Case: M/s Aravali Power Co Pvt Ltd Vs. Vedprakash and Another

orders had found fault with the TPPs due to their failure to comply with the notification dated 25 January 2016 and the extended deadline which was fixed for the utilization of fly ash. In view of the subsequent development which has taken place, the basis of the order of the NGT would be fundamentally altered by the modalities and time-lines which are prescribed by the notification dated 31 December 2021. In view of the latest notification, the orders of the NGT would have to be set aside together with the imposition of the measure of compensation as directed in the impugned orders. 7. During the course of the hearing, counsel appearing on behalf of some of the contesting parties have fairly alluded to certain deficiencies in the notification dated 31 December 2021, particularly in the context of the loading, unloading, transport, storage and disposal of fly ash in an environmentally sound manner to ensure that it does not cause air and water pollution. Mr Tapesh Kumar Singh, learned AAG who appears for the State of Jharkand submitted a note of submissions to assist the court, in his personal capacity as an officer of the court. In this context, reliance has been placed on an order dated 24 September 2013 of a two-Judge Bench of this Court in SLP(C) No 30381 of 2011 when the Court was seized of a tender dispute relating to transportation of fly ash. While dealing with the dispute, the following directions were issued by the Court: Allotment of the contract and transportation work shall, however, be subject to the following further conditions: 1. The contractor shall abide by the directions issued by the Government of India, if any, under Section 5 of the Act, or the requirement of any Rules that may be framed by the Government of India under Section 6 of the Act, or instructions/circulars, if any, issued by the Central Pollution Control Board as to nuisance free transportation of ash, including Pond Ash from the Thermal Power Stations to abandoned mines and to other destinations, as the case may be; 2. Pending issue of any directions or framing of any Rules by the Government of India or issuance of any instructions/circulars by the Central Pollution Control Board, the transportation work shall be undertaken by the contractors who emerge successful only by using mechanized steel covered container trucks which would ensure that after the Pond Ash is loaded into the truck, it has no opportunity to fly out of the container to cause any kind of environmental hazard. We leave the details of specifications, if any, of such trucks to the Corporation and its Engineers to be specified in the course of negotiations to be conducted with the bidders. 8. By an earlier order dated 13 August 2013 in the above proceedings, this Court had impleaded CPCB in order to ascertain whether it had prescribed any standards or framed any rules regarding the loading, unloading, utilization and nuisance free transportation of all types of ash including fly ash, bottom ash and pond ash generated by TPPs. During the pendency of those proceedings, certain steps were taken by this Court to scrutinize whether any standards or measures have been prescribed by the CPCB. However, on 22 January 2016, SLP(C) No 30381 of 2011 and the connected matters were dismissed on the ground that they had been rendered infructuous. 9. Apart from the above proceedings, during the course of the hearing, this Court has been apprised of the regulatory provisions contained in the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 (Rules of 2016) including rules 3(17), 3(23), 3(33) and 3(34) of the Rules. In this context, it has been submitted that the Union Government is duty bound to formulate rules to guarantee that the loading, unloading, utilization and transportation of fly ash takes place in a manner to prevent environmental hazards. 10. At this stage, it would be material to note the provisions of paragraph A(7) of the notification dated 31 December 2021 which reads as follows: (7) Every coal or lignite based thermal power plant shall ensure that loading, unloading, transport, storage and disposal of ash is done in an environmentally sound manner and that all precautions to prevent air and water pollution are taken and status in this regard shall be reported to the concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) in Annexure attached to this notification. 11. Paragraph E of the notification deals with enforcement, monitoring, audit and reporting. Paragraphs (3) and (5) of paragraph E are extracted below: (3) For the purpose of monitoring the implementation of the provisions of this notification, a committee shall be constituted under the Chairperson, Central Pollution Control Board (CPCB) with members from Ministry of Power, Ministry of Coal, Ministry of Mines, Ministry of Environment, Forest and Climate Change, Ministry of Road Transportation and Highways, Department of Heavy Industry as well as any concerned stakeholder(s), to be nominated by the Chairman of the committee. The committee may make recommendations for effective and efficient implementation of the provisions of the notification. The committee shall meet at least once in six months and review annual implementation reports and the committee shall also hold stakeholder consultations for monitoring of ash utilisation as mandated by this notification by inviting relevant stakeholder(s) at least once in six months. The committee shall submit the six monthly report to Ministry of Environment, Forest and Climate Change (MoEFCC). (5) The compliance audit for ash disposal by the thermal power plants and the user agency shall be conducted by auditors, authorised by Central Pollution Control Board (CPCB) and audit report shall be submitted to Central Pollution Control Board (CBCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) by 30th November every year. Central Pollution Control Board (CPCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall initiate action against noncompliant thermal power plants within fifteen days of receipt of audit report.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. Paragraph E of the notification deals with enforcement, monitoring, audit and reporting. Paragraphs (3) and (5) of paragraph E are extracted below:(3) For the purpose of monitoring the implementation of the provisions of this notification, a committee shall be constituted under the Chairperson, Central Pollution Control Board (CPCB) with members from Ministry of Power, Ministry of Coal, Ministry of Mines, Ministry of Environment, Forest and Climate Change, Ministry of Road Transportation and Highways, Department of Heavy Industry as well as any concerned stakeholder(s), to be nominated by the Chairman of the committee. The committee may make recommendations for effective and efficient implementation of the provisions of the notification. The committee shall meet at least once in six months and review annual implementation reports and the committee shall also hold stakeholder consultations for monitoring of ash utilisation as mandated by this notification by inviting relevant stakeholder(s) at least once in six months. The committee shall submit the six monthly report to Ministry of Environment, Forest and Climate Change (MoEFCC).(5) The compliance audit for ash disposal by the thermal power plants and the user agency shall be conducted by auditors, authorised by Central Pollution Control Board (CPCB) and audit report shall be submitted to Central Pollution Control Board (CBCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) by 30th November every year. Central Pollution Control Board (CPCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall initiate action against noncompliant thermal power plants within fifteen days of receipt of audit report.