Regulating small-scale mines below 5 ha

Will National Green Tribunal's restraint order curb haphazard and unscientific mining of minor minerals that includes sand?

 
By Srestha Banerjee
Last Updated: Monday 17 August 2015

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The National Green Tribunal's order on August 5, banning mining of any minor minerals without environment clearance (EC) all across India, made some important observations on mining's impact. It dwelt on the threats posed by mining to rivers, its banks and people living near banks. Something state governments across the country have been ignoring.

“Sand is critical to maintain the ecology of a river system,” says Ritwick Dutta, secretary of the National Green Tribunal Bar Association, who filed the appeal. Scientific studies indicate several negative environmental consequences of sand mining. Mining of sand and gravel within the water stream has been found to reduce water quality as well as degrade the channel bed and banks. Extraction of sand and gravel from the floodplains causes alteration of the functioning of both the aquatic and terrestrial ecosystems, and stockpiles along the river can lead to erosion and collapsing of river bank, increasing the sediment load, says Dutta.

But such concerns are not just restricted to sand mining. The general concern regarding environmental consequences of mining of minor minerals is reflected clearly in a report of the Union Ministry of Environment and Forests (MoEF), dated March 2010.  The report—Environmental Aspects of Quarrying of Minor Minerals—observed that mining of minor minerals in India is by and large “practised in haphazard and unscientific manner”. Such activities have a direct bearing on the hydrological regime of the area, hampering both water availability and water quality. It also noted that groundwater withdrawal, and de-watering of mine pits can cause drying up of sub-surface hydrological systems.

Based on such observations, the committee recommended that detailed hydrological report should be prepared in respect to any mining operation for minor minerals to be undertaken below ground water table. A restriction on the depth of mining was suggested to be taken up on a case to case basis.

No assessment, no monitoring
 
Assessing environmental impacts of mining minor minerals and their monitoring in cases where mine leases are less than 5 hectares (ha) is a matter of concern because the EIA Notification of 2006, and its subsequent amendment in 2009, does not provide any specifications in this regard.
 
The EIA Notification of 2006 notes that mining of minerals in any mine lease area greater than or equal to 50 ha, will fall under Category A, and will require EC from the Union environment ministry. Projects involving mine lease area between 5 to 50 ha fall under Category B, and require clearance from State Environmental Impact Assessment Authority (SEIAA). The notification does not mention mine leases of less than 5 ha, nor does it have any provision for their clearance. The notification also does not make any distinction between major and minor minerals.

The notification was amended in 2009 which divided the mine lease area broadly into two categories—non-coal mine lease and coal mine lease. Following such categorization, it was noted that for non-coal mining projects, an EC is required for mine leases greater than or equal to 50 ha, while for coal mining projects, the mine lease area specified is greater than 150 ha. Both these are placed under category A. Non-coal mining leases falling between 5 to 50 ha remain under category B, and the lease area for coal mining under this category is between 5 to 150 ha. The category also requires clearances in the manner of EIA Notification of  2006. The amendment differentiates between coal and non-coal mining, but it does not distinguish between major and minor minerals, nor does mention anything regarding mine lease areas below 5 ha.
 
Both EIA Notification 2006 and the subsequent amendment in 2009 further specified that “any project or activity specified under category B, will be treated as category A, if located in whole or in part within 10 km of the boundary of notified protected areas and eco-sensitive areas, critically polluted areas as notified by the Central Pollution Control Board, or at inter-state and international boundaries—an exception to this can only be made through mutual agreements between the states or Union Territories sharing such common boundary.

Leases below 5 ha: apex court takes a stand

In a landmark judgement in February 2012, the Supreme Court addressed the concern over mine lease areas below 5 ha. The judgement also clearly mentioned provisions for minor minerals, which the EIA notification did not (see box). The order by Justice K S Radhakrishnan noted that “leases of minor mineral, including their renewal for an area of less than five hectares, be granted by the States/Union Territories only after getting environmental clearance from the MoEF” (see MoEF's clearance must for mining minor minerals, too: Supreme Court). 

The order was given following the deliberation over validity of auction notices for minor minerals extracted from mine lease areas below 5 ha in several districts in Haryana.  The court observed that the auction notices that permitted quarrying, mining and removal of sand from in-stream and upstream of several rivers in the state can have serious adverse environmental impact on the rivers and river beds, and also on the biodiversity of the adjoining areas. Referring to the MoEF Expert Committee Report of March 2010, the bench noted that though “individual mines of minor minerals being small in size may have insignificant impact, their collective impact, taking into consideration various mines on a regional scale, is significantly adverse.”

Additionally, during the hearing of the case in the apex court, MoEF submitted an affidavit on November 23, 2011, indicating that “where the mining area is homogenous, physically proximate end on identifiable piece of land of five ha or more, it should not be broken into smaller sizes to circumvent the EIA Notification of 2006 because it is not applicable to mining projects having lease area of less than five ha.”

Minor minerals' list
 
The Mines and Minerals Development and Regulation (MMDR) Act of 1957 states that “minor minerals” include “building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral.” However, the Mineral Concession Rules of 1960 clarify that “sand shall not be treated as a minor mineral when used for purposes of refractory and manufacture of ceramic, metallurgical purposes, optical purposes, stowing in coal mines, manufacture of silvicrete cement, manufacture of sodium silicate, manufacture of pottery and glass.

In addition to the MMDR Act, the minerals that have been identified as minor minerals by the Central government include, boulder, shingle, chalcedony pebbles used for ball mill purposes only, limeshell, kankar and limestone used in kilns, murrum, brick-earth, fuller’s earth, bentonite, road metal, reh-matti, slate and shale when used for building material, marble, stone used for making household utensils, quartzite and sandstone when used for purposes of building or for making road metal and household utensils, saltpeter and ordinary earth used for filling or levelling purposes in construction or embankments, roads, railways buildings.



Follow up action by states


Following the order of the Supreme Court, MoEF issued an office memorandum on May 18, 2012, stating “mining projects with lease area up to less than 50 ha, including projects of minor minerals with lease area less than 5 ha, would be treated as category B, as defined in the EIA Notification, 2006.” It further noted that these projects will thus “be considered by the respective SEIAAs notified by MoEF, following the procedure prescribed under EIA Notification, 2006.”

The apex court ruling also prompted state governments to review the permit process for mine lease areas below five ha. The state of Rajasthan, where mining of minor minerals takes place on a large scale, is an example.

On June 19, 2012, Rajasthan's Department of Mines and Geology amended the Rajasthan Minor Mineral Concession Rules of 1986. The amendment proposed rules for regulating the grant of mining leases, quarry licences and other mineral concessions in respect of minor minerals in the state, and outlined environmental measures to be considered for such operations.

Taking into consideration the cumulative environmental impact from small mining leases, the amendment proposes the development of environmental management plan (EMP) for clusters of small mines. The clusters are declared so by the director of mines and comprise of mining leases, quarry licences or short term permits, which already exist or are to be granted in future. The area of any cluster must not exceed 5,000 ha (50 sq km). According to Rule 37P of the amendment, for clusters comprising of leases with areas less than 5 ha individually, an association of lease and permit holders should be formed. The association will be responsible for preparation of an EMP through a recognised person/agency, within a period of three months of formation of association. The EMP should be submitted to the district-level environmental committee for approval.

The amendment also lays down the provisions to be incorporated in EMP. These include removal and utilization of top soil, storage of overburdens, reclamation and rehabilitation of lands, precaution against air pollution, water management and restoration of flora. The association of lease and permit holders will be responsible for implementation of EMP. In case of non-compliance, mining operation of all lessees, licensees and short term permit holders in the cluster shall be stopped by the mining engineer or the concerned state official, following a 30 day notice. Mining operations can only be allowed to resume after EMP is implemented.

Pradeep Agarwal, senior geologist and officer in charge (OIC) of Rajasthan Pollution Control Board, informs that the affidavit including the amendment presently is placed before the apex court for review. In the mean time, no one is applying for separate clearance of individual leases with mine lease area below five ha. Prior to the Supreme Court order, the permit process for lease areas below five ha, was verified by the district collector, and consent was granted accordingly.

The Maharashtra government also recognizes the gravity of cumulative impact of mining proposals below five ha. As noted in the meeting minutes of the State Environment Impact Assessment Committee held on January 17, this year, the committee is of the opinion that a cluster-wise approach should be adopted to appraise the extraction proposals for all minor minerals. The procedure outlined requires a primary intervention by the district collector, who through the mining officer may engage an accredited environment consultant to carry out cumulative environmental impacts of all minor minerals to be extracted from the district.

Industry reaction

The mining industry is clearly unhappy with the Supreme Court order. H C Daga, president of Federation of Indian Mineral Industries (FIMI), says the court order will hit industry. “The mining industry provides opportunities in terms of employment and economic benefit. But the regulatory provisions are making it difficult for the mining industry to prosper.” Referring to the Supreme Court judgement, Daga says, “though Rajasthan has amended its Minor Mineral Concession Rules last year, and did not allow any mine to close down, but in many other states, thousands of mines have closed down, affecting the livelihood of millions.” FIMI has made requests to MoEF to notify a simpler procedure for grant of EC to such small leases, he adds.

The response of MoEF and various state governments regarding grant of clearances for minor minerals involving lease area below five ha, shows that the Central and the state authorities are trying to figure out ways to best balance small-scale mining activities and their environmental impacts. The oversight and implementation of the EMPs in many cases are not clearly defined. However, the fact remains that “project proponents are required to follow the directions of MoEF office memorandum dated May 18, 2012, regarding obtaining clearances from the state authority for mine leases below five ha,” clarifies advocate Dutta. Since the office memorandum of MoEF is pursuant to the Supreme Court order, as it clearly mentions, this acts as an addendum to the provisions of the EIA Notifications, and the respective parties are required to abide by its directions, he adds.
 

Sand mining destroying lives in Maharashtra
 
NGT's observations on sand mining impact is borne out by what's happening in Maharashtra. Residents of villages along the Bankot creek in Mahad complain of salinity ingress in ground water. “In many villages located very close to the bank of the creek,” says Yousuf Ibrahim Parker, fisher and community leader from village Bankot located at the mouth of the creek, “the well water has been contaminated due to deep dredging in the creek. The incoming tide contaminates the aquifers.” Ibrahim’s own well has started yielding saline water since 2004. His family has to fetch drinking water from neighbours living away from the river.

“Sand is the interface, the buffer, so to speak, between water and land,” says Sumaira Abdulali of Mumbai-based non-profit Awaaz Foundation, who filed Maharashtra’s first court petition against illegal mechanized dredging. “By removing it (sand), you in effect bring land and water into direct contact, and this can only be detrimental to both.”

Sand, says she, acts as a vital filter that keeps saline water from the sea from contaminating the ground-water sources in coastal areas. “Removal of sand from creeks and beaches,” she says, “allows saline water into the aquifers, destroying the drinking water sources of those living along the banks.”

River biodiversity and fish availability are also impacted adversely by mining. Fishers complain that because of drastic deepening of the river bed and the constant noise from dredgers and barges, their catch has reduced to a fraction of what it used to be a decade back. “Most of the river fish live at certain depths, and they can nest and reproduce only if the depth in their nesting areas is maintained,” says fisher Mohd Sharif Kawchali from village Toradi, “But the dredgers deepen the bed, destroying the nesting sites of fish.” The loud noise of the dredgers and suction pumps also impacts the fish population, say fishers. “We need scientific studies on the connection between sand mining and fish stocks,” says Kawchali.

Mining on the scale at which it is presently going on has also destabilised river banks, and bank collapse is common. In village Dasgaon, fishers have had several narrow escapes after their boats got snagged in mangrove trees that had fallen into the creek because of bank erosion. “During high tide, the trees sink out of sight, and getting snagged can be fatal,” says fisher Hiru Niwate.

Land collapse from excess mining has destroyed many coastal islands in the creeks around Mumbai, says Abdulali, “Villagers talk of islands that were there before mining started, and disappeared following deep dredging in their vicinity. The mangroves and other biodiversity in these islands has been lost for ever.”

Mining in beaches close to Mumbai, the Kihim and Nandgaon beaches, for instance, has caused erosion of land. “The Kihim beach has become a garbage dump and coconut trees have toppled over due to land erosion following sand removal at the Nandgaon beach,” says she.

(Input by Aparna Pallavi)

 


Order of the National Green Tribunal on mining activity on the banks of rivers dated 05/08/2013

Application of the National Green Tribunal Bar Association illegal sand mining in the Yamuna riverbed, August 2013

Punjab Minor Mineral (Amendment) Rules, 2013

Haryana Minor Mineral Concession, Stocking, Transportation of Minerals and Prevention of Illegal Mining (Amendment) Rules, 2013
 
 
 

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