DHANESHWAR YADAV S/O... v. MINISTRY OF ENVIRONM...

2. The Applicant has filed this Original Application alleging inaction of the respondent authorities in preventing and controlling environmental pollution caused by the Respondent No.4, Damoder Valley Corporation Thermal Power Plant in Koderma. It is alleged that long storage of ash in ponds in wet conditions and humid climate has caused leaching of toxic metals from ash and has contaminated the underlying soil and resultantly the groundwater system. It is also alleged that open dumping of fly ash has deteriorated the quality of groundwater polluting the adjacent pond which is the main source of water for the residents of the village thereby affecting their health. Air borne particulate matter mainly fly-ash and black coal particles on the grounds is also damaging the environment in the area. It is, therefore, prayed that the Environmental Clearance granted to the Respondent No.4 may be withdrawn and a direction be issued to it to forthwith stop its operations and to shift the ash pond sharing the boundary wall of the village.

3. Ms. Paushali Banerjee, learned Counsel for the Applicants referring to the photographs filed with the original application as well as the study carried out by the Department of Civil Engineering, IIT Madras, submitted that utilization of fly ash is far below satisfaction and no well defined design procedure or codal provision exists for the ash pond construction and maintenance.

4. We have perused this report (page 17 of the paper book), and we find that this paper has been written by one Mr. Gandhi S.R.

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dated 17-19 December, 2005. This report is general in nature and does not address itself specifically to the Respondent No.4.

5. Ms. Paushali Banerjee, learned Counsel next referred to the Environmental Clearance (EC) dated 23.06.2005, (Annexure-I to the original application), and referring to paragraph (ii), submitted that as per the Environmental Clearance (EC) the area for the ash pond for Stage-I of the project shall not exceed 300 acres and therefore, the land requirement shall be reduced. Reference was also made to paragraph (xii) which requires that fly ash shall be collected in dry form. For emergency purpose only, wet collection system shall be used. Lined ash pond shall be provided for wet collection.

6. The learned Counsel for the Applicants submitted that none of these conditions have been complied, by the Respondent No.4 and, therefore, the violation of conditions of the Environmental Clearance (EC) by the DVC-Koderma Thermal Power Station is glaring.

7. Notices were issued to the Respondents, at the time of admission requiring them to file their response and a direction was also issued to the Respondent No.3, Jharkhand State Pollution Control Board to inspect the area in question and verify the correctness of the allegations made in the Original Application.

8. The Jharkhand State Pollution Control Board has filed an affidavit placing on record the Water Quality Report of the only pond in the village in terms of the directions issued by the Tribunal dated 02.05.2017. The Analysis Report of the Physico Chemical

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Examination of Water Pond dated 07.07.2017 and 11.07.2017 and the Water Quality Criteria reads as under:-

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9. Thereafter, the Tribunal vide its order dated 01.08.2017 directed the Jharkhand State Pollution Control Board to conduct another test with regard to the allegation of leaching of toxic metals from ash contaminating the underlying soil and groundwater

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system as claimed in ground III of the Original Application. It was also directed that the test may be carried out on the contents of (i) iron, (ii) lead, (iii) cadmium, (iv) mercury and (iv) zinc. The Tribunal in view of the findings regarding the water quality and the fact that the Inspection Report referred to in the affidavit of the Jharkhand State Pollution Control Board also reported that seepage of ash pond dyke was going into the nearby pond and some other domestic wastes were also found dumped into the pond, directed the Respondent No.4, DVC, to take appropriate mitigation measures urgently.

10. The Jharkhand State Pollution Control Board thereafter filed another affidavit annexing thereto another Test Report and the affidavit stated that:

(a) The Analysis Report indicates that the pond water of Kariyama Village was not found fit for drinking and bathing i.e. it is not of Class-B & Class-C category of water.

(b) The value of Iron (Fe) parameter has been found beyond the prescribed limit as per IS:10500 for drinking water in bore- well water of Kariyama Village.

(c) Total Dissolved Solids (TDS), Total Harness (CaCO3), Calcium (Ca), Sulphate (SO4) and Iron (Fe) were found beyond the prescribed limit as per Schedule-VI General Standards for Discharge of Environmental Pollutants Part-A:Effluents in ash pond water of M/s Koderma Thermal Power Station, Koderma.

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11. The Respondent No.4, Damoder Valley Corporation (DVC), also filed an affidavit stating that it had installed an Electro Static Precipitators (ESP) in its power plant to control air pollution and the same is functional with 99.9% efficiency. It is stated that the Damoder Valley Corporation has taken up work of construction of Toe Drain surrounding the ash pond dyke in order to arrest seepage of water so that the same may be recycled and re-used. It is also stated that dry fly ash is collected from the ESP and taken into Silos for supply to the Cement and Brick manufacturers. It is further stated that the Damoder Valley Corporation undertakes extensive sprinkling of water to arrest fly ash dust being air borne from ash ponds and it is also in the process of procuring modern high capacity water sprinkling jet for more effective dust suppression in the ash ponds.

12. The Respondent No.1, Ministry of Environment, Forests and Climate Change, in its affidavit has stated that the Damoder Valley Corporation has created two ash ponds for disposal of ash to reduce the pollution in and around the area of the power plant and installed water sprinkling system to reduce dust around the area. It is, however, stated that in the Monitoring Report of Damoder Valley Corporation Power Plant, it is mentioned that "there were some water near the edge of the boundary of the ash pond and towards village pond. It may be possible that water from the Ash pond may be leaking towards the other side and it can be a source of pollution to the village pond. The matter was reported to DVC officials who

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promised to look into the matter and strengthen the boundary wall of the ash pond so that no water leakage occurs on any side. The villagers who came during inspection also complained that ash pond water leaked and was contaminating the village pond."

13. It is also stated that clay lining has been provided inside the pond area to prevent leakage and seepage of water outside the pond posing pollution threats. The affidavit of Respondent No.1 further states that Environmental Clearance was accorded to the Koderma Thermal Power Station on 23.06.2005 for 2X500 MW by Damodar Valley Corporation. The affidavit also refers to a Compliance Report and mentions that "15 ha. green belt plantation work (24000 nos. of plants) has been done in the year 2015-16. Some of the plants that were planted were: Jarul, Kathal, Kathbadam Gulmohar, Arjun, Jamun, Gamhar, etc. The survival percentage was 75%. This work is being done in consultation with Soil Conservation Wing of DVC as well as Jharkhand State Forest Department. It was reported by KTPS personnel that villagers were not allowing to plant trees around the ash pond and nearby areas there."

14. The Respondent No.4 filed another affidavit on 10.11.2017 bringing on record the water quality criteria guidelines as prescribed by the Central Pollution Control Board (CPCB) (Annexure-A to the affidavit) and disputed the previous analysis report which showed that pond water quality was of Class-D. According to the Respondent No.4, Damoder Valley Corporation, the pH value and Dissolved Oxygen of the village pond water are within the limits prescribed by the CPCB. It is stated that Category-D

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water should be free of ammonia as per CPCB guidelines but the Test Report of the Jharkhand State Pollution Control Board does not indicate that any ammonia was found in the pond water of Kariyama Village and, therefore, the water of the pond should have been categorized as 'C' i.e. "drinking water source after conventional treatment and disinfection". Moreover, no leaching was found in the ash pond water and, therefore, the affidavit of the Jharkhand State Pollution Control Board is at variance with the Analysis Report filed as Annexure to that affidavit. It is also stated that test report of the Jharkhand State Pollution Control Board mentions that Bio- Chemical Oxygen Demand has been tested on three days at 27⁰C whereas as per CPCB guidelines testing was required to be done on five days at 20⁰C.

15. The Respondent No.4, Damodar Valley Corporation, in its affidavit dated 31.07.2017 has further stated that in terms of Environmental Clearance granted to the Project, 526 acres of land had been kept for ash disposal pond and for extensive plantation. The DVC was desirous of constructing a permanent ash pond over

298.91 acres of land but the same could not be constructed due to severe local resistance, as a result of which the DVC had to construct small ash ponds to service the power generating units at the Koderma Thermal Power Station. After long negotiations and persuasion with local authorities the construction of permanent ash pond could be commenced only on 31.05.2017. The local villagers of Karayama Village also insisted that the ash pond be constructed at a distance of 200 meters away from the village which has also

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now been carried out and Damoder Valley Corporation has been able to commence construction of the permanent ash pond at a distance of 200 meters away from the village.

16. Mr. Samrat Sen, learned Senior Counsel appearing on behalf of the Respondent No.4, Damadar Valley Corporation, submitted that pursuant to the directions of the Tribunal dated 02.05.2017 the DVC engaged the services of the Central Institute of Mining & Fuel Research, a unit of the Council of Scientific and Industrial Research (CSIR) to test water samples of the village i.e. Tube-well, Open well water and Pond water near the Koderma Thermal Power Station ash pond. The Report of the CSIR has also been filed as Annexure-B to the affidavit. Copy of the report reads as under:-

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17. Mr. Sen further submitted that the report itself would show that out of 25 water quality parameters provided in the Indian Drinking Water Specifications IS10500:2012, the specifications are well within the parameters and no contamination has been found in the village water pond.

18. A reading of this report (at page no. 100 & 101 of the paper book), would show that some water quality parameters like Total Dissolved Solids (TDS), Total Alkalinity (CaCO3), Total Hardness (CaCO3), Calcium Hardness (Ca) and Magnesium (Mg), have been found to be more than the acceptable limit of drinking water specification IS10500:2012 in Tube-well and Open well water but their concentrations are less than the permissible limit of drinking water specification in absence of alternative source. The Report also mentions that higher concentrations of these parameters in

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groundwater may be due to high mineral contents present in ground strata.

19. The learned Senior Counsel also referring to the affidavit of the DVC and submitted that the Electro Static Precipitators (ESP) has been installed in front of the chimney to control air pollution and the same is functional with 99.9% efficiency. Regular water sprinkling arrangement has also been made to arrest air borne fly ash rising from the ash ponds. Moreover, a huge plantation project has been taken up around the ash pond and nearby villages and a project for plantation for 1 lakh trees of local species around the ash pond has been undertaken.

20. We find that another Water Analysis Report was carried out by the Jharkhand State Pollution Control Board which has been filed along with the counter-affidavit of the Jharkhand State Pollution Control (page no.108 of the paper book) which shows Iron (Fe) mg/l, Max to be 0.3 as acceptable limit whereas Manganese (Mn) mg/l, Max 0.1 (acceptable limit) and permissible limit to be 0.3 in the absence of alternate source. The Water Test Report of water quality at the site however, shows Iron (Fe) mg/l to be 1.102 which is definitely higher than the prescribed standards for which no relaxation is provided. Manganese (Mn) mg/l is 0.216 which is within the permissible limit in the absence of alternate source.

21. An Inspection Report of an inspection carried out on 04.09.2021 has also been filed by the Jharkhand State Pollution Control (page no. 185 of the paper book) which reads as under:-

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"Insepction Report of the Fly Ash Pond of M/s Koderma Thermal Power Station (KTPS) and the pond in the Kariyawan Village near Fly Ash Pond no.4 of KTPS as well as water sampling of the Pond of Kariyawan village in the light of the directions given by the Head Office vide letter no. B-1323 dtd. 03.09.2021 in the context of Hon'ble NGT, EZB, Kolkata order dated 17/08/2021 in O.A. No.72/2017/EZ.

1. In the light of the above, the fly ash pond of KTPS and pond in the Kariyawan village near Fly Ash Pond no.4 have been inspected on 04.09.2021 by the undersigned and water sample was collected and analyzed by the Institute for Environmental Management ECO Enviro Lab., Ranchi, an NABL accrediated lab. The result shows that no Mercury (as Hg) is present in the water (Analysis report enclosed as Annexure-A).

2. KTPS have the electricity generation capacity of 2×500 MW. During inspection only one unit was found in operation. Separate ESP of efficiency 99.9% are installed with both the Units. Bag filters are also installed with Coal Crushing Section and water spraying is being done periodically to control fugitive emission.

3. Unit has constructed 04 nos. of Fly Ash Ponds, in stage-I, total area covered cumulatively by these Ponds is 125 acres. Pond no.3 is used as decantation pond. Ash contained effluent is collected in the ponds alternatively. The pond full of effluent is left for drying and evacuation of Ash. In the meantime effluent is collected in the other ponds. Decanted water is collected in decantation pond from where it is pumped back to the plant for reuse. All round the Ash Ponds and in middle parts dykes are constructed of 15 feet width. Trees and grass are planted on the slope of dyke and on nearby land of Fly Ash Pond no.4 located near the Kariyawan village. At the bottom of the dyke, garlain/Toe drain has been constructed to catch the runoff and seepage water of the Fly Ash Pond which is further routed to sump. No effluent was found going to the Pond from the ash ponds. A clay lining of 2 feet thick has been done in the ash pond. KTPS is disposing the Ash regularly as per Fly Ash Notification as amended. As per the documents submitted by KTPS regarding Fly Ash generation & utilization to the committee constituted by the State Government, Jharkhand under Chairmanship of the Deputy Commissioner, Koderma for Koderma district, Fly Ash is given to the manufactures of Bricks, Blocks, Cement industry, Road construction, reclamation of low lying area and back filling of the Ash

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disposal was 121.16%. At the end of the year 2020-21, balance Ash was 11.1 lakh metric tonne.

4. Photographs taken during inspection are enclosed (as Annexure-C)."

22. Perusal of this Report shows Ash disposal was 121.16% during the financial year 2020-21 and at the end of the year 2020- 21 balance Ash was 11.1 lakh metric tonnes. Trees and grass have been planted on the slope of the dyke and on nearby land of fly ash pond near Kariyawan village Toe Drain has been constructed to catch runoff and seepage water of the Fly Ash Pond which is then routed to sump. No effluent was found going to the water pond from the ash ponds and the clay lining of the ash pond is 2 feet thick. Electro Static Precipitators (ESP) of efficiency 99.9% were found installed in both units although at the time of inspection only one unit was found in operation. Water spraying was done to control fugitive emission and bag filters with Coal Crushing Section. There were 04 nos. of constructed fly ash ponds, total area 125 acres of which pond no. 3 is being used as decantation pond. Effluent is collected in the pond alternatively and left for drying and evacuation. Decanted water is collected in decantation pond from where it is pumped back to the plant for reuse.

23. With regard to the query of the Court as regards utilization of fly ash as per notifications issued by the MoEF&CC from time to time, Mr. Samrat Sen, learned Senior Counsel drew our attention to the affidavit of the DVC dated 16.09.2021 and submitted that the Respondent No.4 has utilized 100% fly ash. He submitted that the Koderma Thermal Power Station had already awarded EPC contract

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(composite engineering, procurement and commissioning contract) to M/s Bharat Heavy Electricals Limited (BHEL) for the Main Plant Work including permanent ash pond for 2X500 MW Koderma Thermal Power Station-Ph-I. This contract had been processed even prior to the inspection of the site by the Jharkhand State Pollution Control Board in July, 2017. It is stated that BHEL in turn, awarded the Main Plant civil works for permanent ash pond to M/s Navayuga Engineering Co. Ltd. (NECL). It is also stated that 526.91 acres of land (Raiyati + Govt. land) for construction of the permanent ash pond had been acquired by Respondent No.4 but at that time it had only 68 acres of unencumbered land under its actual physical possession and therefore, the ash pond was got constructed over this 68 acres of land, as a contingency plan through BHEL and the same became operational since April, 2013. Sometime in August, 2015, 50 acres of more unencumbered land was taken actual physical possession of by Respondent No.4 and ash pond constructed over it by the BHEL between August, 2015 and February, 2016. The Respondent No.4 got possession of the balance amount of land by May, 2017 and immediately constructed the ash pond over this area also.

24. Mr. Samrat Sen, learned Senior Counsel further submitted that fly ash utilisation was 99.317% during financial year 2018-19, 91.178% during financial year 2019-20 and 121.16% during financial 2020-21. He further submitted that for evacuation of ash from the ash pond a work order has been awarded to M/s NKAS Services Pvt. Ltd. in association with M/s Ambey Mining Pvt. Ltd.

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on 13.11.2020 for a period of one year. The quantity of ash to be evacuated from the ash pond is 70% of 12,00,000 MT of ash in one year. A work order has also been awarded on 13.11.2020 to M/s Om Sharda Logistics Pvt. Ltd. in association with M/s Mahalakshmi Infracontract Ltd. for a period of one year for evacuation of ash pond of 30% of 12,00,000 MT in one year. Thus, steps have been taken for 100% utilisation of fly ash.

25. Learned Senior Counsel has also drawn the attention of the Court to the Report on Fly Ash Generation at Coal/Lignite based Thermal Power Stations and its Utilization in the Country for the period April, 2020 to September, 2020 and submitted that the Respondent No.4, Damodar Valley Corporation has been shown at Sr. No.21 of the Report, with a utilization percentage of 92.65%. The learned Senior Counsel, therefore, submitted that by this time the Respondent No.4 has achieved 100% fly ash utilization after the contract were awarded to M/s Om Sharda Logistics Pvt. Ltd. and M/s Mahalakshmi Infracontract Ltd.

26. Mr. Sen has also drawn our attention to the CPCB guidelines which referred to the WHO drinking water specifications (page no.338 of the paper book), and submitted that with regard to Iron, the CPCB and WHO provide that "no health based guideline value is proposed." The learned Senior Counsel further submitted that where no health based guideline value is proposed, the water quality test report parameter with regard to the Iron content in the drinking water pond in the village or tube-well of Kariyama Village

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cannot be said to be deleterious to the health of the villagers and in any case it is not life threatening. Similarly, he submitted that the standards parameters prescribed for Manganese content in the CPCB-WHO guidelines is 0.4 whereas the Test Report of Water Quality of Jharkhand State Pollution Control Board (page no. 108 of the paper book) shows Manganese content in water to be 0.216 mg/l and, therefore, on both the parameters for Iron content and Manganese content, the Respondent No.4, DVC-KTPS is not in violation of the CPCB-WHO guidelines.

27. On a broad analysis of the submissions of the learned Counsel for the parties and documents on record, we find that when the KTPS Plant was initially set up admittedly there were actually 68 acres of land and due to protest of villagers etc. which has not been disputed by the other State Respondents, it constructed ash ponds on whatever land was available and the same became operational since April, 2013 and thereafter ash pond was constructed over the remaining acreage acquired by the KTPS. So also the villagers had raised protest regarding construction of ash ponds and had insisted the same be located 200 meters away from Kariyama Village. This was also subsequently fulfilled by the KTPS and one cannot rule out that such process must have caused considerable delay in the setting up of the ash pond which was clearly beyond the power of the Respondent No.4.

28. We also find that the Respondent No.4, DVC, had proposed construction of permanent ash pond over 298.91 acres of land and

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whether they constructed the ash ponds over 298.91 acres or 68 acres it is below 300 acres permitted under the Environmental

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