From esg@bgl.vsnl.net.in Sun Jul 15 15:19:32 2001
Date: Thu, 12 Jul 2001 17:05:38 +0530
From: ESG 
To: Natural History of South Asia - General discussion and research
    
Subject: Kudremukh and EP Act


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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