After 21 hearings NGT stands on the same treadmill where High Court stood after 28 hearings despite “technical competence”
Faced with public health disaster Okhla residents confused with NGT’s observations on Jindal’s municipal waste incinerator
Delhi Govt remains insensitive to the sad plight of Okhla residents
May 16, 2015: Taking cognizance of the complaint dated May 14, 2015 regarding Delhi's Okhla area awaiting 1984 industrial disaster like fate due to unapproved Chinese technology, Prakash Javadekar, Union Minister of Environment, Forests & Climate has promised to look into the matter. In a response dated May 15, 2015, he wrote, “Will look into the matter” and forwarded the complaint to Shashi Shekhar, Special Secretary, MoEFCC and Chairman, Central Pollution Control Board. The complaint letter and relevant documents shared with the minister are attached. Shashi Shekhar is also the head of Hazardous Substances Management Division which deals with issues of municipal solid waste (MSW) as well.
The attached Show Cause Notice issued to the plant of Jindal's TOWMCL reveals unambiguously that the its Consent to operate under Air (Prevention and Control of Pollution) Act, 1981 & Water (Prevention and Control of Pollution) Act, 1974 granted by Delhi Pollution Control Committee (DPCC), which exercises the delegated powers of CPCB had expired on 20th March, 2013. The plant is operating without the same since then. But DPCC has failed to order its closure despite such blatant violation of law.
Even NGT has not done anything to ensure closure of the plant till date. It is evident that rule of law has lost its meaning in the matter of this plant. It is apparent that the regulatory agencies and NGT might is dwarfed by the tremendous influence of the company in question. As per the website of TOWMCL, it is claimed that the plant received Consent to operate on 21st December. 2011. The fact is that the plant is operating without consent to operate since 2013.
As per the attached official document of DPCC on the subject of "Status of Okhla Waste to Energy plant by Timarpur-Okhla Waste Management Co Pvt Ltd" (TOWMCL) as on 16th April, 2015. The plant of TOWMCL is operational. It is processing 1950 MT of waste and generating 16 MW of power. The report mentions that the plant was supposed to use RDF technology but refrains from mentioning that it is using an unapproved Chinese technology brought to light by the CPCB committee report prepared pursuant to 22th March 2011 dated order of the then Union Minister of Environment & Forests. This led to the official recognition of deviations from approved technologies.. The Chinese technology provider is from Hangzhou New Century Company Ltd of Hangzhou Boiler Group. The High Powered Technical Experts Evaluation Committee of CPCB in its 31 page report on the Timarpur-Okhla Waste to Energy Incinerator Plant brought to light the illegalities committed by Jindal's TOWMCL. The report was communicated on March 22, 2012. This report is based on three meetings of the Technical Experts Evaluation Committee held on April 26, 2011, August 11, 2011 and September 22, 2011 under the chairmanship of Chairman, CPCB.
Notably, substitution of technology is prohibited under the provisions of the Environmental Clearance. It is deemed dangerous to according to a report of CSIR-National Environmental Engineering Research Institute (NEERI).
Notably, the representatives of GTZ (German Technical Cooperation) led by Dr. Juergen Porst, Senior Advisor stressed the need for a Disaster Management Plan in the very first meeting of this CPCB Committee, which is annexed to the CPCB's report. This finds reference in the minutes of the meeting annexed with the report. It underlines the possibility of disaster from the Timarpur-Okhla Waste to Energy Incinerator Plant, which is situated in a residential area.
It is noteworthy that a hazardous plant in Bhopal's residential area that led to world worst industrial disaster in 1984 also did not have any disaster management plan. This report made a shocking revelation that although High Court has been hearing the case since 2009, the project proponent did not inform the court about gross deviations from the project design plan envisaged in the EIA report. As per the minutes of the second meeting of this committee, non-cooperative approach of the senior officials of Timarpur-Okhla Waste to Energy Incinerator Plant was "condemned". Representatives of GTZ underlined that there was lack of transparency with regard to environmental and health impact on the neighborhood residents. It was also noted that the fugitive emissions and the expected emission of Dioxins and Furans has not been quantified. The characteristic of ash and required standards was not mentioned.
Prof. T R Sreekrishnan, Department of Biochemical Engineering and Biotechnology and a member of the Committee stated that disposal option for incineration instead of bio-methanation proposed for green waste is in violation of what was mentioned in the EIA report of the company in question.
Notably, all subsequent reports by subordinate officers of Chairman, CPCB are subservient to this report of the High Powered Technical Experts Evaluation Committee headed by Chairman, CPCB. This report revealed how illegal Chinese boilers are being used without any approval in Delhi's Okhla Waste to Energy project. The technical review by CPCB committee admitted that efficacy of reciprocal stoker type boilers (in place of RDF) "is not known for Indian conditions and requires to be verified." There is a compelling reason for treating this report as the main report of CPCB.
DPCC's attached status report dated 16th April, 2015 states, "...in case the Project Proponent (Jindal's TOWMCL) found defaulting in compliance of the direction of Tribunal, the Tribunal would be compelled to direct the closure of this industry." The DPCC concludes that "directions u/s 31 (A) of the Air Act, 1981 was issued on 03.07.2014 and simultaneously show cause notice was issued for refusal of consent under Air & Water Act and authorization under MSW Rules. The Project Proponent has filed statutory appeal against the directions dated 03.07.2014 before the Ministry of Environment & Forests, Government of India. The appeal was listed for 27.02.2015 and the same is pending. The matter is to be listed for final hearing and the next date of hearing is yet to be notified." It is apparent that even DPCC was waiting for NGT to hear the matter on 7th and 8th May, 2015 after CPCB filed its inspection report.
Notably, the Environmental Clearance (EC) which has been amended several times was given to the plant of Jindal's TOWMCL. It is the sad legacy of Shri A Raja years in the MoEF and Shri Rakesh Mehta years in Municipal Corporation of Delhi and Government of NCT of Delhi.
The ToR given by MoEF's Experts Appraisal Committee to the project in question specifically demanded "Disaster Management Plan" but the High Powered Committee constituted by the then Union Minister of Environment & Forests headed by Chairman, CPCB observed in its report that this plan has not been prepared. It condemned the non-cooperation by the company. This committee noted that this plant is operating in violation of Municipal Solid Waste (Management & Handling) [MSW] Rules, 2000. It came to light from the observation of A B Akolkar from CPCB. Akolkar is currently the Member Secretary of CPCB.
By an order of 6th April, 2015, NGT directed, "In the interest of justice , we grant last opportunity and we make it clear that if the Applicant do not argues on the next date of hearing , we shall proceed with the matter in accordance with law. List this matter for arguments on 7th and 8th May, 2015." and had cancelled scheduled hearing of 6th and 7th April, 2015. On 11th May, 2015, it ordered that it will hear the matter on 12th May, 2015. It is evident from NGT's own order that it did not proceed after granting the "last opportunity" despite explicitly promising that it would do so.
NGT's order dated 5th March, 2015 had noted that of "the report of the Joint Inspection Team" consisting of representatives of Ministry of Environment & Forests (MoEF), Central Pollution Control Board (CPCB) and Delhi Pollution Control Committee (DPCC). NGT had allowed "Two of the representatives of the Applicant" to "be associated with inspection team and are permitted to take the photographs." NGT had observed, "This shall be a final report, which we are directing to be filed before the Tribunal." It had also sought report on whether "the Project Proponent (Jindal's TOWMCL) is operating within the framework of the Environmental Clearance." NGT's order dated 12th November 2014 reads, "We also direct the inspecting team to record its findings as regard the compliance of the terms and conditions prescribed for the consent to operate and Environmental Clearance granted to the Project Proponent." By its order dated 18th December, 2014, NGT had given "four weeks" time for the report to be filed before it. But it was not done and this deadline was not complied with. NGT had fixed 12th February, 2015 as the date for "final hearing." The report was received on 4th March, 2015 by the Applicant, the Sukhdev Vihar Residents Welfare Association following which NGT had fixed 6th & 7th April, 2015 for arguments. But the "final hearing" is yet to happen even after May 12th, 2015.
NGT's order dated 6th August, 2014 observed, ""The Learned Counsel appearing for MoEF submits that he would take instruction s from the Ministry both in regard to the prescription of standard for PM as well as what is the fate of the Appeal preferred by the Project Proponent against the direction of the Board dated 3 rd July, 2014."
It is evident from the order that CPCB has passed certain order which is adversarial to Jindal's TOWMCL plant located in Sukhdev Vihar, Okhla locality.
In its very first order dated 11th March 2013, NGT had stated, "We may notice that according to the contention raised by the learned counsel appearing for the Applicant, even Ministry of Environment and Forests had imposed certain conditions, which have not been complied with by the Unit and it has breached number of other obligations upon it." Despite having taken cognizance of the breach of law, till date NGT has not provided any relief to the residents of Okhla area. It had constituted an expert committee to enable it to appreciate the contentions raised before it.
In effect, what the NGT has done between February 2013 and May 2015 is to constitute committees and wait for their reports even as the residents and birds of Okhla continue to be engulfed by the toxic ash fall from the highly polluting plant of Jindal's TOWMCL. If this is going to be the case, it is better for the High Court to hear the matter.
This case demonstrates that NGT is no better than High Court in terms of time it takes to decide cases of environmental damage. The comparison between orders of High Court passed during its 28 dates of hearing and order passed by NGT unequivocally demonstrates that NGT is worse than High Court in terms of providing relief to the residents of Okhla. Not only that, NGT has done erroneous reading of the court's orders with no immediate remedy in sight. It is emerging that High Court is more competent in such matters.
NGT's sensitivity towards the plight of the victims of Jindal's plant in Okhla articulated in the petition/application by Sukhdev Vihar residents can be gauged from its order dated 18th March, 2015 in Original Application No. 141 of 2014 (Saloni Singh & Anr. Vs. Union of India & Ors). Its order by NGT bench headed by Justice Swatanter Kumar reads: "We are informed that Okhla plant dealing with the MSW has a capacity of 2000 MT/day and nearly 1900 metric tonnes of MSW is being processed at the plant everyday. This practically means that this plant has come to its saturation point. We are also informed that another MSW Plant of 1350 metric tonnes at Ghazipur is to become operational from 31st March, 2015. However, it is further informed that it is only the RDF section of the plant that would become fully operational by that date.
The power generation would become operative by the June, 2015. We direct that the Authorities shall take all steps within their power to complete this project as stipulated by June, 2015. This plant should become operative to deal with 1350 metric tonnes of MSW everyday. The Secretary, Power and Energy Department, NCT Delhi shall personally be responsible in addition to the high power officers mentioned above for compliance of these directions. The Railway and the concerned Corporation shall tie-up with NCT. Delhi and start sanding their MSW to the Gazipur site w.e.f. 01-04-2015."
In an apparent display of its continued ambivalence NGT, in its order in another case titled Ms. Almithra H Patel Vs Union of India & Others in O.A. No 109 of 2014 opined that WTE plant should be encouraged in view of the fact that it resolves the issue of non-availability of land and landfill sites, produces energy at lesser price and also addresses the problem of leachate which contaminates ground water. It directed all the states and union territories to explore if MSW could be used in a meaningful purpose by establishing such plants.
Global experience demonstrates without any dispute that incinerator based WTE plants do not resolve the issue of non-availability of land and landfill sites because disposal of incineration ash into the landfill site remains a problem recognized under Schedule IV of the MSW (Management and Handling) Rules, 2000. This experience also shows that energy from municipal waste is not produced at any lesser price in fact it more expensive. The myth of incinerator based WTE plant solving the problem of leachate which contaminates ground water has long been debunked. The existing literature on waste management underlines that incinerator based WTE plants constitute a meaningless and misplaced option. The fact is that it is not a solution, it is a problem creator. It gives birth to the problem of what can deemed as landfills in the sky. It is a case of putting resources up in flames.
These orders of NGT reveal that residents of Sukhdev Vihar and other colonies of Okhla is expected to accept the existence of Jindal's MSW based plant based on unapproved Chinese technology and admittedly without any Disaster Management Plan as a fait accompli. Not only that the NGT is so convinced about the usefulness of such projects that it has directed the Authorities to "take all steps within their power to complete" similar project in Ghazipur "as stipulated by June, 2015."
In fact the Master Plan Report (2020) of Municipal Corporation of Delhi (MCD) says, "RDF is often an option when emission standards are lax and RDF is burned in conventional boilers with no special precautions for emissions." It is surprising that despite such observation in the report, NGT recommends RDF based Ghazipur plant and implicitly approves unapproved Chinese technology for Okhla.
It also demonstrates that NGT does not have the technical competence for which its creation was justified.
It is noteworthy that Manish Sisodia, Deputy Chief Minister, NCT of Delhi inspected the site of Ghazipur's waste-to-energy plant to witness its trial reportedly said, "It is undoubtedly expensive but we need to do such experiments to make Delhi a world-class city. The plant is ready but not working since some files have been pending in the excise department. We will get those cleared as soon as possible."
It appears strange that he is following the footprints of a government whose misplaced initiatives like these led to it being vanquished. It is hoped that your consideration of the matter will set matters right.
This order underlines that the NGT has apparently reached its verdict regarding the fate of Jindal's plant in Okhla prior to "final hearing" of the case of residents of Sukhdev Vihar. It seems legal scholars might categorize such observations as judicial impropriety. This strengthens the belief in the proceedings of the High Court.
Notably, Delhi High Court had attempted to bring some relief to the Okhla community by ordering immediate closure of biomedical waste incinerator plant Sukhdev Vihar, Okhla in Writ Petition (C) No. 6976 of 2008 in the matter of Dioxins emitting biomedical waste incinerator in Sukhdev Vihar, Okhla. High Court judgment is eminently relevant to the case in NGT because the case was transferred midway from the Ho'ble High Court to the NGT.
The judgment refers to 'The summary of "Epidemiological Studies on Adverse Health Effects Associated with Incineration" would show that medical waste incinerators are a leading source of dioxins and mercury in the environment and there is link between incinerator emissions and adverse health impacts on incinerator workers and residents living around the incinerators.'
The observations made in the judgment will have far reaching implications. It reads: "Both older and more modern incinerators can contribute to the contamination of local soil and vegetation with dioxins and heavy metals. In several European countries, cow's milk from farms located in the vicinity of incinerators has been found to contain elevated levels of dioxin, in some cases above regulatory limits. Increased levels of dioxins have been found in the tissues of residents near to incinerators in the UK, Spain and Japan. At an incinerator in Finland, mercury was increased in hair of residents living in the vicinity. Children living near a modern incinerator in Spain were found to have elevated levels of urinary thioethers, a biomarker of toxic exposure. " It notes that "After 2 years of operation of incinerator, dioxins levels were found increased by about 25% in both groups living between 0.5 to 1.5 and 3.5 to 4.0 km away (201 people) of people. In the repeat analysis, the increase was in the range of 10-15%".
It records that "Mothers living close to incinerators and crematoria from 1956 to 1993" showed "increased risk of lethal congenital abnormalities, in particular, spinal bifida and heart defects, near incinerators: increased risk of stillbirths and anacephalus near crematoria". With regard to "Residents from 7 to 64 years old living within 5 km of an incinerator and the incinerator workers" the judgment observes, "Levels of mercury in hair increased with closer proximity to the incinerator during a 10 year period".
The judgment found that "Residents living within 10 km of an incinerator, refinery, and waste disposal site" showed "Significant increase in laryngeal cancer in men living with closer proximity to the incinerator and other pollution sources". The "Residents living around an incinerator and other pollution sources" showed "Significant increase in lung cancer related specifically to the incinerator". The "People living within 7.5 km of 72 incinerators" displayed "Risks of all cancers and specifically of stomach, colorectal, liver and lung cancer increased with closer proximity to incinerators". The petition was filed by residents seeking directions to the authorities and the operator to close down the Common Bio-Medical Waste Treatment facility operating less than 30 Meters from the DDA Self Financing Scheme Flats at Sukhdev Vihar and other colonies and burning 12-15 tons of hazardous bio-medical Waste per day injurious to the health and the life of the 10 lakh public living around it and degrading the environment for all times to come.
The order observes, "10. In Master Plan for Delhi, 2021, notified on 07.02.2007, hazardous waste processing viz. hospital/medical/industrial waste is amongst the industries, manufacturing of which shall be prohibited within National Capital Territory of Delhi."
It is not in dispute that Delhi's municipal waste has hazardous waste characteristics.
It is noteworthy that the biomedical waste incinerator is located exactly in the vicinity of the residential colonies and Jindal's controversial municipal waste incinerator.
The Court observed that "This is a mandatory requirement of the guidelines issued by CPCB, that such facility should be far away from residential and sensitive areas" The same holds true for the location of the Jindal's municipal waste based incinerator plant. This order of High Court underlines that its approach to environmental damage is better than that of NGT. The plant is amidst residential colonials and institutions of national importance like Central Road Research Institute, Institute of Genomics and Integrative Biology and the Indian Institute of Information Technology. Such toxic emissions from the Jindal's power plant in an ecologically sensitive area and thickly populated area has become a routine affair with all the concerned authorities turning a blind eye towards this illegitimate and illegal act. This plant has violated all the rules in the rule book.
Besides violating all the relevant laws and rules, this plant is violation of Wildlife Protection Act 1972 creating a compelling reason for the closure of this plant. The plant became operational in 2012 but it is using untested and unapproved Chinese incinerator technology, a fact noted in the report of the Central Pollution Control Board committee constituted after a delegation had met Shri Jairam Ramesh, the then Union Minister of Environment & Forests pursuant to his site visit of the plant. It is noteworthy that the Union Environment Minister had written to the then Chief Minister, NCT of Delhi underling that the plant is functioning in violation of environmental regulations.
Notably, this plant does not have clearance from the Delhi Urban Arts Commission, which is a mandatory requirement.
This plant is in a green belt contrary to the Master Plan of Delhi, in contravention of section 3(2) (v) of the Environment (Protection) Act, 1986, Rule 5 (ix) of Environment (protection) Rules, 1986 and Guidelines for Establishment of Industries issued by MoEF.
As per Supreme Court's order in the Writ Petition (Civil) No.888 of 1996 such subsidies are not meant for incinerator plants like the one in Okhla. Court's order dated 6th May, 2005 said, "...we hope that till the position is clear, the Government would not sanction any further subsidies." It is noteworthy that on 15th May, 2007, the Court's order "permit (s) Ministry of Non-conventional Energy Sources (MNES) to go ahead for the time being with 5 pilot projects chosen by them" but it is noteworthy that this refers specifically to bio-methanation technology. MNES is renamed as Ministry of New & Renewable Energy (MNRE) and is part of Power Ministry at present. It has been revealed through RTI that neither the proposed Delhi's waste to energy incinerator projects one of those 5 pilot projects nor is it based on the recommended technology.
It is apparent that amendments made in the EC have been made to gain this assistance of Rs 1.5 crore/MW even as the stay by the Supreme Court on sanction of any further subsidies for projects on energy recovery from Municipal Solid Wastes continues to be in force, in manifest violation of Court's order. In the light of the Court's order MNRE must be persuaded to withdraw or modify its letter (No.10/3/2005-UICA) to stop promotion of polluting technologies like incinerators.
Supreme Court is quite categorical in saying, "The Committee has recommended that projects based on bio-methanation of MSW should be taken up only on segregated/uniform waste unless it is demonstrated that in Indian conditions, the waste segregation plant/process can separate waste suitable for bio-methanation. It has opined that there is a need to take up pilot projects that promote integrated systems for segregation/collection/ transportation and processing and treatment of waste. In view of the report of the Committee and having regard to the relevant facts, we modify the order passed by this Court earlier and permit Ministry of Non-conventional Energy Sources (MNES) to go ahead for the time being with 5 pilot projects chosen by them, keeping in view the recommendations made by the Expert Committee and then take appropriate decision in the matter." Despite this Delhi Government has erred in supporting illegal waste to energy incinerators in Delhi which is contrary to the Court's order.
But Delhi Government falsely claimed in the High Court that it was one of the five projects cleared by Supreme Court leading to dismissal of petition filed by residents but when the High Court later found to its shock that such a claim was manifestly untrue, the petition was restored. It was in March 2009 that Writ Petition (Civil) No. 9901 of 2009 which was initially dismissed on 12th August, 2009 because of misrepresentation of facts by A S Chandiok the then Additional Solicitor General. High Court later found that it was misled earlier which had led to it dismissing the petition. The Petition was restored by an order dated 15th January, 2010. In the presence of A.S. Chandihok, the bench headed by the Chief Justice, Delhi High Court in the order observed, "that the project in question" and "the location of the pilot project in Delhi was neither recommended by the Expert Committee nor approved by the Supreme Court."
In a strange case one of NGT's order in the case in question relied on reasoning advanced in the dismissal order of High Court and chose not to take cognizance of the Court's restoration of the same case which later admittedly got transferred to NGT.
Notably, High Court on had asked Central Pollution Control Board (CPCB) and the Delhi Pollution Control Committee (DPCC) 18th July, 2010 to conduct a joint inquiry about India's first waste-to-energy plant and file a report on the allegations that it posed health risks to citizens. The Bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna ordered, "A joint report be submitted by the DPCC and the CPCB after an inquiry of the site of the energy plant about the alleged risks posed to citizens".
It is also apparent that NGT is simply repeating the orders given by the Court. The judicial process in this case at least resembles a treadmill.
It is noteworthy that Asian Development Bank (ADB)'s Asian Pacific Carbon Fund (APCF) dropped this waste to energy plant out of its portfolio amidst controversy surrounding it. In any case it is a misplaced carbon credit project. It underlines how carbon trade is not part of the solution but part of the problem.
Significantly, as BJP MP Vijay Kumar Malhotra, in a letter dated 27th June, 2008 to the Lt. Governor of Delhi had expressed apprehension over the location of such a plant in South Delhi. He wrote, "This plant would release various types of harmful gases which will certainly pose serious health threat to the lives of surrounding residents." Subhash Chopra, as Congress MLA, Delhi Legislative Assembly wrote separately to Chief Minister of Delhi and Lt. Governor of Delhi demanding inquiry into the toxic flay ash from the Jindal's large plant in a letter dated 27th December, 2013.
Now a bizarre situation has emerged because the arguments for Refuse Derived Fuel (RDF) incineration technology that was advanced by the company and the law officers of the previous central and state governments are no more relevant because the plant is using an experimental Chinese technology which was never ever mentioned at the time of submitting the project proposal or in its EIA report based on which a so-called Public Hearing was conducted in Saket.
The ongoing protest rallies and an online campaigns against the toxic, waste-to-energy incinerator where students are also participating in large numbers underlines that the operation of Jindal's waste burning based power plant is an act of environmental lawlessness in the heart of the national capital.
The closure of this plant will be a major and memorable contribution to NCR's landscape for generations to come and help prevent approval for hazardous industrial units in the region at a time when Delhi's residents are gasping for fresh air.
Instead of adopting Not In My Back Yard (NIMBY) approach-which entails shifting a polluting unit to another location-the ministry should order closure of the plant and adoption of Zero Waste philosophy for undertaking decentralized and sustainable waste management practices recommended by several committees. The experience of shifting of stone crushers from Lal Kua to elsewhere showed that mere shifting did not make it non-polluting. In any case transfer of waste from richer localities to poorer localities tantamount to waste colonialism because the latter offer least resistance to flow waste as is evident from the current state of affairs.
Having been involved with these issues since October 2000 and with this specific issue since March 2005, ToxicsWatch Alliance (TWA) has sought minister’s urgent intervention for prevention of unfolding public health and environmental disaster in Delhi's Okhla area and adjoining areas of Uttar Pradesh in particular and NCR region in general due to the Dioxins emitting plant of Jindal's TOWMCL.
For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 08227816731, 09818089660
E-mail: 1715 krishna @gmail.com, Web: www.toxicswatch.org
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