Union of India & Ors. Respondent(s) WITH Anupam Raghav & Anr. Applicant(s) Versus U. O. I. & Ors. Respondent(s) WITH Sandplast (India) Ltd. & Ors. Applicant(s) Versus MoEF & Ors. Respondent(s) Date of hearing: 27.01.2020 Date of uploading on the website: 12.02.2020 HON'BLE MR. JUSTICE S.P WANGDI, JUDICIAL MEMBER HON'BLE DR. NAGIN NANDA, EXPERT MEMBER ORDER 1. This order may be read in continuation of order dated 20.11.2018 on the subject of management of fly ash generated by the Thermal Power 1 Plants (TPPs). This Tribunal considered impact of nonutilization and proper disposal of fly ash by the TPPs on air quality, surface water, ground water, health and environment. After considering the notifications issued by the Ministry of Environment and Forest & Climate Change (MoEF&CC) requiring 100% utilization of fly ash by 31.12.2017 and applicable norms for utilization of fly ash, this Tribunal directed preparation of action plans to achieve 100% utilization of fly ash and for its scientific disposal. The Committee comprising MoEF&CC, CPCB and IIT Roorkee was to determine the liability of the TPPs for damages on 'Polluter Pays' principle. 2. We may note only the case set out by the applicant in O.A. No. 117/2014 as the grievance in other connected matters is identical. It is submitted that nonutilization and improper disposal of fly ash leads to increase in air pollution and causes severe health problems. It also affects horticulture and agricultural crops. As at present, there is an increase in ash pond areas and increased height of ash dykes. Apart from air pollution, there is pollution of surface water and ground water. Major pollutants in fly ash are Arsenic and Mercury. Both the said pollutants are injurious for the land and the water bodies. Thus, there is need for 100% utilization of fly ash by all possible means such as conversion to ash based products, preventing its washing away or flying in the air. 3. In substance, case of the applicant is that air pollution and water pollution is continuing against mandate of law for which no remedial action was being taken. MoEF&CC has failed to ensure proper monitoring and compliance mechanism inspite of issuing notification 2 on the subject. This is also resulting in failure to enforce the mandate of law under Air Act, 1981; Water Act, 1974 and Environment (Protection) Act, 1986 (EP Act), apart from damage caused to the environment and public health. This is also infringement of 'Sustainable Development' and 'Precautionary' principles. As a consequence of continuing air and water pollution, 'Polluter Pays' principle also needs to be invoked. 4. Notification dated 14.09.1999 was issued by the MoEF&CC which required use of atleast 25% of the ash for clay bricks or tiles or blocks for use in construction activities. The Delhi High Court vide judgment dated 05.08.2004 in Writ Petition (C) No. 2145/1999 directed the Government to make use of fly ash mandatory in roads apart from using it in bricks for construction. Land, electricity and water is required to be made available for promoting ash based production units. Vide amendment dated 03.11.2009, provision was made for its use in manufacturing of building material and in