearing held on 21.5.2010 to the first respondent and the matter is now pending consideration before the first respondent to grant environmental clearance. Therefore, we consider it appropriate to direct the first respondent to give an opportunity to the writ petitioner and those who are interested in expressing their opinion against the project as well as the sixth respondent before considering the issue of environmental clearance. It is open to the first respondent to pass appropriate orders on merits with respect to public hearing taking note of all objections, report of the Advocate Commissioners and the views of the sixth respondent.

9. With the above observation, the writ petition is disposed of. No costs. Consequently, connected MP is closed.”

Thus, Hon’ble High Court of Madras directed the MoEF, GoI to give

opportunity to the appellants and others to make any representation in regard to PH before considering the project for recommendation for grant of EC. But, there was no observation that the PH was not properly conducted. In fact, it was not the prayer in the WP. It appears that the appellants had filed objections before MoEF, GoI; however they did not seek any opportunity to put forth their views. If really the appellants were of the opinion that the MoEF, GoI has not adhered to the orders passed by the Hon’ble High Court of Madras, they could have initiated contempt proceedings, etc. Even otherwise, the written representations were considered by the EAC as reflected from the minutes of the meeting held on 1-2 November 2010 and EAC did not find that the PH was anyway vitiated.

May be there was some commotion in the meeting due to slogans raised by both sides and that resulted in using force by the police - but that does not mean that there was no PH at all. In fact, the views expressed by the participants in the PH were recorded meticulously, whether in favour or against the establishment of the project, and the same were

Page 10 of 23

considered/placed before the EAC. At the end of the PH, the authority concluded the proceedings by stating that the views have been recorded and shall be forwarded to MoEF, GoI without elaborately reading the summary of the deliberations. However, recording of the proceedings was done properly and the executive summary was forwarded to the MoEF, GoI. There may be some lapses here and there. But no substantial point is made out to say that this resulted in any substantial procedural irregularity which might result in environmental threat, requiring this Tribunal to hold that the PH conducted was not in accordance with the EIA Notification, 2006. 7. Point No. 2:

Whether there is any inconsistency in the draft EIA report and final EIA report which resulted in denial of opportunity to the public that participated in the PH and whether it resulted in threat to the environment and ecology?

The learned counsel for the appellant vehemently argued that the draft EIA report (April 2010) made available for the public, before PH, differs vastly from the final EIA report that was submitted for appraisal by the EAC. Data included in the final EIA report (September, 2010) is more than what had contained in the draft EIA Report (April, 2010). There are 21 Annexures in the final EIA Report against 11 in the draft EIA Report. There are substantial variations as to the data furnished—such as inclusion of PM 2.5 baseline data, inclusion of 5 other parameters for ground water {table 3.6.3 (A)}, CO data instead Hg data in Table 3-4.3 (C) etc., removal of references of surface water quality found in draft EIA at chapter 3.6 at page C 3-21 and table 3.6.2 in the final EIA, where there is only a reference to ground water neither in chapter 3.6 at page C-3-24 and nor in table 3.6.2, substituting the reference to imported coal blended with coal from Mahanadi Coalfields in the draft EIA being changed to blending imported coal to coal from Singerani Collieries Company. Thus, the draft EIA Report had significant omissions when compared with the final EIA Report. This information was not available to the public before conducting the PH.

Whereas, in the submissions made on behalf of the Respondent No. 6, except making a bald statement that EIA Report (Final) at page A1-7 to A1-25 provided comparative table showing the compliance of ToR conditions, there is no categorical denial of the arguments advanced by the learned counsel for the appellant that a substantial portion of the data which was not included in the draft EIA report was somehow included in the final EIA Report.

Page 11 of 23

It is worth noting that the draft EIA Report is uploaded on the website and is kept at designated places as per EIA notification, 2006. However, the final EIA report that is used for appraisal by the EAC is neither uploaded on the website or is kept at designated places, for perusal of general public. Thus, it is not in the realm of public reach. This may allow all mischief to be done by the project proponent, if he intends to do so, and it may result in grave environmental and ecological threat, in a given case. We, therefore, felt it appropriate to examine the correctness of the submissions made by the parties by looking into the draft and final EIA reports. The original record furnished by the MoEF, GoI does not contain the draft EIA Report. On the enquiry made by the Registry, a letter has been received from MoEF, GoI saying that the draft EIA Report is not available in the records. We have no option except to rely upon the copy of the draft EIA Report furnished by the appellants. From the examination of the draft EIA report and final EIA report, it is abundantly clear that the discrepancies pointed out by the appellants have been included/ modified in the final EIA report and what is more striking is that the EIA consultant who was engaged for the EIA studies, furnished both in draft EIA report at page A1-7 to A1-21 and the final EIA report at page A1-7 to A1-25, a copy of the awarded ToR and its compliance in the preparation of EIA report. This practice is highly deplorable by all standards and needs to be checked critically by MoEF, GoI as the onus for verifying the compliance of the ToR for EIA report is within the jurisdiction of MoEF, GoI as mandated clearly under item 2 of Appendix V of the EIA notification, 2006. If such practice is allowed to continue, then there is no need for holding public consultation because the very purpose of having transparency in the decision making process gets defeated. Probably this is the area which needs to be taken care in each and every case to avoid any substantial environmental damage that may cause, in a given case.

A closer look into the draft and final EIA reports shows that the following important issues were updated/ modified or partially dealt with respect to the awarded ToR in the final EIA report as compared to the draft EIA report:

1. Details of private land acquisition (ToR condition 11): Except for total private land acquisition, no other details are provided. 2. CSR Component (ToR condition 13 & 14): Only socio-economic study details are provided in draft EIA whereas final EIA provides a concept proposal with budget.

Page 12 of 23

3. Detailed study on marine ecology (ToR condition 15 & 17): Both the draft & final EIA report provides only generic executive summary without management plan and budget. 4. Ambient Air Quality (ToR condition 19): In draft EIA report data on PM2.5 & Hg is not presented. 5. Fuel analysis (ToR condition 22): In draft EIA report, heavy metals data is not presented.

However, in the case on hand, the discrepancies pointed out by the

appellants, may not have any substantial impact on the environment. So far as these discrepancies that ought not to have been committed, are concerned, it would have not caused prejudice to the appellants or the public to the extent that these would cause severe threat to ecological and environmental imbalance and would result in unsustainable development. Even our repeated questions put to the learned counsel for the appellants as to what exactly is the prejudice caused in view of the discrepancies pointed out and in what manner, the same could cause substantial environmental threat, there was no answer; except pointing out the procedural irregularities. Each and every procedural lapse need not result in setting aside the grant of EC. There are curable defects/ deficiencies and incurable defects/deficiencies. So long as the defects/ deficiencies may not result in substantial prejudice to the environment and ecology, we may not interfere into the orders passed by the MoEF, GoI. However, we have to take care of all the defects/ deficiencies pointed out to be cured before the commencement of the project and in this regard we have to issue certain directions to be followed by the MoEF, GoI as detailed infra. 8. Point No. 3:

Whether the EAC has committed any error in recommending the grant of EC which might result in environment and ecological threat?

The appellants have raised numerous grounds in the appeal to show that despite the fact a number of objections that were raised in the PH and subsequently the same were submitted in written format (based on draft EIA report). However, the EAC has not considered them while recommending the project for grant of EC. The main contentions in the present appeal (based on draft and final EIA reports including marine ecology EIA report) pertain to:

Modalities of data collection and EIA reports (terrestrial and marine ecology) preparation;

Page 13 of 23

Archaeological importance of vicinity area;

Fly ash Pollution and Health hazards with respect to coal quality (clarity on use of imported or domestic coal);

Sea water requirement, use and disposal mechanism;

Impact of Olive Ridley Turtles;

Impact on Marine Ecology;

Violation of CRZ notification;

Cumulative impact of large number of thermal power projects coming in the area, and

Option assessment of port facility or common jetty for cluster of thermal power projects.

In view of the elaborate argument by the learned counsel for the

appellants, respondents and on the scrutiny of the original record placed before us, the following issues needs to be discussed for the purpose of directing the MoEF, GoI to take certain steps before commencement of the project by the project proponent and also to add further precautionary measures apart from already suggested in the EC:

a. EIA REPORT – MODALITY AND PROCEDURE ADOPTED:

The learned counsel for the appellants, Mr. T Mohan, argued that some of data set used in the EIA study pertained to a period much prior to award of ToR for the EIA studies (for example terrestrial baseline study during the period December 2009 to February 2010; Demarcation of HTL/LTL of the water bodies study in October 2009). Whereas, certain data sets and studies, though mandated as per the ToR, were conducted much after the PH (for example Marine EIA studies By M/s Indomer Coastal Hydraulics Ltd is dated March 2010 and sampling has been reported to be done during February 2010 Studies). It is put forward that M/s Vimta Labs Ltd, the EIA consultant has utilized the above reports to arrive at required data analysis, verification and validation of primary and secondary baseline data, prediction of impact and/or integration of specialist inputs to the EIA report and conclude on the environmental mitigation measures, in line with the ToR stipulated by MoEF, GoI. Whereas, the draft EIA Report is dated as April, 2010, and the final EIA report is dated September 2010.

Whereas, the learned counsel for R-6 argued that the submission of the appellants against the modality and procedure adopted in preparing the EIA Reports and in obtaining the EC are wholly unsustainable because R-6 approached R-1 for award of ToR much prior and accordingly initiated baseline

Page 14 of 23

data collection as per model ToR by appointing EIA consultant. Admittedly, the ToR for EIA Report were issued by the MoEF, GoI on 20.01.2010; however, R-6 appointed agencies accredited by the MoEF, GoI for the purpose of EIA consultation to conduct the necessary studies and investigations required for the EIA Reports. Two separate agencies were engaged to conduct the EIA for the terrestrial and marine habitats, mindful of the potential impact of the project on both these zones. Therefore, the procedures contemplated in the EIA Notification, 2006 beginning with the submission of Application in Form I by the project proponent, issuance of ToR, EIA Study and Report by MoEF, GoI accredited consultant, PH by State Pollution Control Board and appraisal of proposal by EAC have been complied with in full.

Further, an exclusive EIA Report based on studies conducted by Indomer Hydraulic Systems Pvt. Ltd has been submitted which deals comprehensively with potential impact of the project on the marine environment. The Report concludes that considering the various safety systems which are proposed to be put in place by the answering respondent, the impact would be minimal and would not affect the environment. The appellant’s submission that ToR has not been complied is erroneous and misleading. It is submitted that the Vimta EIA report at page AI-7 to AI-25 has provided the comparative table showing the compliance of ToR conditions. A careful examination of the events and material placed on record reveals that baseline data for terrestrial ecology was collected immediately after submitting application for ToR without waiting for award of ToR by MoEF, GoI and without fully complying with the awarded ToR (as elaborated earlier), PH was conducted and dataset was updated/ modified in the final EIA report that was used for appraisal by EAC. Similarly, as per the ToR, report on Marine Ecology was required to be submitted with the EIA report; however, only extremely generic Executive Summary that is of no relevance and is devoid of any material facts/ data was annexed to the draft and final EIA report. The Marine Ecology report is dated February 2011 and was therefore not available at the time of PH or even subsequent appraisal by the EAC.

b. TURTLE NESTING:

It is the contention of the appellants that the minutes of meeting of 29/04/2010 of District Coastal Regulatory Zone Authority (DCRZA), Nagapattinam District indicate that the proposed project would have an adverse impact on the environment. Similarly, the Wildlife Warden, Nagapattinam District, vide letter dated 29.06.2009 suggested that coastal

Page 15 of 23

shelf from Point Calimere to Nagapattinam and Tharangampadi to Palaiyar needs to be protected for Olive Ridley Sea turtle nesting and that any development in this stretch will adversely affect the turtle nesting. Nagapattinam District having 120 km coast line is the delta region of River Cauvery and its tributaries have different eco system suitable for olive Ridley Sea Turtle nesting.

The R-6, however, contended that in the entire Tamil Nadu coastal zone, it is a rare occasion to find sea mammals and turtles. As precautionary measure, a study made by the consultant revealed that there are no endangered and protected animals found in the study area i.e. 10km from project site. Though, the study revealed that there are no endangered animals in the project area, the project proponent has volunteered to provide hatcheries and assured to protect such turtle nesting sites, if any. It is interesting to note that though the EIA Reports, both Terrestrial & Marine Ecology, does not capture primary or secondary data regarding Olive Ridley Turtle habitat in the area whereas it is submitted that the report of Tamil Nadu Forest Department indicates that Olive Ridley nesting activity takes place all along the entire stretch from Point Calimare to Nagapattinam and Tharangambadi to Pazhayar. Similarly, it is submitted that an independent study done by Faculty of Marine Sciences, Annamalai University also suggested constructive measures for Olive Ridley turtle nesting. The study report also recorded the existence of a migratory route and sporadic spawning ground for Olive Ridley Turtle in this area based on survey conducted on a daily basis during the nesting season of Olive Ridley between December 2009 and February 2010. As part of this survey, three nesting sites were observed. Thus preserving such sites is essential and also protecting the “Migratory route” as part of ecological preservation. Apparently, EAC has not verified and considered this issue and simply relied only on the presentation made which does not even mentions sources of study, etc. May be Olive Ridley Turtles were not recorded during the survey conducted in the project area and may be they are observed in nearby areas, but then there being no mention of Turtles sighting in proximity in the EIA report sudden inclusion of precautionary measures at the time of presentation before EAC raises some doubts. Therefore, it would be appropriate that a scientific evaluation of the same is carried out by EAC/ MoEF, GoI based on a comprehensive study within next six months based on primary data and review of available information.

Page 16 of 23

c. FLY ASH POLLUTION AND HEALTH IMPACT VIS-À-VIS COAL SOURCING:

The EIA reports suggest that the project will use blended coal (70% Imported and 30% Indian sourced from the Mahanadi coal fields) in the draft EIA report as well as in the final EIA report but in the presentation before the EAC, the project envisages use of 100% imported coal. The air pollution modelling has been carried out assuming use of 100% imported coal which has different ash content whereas the EC under challenge leaves a wide possibility open as it stipulates that coal with upto 34% ash content can be used and thereby leaving option open for use of even 100% Indian coal (which is stated to have upto 30% ash content). Whereas, in submissions made before us, it has been placed on record that proponent shall be using imported Indonesian coal with a lower ash content of 5-10% only. Undoubtedly, this will mean significant reduction in pollution risks. Therefore, this needs to be examined properly as to what type of coal having what type of ash content is proposed to be used and accordingly what shall be the pollution risks. There appears to be a drastic variation in the ash content of the proposed coal use. This definitely creates a doubt in the mind as to what is the correct position of the usage of coal. Therefore, it is always better in the interest of pollution risk to be accurate as to what type of coal is permitted to be used and what is the expected ash content of the said coal and its impact on the environment.

d. ARCHAEOLOGICAL IMPORTANCE OF VICINITY:

It is the contention of the appellant that the project would affect the pre-independence era heritage structure in the town of Tranquebar. A clearance was obtained from the State Archaeological Department. According to the appellants, a clearance is needed from the Archaeological Survey of India and not the State Archaeological Department. However, no evidence has been placed before this Tribunal to show that clearance for a monument of this nature is required from the Archaeological Survey of India. If the clearance is required from the Archaeological Survey of India, the same may be verified properly in the interest of protecting heritage structure.

e. WATER REQUIREMENT AND USE:

The water requirement is stated to be 13218 cum/hr of sea water. Out of this, cooling tower make-up alone is 11788 cum/hr and the balance quantity is required for seawater RO system @ 1430 cum/hr, which will generate permeate at 470 to 500 cum/hr. The permeate shall be used for Power cycle make-up and RO Rejects to the tune of 960 cum/hr. Whereas, at other place, it is mentioned that the cooling water bleed is seawater and the quantity is 9180 cum/hr. Out of this, 400 cum/hr is for sea disposal. This information is contrary

Page 17 of 23

to earlier information. Subsequently, SWRO reject of 960 cum/hr has been shown for ash slurry system and disposal into sea. While analysing total bottom ash generation with worst case scenario of utilizing 70% imported coal and 30% local coal, it is estimated that it would be 20% of 0.6 MTPA, which is equivalent to 0.12 Million Tonne/year or 330 TPD (13.75 T/hr). As per CREP norms, only high consistency slurry (35 to 40%) is permitted for diversion to ash pond. Thus, the water requirement for such slurry disposal is only < 40 cum/hr (13.75/0.35=39.3 cum/hr). There is no logic or explanation for 100 cum/hr of water being required for ash slurry except that this 40 cum/hr would be consumed and the remaining 60 cum/hr is only a backup. This aspect needs to be assessed properly. Apart from this, there is the issue of large quantities of SWRO rejects being improperly dealt with. Total water from SWRO Rejects + Ash Slurry System + Ash Handling System will be let out into the Sea, totalling a 1460 cum/hr. Contradictory information has been provided about these facts. There is clearly a risk of overflow from the ash pond, which cannot be probably designed for such volumes. As a result, surrounding lands and the sea water may get polluted with ash, causing serious damage to the environment. This again needs to be examined. Apart from this, in the entire EIA report, no details are provided for the source of water usage, during the entire construction phase. It is well known that the project area has already been exploited in terms of groundwater. Accordingly, ToR condition stipulated that ground water shall not be used for the purpose of the power plant. Under these circumstances, clarity on water requirement and its source for construction phase is required to be examined.

f. IMPACT ON MARINE ECOLOGY:

The Marine EIA report prepared by INDOMER Coastal Hydraulics dated February 2011, which has been prepared subsequent to the PH and grant of EC, was probably not considered adequately in the EAC appraisal as is evidenced from the fact that the appraisal does not reflects consideration to the fact that how hot water would be brought to a temperature which is only 5 degrees Celsius above normal before discharging back into the sea. Similarly, what shall be the procedure for discharging ash pond slurry and its impact on marine environment needs to be examined appropriately.

g. CUMULATIVE IMPACT OF NUMBER OF THERMAL POWER PROJECTS:

It is argued that more than 10 thermal power projects are proposed along the shoreline of Tamil Nadu in the area under reference with distance from one

Page 18 of 23

project to other varying from few km to around 20km or so. This aspect is well known to MoEF, GoI /EAC and other associated agencies; however, except for making a suggestion for use of common port or jetty facility; no other suggestion has been made with regards to safeguard of environment and ecology of the area at the time of appraisal by the EAC and subsequent grant of EC by MoEF, GoI. It is always desirable that a cumulative impact study is conducted in variably in all the cases where more than one project of similar nature or different nature are involved. The cumulative effect of any discharge from the industry/project would definitely have an adverse effect on the carrying capacity of environment and ecology. Though, in the case on hand, it is stated that this is the first project cleared in the area, it is admitted that there are few similar projects on the way within the radius of 10 kms from the project in question. All the more, it is essential to have cumulative effect study of the projects to avoid any danger to human life and the marine life equally. 9. It appears that a separate CRZ permission was needed to be obtained by the project proponent and practically there was no data furnished with the draft as well as the final EIA report, except a generic executive summary. However, it appears that the CRZ clearance has been obtained subsequently based on the comprehensive report on marine ecology. It is difficult to understand as to how a separate procedure has been adopted for examination of the issues relating to marine ecology both in the EC and in the CRZ clearance. In fact, in the case on hand, the EC was granted earlier and the CRZ clearance was granted subsequently, though the ToR for EIA studies clearly envisaged to have a report on marine ecology as well. However, at the time of grant of EC, only the generic executive summary was considered and whereas while granting CRZ clearance a comprehensive study on marine ecology was taken into consideration. This gives an impression that impacts on marine ecology as required under CRZ notification need not to be looked into while granting EC. Probably, marine ecology is equally an important component of environment and if the study is made even before the EC is granted (and as mandated while awarding ToR), it would have provided a holistic approach in the matter. This is something like an EC is granted before the Forest Clearance – which practice is done away with presently. We are of the considered opinion that both the clearances i.e., EC and CRZ Clearance and any other clearance as required under the EIA Notification, 2006 and the Environment Protection Act and the rules made there under should be done simultaneously. Otherwise, it may lead to piecemeal analysis of the environmental impacts that a project may have.

Page 19 of 23

We are conscious that the very procedure of clearance of EC and CRZ clearance are independent and as such there appears to be no comprehensive and/or a holistic approach in grant of the EC. Several issues that arise and discussed above relate to CRZ clearance and EC and they are overlapping. It appears, as a separate procedure is contemplated for issuance of CRZ clearance, while issuing the EC, only generic executive summary was taken into consideration despite mentioning it at the time of award of ToR for EIA studies. Therefore, it is the system which is required to be blamed and not the project proponent – otherwise, in view of the discussions made above (under point No. 3), particularly while keeping in view the impacts of the marine ecology report, water requirement and its use, and quality and quantity of coal to be used; the matter needs to be taken seriously. However, appellants were not able to make out a strong point of a particular environmental threat, in view of the lapses pointed out, except stating that such and such thing was not examined. There was no answer, if it was not examined, what was the prejudice that may be caused to the environment and ecology. In certain areas, the data was collected after the PH was conducted. Though certain defects were pointed out, there was no dispute as to sufficiency and/or correctness of the information furnished by the project proponent for curing the defects. We are aware that in the matter of environment, the burden is always on the project proponent. But that does not mean that the appellants cannot make a submission giving details of the environmental damage that may be caused in the given circumstances as an initial burden. Unless until a particular nature of environmental threat, prima facie made out by the appellant, it may be difficult for the project proponent to discharge his burden in the wilderness. Unfortunately, in no case argued before us, the initial burden was discharged. In the case on hand, the appellants claim to be group of organisations consisting of lawyers, intellectuals and environmental activists, but there is no great improvement.

Further, appellants herein have also challenged the CRZ clearance granted on 02.06.2011 (F.No.11-147/2010), for setting up of jetty, intake and outfall facility for 1200 MW (2X600) coal based thermal power plant at Manickapanngu, Nagapattinam District by M/s Chettinad Power Corporation Pvt. Ltd. (the Respondent No. 6 herein) by the MoEF, GoI before this Tribunal in Appeal No. 15 of 2012 which has been dismissed on the ground of limitation today i.e. 30th of May, 2012. However, we cannot ignore the environmental challenges that may require to be rectified by the MoEF, GoI. Under these circumstances, keeping the principles of Sustainable Development,

Page 20 of 23

Precautionary measures and Polluter Pay (section 20 of National Green Tribunal Act) into consideration, instead of scraping the EC under challenge, we propose to dispose of the Appeal with the following directions.

1 (a) The EIA report (final) both on terrestrial and marine ecology shall be updated as per the suggestions made against point no. 3.

(b) After updating the EIA report, the same shall be uploaded on the website of the MoEF, GoI and invite written objections/suggestion, if any, from the public giving clear 30 days’ time. This may also be given wide publicity in the local newspapers of the project area.

(c) Thereafter, the MoEF, GoI /EAC shall appraise the project along with the objections/suggestions received, if any in this regard.

(d) The recommendation of the EAC/MoEF, GoI shall be placed in the public domain (on the website of the MoEF, GoI).

(e) The above exercise shall be completed within a period of 6 months from the date of this judgment.

(f) In the meanwhile, the EC granted on 20.01.2011 in file no. J-13012/89/2009-IA.II (T) shall stands suspended till the final decision is taken by the MoEF, GoI as required above.

2. The EIA consultant, in the instant case, shall be warned to be careful in preparing the draft EIA in consonance with the ToR issued by the EAC and also in preparing the final EIA report, in view of the observation made in this judgment.

3. The MoEF, GoI shall evolve a strict mechanism to check that the ToR awarded for the EIA studies is duly complied in the draft EIA report before it is uploaded on the website for the purpose of conducting PH. The final EIA report also shall be evaluated in terms of awarded ToR, draft EIA and suggestions made during PH before it is placed before the EAC for appraisal.

4. The EAC/MoEF, GoI to commission Cumulative Impact Assessment study of all the proposed thermal power projects in the area within a period of one year from the date to this judgment and impose additional conditions as may be necessary as a precautionary measure in the establishments of the project.

5. The MoEF, GoI may consider in granting all the clearances together, against a particular project, that are required under the Environment

Page 21 of 23

Protection Act instead of making a piecemeal approach, which may result in fragmented and incomplete/lopsided evaluation of the project, both environmentally and ecologically.

6. SOME SUGGESTIONS FOR PREPARING AND PUBLICATION OF DRAFT EIA AND FINAL EIA AND IN CONDUCTING PUBLIC HEARING:

There appears to be no improvement in following the procedure required in conducting PH, in spite of a catena of judgments rendered by the Hon’ble Supreme Court and Hon’ble High Courts across the country laying down the principles to be followed in conducting Public Hearing and subsequent appraisal of project by EAC. In view of our bad experience, in dealing with the issue of preparation of draft EIA Report in consonance with the ToR and conducting PH, before parting with the judgment, we propose to suggest the following to be included either as part of executive instructions or rules, as the case may be. This may ensure proper appraisal of the suggestions/ objections raised during the PH, by the EAC, and even when they are challenged before the courts of law.

i) There is no procedure indicated to verify the correctness of the

draft EIA Report published by the project proponent and whether the same is inconsonance with the ToR furnished by the MoEF, GoI. There may be cases where a mischief could be played by the project proponent by preparing a draft EIA Report without reflecting the requirements of the ToR which may ultimately result in grave environmental and ecological threat apart from being not in the reach of the public who may raise objections if any, necessary in the PH conducted for the purpose. A procedure requiring approval of the draft EIA Report needs to be introduced to avoid any ambiguity vis-à-vis with the ToR.

ii) Our experience in so far as examining the issue – whether PH was conducted in consonance with the principles of natural justice and strictly in accordance with the procedure stipulated in the EIA Notification, 2006, is horrible. On viewing the video CDs in majority of the cases which have come up for our consideration, we felt it was a mockery. Though, a big show is put up by erecting big pandals, providing facilities like conveyance, water, food, medicine, police force and Fire services etc., by spending huge money, the result of the PH is, however, worthless except mere recording of “support “or “oppose”. Huge people gather, shout slogans against each other (groups) divided into political groups

Page 22 of 23

holding flags in their hands of the respective political party and further say that their political party is against setting up of the project or otherwise. May be some people affected of the land would say that their lands are being acquired and they would not have any livelihood and the compensation if any, paid is meagre one etc. No specific environmental and ecological views/data is placed in the PH either in support or against the establishment of the project. Invariably, the groups clash hurl chappals or stones against each other resulting in the intervention of the police and use of force. The main object of the objectors is always to disrupt the proceedings and the authority conducting the PH is somehow to proceed with the hearing and complete the ritual. Therefore, we are of the considered opinion that the MoEF, GoI may have to strengthen the PH process and make it more meaningful by taking the following suggestions and issuing detailed procedure for conducting the PH apart from what is already provided in the EIA Notification, 2006.

a) The draft EIA must be presented by the project proponent in

presence of all the people assembled for PH, item wise. b) The leaders of the local institutions like Gram Panchayat,

Samiti, MLAs and MPs may be requested to be present in the PH and they may also speak as to the viability or otherwise of the project and submit their written representations.

c) No person shall be allowed to enter the pandal/hall where PH is being conducted holding party flags and they shall not be allowed to raise party slogans. The PH should strictly be confined to the issues that arise from the draft EIA Report and ancillary thereto and nothing more.

d) Firstly, the persons who want to speak in the PH may be asked to give their names in a prescribed form indicating the details such as name, father/husband’s name, name of the village, Taluk/Tehsil, the extent of land if any, affected and the subject on which he or she wants to speak etc.

e) Those who do not want to speak, they may be asked to stand/sit behind the persons intending to speak in a separate enclosure.

f) Thereafter one after the other, who had given names, be called to the dais one by one and be allowed to speak on the subject indicated allotting about five minutes time to speak.

Page 23 of 23

g) If the project involves presentation/ clarification requiring intrinsic science and technical knowledge, the environmentalist/ scientist may be invited to speak on the occasion in the presence of the public and submit their own views in writing on the subject.

h) The Authority conducting PH may be asked to take active part in following each and every minute procedure required for conducting the PH.

i) At the end, all the views whether for or against the project may be pulled subject wise/issue wise and the same shall be briefly replied by the project proponent or his representative.

j) Thereafter, the Authority conducting PH shall prepare minutes of the meeting strictly in accordance with the EIA Notification, 2006 and made known to the public.

k) Further, the PH proceedings shall be drawn in a tabular form addressing each and every issue raised in the PH and the reply offered by the project proponent.

iii) EAC minutes should incorporate detailed reasons, in writing, for

acceptance or otherwise against each issue arising out of PH and brought before it.

iv) MoEF, GoI may also consider placing these suggestions before the EACs for further refinement of the procedure to be adopted in conducting PH.

v) The finalised version of the above exercise may be placed on the website of the MoEF, GoI apart from communicating to the Authorities conducting PH.

The appeal stands disposed of accordingly. No costs.

(Dr. Devendra Kumar Agrawal) (Justice C.V. Ramulu) Expert Member Judicial Member