RAMESH AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal filed under Section 16(h) of the National Green Tribunal Act, 2010 challenging the Environmental Clearance (for short EC) granted to Respondent No. 3 National Thermal Power Corporation Ltd. (for short NTPC) under the Environment Impact Assessment (for short EIA) Notification, 2006 by the Respondent No. 1, Ministry of Environment and Forests (for short MoEF) vide order No. J 13012/79/2007 -IA. II (T) dated 13.12.2012 for setting up of 2x800 MW coal based Lara Super Thermal Power Project (for short STPP) at Armuda, Chhapora, Bodajharia, Devalpura, Mahloi, Riyapillai, Lara, Jhilgitar and Kandagarh villages in Taluk Pussore, District Raigarh, Chhattisgarh contending that the approval granted is in clear violation of the 'Precautionary Principle' and principle of 'Sustainable Development' and also in violation of principles governing administrative decision making, viz. the duty to give reasons and application of mind to relevant consideration.

(2.) THE Appellant claims that he is a resident of Raigarh, Chhattisgarh and has been involved in environmental activism since several years and he is an active member of organization known as Jan Chetna which works on the issues of environment across the State of Chhattisgarh and other parts of the country. The Appellant submits that initially the Respondent no. 3 submitted proposals to Respondent No. 1 for granting EC for construction of 5x800 MW capacity STPP (Unit I and Unit II) based on Super Critical Technology towards the south -east of Raigarh Town of Chhattisgarh state on 18.04.2007 with an estimated requirement of 3500 acres of land. Based on the application submitted by the Project Proponent, the Expert Appraisal Committee (for short EAC) on environmental impact assessment of Thermal Power and Coal Mine Projects of Respondent No. 1 issued Terms of Reference (in short ToR) dated 01.08.2007 for preparation of Draft Environment Impact Assessment Report (in short DEIAR) for 5x800 MW Thermal Power Project. The Project Proponent prepared the DEIAR for 2x800 MW Thermal Power Project (Stage -I) in January, 2011 followed by a request made to Respondent No. 1 on 09.03.2011 seeking amendment to the ToR. Thereafter, the Respondent No. 1 issued Corrigendum to the ToR on 27.04.2011 amending the ToR applicable to 2x800 MW in place of 5x800 MW.

(3.) THE Appellant contended that the DEIAR prepared by the Project Proponent is not in accordance with the ToR dated 01.08.2007, though Para 2.2 of Appendix -IV of the EIA Notification, 2006 mandates preparation of DEIAR strictly in accordance with ToR communicated to the Project Proponent after scoping. As per the Appellant, the issues on which EIA has been carried out by the Project Proponent in contravention of ToR, are as follows: i. ToR dated 01.08.2007 were issued for preparation of EIA Report with regard to 5x800 MW whereas both the draft and final EIA Reports have been prepared for 2x800 MW (Stage -I). The Appellant states that though the corrigendum issued to the ToR provides for change in the unit configuration from 5x800 MW to 2x800 MW it does stipulate that the EIA study shall be carried out for 5x800 MW but the EIA report is confined to only 2x800 MW and not the ultimate capacity 5x800 MW. ii. As per condition No. (ii) of the ToR, the EIA Report was required to provide information about coordinates (all the four corners) of the project site as well as the ash pond with Toposheet. But in the DEIAR only single coordinate (21ø44'48" N and 83ø26'00" E) has been mentioned. Furnishing of information on all the four coordinates in the DEIAR is required to ensure that the exact boundaries are disclosed to the public and they are aware of the exact location of the project during the public hearing as the location of STPP and its associated facilities such as ash pond, has serious social and environmental impact and same is of critical importance for deciding the environmental viability of the project. iii. With regard to land requirement, the Project Proponent is supposed to optimize the land utilization as per the ToR condition No. (vi) with full details of item -wise land availability along with plant layout but the Project Proponent informed that for Stage -I approximately 2375 acres of land will be required and 525 acres of additional land will be required for ash dyke of Stage -II making it unclear as to why the provision of requirement of land for ash dyke for Stage -II was included as a part of Stage -I. Though, as per the guidelines of the Central Electricity Authority (for short CEA) issued in September, 2010 an area of 0.77 acre of land per MW of power produced is supposed to be taken into account making requirement of about 1232 acres of land for the purpose of establishing 2x800 MW = 1600 MW power plant whereas, the Project Proponent almost doubled the requirement i.e. 2375 acres of land and no effort has been made by the Project Proponent to optimize the land requirement. iv. With regard to quantity of fuel required for the project, the Appellant states that the Project Proponent included in the EIA Report that 7.0 million tons of coal is required per annum which is to be sourced from Talaipalli Coal Block. But keeping in view of the fact that coal in the area is of Grade 'F' quality with Useful Heat Value (for short UHV) ranging between 1310 to 5892 Kcal/Kg making an average of 3601 Kcal/Kg, the mentioning of 4200 Kcal/Kg in the EIA report is nothing but improper assessment of requirement of fuel and not arriving at the exact quantity of coal required. Though, the EIA Report states that the transportation of coal will be through Merry Go Round (for short MGR) of about 60 km. but the effect of transportation for such long distance and its overall impact and carrying capacity of the environment on the land, water bodies, forest, and habitat is not clear. v. As per the condition No. (xxii) of the ToR, data on water quality of Kelo and Mahanadi rivers and other water bodies located in the said area is supposed to be collected and provided. But the data provided by the Project Proponent is out dated and unrealistic. The water in the river Kelo has been badly polluted because of industrial activity and the data of the water quality of this river provided in Section 3.7.2 of the draft EIA Report is of December 2006 to December 2007. Though, the Project Proponent stated that one season data for pre -monsoon season of 2011 has been included in the final EIA Report it does not reflect the time duration as to when the same has been collected. vi. The Appellant in his appeal is very critical about the missing of detailed Rehabilitation and Resettlement (for short R&R) plan in the draft EIA Report. He states that as per the condition No. (xxviii) of ToR detailed R&R plan shall be prepared taking into account of the socio -economic status of the area, land oustees and homestead oustees, landless labourers but the same has not been furnished by the Project Proponent. In the DEIAR, the Project Proponent has stated "details will be included in the socio -economic survey". It is blatantly clear that the EIA Report has been filed without addressing the very vital issue of R&R. The averment of Respondent No. 3 that final R&R plan was submitted to the MoEF on 24.08.2012 clearly shows that the same was not part of the EIA Report studies neither at the draft nor at the final EIA stage. The issue of R&R is a critical component of the ToR issued for the project and the R&R plan was not discussed in the EAC. Both, the MoEF and the EAC viewed the non -compliance of the ToR with regard to R&R in a very casual manner and proceeded to recommend the project for approval despite being aware that the R&R plan is not in place. vii. With regard to ToR condition No. (xxxii) seeking measures of socioeconomic influence to the local community proposed to be provided by the Project Proponent, the EIA Report is completely silent on this aspect and it is only states that "community development activities will be taken up after finalization of the plan in consultation with the State Government."