Gare Pelma II Environmental Clearance on hold due to submission of false, incomplete information by MAHAGENCO

The Expert Appraisal Committee (EAC) constituted by the Ministry of Environment, Forests and Climate Change (MoEFCC) held its latest coal mining division meeting on 5th December, 2019. One of the items discussed in the EAC meeting was the application for Environmental Clearance for Gare Pelma Sector II coal mine by Maharashtra State Power Generation Company Ltd. (MAHAGENCO). The committee neither rejected nor recommended the proposal, for want of more information, and merely ‘decided to return the proposal in its present form, and has asked for clarification/inputs,’ on multiple fronts. The reason behind the decision however, is more grave than the committee’s grossly inadequate reaction will have one believe, i.e., submission of false, incorrect and incomplete data by the project proponent, MAHAGENCO.

False Information Submitted
Gare Pelma II coal block is a part of the Raigarh Coalfield situated in Raigarh district of Chhattisgarh. The coal linkage is for captive use in certain units of MAHAGENCO’s Chandrapur, Koradi and Parli Thermal Power Plants located in Maharashtra. The Mine Developer and Operator is Adani Enterprises. The Gare Pelma II proposal discussed in the 5th December meeting of EAC was for seeking recommendation for obtaining environmental clearance (EC) from MoEFCC. EC is a pre-requisite for commencing operations for any industrial project. Prior to obtaining EC, project proponents are required to submit information pertaining to operation details and potential impacts on environment, including but not limited to a Form 1, sometimes Form 2*, an Environmental Impact Assessment Report, etc.

According to the EAC meeting minutes, ” 51.1.4 The EAC after deliberation observed that the project proponent in a haste of submission before validity of baseline data, submitted incomplete and incorrect Form#2 on the Ministry website for appraisal (PARIVESH). The EAC, during deliberations noted that the project details mentioned in the EIA report were not consistent with that presented during the meeting. EAC advised to the PP/Consultant that the EIA Report shall be made appropriately with the provisions of the EIA Notification, 2006 and various OM/Circulars issued by the Ministry from time to time. The EAC, after detailed deliberations decided to return the proposal in its present form, and has asked for clarification/inputs, in respect of the following:-

Over 20 different types of information has been sought by the committee. The list includes a revised Environmental Impact Assessment study to be submitted in line with the law, corrected Form#2, a month of baselines data as baseline data so submitted is almost three years old, study on impact of mining on hydrology of the region, carrying capacity study of the area due to presence of other mines in the region, social impact assessment for proposed displacement of people, etc.

MAHAGENCO not only submitted false data but also incomplete information. In addition to the information requested as mentioned above, the committee noted the following –

National Commission of Scheduled Tribes (NCST) vide letter dated 4th April, 2018
deferred the Public Hearing subject to compliance/completion of certain studies. Report
of Indian Council of Medical Research (ICMR) health assessment and project of health of
people living in Tamnar Block is yet to competed.
Wild life conservation Plan is yet to be approved from concerned statutory authority.Project involves forest land of 214.869 ha for diversion of non-forestry activity.
Stage-1 FC for the said forest land has not yet granted
.”

EIA Notification on Submission of False Information
The Environmental Impact Assessment Notification, 2006 details the legal framework related to process of obtaining Environmental Clearance from MoEFCC. Here is what it says about submission of false information,
8. Grant or Rejection of Prior Environmental Clearance (EC):
… (vi) Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the applicant, and following the principles of natural justice. …

EAC Response – Inadequate, Abdication of Responsibility
The EAC is the primary body of experts entrusted with the responsibility of critically appraising and regulating industrial projects that impact the environment. In this case, the committee noted the numerous discrepancies, yet merely directed MAHAGENCO to re-submit required information. The meeting minutes state,
” …The proposal was therefore returned in present form as it is, for completing full details on Form#2 and other observations as given above. ” This author believes that the response of EAC is problematic for several reasons. Some of these have been detailed below.

  1. The committee neither recommended the project for obtaining EC, nor rejected it. As mentioned above, submission of false/misleading data makes the application liable for rejection. Submission of false information in Form#2, mismatching information in the EIA is non-compliance with law even prior to commencement of operations by Mahagenco. For a nodal appraisal/regulatory body to return the proposal without penalizing the defaulters in the least is simply not good enough.
  2. In line with the previous point, it is important to note that Environmental Clearances are accorded on the basis of information submitted by project proponents. Thus, submission of false data in Form #2 and discrepancies in information submitted in the EIA studies is likely to have a cascading effect on all decisions to be taken by relevant authorities related to the project. A Supreme Court judgement related to Mopa airport in Goa (CA No. 12251/2018 with CA No. 1053/2019) stresses on this point, among others. A quote from a blog post about the significance of this judgement, “Thus, non-disclosure or wrong disclosures in Form 1 “bypasses the authority of the EAC and SEAC to reject an application at the preliminary stage and cannot be countenanced.”” In this case, Form #2 plays a similar role for according EC. Similarly, a quote from the Mopa judgement shedding light on the problem with EIA discrepancy, “The submission urged by the appellants is that the purpose of the EIA report is to form an assessment of the state of environment as it exists in reality. The project proponent is duty bound to make a proper disclosure and the highest level of transparency is required… Accompanying Form 1 is a declaration of the project proponent that the EC will be liable to be rejected in the event of a suppression or mis-statement of material facts.” The same declaration is part of Form#2 as well.
  3. Authorities such as EAC and MoEFCC not only shoulder regulatory responsibilities, but also bear a moral responsibility toward the people and environment of the country. Returning a proposal ridden with fallacious information without any penalty/action to hold the defaulters responsible is, arguably, not in line with principles of natural justice. Such a decision questions the credibility of the EAC as a body truly concerned about the environment.
  4. It is also a dereliction of duty as there exist other courses of action that could have been taken by a body with as much authority as the EAC. For instance, this author believes that the EAC should have outright rejected the proposal, and MoEFCC could then proceed according to section (8) of EIA Notification 2006 which details course of action to be taken in case of submission of false information (excerpt above).

Alternative Scenarios
While highlighting the numerous issues associated with this EAC decision is important, this author would like to add that there do exist other possible outcomes.

  1. First, the fact remains that MoEFCC has the authority to reject the proposal regardless of what kind of recommendation EAC provides. As mentioned above, neither rejecting nor recommending for EC also still leaves MoEFCC with this option.
  2. With new information being submitted, one can argue that a new public hearing (another mandatory aspect of EC – EIA procedure) should be conducted on the basis of the new information, apart from just re-submitting specified information. People who stand to be directly affected by project operations (residents of Raigarh, in this case) have a chance to express concerns primarily at such public hearings. It is only logical to conduct fresh public hearings if new information related to projects is being submitted. (According to the meeting minutes, “Initially Public Hearing for this project was scheduled on 16th March, 2018, then on 26th May, 2019 and on 26th August, 2019. Public Hearing was finally conducted on 27th September, 2019.” It was postponed on account of protest by local villagers who stand to be affected directly by the mining activities proposed to take place; news reports also suggest that locals allege the public hearing finally conducted was staged).
  3. Even a bare minimum approach to carrying out its duties would have meant the EAC rejected the proposal, or imposed some penalty on the project proponent. This author believes rejection of current proposal would still leave MAHAGENCO with the option of applying again, but with all new information and up to date baselines data, instead of submission of specific components without any penalty.

One Project, Many Potential Impacts
Another thing to note here would be where the coal from Gare Pelma II is proposed to be used. The coal linkage is with specific units of Mahagenco’s Chandrapur, Koradi and Parli Thermal Power Plants. Chandrapur in Maharashtra is a critically polluted area, as identified by CPCB’s Comprehensive Environmental Pollution Index. Koradi Thermal Power Plant is located near Nagpur and Koradi towns, as is Khaparkheda TPS, also owned by Mahagenco. The area is notorious for air and water pollution from thermal plants and industry, and Koradi has even been identified as a Sulfur Dioxide hotspot in the last year. The impacts of burning of coal mined from this part of Chhattisgarh are not limited to the mining lease area, they potentially extend to those areas where the use of coal will exacerbate prevailing pollution problems as well.
Lastly, a report authored by a committee constituted under an NGT order passed in the Shivpal Bhagat vs. Union of India & Others case (OA 104/2018) dated 11th October 2019 highlights one significant point, among others. The report highlights, “Based on evidence summarised above, the committee is of the opinion that the Tamnar-Gharghoda block region is close to exceeding its environmental carrying capacity.” The Gare Pelma coal mines are spread across Tamnar and Gharghoda blocks in Raigarh district. This is an environmentally stressed region being proposed to be opened up for further mining, for coal to be used in existing severely polluted areas of Maharashtra.

*Note: According to OM issued by MoEFCC on 20th April 2018, industries are to submit Form #2 in format given and in line with other provisions of EIA Notification.

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