TMI Blog2010 (3) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... plast') proposed to set up a project for manufacturing Poly-Vinyl Chloride (PVC) at Semmankuppam village, SIPCOT Industrial Complex, Phase-II, Cuddalore District (Tamil Nadu). An Environmental Impact Assessment Report (EIA) as well as Risk Analysis Report (RA) for the proposed PVC project was obtained by Chemplast and, then, they made proposal (vide application dated May 27, 2002) to the concerned authorities for setting up the said project. The feasibility of the project was considered by public hearing panel in the meeting held on June 7, 2002. The proposal of Chemplast was sent by the government of Tamil Nadu with its recommendations, after accepting the conditional consent issued by Tamil Nadu Pollution Control Board (for short `TNPCB'), to the Ministry of Environment and Forests, Government of India (for short, `MOEF'). The MOEF examined the proposal submitted by the Chemplast in light of the questionnaire, EIA, RA and other relevant documents and accorded environmental clearance to the project proposed by Chemplast on November 28, 2005 subject to strict compliance to the specific and general conditions laid down therein. 4. One of the raw-materials for manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply safety measures stipulated by the Navigational Safety in Ports Committee (NSPC), Goa and shall obtain the clearance from NSPC before Commissioning of the jetty. 2. The unit shall inform in advance to the Assistant Director of Fisheries Department, Cuddalore as and when the loading and unloading of VCM is done from the ship. 3. The unit shall obtain NOC from the Tamil Nadu Pollution Control Board before commissioning of the jetty and the unit shall comply with the norms prescribed by the Tamil Nadu Pollution Control Board from time to time. 4. The unit shall submit the Disaster Management Plan to the District Authorities before commissioning of the jetty. 5. The Unit shall transport and dispose the treated effluent and R.O rejects of the Desalination Plant by conducting Hydrological study through National Institute of Ocean Technology/National Institute of Oceanography. 6. The Unit shall install double walled pipeline in a concrete trench for the transport of VCM from the Jetty to the Plant. 7. The Unit shall install Emergency shutdown valves in the Jetty and leak detection system in the onshore pipeline. 8. The unit shall install adequate fire fighting equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing out of risers, temperature variation, buckling, buoyancy and sea bed erosion. In the backdrop of aforesaid facts and aspects, the MOEF granted environmental clearance on December 19, 2005 under the provisions of Coastal Regulation Zone Notification, 1991 (for short, `1991 Notification') as amended from time to time for construction of revetment for setting up of MTF on the specific and general conditions set out therein including all the conditions stipulated by the government of Tamil Nadu in the letter dated November 9, 2005 and recommendations of the TNSCZMA. 10. The environmental clearance dated December 19, 2005 granted by the MOEF clarified that the stipulations/conditions set out therein will be enforced among others under the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act, 1986, the Hazardous Chemicals (Manufacture, Storage and Import) Rules, 1989, the 1991 Notification and its subsequent amendments and the Public Liability Insurance Act, 1991 and the Rules made thereunder. Chemplast was also directed to ensure that the proposal complies with the provisions of the approved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Be it noted here that three more writ petitions (Writ Petition nos. 37043/2006, 8125/2007 and 23122/2007) came to be filed before Madras High Court challenging environmental clearances granted by the MOEF to the Chemplast. The appellant - M. Nizamudeen - has sought transfer of these petitions to this Court. I.A. No. 7 has been made therein for deletion of respondent nos. 21 and 22. As the issues are common, these writ petitions are transferred to this Court and respondent nos. 21 and 22 are deleted from array of parties. 16. We heard learned senior counsel and counsel for the parties at considerable length. 17. Mr. Ranjit Kumar, learned senior counsel for the appellant - M. Nizamudeen - submitted: that 100 meters from the High Tide Line (HTL) on both sides of Uppanar river are CRZ-III areas where handling of hazardous substance is prohibited; that VCM is hazardous substance notified under the Notification of MOEF issued on November 27, 1989 and handling of a substance includes transfer, as per Section 2(d) of Environment (Protection) Act, 1986; that Chemplast did not seek any permission in respect of the pipelines in the CRZ on both sides of Uppanar river, rather existence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made devious hidden changes in its application made on November 14, 2005. Learned senior counsel submitted that the permission granted by MOEF on December 19, 2005 is limited to MTF and no more. He reiterated that the phrase and thereon to the plant in the permission dated December 19, 2005 does not cover permission for the pipeline all the way to the Uppanar river. 21. Learned senior counsel urged that 1996 Plan is obsolete and must make way for the plan prepared by NIO and the demarcation of CRZ by the NIO being final, the said plan must prevail over 1996 Plan. 22. According to Dr. Rajeev Dhavan, CRZ-III status has to be attributed to both banks of the Uppanar river through which the pipeline carrying the hazardous substance VCM is to be taken to the plant. Referring to the 1991 Notification as amended in 2002, Dr. Rajeev Dhavan submitted that VCM can be brought on to the port area but not carried any further by pipeline in or across CRZ area including the CRZ-III area in relation to rivers, creeks and backwaters where the salinity concentration is 5 ppt for a distance of 100 meters from the HTL or the width of the river whichever is less. He referred to public trust doct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as the interpretation given by them to paragraph 2(ii) of 1991 Notification is too restrictive and narrow. 24. Learned counsel for Union of India urged that the point at which the pipelines pass under the Uppanar river and its banks is not a part of CRZ as per 1996 Plan prepared by the state government and approved by the central government and, therefore, no permission or environmental clearance is required for that portion of the pipeline that passes under the Uppanar river nor such permission was granted. He submitted that environmental clearance was only required for the MTF and that portion of the pipeline that falls within the CRZ abutting the sea, i.e. within 500 meters from HTL and vide permission dated December 19, 2005, environmental clearance was granted for this portion of the pipeline only. He would also submit that the interpretation given to paragraph 2(ii) of 1991 Notification by the petitioners is not correct interpretation and that exception in paragraph 2(ii) needs to be construed in a purposive manner. 25. In view of the contentions advanced by the senior counsel and counsel for the parties, the first question which we have to look to is, whether Uppanar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by the distance up to which the tidal effects are experienced which shall be determined based on salinity concentration of 5 parts per thousand (ppt). For the purpose of this notification, the salinity measurements shall be made during the driest period of the year and the distance upto which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans.;] Substituted by S.O.1122(E), dated 29th December, 1998. Gazette of India (Extra). No. 849, dated 29-12-1998. Inserted as per S.O.(E). No. 550 (E), dated 21st May, 2002 2. Prohibited Activities : The following activities are declared as prohibited within the Coastal Regulation Zone, namely : (i) ............. (ii) manufacture or handling or storage or disposal of hazardous substances as specified in the Notifications of the Government of India in the Ministry of Environment Forests No. S.O. 594(E) dated 28th July, 1989, S.O. 966(E) dated 27th November, 1989 and GSR 1037(E) dated 5th December, 1989; 3[except transfer of hazardous substances from ships to ports, terminals and refineries and vice versa, in the port areas:] . 3. Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 986. 27. Indian Council for Enviro-Legal Action filed a writ petition before this Court challenging some of the amendments made in 1991 Notification; they also raised the grievance that the MOEF except for issuing the 1991 Notification had taken no steps to follow up its own directions contained in that Notification. This Court while disposing of writ petition filed by Indian Council for Enviro-Legal Action [(1996) 5 SCC 281], inter alia, issued the following directions: (1) ......................... (2).......................... (3) Considering the fact that the Pollution Control Boards are not only overworked but simultaneously have a limited role to play insofar as it relates to controlling of pollution for the purpose of ensuring effective implementation of the notifications of 1991 and 1994, as also of the Management Plans, the Central Government should consider setting up under Section 3 of the Act, State Coastal Management Authorities in each State or zone and also a National Coastal Management Authority. (4) The States which have not filed the Management Plans with the Central Government are directed to file the complete plans by 30-6-1996. The Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sifications. Sheet no.10 pertains to the coastal stretch of Cuddalore District. The MOEF, based on sheet no. 10 (1996 Plan) have stated in their affidavit that the land portion of the banks of Uppanar river adjacent to the plant in Thiyagavalli village where the pipeline crosses Uppanar river does not come under the CRZ area. This position is reiterated by the TNSCZMA in their affidavit filed before this Court: ..................as per the approved Coastal Zone Management Plan, the banks of Uppanar River adjacent to the Plant in Thiyagavalli Village where the pipeline crosses River Uppanar does not come under CRZ area.................. ....... 29. We were also shown a copy of sheet no.10 from which it did not transpire that Uppanar river and its banks where the pipelines pass have tidal influence and come under the CRZ area. That 1996 Plan does not reflect the area on both sides of the Uppanar river through which the pipelines pass as CRZ area is not in dispute. The contention of the senior counsel for the petitioner/appellant is that 1996 Plan has become redundant and obsolete in view of change in the CRZ regime due to amendments in 1991 Notification, first on December 29, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of demarcation and classification of CRZ area in the state of Tamil Nadu has to be treated as final and conclusive and has been rightly treated as such by the MOEF. We hold, as it must be, that the Uppanar river and its banks at the relevant place where the pipelines laid by the Chemplast pass do not fall under CRZ III area as per 1996 Plan and no environmental clearance is needed for such pipelines. The stand of the MOEF is, which seems to us to be correct, that they have granted permission to the onshore pipelines insofar as these pass through the CRZ abutting the sea, i.e. 500 meters from the HTL and no clearance has been granted as it was not required for laying of pipelines under the Uppanar river. 32. Here, we may also deal with the objection of the petitioners that Chemplast has suppressed the material facts regarding the existence of Uppanar river in its proposals. In the first place, there seems to be no substance in the said objection. From the materials available on record that include the Environment Impact Assessment Report (EIA) and Risk Analysis Report (RA), it cannot be said that existence of Uppanar river has been suppressed by the Chemplast in its prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hore by pipeline to the port area but not in the CRZ area. The arguments of learned senior counsel have put in issue the scope of expression, except transfer of hazardous substances from ships to ports, terminals and refineries and vice versa in the port areas which was added in paragraph 2(ii) on 9th July, 1997. We are called upon to ascertain the true meaning and intention of the Executive in bringing this exception. In the original 1991 Notification there was no exception clause. It appears to have been added for the purpose of enabling transfer of hazardous substances from ships to ports, ships to terminals and ships to refineries and vice versa. Is such transfer of hazardous substances confined to terminals and refineries located in the port areas? The answer in the affirmative may make the said provision unworkable and would also result in absurdity inasmuch as the hazardous substance would be brought in to the port, refinery or terminal in the port area from the ship and would remain there and could not be taken beyond the port area because of the prohibition. This surely could not have been the intention of the Executive in adding the exception clause. It is well settled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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