Environment Min’s Draft Fly Ash Notification Is an Attempt To Justify Pollution

The Dadri thermal power plant. Photo: NTPC website

In the midst of the deadly second wave of COVID-19, the Ministry of Environment, Forests and Climate Change sought public comments on its draft Fly Ash Notification 2021.

Today, June 21, marks the last day on which people may submit their comments on the draft. And as such, it is one of the most regressive policies that the ministry has sought to introduce to deal with India’s fly ash problem.

Issued under the provisions of the Environment (Protection) Act, 1986, the latest amendment is the sixth attempt by policymakers to address the “mismanagement” of fly ash from India’s ever-expanding coal-fired thermal power sector.

According to estimates provided by the Central Electricity Authority, the fly ash produced at Indian coal power sector increased from 69 million tonnes a year in 1996 to 226 million tonnes a year in 2019. This is a large quantity – almost three times the amount of municipal solid waste generated in the country. In addition, nearly 1.6 billion tonnes of legacy ash – i.e. ash accumulated over time – is lying around in illegal ash ponds across the country.

The conventional disposal of ash, in the form of slurry, currently occupies nearly 40,000 hectares of land and requires about 1,040 million cubic metres of water every year annually.

The improper disposal of fly ash has been wreaking havoc on communities and the ecology. A recent compendium of coal ash disasters across India found reports of at least 17 major disasters in 2020 and 2021 alone, in Madhya Pradesh, Tamil Nadu, Odisha, Chhattisgarh, Jharkhand, West Bengal and Maharashtra. A similar report released last year documented 76 incidents, including large ash pond breaches, ash slurry pipe leaks and illegal disposal incidents, between 2010 and 2020.

Even 22 years on, the Indian thermal power sector remains ecologically destructive and far removed from the ambition of 100% utilisation of fly ash, as the Fly Ash Notification 1999 envisaged.

Before dwelling further in the ecological and health costs of fly ash mismanagement, it is important to analyse the legal merits – or the lack thereof – of the environment ministry’s new draft notification.

The first is procedural. The ministry came under heavy criticism last year when it announced the draft Environmental Impact Assessment Notification 2020, seeking public comments while a devastating national lockdown was underway. The 60-day public comment period on the draft Fly Ash Notification began on April 22, a few days after India’s states began announcing lockdowns in response to the second wave. It would seem the environment ministry wishes to abandon the spirit of public participation, reducing it to a ritual.

A worker carries coal in a basket in an industrial area in Mumbai, May 31, 2017. Fly ash is a product of coal combustion. Photo: Reuters/Shailesh Andrade/File Photo

The second major concern is the draft notification’s use of the term “eco-friendly’ to refer to the various uses of fly ash. Non-experts are yet to properly understand the etymology of “eco-friendly” – as with “sustainable development”. For example, the draft notification uses ‘eco-friendly’ as a synonym of ‘filling up low-lying areas’, ‘exporting ash to other countries’ and using in agriculture.

The draft notification fails to define low-lying, which means even wetlands, marshlands, beaches – even the Rann of Kutch – could fit the bill. It is also not clear how exporting a toxic substance to a foreign country could be called ‘eco-friendly’.

Almost 97% of the export (by volume) from India to Bangladesh comprises fly ash. The Sundarbans National Park has been converted into a route for barges to move millions of tonnes of ash across the India-Bangladesh border, and barge capsizes are common here. There were seven accidents in just two years, from 2018 to 2020. Assuming each barge carries 800-900 tonnes, these incidents have discharged roughly 6,000 tonnes of ash – a toxic substance into a sensitive ecosystem.

Also, the Indian government hasn’t undertaken any remediation efforts in the Sundarbans till date.

In effect, the notification seems to legitimise such illegal and ecologically damaging actions. In the last few years, farmers hit by breached fly ash ponds have approached various judicial fora seeking compensation. But by sanctioning the use of fly ash as a “conditioner” for agricultural use, pond breaches into farmlands could be construed as an act of largesse towards the farmers!

The draft notification offers the substance as a “conditioner” as long as soil-checks check out – but this is bound to become a mere formality for the power-plant operators. It’s only a matter of the latter finding accommodating labs and experts to endorse the virtues of fly ash for plant growth.

Also read: Fly Ash From Thermal Plant Covers Seppakkam, and Its Residents Lose Track of Time

A toxic legacy

A polished cross-section of fly ash embedded in epoxy, magnified 750x. Image: wabeggs/Wikimedia Commons, CC BY-SA 3.0

The science on the toxicity of coal fly ash is clear. Fly ash is known to contain a variety of harmful metals in detectable concentrations, including arsenic, boron, cadmium, chromium, mercury, lead, selenium, thallium, vanadium and zinc. Fly ash could also contain hazardous organic pollutants like polycyclic aromatic hydrocarbons, polychlorinated biphenyls, methyl sulphates, chlorinated dioxins and benzofurans.

As it stands, India’s fly-ash management policy is designed only to facilitate the disposal of ash while glossing over the environmental impact of its mismanagement. None of the environment ministry’s notifications have mentioned fly ash toxicity.

Note here that in 2000, the ministry reclassified fly ash as “waste material”, from the category of “hazardous industrial waste”, without providing any rationale to justify its decision. And according to the ministry’s technical EIA guidance manual, published in August 2010,

… if the ash residues (from a thermal power plant unit) are expected to have potentially significant levels of heavy metals or other potentially hazardous materials, they are required to be tested at the start of plant operations to verify their classification as hazardous or non-hazardous according to National Hazardous Waste rules.

None of India’s thermal power-plant units adhere to this rule.

Weak legal footing

A thermal power plant in India. Photo: Vikramdeep Sidhu/Wikimedia Commons, CC BY-SA 2.0

For the first time, the draft introduces a penalty provision under the ‘polluter pays principle’. Curiously, the parent act – the Environment (Protection) Act (EPA) 1986 – under which the fly ash notification exists, offers no direct or indirect statutory provision for the ‘polluter pays principle’. In this situation, it is unlikely that we can legally invoke the penalty provisions.

EPA 1986 is a comparatively weak Act, thanks to its Section 24. This section states specifically that if an offence is committed under this Act as well as under any other Act, the offender will be liable to be punished under the other Act, not under EPA. So if a power-plant is found responsible for a fly-ash breach, and if the Centre Pollution Control Board invokes legal action under the Water (Prevention and Control of Pollution) Act 1974, no proceedings can be initiated under the fly ash notification.

In fact, India’s environmental action plans are often over-ambitious for their own good. Our forest policy aims for 33% forest cover and our National Clean Air Programme aims to clean the air in 102 cities by 2024.

And since the environment ministry issued its first fly ash notification in 1999, its regulations in the matter have been centred on the fantasy of “utilising” 100% of all ash generated in India – while fly-ash generators have never come close to 100%.

For many decades, the ministry turned a blind eye towards non-compliance and repeatedly extended compliance deadlines. The latest amendment also extends the deadline – to achieve 100% ash utilisation by 2032. This is 23 years beyond the deadline set in the 1999 notification.

Also read: Toxic Spillover: The Unhindered Fly Ash Export from India To Bangladesh

Contradictions galore

As if these issues weren’t enough, the draft fly ash notification is also full of contradictions. For example, its fourth paragraph states:

“Every coal/lignite based thermal power plant shall be responsible to utilise 100% ash (fly ash and bottom ash) generated during that year.”

This gives the impression that 100% fly-ash utilisation is mandatory. However, the next clause reads:

“… in no case shall utilisation fall below 80% in any year. Also, it should achieve average ash utilisation of 100% in a 3-year cycle.”

Ergo, the minimum annual utilisation needs to be 80% – but even this is a mirage. The next sentence:

“Provided the three-year cycle applicable for the first time is extendable by one year for the thermal power plants where ash utilisation is in the range of 60-80%, and two years where ash utilisation is below 60%.”

Ultimately, those plant operators utilising the least fly ash will have the longest time to comply with the notification.

One way or another, no power plant is required to meet the 100% target in the near future.

Bad environmental governance

Chimneys of a coal-fired power plant are pictured in New Delhi, July 20, 2017. Photo: Reuters/Adnan Abidi/File Photo

India’s fly ash crisis is only bound to get bigger in the future especially with our increasing dependence on domestic coal. Every kilogram of Indian coal generates two-times more ash than Australian or Indonesian coal.

On May 25, 2021, in a hearing before the Karnataka high court on a PIL challenging the environment ministry’s decision to appoint members of the expert appraisal committee, the ministry took time to file its response citing the COVID-19 lockdown. The matter was listed again on June 11, and the ministry’s counsel cited the same reason again and sought more time to file their response. This is the same ministry during the height of the second wave expected citizens to file their comments on the draft.

As such, the draft notification is an attempt to legitimise fly-ash dumping across India’s landscape, behind the smokescreen of vague terms like ‘eco-friendly’ and “utilisation”. The penalty’s provisions – even if they are applied – are in all likelihood likely to be stayed by the courts for want of authority.

In sum, the draft fly ash notification 2021 is a regressive policy in letter as much as spirit, and the ministry needs to withdraw and replace it with a version that incorporates good science, public health and which, crucially, abides by the ethics of public participation.

Ritwick Dutta is an environmental lawyer and the founder of the Legal Initiative for Forest and Environment. Dharmesh Shah is the senior technical advisor to the Lawyers Initiative for Forest and Environment.

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