From esg@bgl.vsnl.net.in Sun Jul 15 15:19:32 2001 Date: Thu, 12 Jul 2001 17:05:38 +0530 From: ESGTo: Natural History of South Asia - General discussion and research Subject: Kudremukh and EP Act [ Part 1, Text/PLAIN (charset: ISO-8859-1 "Latin 1") 702 lines. ] [ Unable to print this part. ] [ The following text is in the "iso-8859-1" character set. ] [ Your display is set for the "US-ASCII" character set. ] [ Some characters may be displayed incorrectly. ] Dear Friends, I met with the Member Secretary Pollution Control Board of Karnataka today, and he admitted that KIOCL has NOT MADE an application for consent from the Pollution Control Board under the Water and Air Acts for proceeding with mining operations beyond the 24 July expiry of the present working permit. He was responding to a series of letters that we have exchanged with this statutory agency and others on the need to comply with the Environment Protection Act and its notifications with regard to forming a decision on whether to extend or deny the long term mining application of KIOCL. Even if KIOCL were to apply now, and under pressure KSPCB were to extend No Objection Certificate, this would be an act of patent violation of the EP Act. If the law were conformed with, then KIOCL cannot get the extension later this month, as the clearance process, per EIA Notification, could take a minimum of 2 months. Considering that the requisite notices under the EIA Notification have not been announced for Public Hearings, it appears that the Governments of Karnataka and India are probably in the process of circumventing the process of environmental clearance as defined in EP Act, by taking recourse to what is euphemistically called the "Forest Clearance Cycle", in MoEF jargon. Thus decision may be taken to extend clearance, even as conditions of the temporary working permit have been patently violated. However, such a decision would again be in patent violation of the EP Act Sec 24, which provides the provisions of the EP Act overiding powers over any other Act that relates to environment and conservation; and this includes Forest Conservation Act or Wildlife Act. I have written a rather long note on this to the KSPCB, and the same is enclosed. The same has also been sent to various statutory authorities and MPs and MLAs. If law were respected, KIOCL would be forced to stop mining on the stroke of midnight on 24th July 2001. There is a pending litigation in the Supreme Court challenging extension of mining application to KIOCL based on the the 1996 Godavarman judgement and Wildlife Act, and the decision of the Court on this matter is awaited. I will be in Delhi tomorrow and the day after, and I will happy to discuss the issues involved in this with anyone interested. I am taking recourse to posting this rather irrelevant information as part of this note, as the decision to travel was rather last minute. I could be reached via Nitya Jacob of Oneworld on 6498794/95. Leo Saldanha From: Environment Support Group ® S-3, Rajashree Apartments, 18/57, 1st Main Road, S. R. K. Gardens, Jayanagar, Bannerghatta Road, Bangalore 560 041. INDIA Telefax 91-80-6341977 Fax 91-80-6723926 (PP) Email esg@bgl.vsnl.net.in Website http//www.altindia.net/esg/index.htm 10 July, 2001 To People^Òs Representatives, Representatives of Relevant Statutory Authorities, Peoples Organisations and Individuals concerned with the adverse impacts of mining in Kudremukh Reg. Appeal to uphold law and stop mining by KIOCL in the Kudremukh Forests of Western Ghats Dear Sir or Madam As you are aware it is only a matter of days before the temporary working permit accorded to Kudremukh Iron Ore Company Ltd. (KIOCL) to mine in the Kudremukh forests of Western Ghats expires. The Karnataka Government recently denotified KIOCL^Òs active mining area, an area that was notified to be part of the Kudremukh National Park in 1987. That the region is one of the most biologically diverse in the country and a major watershed for three major rivers of South India, the Tunga, Bhadra and Netravathi, was amongst the major considerations of the then Government in notifying the region for maximal protection available per law. It thus had set the stage for a closure of mining by KIOCL in these invaluable forests when the long-term lease accorded in 1969, ended in 1999. Ironically, at a time when environmental concerns form a major implication for policy decisions, both the Karnataka and Union Governments are intent on extending the life of KIOCL, quite certainly aimed at destroying a very rare forest and watershed. The irreversible consequences of this action would only bear down on us in time. Realisation at a later day, that the loss of invaluable forests and biodiversity, and their capacity to sustain life and rivers, are a loss that are insurmountable, in contrast to the pittance of dollars gained in mining these forests would tragically be too little, and too late. Values must mark our decisions today that seriously acknowledge the rates at which our forests are being lost are already posing a major crisis across the country. KIOCL has opportunities to relocate and start its enterprise in less sensitive areas, such as Sandur in Bellary district, and elsewhere in the country. When such viable and more profitable alternatives exist, it would be absolutely unacceptable to sustain mining in Kudremukh, an integral part of the Western Ghats region considered amongst the 21 bio-diversity hotspots in the world. There are also very strong legal reasons why mining should not continue in Kudremukh. Rather frivolously treating its responsibilities per law, it appears that both the Karnataka and Central Governments are set on the disastrous path of continuing the long-term lease of KIOCL, for 20 years. In the enclosed letter to the Karnataka State Pollution Control Board, we have argued why granting a long term lease to KIOCL would be a patent violation of the Environmental Protection Act, and various rulings of the Courts. Whatever the disagreement on matters environmental or economical, the law must be followed. In the instant case, the law suggests that it is illegal to continue the lease favouring KIOCL, in violation of the Environment Protection Act. This appeal is to urge you to ensure that, in the very least, fundamental statutes for environmental protection that we have enacted following very tragic experiences, is complied with. It is such decisions that will allow India to hold its head high in the international community, as a country that is law abiding and strongly asserts protecting life and life supporting systems to be a priority ahead of economic gains. As a non-profit public interest campaign organisation, we very sincerely look forward to your support to end mining in Kudremukh forests. With best regards, Yours truly, Leo F. Saldanha/Bhargavi S. Rao/Shammanna T. J. Benekal/K. R. Mallesh Enclosed Letter to KSPCB To: Dr. S. P Ganjigatti Member Secretary Karnataka State Pollution Control Board P. U. Building M. G. Road Bangalore 560 001 05 July 2001 Dear Dr. Ganjigatti, Reg. Mining in Kudremukh National Park by KIOCL and the holding of Environmental Public Hearing as required by the EIA Notification of Ministry of Environment and Forests Ref. Your letter dated 02 July 2001 (No. KSPCB/DEO (TC)/AEO-2/2001-2001/1067) in response to my letters dated 03 May and 17 May 2001 Per you letter of 02 July 2001 in reference to the matter and exchange of correspondence as described above, I appreciate your efforts in seeking clarification on the matter from the Ministry of Environment and Forests on the applicability of EIA Notification to KIOCL^Òs long term mining clearance application. Considering that this matter has already been explained by the Ministry, I wish to draw your attention to the Explanatory Note on the EIA Notification issued by the Ministry of Environment and Forests, available on its official website (http//www.envfor.nic.in). I extract the following relevant quote from the Note ^ÓExpansion and modernisation of existing projects A project proponent is required to seek environmental clearance for a proposed expansion/modernisation activity if the resultant pollution load is to exceed the existing levels. The words "pollution Load" will in this context cover emissions, liquid effluents and solid or semi-solid wastes generated. A project proponent may approach the concerned State Pollution Control Board (SPCB) for certifying whether the proposed modernisation/expansion activity as listed in Schedule-I to the notification is likely to exceed the existing pollution load or not. If it is certified that no increase is likely to occur in the existing pollution load due to the proposed expansion or modernisation, the project proponent will not be required to seek environmental clearance, but a copy of such certificate issued by the SPCB will have to be submitted to the Impact Assessment Agency (IAA) for information. The IAA will however, reserve the right to review such cases in the public interest if material facts justifying the need for such review come to light^Ô (Emphasis mine) In this context I would like to emphasise that M/s Kudremukh Iron Ore Company Ltd. (KIOCL) has officially and publicly acknowledged the need to modernise and expand its existing infrastructure for carrying out mining operations in the present lease area beyond the existing lease period which is due to expire on 24 July 2001. Thereby, any further clearance review of KIOCL proposals must only be based on full compliance with the environmental clearance cycle as notified by the EIA Notification per the Environment Protection Act. To substantiate this argument I present the following evidence and as well explain their implications per law Facts A. The Annual Reports of KIOCL, say 1997-98 or 1998-99, clearly state that present application for long term extension of mining lease include plans to exploit the primary ore deposits in the existing lease area. The present working permit allows exploitation of the weathered ore formation only, and thus the plans to exploit primary ore constitute a ^Ónew project^Ô within the meaning and context of the EIA Notification. This is what is stated in Section 19.9 of the 1998-99 Annual Report ^ÓCurrently, mining is going on in the weathered ore formation only. By geological occurrence, Primary ore exists below the weathered ore. The quantity of primary ore is estimated to be 342 million tonnes. In order to extend the mine life, the Company is planning to exploit the primary ore.^Ô (p. 16, emphasis mine) B. KIOCL proposed a second tailings/storage dam across Kachige Holey during 1999 to support water supply and waste management of its present mining activities. KSPCB conducted several Environmental Public Hearings on this proposal and the final Hearing was held on 28 October 1999 at Kalasa Village, Chickamagalur. The Executive Summary of the Rapid EIA prepared by M/s Nircon for KIOCL on the proposal has this to state in justification of the second dam ^ÓLakya Tailing Dam which was originally envisaged to meet the requirement of existing Mine life, close monitoring of deposition pattern of the Tailings and studies conducted by CWPRS, Pune, reveal that it would not be possible to utilise the capacity of the Dam for Tailing deposition as well as plant water drawal for the full life of the Mine. Hence, Company has decided to construct another Dam across Kochige Holey on the western side of Ore body and on the right bank of Bhadra River. The proposed Dam will be built to a height of 90 m initially to serve as Reservoir, with a provision to raise to a height of 115 m to convert into Tailings-cum-water storage Dam at a later date, if required. On(e) completion of Kochige Holey Reservoir, the present Lakya Dam will be used exclusively for Tailings deposition.^Ô (p. E-2, emphasis mine) About the specific purpose proposing the Kochige Holey dam, the report states as follows ^ÓThe main objective of the project is to provide a tailings-cum-storage dam to supply water for industrial process requirements of the Iron Ore concentrator plant at Kudremukh Mine area as well as storage space or impounding the tailings of the concentrator plant after capacity exhaustion of the existing Lakya Reservoir.^Ô (p. E-11, emphasis mine) C. Based on the conditions of the temporary-working permit extended by Ministry of Environment and Forests during July 1999, M/s NEERI produced for KIOCL a Rapid EIA during May 2000. With regard to the Lakya Tailing Dam, the Executive Summary of the report states as follows ^ÓThe Lakya tailing dam was planned to be constructed in two stages. During the first stage, it was constructed to a height of 65 m during 1977-79 and in the second stage, its height was increased to 100 m from the bed level during 1991-94. With the planning of extracting primary ore by the company, besides exploitation of other deposits, it is proposed to construct one more dam in Kochige Holey valley or alternatively raise the height of existing Lakya dam by 15 metres, if found feasible. M/s Central Water Commission (CWC), Govt. of India have completed the necessary investigation in respect of new dam to be constructed at Kochige Holey Valley and shortly CWC will be initiating investigations for raising the height of existing Lakya Dam by 15 m. If CWC^Òs report if found favourable, KIOCL would prefer raising the height of existing Lakya dam due to economic reasons. The raising of dam height by 15 m would create additional volume of about 128 million m3 which is expected to be adequate for a further period of 15-16 years of mine operation. Due to raising of dam height, total reservoir area will get increased to 745 ha, out of which 451 ha will be outside the mining lease area of KIOCL. This will result in acquisition of land of 111 ha, in addition to 340 ha for which clearance from the Ministry of Environment and Forests is awaited^Ô (p. 6, emphasis mine) D. The report on the ^ÓImpact of Iron Ore Mining on the Flora and Fauna of Kudremukh National Park and Environs A Rapid Assessment^Ô produced by the Centre for Ecological Sciences, Indian Institute of Sciences, again in compliance with the present temporary working condition accorded to KIOCL, contains the following statement (in its Executive Summary) ^ÓThe total quantity mined in 420 ha of leased area up to Jan 1999 is 227.5 million tonnes; the waste from this concentrate has submerged around 572 ha of a shola forest valley in Lakya Reservoir. An additional 132.7 million tonnes of iron ore is further available for mining in the already broken areas as on Jan 1999. The proposal by KIOCL to build a 95 metre high earth fill dam across Kachige Holey stream (a tributary of River Bhadra) for the storage of iron ore waste tailing, will submerge an additional 210 ha of wildlife habitat in the National Park. The Kachige Holey Dam seems to be a requisite if the mining activities have to continue in the existing broken area beyond a few months or a couple of years at most, unless the waste from Lakya Hole is removed in significant quantities for other use.^Ô (p. vii). Later in the detailed report, it is stated that ^ÓThe iron ore deposits at Kudremukh are of a low grade, containing 33-38% of iron concentrate. After the beneficiation process of the iron ore it generates 62-67% iron ore waste tailings. The waste tailings needs to be disposed off or permanently stored to avoid getting washed into the river due to the high rainfall in the area. A 100 m high dam was built across Lakya stream (a tributary of River Bhadra) for iron ore waste tailing collection. This dam has submerged 572 ha of shola forest valley with iron ore waste tailings, out of which 340 ha has been submerged outside the lease area boundary as an encroachment into the National Park.^Ô (p. 27) And further, ^Ó(t)he Kachige Holey Dam has a total cumulative capacity of 88.85 MCM, which can only hold waste tailings of the available ore at the already broken area.^Ô (p. 30) Implications per law >From the above it may be confirmed that 1. The present long-term mining plans of KIOCL integrally involves mining of ^Óprimary ore^Ô in addition to the ^Óweathered ore^Ô which is presently permitted. Mining of primary ore constitutes a ^Ónew project^Ô within the meaning and context of the EIA Notification, as the environmental impacts of mining primary ore are drastically different from that of extracting weathered ore. The burden of waste created could be significantly more, compared with the present operation, and involves a whole range of changes in the existing mining infrastructure as well. The very fact that KIOCL has applied for a 20 year lease is an admission to its active plans to mine primary ore, considering that the available resources of weathered ore (presently about 100 million tonnes) will all be finished in less than a decade. 2. The Lakya Dam, upto the height of 65 m, constitutes the infrastructure required for the ^Ópollution load^Ô originally anticipated from mining weathered ore in the existing lease area. During the late eighties itself this anticipated pollution load was exceeded, precipitating a situation wherein KIOCL, without prior consent of the Karnataka Forest Department as required per Forest Conservation Act, illegally increased the height of the dam to 100 m submerging a large tract of ^Óshola^Ô forest, as described in point C above. Considering that at that time the EIA Notification was not in existence, the only penal action that followed (but uncommonly not yet concluded) was initiation of formal investigation by the Karnataka Forest Department for this illegal expansion/modernisation. In any case it is clear that the pollution load has exceeded original expectations, and the very act of increasing the Lakya Dam amounted to expansion/modernisation of the originally cleared mining project in the present lease area. This is crucial consideration given that there are no economically viable solutions to desilting the existing Lakya Dam. 3. It may also be noted that, from point A above, that KIOCL^Òs proposal in 1999 to build the Kachige Holey dam was to offset the burden on the existing Lakya Dam due to increased pollution load and as well support modernisation of ongoing mining operations within the existing leased area. That KSPCB thought fit to hold Public Hearings on this modernisation/expansion of infrastructure for KIOCL^Òs existing mining, amounts to an admission that the Kachigehole dam proposal was an addition to the originally stated project (as defined by KIOCL in 1976). Considering that now the very lease based on which the Kachigehole dam was justified has expired, and further there exists active proposals of KIOCL to further increase the height of Lakya Dam, which it is claimed is a more economical option, such activities without doubt constitute a case of modernisation/expansion of existing mining infrastructure within the meaning of the EIA Notification. This clearly mandates the fulfillment of Clause 2-I (a) of the EIA Notification as it specifically requires that ^ÓAny person who desires to undertake any new project or the expansion or modernisation of any existing industry or project listed in Schedule I shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi^Ô as prescribed. Consequently the renewal sought would have to be treated as a fresh case subject to all steps of the environmental clearance cycle as detailed in the EIA Notification. 4. KIOCL^Òs illegal act of increasing the height of the Lakya dam submerging forests outside the lease area, its present proposals for increase of height of Lakya Dam further or building of Kachigehole Dam, all involve additional acquisition (or regularisation of illegal submergence) of land outside the present lease area. This clearly constitutes an ^Óexpansion^Ô activity within the meaning of the EIA Notification. It may also be noted here that the Government of Karnataka issued on 16 June 2001a Notification No. FEE 270 FWL 99 de-notifying certain areas from Kudremukh National Park, and part of the area excluded includes only 500 ha of the submergence areas of the Lakya Dam. Thus it did not include full submergence area, including the illegal submergence of the non-lease areas within the National Park. All tailing management proposals of KIOCL in its present renewal application thus require an amendment of the existing lease area, if their present proposal for extension were to be operationalised. Such an act, whether voluntarily applied or accepted by implication, invokes the definition of ^Ónew project^Ô per the Clause 2-I (a) of the EIA Notification. 5. From all available research evidence commissioned by the State of Karnataka, it is clear that there is an increase in ^Ópollution load^Ô in the mining activity than originally anticipated. KSPCB is bound by these findings, especially in the lack of its own independent and rigorous surveys or certification. In view of these facts, and your admission in your letter that KIOCL has not filed the necessary EIAs with you in conformance with the requirements of the Environment Protection Act, more specifically the EIA Notification, it would result that a) KIOCL stands in flagrant violation of its obligations as an investor/company, b) KSPCB has failed in its duty to regulate, and c) Karnataka State Department for Forests, Ecology and Environment and the Ministry of Environment and Forests have failed in their review and consenting powers. Thereby, it would be legally mandatory for all statutory agencies of the Government to reject the present mining renewal application of KIOCL for a further period of 20 years in the existing lease area. Such action would also be in keeping with the explicit directions of the Hon^Òble High Court of Karnataka in WP No. 22402/1996 (B. Krishna Bhat vs. State of Karnataka and others). For the High Court has directed that the ^ÓState and the Union of India^Å before granting any permission if applied for, for mining activities in favour of the respondent Company (i.e. KIOCL) or any other person or agency, they shall ensure the compliance of all provisions of law applicable in the case particularly the provisions of the Forest (Conservation) Act, 1980 and shall keep in mind the guidelines laid down by the Supreme Court in T N Godavarman^Òs case. The respondent State shall also ensure that no forest land is mis-used or encroached upon by any person or authority.^Ô (emphasis mine) I have dwelt with these facts at length and copy this letter to the relevant authorities, agencies, groups and individuals in order that the law is fully complied with. Such effort is invested also so that no recourse is taken at a later date, even if on some vague technicalities or presentation of a fait accompli, towards exempting KIOCL the requirement of full compliance with the Environment Protection Act, the EIA Notification in particular, and the guidelines and orders issued per the Forest (Conservation) Act. Any variant action would not only be a blatant violation of the law, but would amount to complicity of all statutory authorities with a violator in denying the deeply concerned public their rightful involvement in the decision making process. Thanking you, Yours truly, Leo F. Saldanha Coordinator Environment Support Group Cc. (Under Certificate of Posting with KSPCB Letter cited above enclosed) 1. Mr. T. R. Baalu, Union Minister for Environment and Forests 2. Mr. S. M. Krishna, Chief Minister of Karnataka 3. Mr. Braja Kishore Tripathy, Union Minister for Steel 4. Mr. K. H. Ranganath, Karnnataka Minister for Environment and Forests 5. Mr. D. B. Chandregowda, Karnataka Minister for Law and Parliamentary Affairs 6. Dr. B. K. Chandrashekar, Karnataka Minister of State for Information and Publicity 7. All Members of Parliament and Members of Legislative Assembly from Chickamagalur 8. All Members of Parliament who have raised the KIOCL issue in Parliament recently 9. Secretary, Union Ministry of Environment and Forests 10. Mr. Roy Paul, Spl. Secretary (IA), Union Ministry for Environment and Forests 11. Union Forest Advisory Committee 12. Karnataka Forest Advisory Committee 13. Members of the Expert Committee on Mining Clearance, Ministry of Environment and Forests 14. Ms. Theresa Bhattacharya, Chief Sectary, Government of Karnataka 15. Mr. Gokul Ram, Principal Secretary, Karnataka Dept. of Forests, Ecology and Environment 16. Mr. Mr. S. M. Chelavady, Secretary (Forest), Karnataka Dept. of Ecology, Environment and Forests 17. Ms. Anita Kaul, Secretary (Ecology and Environment), Karnataka Dept. of Ecology and Environment 18. Principal Chief Conservator of Forests, Karnataka State Forest Department 19. Mr. S. K. Chakravarthy, Chief Wildlife Warden, Karnataka State Forest Department 20. Mr. Gopalakrishna Gowda, District Commissioner, Chickamagalur Dt., Karnataka 21. CEO, Chickamagalur District Zilla Panchayat 22. President, Samse Panchayat, Chickamagalur 23. Dr. R. Sukumar, Professor and Chief Researcher of Ecological Impact Assessment on Kudremukh, Centre for Ecological Sciences, Indian Institute of Science, Bangalore 24. Dr. V. P. Deshpande, Sr. Asst. Director, Environmental Impact & Risk Assessment Division, NEERI, Nagpur 25. Mr. S. Murari, Chairman and Managing Director, Kudremukh Iron Ore Company Ltd., Bangalore 26. Mr. Subbaiah Srinivasan, Consultant to KIOCL on behalf of Met-Chem, Montreal, Canada 27. Press and other concerned Enclosure (Letter of KSPCB Member Secretary referred to above) KSPCB Letter Head No. KSPCB/DEO(TC)/AEO-2/2001-2002/1067 Dated 02/July 2001 To, Leo F. Saldanha Coordinator Environment Support Group (R) S-3, Rajashree Apartments 18/57, 1st Main, S. R. K. Gardens Jayanagar, Bannerghatta Road Bangalore 560 041. Sir, Sub: Regarding Mining in Kudremukh National Park by KIOCL and the holding of Environmental Public Hearing as required by EIA notification of Ministry of Environment and Forest Ref: Your letter dated 3-5-2000 and 17-5-2001 With reference to the above, it is to be informed that M/s KIOCL is carrying mining activities only in the existing area. Further it is learnt that the mining authorities have submitted the EIA report prepared by NEERI and centre for Ecological Sciences, IISC to the GOvernment of Karnataka/India as per the condition of the temporary working permission letter granted by Government of India, but not submitted the same to this Board. Hence you are informed to contact mining authorities to have an access to the reports in existing mining activity need not fullfil the requirement of public hearing as per EIA notification of 1974. However a letter has addressed to Ministry of Environment and Forest, New Delhi seeking clarification on this matter. Regarding the compliance report filed by KIOCL as per the provision of Water adn Air Act, the same is available in this office for reference. Yours faithfully, -sd- Member Secretary