India: NGT Restricts The Usage Of Pet Coke

1. INTRODUCTION

1.1 The National Capital Region of Delhi (Delhi NCR) has witnessed numerous concerns being raised regarding the quality of air and the sources for its pollution. It is suspected that one of the contributing factors is the usage of petroleum coke ("pet coke") and furnace oil as fuel by various industries. Furnace oil is a "bottom of the barrel" product in refineries and is used to run boilers and turbines as it is much cheaper than gas. Pet coke is a by-product used as solid fuel in power generation due to its high calorific value. Both furnace oil and pet coke release oxides of Sulphur and Nitrogen in high quantities and are therefore believed to be very harmful to human beings.

1.2 Last year, the issue of pet coke being a cause for serious environmental and public health concern, was raised before the Principal Bench of the Hon'ble National Green Tribunal ("NGT") in the case of People for Education Research Scholarship & Outward Nutrition v Union of India1. It was prayed by the applicant before the NGT that:

  • Appropriate guidelines or directions be issued for handling of pet coke in order to minimize damage to the environment
  • Ban the usage of pet coke as a fuel
  • Direct the Ministry of Environment, Forests and Climate Change ("MoEF&CC") and the Central Pollution Control Board ("CPCB") to conduct an enquiry into the illegal usage of pet coke by the industries

2. CONCERNS REGARDING PET COKE

2.1 India remains the second largest consumer of pet coke in the world after China. USA, Venezuela and China are the major producers of pet coke. In India pet coke is available abundantly as it is produced in significant quantities by Indian refineries; it is relatively cheaper than coal; it has a very high calorific value and it is easy to handle as a fuel. This makes it all the more indispensable for many industries like cement, textile, steel and others. The use of pet coke is being increasingly objected in India with petitions having been filed before the Supreme Court of India and the National Green Tribunal seeking a ban on the use of pet coke.

2.2 It was submitted by the applicant in the aforesaid NGT matter that by virtue of pet-coke being a refinery by-product, it is excluded from the rigours of various environmental regulations thus ignoring its dangerous health effects when it is used as an industrial fuel. According to the applicant, the Maharashtra Pollution Control Board ("MPCB") after considering the environmental sensitivity of pet coke had held that if the Sulphur content in pet coke is more than 5% then it needs to be categorized as 'hazardous waste' as per Schedule-II of Hazardous Waste (Management, Handling & Transboundary Movement) Rules, 2008. The applicant therefore pleaded before the NGT that pet coke be declared 'hazardous waste' as per the Hazardous and Other Waste (Management and Transboundary Movement) Rules, 2016.

3. MoEF&CC & CPCB POSITION ON PET COKE

3.1 The MoEF&CC submitted before the NGT that they had notified source-specific standards for emissions and discharge of environmental pollutants from certain categories of industries, operations and processes, besides the National Ambient Air Quality Standards from time to time. MoEF&CC also submitted that the emission standards for cement plants had been notified on 25 August, 2014 and it stipulated that the standards shall be applicable even if pet coke is mixed with coal for clinker making. However, pet coke had to be notified as an "approved fuel" by the concerned state pollution control board ("SPCB") or pollution control committee ("PCC").

3.2 The CPCB submitted that the emission standards for oxides of Sulphur (SOx) for various categories of industries had been notified and it would be mandatory for the industries to take suitable steps to control its emissions well within norm, even if they are using pet coke as fuel. CPCB further submitted that inorder to clarify the issue relating to notifying of pet coke as waste or hazardous waste por by-product waste, the matter needs to be referred to a Technical Review Committee constituted by MoEF&CC. CPCB also mentioned that pet coke would not be used by any industry without the express permission of the concerned SPCB or PCC.

4. JUDGMENT OF THE NATIONAL GREEN TRIBUNAL

4.1 After careful consideration of the pleadings and documents submitted before it, the NGT identified two issues for its consideration:

  • Whether there is any need to have any restriction on handling of the pet coke including ban on its usage?
  • If the answer to the above question is in the affirmative, what restrictions are required to be placed in this regard?

4.2 The NGT observed that pet coke had increasingly become one of the major alternative fuel replacing coal due to its high net calorific value. It also noted that as per a CPCB commissioned report the net calorific value of pet coke was much higher than imported and Indian coal. The NGT also cited the standards notified by the Bureau of Indian Standards ("BIS") through BIS 8502:1994 and noted that BIS had so far not stipulated the concentration of trace metals present in raw petroleum coke. It highlighted that calcinated petroleum coke had significant concentration of heavy metals like Vanadium, Nickel and Iron.

4.3 It was noted by the NGT that CPCB is of the opinion that if the source emission standards are strictly complied with by the industries and enforced by the SPCBs, then there was no potential hazard for using pet coke. The NGT also highlighted the similar stand taken by MoEF&CC where it additionally submitted that before using pet coke as a fuel, the concerned SPCBs and PCCs need to notify pet coke as an "approved fuel" under the Air (Prevention and Control of Pollution) Act, 1981.

4.4 Highlighting the established pollution potential of pet coke as a fuel, the NGT cited Section 20 of the National Green Tribunal Act, 2010 which required it to apply the precautionary principle, principle of sustainable development and polluter pays principle. The NGT observed that it would be necessary to apply precautionary principle to regulate the use of pet coke.

4.5 The NGT on 16 May, 2017 finally held in this matter that industries which have the necessary consent to use pet coke as an industrial fuel can continue to use pet coke for a period of two months from the date of the NGT order and thereafter such industries would be required to comply with the decision taken by MoEF&CC and the respective state government in which the industry is located. The NGT has directed the MoEF&CC to decide within a period of two months as to whether pet coke is a hazardous waste and has directed the state governments to notify as to whether pet coke is an approved fuel.

4.6 The NGT further held that any industry which does not have the consent to use pet coke but is found to be using pet coke without any such appropriate consent after the date of the aforesaid NGT order would face immediate action from the concerned SPCB or PCC and such action would include closure of such an industry. The NGT has clearly held that such industries which are using pet coke without appropriate consent are to be closed down forthwith.

KCO Comment: The NGT order dated 16 May, 2017 is significant as it will have a major impact on a number of industries which primarily rely on pet coke as a fuel for their operations. Industries which have the consent to use pet coke could continue to use it for a period of two months from the date of the order. As per the NGT directions, once a decision has been taken in this regard by the MoEF&CC and the concerned state government, for which the maximum allotted time is two months, such decision would be applicable to all the industries including those industries which are operating with the consent to use pet coke.

Therefore, an industry which has the consent can continue to use pet coke till the time MoEF&CC and the state government take a decision in this regard. This period shall not exceed two months. Industries which do not have the consent to use pet coke cannot use it without appropriate consent from respective SPCB or PCC which would include specific approval for air pollution control system for using pet coke as a fuel.

While the NGT has granted a month's time to the SPCBs and PCCs to ensure compliance in each state and union territory, it would be advisable that all relevant industries affected by the aforesaid NGT order ensure compliance at the earliest. Any industry found to be in violation of the NGT order, would be shut down. The aforesaid order of the Principal Bench of the NGT is applicable all over the country.

Footnote

1. OA No. 471 of 2016

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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