Green Tribunal’s order in contempt of Supreme Court in Jindal’s waste incinerator case

NGT’s order is in contempt of facts as well

Tribunal being misled the way Delhi High Court was misled   

September 14, 2013, New Delhi:  Disregarding the attached Supreme Court’s order dated May 15, 2007, unmindful of the adverse observations the Delhi High Court, the National Green Tribunal (NGT)’s order dated September 10, 2013 is not only factually incorrect in terms of date and the directions but also in contempt of the Supreme Court’s order. Tribunal’s order also incorrect with regard to  what the fate of the submission by Additional Solicitor General, A S Chandiok in the Delhi High Court.

Contrary to what is mentioned in the Tribunal’s order, the fact is that in March 2009 that Sukhdev Vihar Residents filed the Writ Petition (Civil) which was initially dismissed on August 12, 2009 because of misrepresentation of facts about the Okhla Waste to Energy plant being one of the pilot projects recommended by the Expert Committee appointed by the Supreme Court of India. This misrepresentation was done by A S Chandiok, Additional Solicitor General (ASG).

On August 12, 2009, Delhi High Court had dismissed the petition. The order reads: “Learned Additional Solicitor General inform us that the project in question is one of the pilot projects recommended by the Expert Committee appointed by the Hon?ble Supreme Court and two similar projects at Vijayawada and Hyderabad  as recommended by the Committee have started functioning. Learned Additional Solicitor General submits that so far as the present project is concerned, all the necessary permissions have been taken from the concerned authorities and the technicalities adopted for this project is similar to the projects at Vijayawada and Hyderabad. In our view, it is not possible for this Court to entertain the present writ petition. Accordingly, the writ petition and application are dismissed.” Green Tribunal has failed to appreciate as to why was the petition was restored.  It was restored because Additional Solicitor General’s factual misrepresentation was exposed by the residents. Why is the Green Tribunal quoting the August 12, 2009 order selectively?

The fact is residents filed fresh application in the High Court submitting replies accessed under Right to Information Act which showed that the plant in question was not one of the five projects based on Biomethanation Technology cleared by the Supreme Court. The RTI reply revealing fibbing by ASG is attached. The High Court found that it was misled by ASG in this regard which had made it to dismiss the petition. On December 18, 2009, ASG sought time to file his reply as Court's order. The Petition was restored by Justice A P Shah, the Chief Justice, Delhi High Court in an order dated January 15, 2010. The Court 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.” The respondents, the Government was "granted one week's more time to file reply as a last chance" by the court in its order dated February 3, 2010. The ASG's reply was never filed.

The list of Dates of Hearing of the Case Status: [W.P.(C) 9901/2009] in Delhi Hight shows that there was no hearing on January 15, 2012 and there was no order passed on that day as mentioned in Tribunal’s order of September 10, 2013. The list is as under:  

List of Dates of Hearing in Delhi High Court

Source: http://delhihighcourt.nic.in/dhc_case_status_oj_list.asp?pno=505091

Thus, Green Tribunal’s contention that “the Project in question was one of the pilot projects recommended by the Expert Committee appointed by the Hon’ble Supreme Court of India and two similar pilot projects at Vijaywada and Hyderabad, as recommended, have started functioning’ is incorrect. It is also factually incorrect to state that “in the Order dated 15th January, 2012, the High Court noticed that it was apparent that though technology for the project was approved by the Hon’ble Supreme Court of India, the site of the MSW was neither approved by the Hon’ble Supreme Court of India and to that extent the Order of 12th August, 2009 passed by the High Court was given.”  It was and remains a case of justice delayed and justice denied because the project proponents now have created a fait accompli situation for the court.

In the Writ Petition (Civil) No. 9901 of 2009 in Delhi High Court (which was transferred to NGT on January 23, 2013), legal officials like Mr A S Chandiok Additional Solicitor General and Standing Counsel for the Delhi Government and for the Delhi Pollution Control Committee, Najmi Waziri has been misleading and misrepresenting facts about waste to energy plants in Andhra Pradesh by saying that Refuse Derived Fuel incineration technology was already in use at Hyderabad and Vijayawada. The fact is that there is no plant in Hyderabad. The plant that became functional as per legal officials stands defunct is in Shadnagar, Mahboobnagar district of Andhra Pradesh.

Green Tribunal’s contention, “As is evident that the project technology was approved by the Hon’ble Supreme Court of India but not the site, this plant has already been commissioned and is under operation undisputedly from the 2012, and it deals with the entire municipal waste collected from the city of Delhi” is untrue. It is not evident from the attached order that the technology was approved by the Supreme Court. It is also untrue that the “plant has already been commissioned and is under operation undisputedly from the 2012, and it deals with the entire municipal waste collected from the city of Delhi”. The plant’s operation has disputed from the outset. The case in the Delhi Court underlines it. The petitions submitted to Ministry of Environment and Forests and the letter of Jairam Ramesh, as Union Environment Minister to Delhi Chief Minister pointing out violation of environmental regulations underlines it. The 31 page report of Chairman, Central Pollution Control Board (CPCB) headed Technical Experts Evaluation Committee on the Timarpur-Okhla Waste to Energy Incinerator Plant of Prithivraj Jindal‟s JITF Urban Infrastructure Limited (Jindal Ecopolis) communicated on March 22, 2012 also underlines that the unapproved Chinese technology was disputed. The Committee was constituted by the Union Environment Minister. If it was not disputed why Asian Development Bank’s Asian Pacific Carbon Fund (APCF) dropped the Timarpur-Okhla incineration based waste to energy plant out of its portfolio?

Green Tribunal’s contention that Jindal’s Okhla waste based power plant “deals with the entire municipal waste collected from the city of Delhi” is incorrect. Delhi’s waste generation per day: 22526.265 tons per day according to 2008 study of CPCB. The Jindal’s plant is meant only for 2050 tons of municipal waste.

Green Tribunal’s contention, “We must notice that this plant admittedly has been granted environmental clearance by the Ministry of Environment and Forests (MoEF). There is no challenge in the Writ Petition to the grant of environmental clearance and other incidental steps taken in finalization of the same in terms of the EIA Notification 2006” is also untrue.

Green Tribunal’s observation “this plant admittedly has been granted environmental clearance” is untrue as well. The copy of the environmental clearance is attached. The environmental clearance was for Refuse Dervied Fuel (RDF) process which is a incineration technology not for the untested and unapproved Chinese incinerator technology which is being used by the Jindal’s waste based power plant. This is in complete violation all laws and environmental clearance of 2007 including its own project design document and environment impact assessment report. Chinese technology provider is from Hangzhou New Century Company Ltd of Hangzhou Boiler Group. It was revealed to the CPCB’s Experts Committee in September 2011.

Notably, Chairperson, Parliamentary Standing Committee on Energy wrote to the concerned Central Ministry currently headed by Farooq Abdullah on 14 June 2005 seeking review of its WTE programme. It supported a ban on economic incentives for such projects, saying: "We therefore direct that land filling of unsegregated wastes, incineration and recovery of energy from municipal waste shall henceforth not receive any Govt. sponsorship, encouragement or aid in any manner, except for completion of any projects that have already invested 30% of their capital cost on site." It is evident that the Union Ministry of New and Renewable Energy I distorting waste management beyond repair. The 15 May, 2007 order of Supreme Court "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.

In the light of the Supreme Court order, MNRE must be made to withdraw or modify its letter (No.10/3/2005-UICA) dated 25.07.2005 written to Chief Secretaries of State Governments Administrators of Union Territories Heads of State Nodal Agencies Municipal Corporations/ Urban Local Bodies on the subject of "Accelerated Programme on Energy Recovery from Urban Wastes- Sanction for the Year 2005-06" with copies to Ministry of Urban Affairs & Poverty Alleviation,Ministry of Environment & Forests, Development of Science & Technology Secretary, Planning Commission, IREDA and other Financial Institutions/Banks R&D Institutions, Consultants/Consultancy Organisations and Business/Industry Associations. This letter has been renewed at regular intervals but the violation of Court’s order continues with impunity.

The Supreme Court had, on May 6, 2005, prohibited the government to sanction any further subsidies to such plants. The order of the Supreme Court dated May 15, 2007 cited by the Green Tribunal is reproduced as verbatim. It reads: “Heard learned Solicitor General for Union of India and respective counsel for the parties. The matter relates to solid waste management by various Municipal Corporations. After hearing parties, this Court on 6th May, 2005,  observed that till the position becomes clear as regards the viability of the  projects for generation of energy from municipal waste (by the bio-methanation technology), the Government would not sanction any further subsidies to such projects. This Court also directed that the Central Government to constitute a Committee of Experts and include therein Non-Governmental Organisations as well, to inspect the functioning of the project at Lucknow and its record and file a report before this Court. Pursuant to the said order, a detailed report has been submitted by the Expert Committee on 2.1.2006. Chapter IX of the Report contains its recommendations and conclusions. The Committee is of the opinion that the choice of technology for treatment of MSW should be made on the basis of quantity and quality of waste and local conditions.  The Committee has opined that operational problems of one plant (Lucknow) should not form the basis to judge the efficacy of the particular technology and therefore, petitioner's objection to providing support (subsidy) to waste to energy projects may not be justified.  We extract below some of the relevant conclusions of the Committee:

“             ...For all the projects in future, the issues such as Project Development including characterization of wastes, sizing of projects, technology selection and project design, management model and operational issues including close co-ordination between Municipal Corporation and the promoters, financial appraisal and approval of project should be adequately addressed.”

“             In view of the problems of treatment and disposal of municipal wastes (solid and liquid) in our cities and towns, which are only likely to increase with the growth of population and urbanization, an integrated approach to waste processing and treatment will be necessary, as brought out in the MSW Rules, 2000. Therefore, instead of focusing on individual technologies, it would be desirable to take an integrated approach to the management and treatment of MSW, which would necessitate deployment of more than on technology in tandem.”

“The selection of technology for the solid waste management depends upon the quality of waste to be treated and the local conditions.  Therefore, for the segregated waste, which is dedicated in nature, the selection of technology is relatively easier and its performance and success is beyond doubt.  Therefore, it is desirable to have solid waste segregated at source, which is also required as per the MSW Rules, 2000.” 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.”

This order of Supreme Court makes it amply clear that only biological treatment method like Biomethanation Technology should be adopted even for these 5 pilot projects. This order echoes what was stated in the ‘White Paper on Pollution in Delhi with an Action Plan’ prepared by Union Ministry of Environment and Forests. The White Paper says, “The experience of the incineration plant at Timarpur, Delhi and the briquette plant at Bombay support the fact that thermal treatment of municipal solid waste is not feasible, in situations where the waste has a low calorific value. A critical analysis of biological treatment as an option was undertaken for processing of municipal solid waste in Delhi and it has been recommended that composting will be a viable option. Considering the large quantities of waste requiring to be processed, a mechanical composting plant will be needed.” It appears that the Tribunal has been misled in the way Delhi High Court was misled on August 12, 2009.

The Court was concerned only with projects that generate energy from municipal waste by bio-methanation and not non-conventional energy use generally. Even the Committee that was et up was set un in the wake of the failure of a Biomethanation plant in Lucknow. But MNRE misinterprets the ruling stating that the order is not restricted to only bio-methanation. But MNRE held that “for technologies like incineration we can use unsegregated waste”. The Court’s order cannot and should be allowed to be misinterpreted by the MNRE.

Green Tribunal should pay heed to the sad plight at waste to energy site in Gandhamguda village in Ranga Reddy district of Andhra Pradesh (wrongly mentioned as Hyderabad project) which had the same technology. While the RDF incinerator was in operation, the village was covered by a heavy shroud of dark smoke. Originally a pelletisation plant with a furnace, After the plant came up, local doctors started detecting case of problems not found before — skin rashes, asthma, respiratory problems and some cases of stillborns. In a statement, Gandhamguda Sarpanch D. Shakuntala had said: ‘‘Everyone in Peerancheru Gram Panchayat and its adjoining regions is now contaminated with harmful pollutants and symptoms are visible in the form of brain fever, vomiting, jaundice, asthma, miscariages, infertility.’’ Similar fate awaits residents of Delhi. For misplaced carbon revenue, it would not be appropriate to turn Delhi residents as guinea pigs.

Green Tribunal should take remedial measures and take cognizance of Delhi High Court’s order that led to an inquiry by the Comptroller and Auditor General of India (CAG) to conduct an inquiry into the failure of the Timarpur waste to energy plant that was based on incineration technology.

Environmental, resident and labour groups demand that all governments to start eliminating all Persistent Organic Pollutants (POPs). This means stopping all existing POPs sources, including dioxins. To achieve this Okhla incinerator based power plant must be closed and investment made into other, safer methods of waste disposal. The transition is necessary in the face of issues such as the high cost of incineration, health effects of pollution in neighborhoods, and adverse climate change. Children suffer asthma rates three times the national average among other devastating health impacts.

The Jindals’ power plant is based on a hazardous technology that receives fiscal incentives from MNRE. Tribunal must take cognizance of MNRE has an incorrect policy of subsidizing hazardous technologies like proposed incinerators.

But at present the Tribunal seems to be turning a blind eye Delhi government and central government’s design to mask today's waste problems and pass the toxic burden they release on to future generations.

ToxicsWatch Alliance (TWA) has been campaigning against this hazardous plant and hazardous technologies since March 2005. It was an invitee before the Supreme Court's Committee on Waste to Energy. Its submissions were part of the Committee's report. 

For Details: Gopal Krishna, ToxicsWatch Alliance, Mb: 9818089660
E-mail: gopalkrishna1715@gmail.com Web: www.toxicswatch.org
On behalf of RWA, K K Rohtagi, Lawyer, NGT, Mb: 9810134860