National Green Tribunal
Jhammanlal Gautam vs Ministry Of Environment Forest And ... on 26 November, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 07 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 253/2021
Jhammanlal Gautam Applicant
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 26.11.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Ms. Pooja Dhar, Advocate
ORDER
1. Grievance in this application is against failure of statutory regulators to control air pollution caused by operation of brick kilns in Aligarh District in Uttar Pradesh, in violation of environmental norms, including the mandate of Uttar Pradesh Brick Kilns (Siting Criteria for Establishment) Rules, 2012. Resultant pollution is adversely affecting the public health and the environment.
2. Case of the applicant is that many brick kilns are operating in small area without requisite inter-se distance. Requisite consent under the Air (Prevention and Control of Pollution) Act, 1981 has not been granted in many cases. The technology used is FCBTK, which is outdated which is required to be upgraded as per statutory orders of CPCB under Section 18 of the Air Act, 1981 vide letter dated 27.06.2017. Location of brick kiln is close to the habitation without following the siting criteria. Prohibited fuel 1 like spent organic, solvent, oily residue, pet coke, filter press cake, plastic rubber, leather waste and other hazardous wastes is being used.
Directions of MoEF&CC and CPCB requiring shifting to Zig-Zag Technology has not been followed nor efforts have been made to explore PNG.
3. Further case of the applicant is that a survey was conducted in the year 2014 by the State PCB and out of 350 brick kilns operating in UP, 187 were found operating without EC/consent. CPCB issued directions under Section 18 of the Air Act, 1981 vide letter dated 27.06.2017 for control of pollution by brick kilns by the State PCBs inter-alia by converting to Zig-Zag Technology. Further direction was issued on the subject by the CPCB on 30.09.2017 and on 25.06.2019. However, the State PCB failed to enforce the said directions and has been granting consents/EC or allowing brick kilns to operate without consent/EC, ignoring the carrying capacity and deadly pollution. As per report of the UPPCB dated 19.08.2019, 230 out of 492 brick kilns are operating in UP without consent/EC.
4. It is further stated that vide order dated 06.02.2020 in O.A. No. 1088/2018, Dinesh Chahal v. Union of India & Ors., this Tribunal issued direction for control and regulation of the polluting brick kilns in the NCR.
Presently, air quality in the area is beyond norms. Further reference has been made to order of this Tribunal dated 17.02.2021 in O.A. No. 1016/2019, Utkarsh Panwar v. CPCB & Ors. restricting operation of brick kilns in NCR only to months when air quality is within norms and by following siting criteria as well as keeping in mind the carrying capacity.
There is further study by the State PCB on 26.07.2021 that 226 out of 536 brick kilns were illegal. 50-60 brick kilns are operating within 4 km and 2 more than 100 are operating within radius of 3 km in Village Kodiganj and Gangiri. Many are close to the densely populated area. Reference has also been made to order of this Tribunal dated 12.08.2021 in O.A. No. 93/2021, Mukesh Kumar Aggarwal v. Central Pollution Control Board & Anr. on the subject of regulation and control of brick kilns in Mathura District.
5. By filing amended memo of parties, the applicant has impleaded 224 brick kilns in Aligarh district. We have heard learned Counsel for the applicant.
6. It is well known, as shown by orders referred to above, that unregulated brick kilns have great potential for air pollution resulting in adverse health impacts. The effective monitoring of compliance of environmental norms and operation of brick kilns is comparative.
7. According to the applicant, the AQI of Aligarh district is 407 which is beyond norms. Thus, contribution of brick kilns to air pollution is not ruled out.
8. In view of above, we are of the view that there is need for study of assimilated air capacity in the area and to verify the allegation whether all or some of the brick kilns are operating without consent/EC and without complying with the siting norms. To enforce the right of citizens to clean environment, location of brick kiln has to be at the safe distance from the habitation. Inter-se safe distance is also to be maintained. Applying the "Precautionary" principle, safest technology is required to be adopted, if the obsolete technology is resulting in air pollution. Carrying capacity is to be ascertained and polluting activity limited accordingly.
9. Considering similar issue in O.A. No. 1016/2019, Utkarsh Panwar v.
Central Pollution Control Board & Ors. vide order dated 17.02.2021, the 3 Tribunal allowed operation of brick kilns only from March to June, having regard to the air quality, limiting to the number which was sustainable as per carrying capacity.
10. Thus, to ascertain facts in terms of compliance of requirement of requisite consent/EC, carrying capacity of the air quality to determine the number of brick kilns which can be sustained, compliance of safe siting criteria as well as use of appropriate technology and to ascertain whether individual brick kilns are complying with the laid down norms, including the nature of fuel used, we have to constitute an independent Committee of experts/regulators.
11. In recent order dated 12.08.2021 in O.A. No. 93/2021, it was observed:-
"10. We have considered the issue and also heard learned Counsel for the State PCB/CPCB/Brick kiln owner. From the above resume, it is seen that there are acknowledged serious violations of environmental norms in permitting the operation of brick kilns but the statutory authorities have failed to enforce the law, to protect public health and citizens right to breathe clean air which has to prevail over right to business. Precautionary principle is completely ignored. Air quality norms are violated. Consents have been mechanically given and renewed without any regard to statutory obligation of assessing air quality. There is no effective monitoring mechanism against violations. Even after violations are found, closure is not being ordered till compliance, which has to be the norm under the law. Even air quality monitoring stations have not been set up at air pollution hot spots. Norms applied for calculating carrying capacity are not as required thereby permitting more pollution than permissible. Even those found using prohibited fuel have not been proceeded against. Those registered for GST are also not proceeded against. How will air standards be enforced? Public trust doctrine is given a go by. Casualty is public health particularly of innocent citizens who look to the State for their protection. They are helpless when the State fails in its duty.
11. This Tribunal, vide order dated 17.02.2021 in OA 1016/2019, Utkarsh Panwar v. Central Pollution Control Board & Ors., considered the issue of permissibility of brick kilns beyond the assimilative carrying capacity in the NCR and in the light of the Expert Committee report. This Tribunal 4 directed that brick kilns be allowed to operate only from March to June using Zig-zag technology only to the extent of such number of brick kilns as were found to be viable in terms of the carrying capacity. The Tribunal directed that if the brick kilns shift to PNG, units may be allowed to function if pollution norms can be maintained. This Tribunal banned fire crackers where air quality is poor and above vide order dated 1.12.2020 in OA 249/2020. Vide order dated 15.7.2019 in OA 710/2017, the Tribunal directed District Environment Committees headed by District Magistrates to prepare District Environment Plans to control and regulate pollution as per Constitutional mandate. In OA 681/2018, vide order dated 8.10.2018, steps were directed to be taken for control of air pollution in cities identified as 'non-attainment' by Air Quality Monitoring Committees, to be headed by the Environment Secretaries, by preparing action plans.
12. Extract from order dated 1.12.2020 in OA 249/2020 is reproduced below:
"18. ..........If the air quality is 'poor' and above, it has been held by the Hon'ble Supreme Court in the table quoted in para 4 above that there is danger of heart diseases, respiratory illness and other serious health impact even before Covid. Covid is going to further aggravate the situation and therefore atleast in areas where air quality is 'poor' and above, no bursting of fire crackers should be permitted in view of 'Precautionary' principle, to be statutorily enforced by this Tribunal under Section 20 read with section 15 of the National Green Tribunal Act, 2010.
32. .........In view of above discussion, following directions are issued:
i. There will be total ban on sale and use of all kinds of fire crackers during Covid-19 pandemic in the NCR and all cities/towns in the country where the ambient air quality falls under the 'poor' and above category.
v. We further direct that the Air Quality Monitoring Committees (AQMC) in terms of order of this Tribunal dated 08.10.2018 in OA No. 681/20181 to coordinate with the 1 The said order is as follows:
"15. xxx xxx xxx
i. xxx xxx xxx
ii. The Action Plans may be prepared by six-member committee comprising of Directors of Environment, Transport, Industries, Urban Development, Agriculture and Member Secretary, State Pollution Control Board or Committee of the concerned State. The Committee may be called Air Quality Monitoring Committee (AQMC). The AQMC will function under the overall supervision and coordination of Principal Secretary, Environment of the concerned State/Union Territory. This may be further supervised by the Chief Secretaries concerned or their counterparts in Union Territories by ensuring intra-sectoral co-ordination."5
District Magistrates.2 for compliance of the above directions."
13. Applying the same principles, we are of the view that the brick kilns ought to be permitted to the extent of carrying capacity, correctly calculated, strictly as per consent conditions, siting criteria and other environment norms. When air quality standards are exceeded, only non polluting technology has to be followed. Existing guidelines have to be strictly adhered to. Precautionary principle has to be applied and non compliant activity stopped.
14. The impact of air pollution on public health is noted in the order of the Hon'ble Supreme Court in Arjun Gopal & Ors. v. UOI & Ors.3:
Table 1 AQI Associated Health Impacts Good Minimal impact.
(0-50)
Satisfactory May cause minor breathing discomfort to
(51-100) sensitive people.
Moderately May cause breathing discomfort to people with
polluted lung disease such as asthma, and discomfort to
(101-200) people with heart disease, children and older
adults.
Poor May cause breathing discomfort to people on
(201- prolonged exposure, and discomfort to people with
300) heart disease.
Very May cause respiratory illness to the people on
Poor prolonged exposure. Effect may be more pronounced
(301- in people with lung and heart diseases.
400)
Severe May cause respiratory impact even on healthy people,
May and serious health impacts on people with lung/heart
(401- disease. The health impacts may be experienced even
500) during light physical activity.
15. In the said order, the Tribunal held that coal fired brick kilns be not allowed in Delhi and NCR except to the extent of carrying capacity.
The observations of the Tribunal are reproduced below:
"10. ..... Coal as a fuel adds to air pollution and when air quality is 'severe' brick kilns can be allowed on replacing coal by cleaner fuel like Piped Natural Gas (PNG). This is the reason behind GRAP not permitting other coal-fired brick kilns. The logic applies to zig zag technology kilns also, though compared to FCBTK, it is better. It does not result in zero pollution during 'severe' conditions when any addition to pollution load is hazardous to health. Since, as per independent study, there was no carrying capacity of the air quality of the NCR Region to 2 The District Environment Committee has been directed to be constituted by this Tribunal to prepare and execute District Environment Plan vide order dated 15.07.2019 in OA No. 710/2017, Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahjanhanpur & Ors.3
(2017) 1 SCC 412 6 sustain coal-fired brick kilns during 'severe' conditions, using zig-zag technology, which does not eliminate pollution could not justify such brick kilns. It will suffice to reproduce the operative orders passed on five last occasions which are as follows:
A. Order dated 18.12.2019:
"4. In view of the above, while CPCB may conduct further study for assessment of different types of brick kilns with reference to source emissions from different types of fuels, having regard to the conclusion that average fugitive SPM values are almost same in FCBTK and Zig-Zag brick kilns, the interim order directing closure of brick kilns in NCR will continue till the next date. Thereafter, brick kilns in NCR may be allowed only consistent with the carrying capacity and siting criteria, subject to GRAP, consent conditions and background concentration of ambient air quality."
B. Order dated 06.02.2020:
"3. Since brick kilns can be permitted only after ascertaining the carrying capacity as above, let a report about carrying capacity of the NCR region in above terms be furnished by CPCB before the next date by e-mail at [email protected]."
C. Order dated 05.03.2020:
"4. In view of the above, a report has been filed by the CPCB on 04.03.2020 as follows:
"As per information provided by SPCBs, there are total 3278, 2854 and 19003 brick kilns in Haryana, Punjab and Uttar Pradesh respectively, out of which 1918, 701 and 1343 brick kilns have been converted to Zig-Zag technology. With regard to NCR regions, out of 2187, 2216 and 251 brick kilns in Haryana, Uttar Pradesh and Rajasthan respectively, 1504, 1032 and 127 brick kilns have been converted to Zig-Zag technology.
Brick Kilns based on Zig-Zag technology using agro- residues are located only in NCR districts.
Different types of activities with potential of air pollution, including operation of brick kilns in Delhi- NCR are regulated through a Graded Response Action Plan (GRAP) by Environmental Pollution Control Authority. As per GRAP, Brick kilns in NCR are required to be shut under severe conditions i.e. when PM2 .5 and/or PM10 concentration goes beyond 250 µg/m3 and/or 430 µg /m3 respectively.
In view of the expected higher concentration of PM emissions during winter months, brick kilns in the NCR regions were kept closed during this period as per directions of EPCA. However, now, 7 looking into the forecast of favourable meteorological conditions and expected improvement in the air quality, Environmental Pollution Control Authority (EPCA) has directed that operation of those brick kilns in NCR districts, which have converted to Zig-zag technology, be allowed, vide letter No. EPCA-R/2020/L-09 dated February 14, 2020 (Copy enclosed as Annexure- I).
Further, air quality data of 2019 in NCR, was examined. Analysis indicated that PM 2 .5 concentration in summer months (March-June) is lower (Average 80 µg /m3 ) in comparison to winter months (Average 173 µg /m 3 ). Similarly, PM10 concentration in summer months (March-June) is lower (Average 219 µg /m3 ) in comparison to winter months (Average 283 µg /m3).
The past data of 2019 w.r.t. PM10 & PM2.5 concentration in Delhi, is summarized in Table 1:
Table 1: Monthly data of CAAQMs w.r.t. PM Concentration for 2019, in Delhi PM 2.5, PM10, µg /m3 µg /m3 203 322 122 215 83 184 83 236 89 247 63 209 47 143 35 85 40 98 128 247 202 312 209 316 Therefore, in view of submission that 65 Nos brick kilns are proposed to be monitored in both NCR and Non-NCR regions, involving total 585 stack emissions' samples, in compliance of the directions of Hon'ble NGT in the matter of 0.A. No. 1016/2019 and
0.A. No. 1088/2018, it is humbly prayed as under:
I. Brick Kilns based on Zig-Zag technology using agro- residues are located only in NCR districts and if these are to be monitored to assess the performance of brick kilns operating on agro-residues, under comparable situations, the Zig-Zag type brick kilns in NCR regions, which are presently dosed, may have to be made operational, to facilitate monitoring.
II. Atleast 04 months' time period may be granted to CPCB, for Monitoring of 65 brick kilns in NCR and Non-NCR regions and submission of report covering i) Impact of brick kilns operation on loss/degradation of top soil, ii) study involving Carrying Capacity Assessment of brick kilns 8 with adequate samples in terms of number of brick kilns and days for which monitoring be conducted, iii) Evaluation of the performance of brick kilns against the background concentration and carrying capacity of the area and iv) Impact on Brick Kilns operation on ambient air, in the matters of O.A. No. 1016/2019 and O.A. No. 1088/2018, after commencement of operation of brick kilns in NCR regions."
5. We have heard learned Counsel for the CPCB and for the brick kilns, including those who have filed applications for being implead as party in pursuance of order of Hon'ble Supreme Court dated 20.02.2020 in C.A. No. 1733-35/2020.
6. Learned Counsel for the CPCB submitted that having regard to the data of air quality, even though as per GRAP brick kilns are to be mandatorily shut throughout NCR only under 'severe conditions', no polluting activity, including brick kilns, can be permitted beyond 'carrying capacity' and air quality norms under the Air (Prevention and Control of Pollution) Act, 1981. On the other hand, the stand of the brick kilns is that unless the conditions are 'severe' to attract GRAP and unless prohibited by EPCA, 'Zig-Zag' technology brick kilns have right to operate irrespective of the air quality norms. Reliance has also been placed on norms for brick kilns under Schedule-I, Sr. No. 74 of Environment (Protection), Rules 1986.
Alternatively, it is submitted that at such locations where air quality is within norms, brick kilns may be allowed. By way of example, it is stated that the ambient air quality data at Alwar, as on 18.02.2020, is within norms.
7. We do not find any merit in the contention that only in 'severe' conditions brick kilns can be prohibited even if the air quality is beyond permissible norms and the area has no assimilative or supportive capacity. Emission norms of individual brick kilns is not a conclusive factor for dealing with the issue, if the carrying capacity of the area does not allow the brick kilns in question. However, we do need to consider the submission that where air quality is within the norms and there is carrying capacity, brick kiln can be allowed.
8. In view of the above, it is necessary to look at the relevant data at different locations '24 hourly' and 'monthly average' during the relevant months. Since such data is maintained by the CPCB/PCBs, the CPCB may collect such data for corresponding months of March, April, May and June in the year 2019 and furnish the same before the next date. The break-up of location of the brick kilns District- wise may also be furnished to consider as to which of the brick kilns can be allowed after verification 9 that such brick kilns are actually working on 'Zig- Zag' technology, pending further assessment of the carrying capacity by the CPCB, as already directed earlier vide order dated 06.02.2020."
D. Order dated 23.03.2020:
"6. We have considered the above data which shows that in the corresponding months when brick kilns were operating, standard of air quality was not as per prescribed norms. Thus, the air quality of the area is unable to take further pollution load. In this regard, it may be noted that while considering the issue of operation of brick kilns in non-NCR area, where GRAP was not applicable as such, in O.A. No. 1088/2018, Dinesh Chahal & Ors. vs. Union of India & Ors., the Tribunal vide order dated 30.04.2019 observed that standards of ambient air quality are required to be maintained under Section 17(g) of the Air Act, 1981:
"3. ...The matter was again considered on 21.02.2019 with reference to the contention that the impugned order was only for Non-NCR to which order of CPCB or EPCA did not apply. The Tribunal held that even in Non-NCR, Standards of Ambient Air Quality laid down under Section 17 (g) of the Air Act are required to be followed. If the impugned order has been passed without undertaking any study on status of ambient air quality without any carrying capacity assessment to take the additional load at concerned areas and without any safeguards on 'Precautionary' principle, the same may not be justifiable having regard to the acknowledged adverse impact of operation of the brick kilns on the ambient air quality. Reference was made to the Judgements of the Hon'ble Supreme Court in M.C. Mehta v. Union of India, (1998) 9 SCC 149, M.C. Mehta v. Union of India (2000) 7 SCC 422, M.C. Mehta v. Union of India, (2002) 4 SCC 378, K. Guruprasad Rao v. State of Karnataka, (2012) 12 SCC 736 wherein the Hon'ble Supreme Court directed closure or shifting of brick kiln industries and M.C. Mehta v. Union of India, (2001) 9 SCC 235 laying down that brick kilns may be allowed to operate after studying the impact on human population and vegetation."
7. Learned Counsel for the brick kiln operators, however, submit that prohibition on operation of brick kilns be lifted as some individual brick kilns meet the air quality emission standards laid down under the Environment (Protection) Rules, 1986 and the brick kilns are not the only source of pollution. Contribution of all the brick kilns taken together, to the air pollution, was about 3%. It was also mentioned that as at present air quality 10 norms are within limit in seven districts out of 15 districts of NCR.
8. As observed earlier, the question is not merely of an individual brick kiln not emitting pollution or the extent of contribution of the brick kilns taken separately, but of the capacity of the area being already air polluted and unable to take the load of pollution. When there is no carrying capacity in the area for further air pollution, we find it difficult to permit operation of the closed brick kilns to uphold the 'Sustainable Development' principle. When even without operation of the brick kilns the air quality is not within the norms, the impact of operation of the brick kilns cannot be ignored. Thus, we find it difficult to accept the submission that the individual brick kilns maintaining the prescribed standards for discharge of emissions are entitled to operate or that they be allowed to operate on the ground that pollution caused by the brick kilns is less than other pollution from other sources irrespective of carrying capacity of the area. The fact remains that brick kilns add to the air pollution and thereby affect right of citizens to breathe fresh air.
9. We may now consider another aspect of the matter i.e. impact of the brick kilns on the top soil. As noted in order dated 05.03.2020, CPCB has undertaken to look into this aspect and has not yet completed its study. As per available study, there is huge environmental cost in using top soil for making brick making.4 Reference may also be made to a study on "The Impact of Brick Kiln operation to the degradation of topsoil quality of Agricultural Land".5 There is further issue of unutilized fly ash adversely affecting the environment which may require barring red clay brick kilns. This is proposed in a draft notification of the MoEF&CC 25.02.2019 within 300 kms of coal or lignite based thermal power plants. No doubt the said notification is only a draft but the same is evidence of such step being necessary for sustainable development.
10. Main reason for air pollution by brick kilns is use of coal etc. as fuel. The pollution can be minimized if the fuel which is currently used is considered to be replaced by cleaner fuels like PNG by appropriate modification in design not adding to the PM load. Dealing with the air pollution caused in Morby Industrial Area in Gujarat on 4 www.journals.sagepub.com/doi/abs/10.1177/0974929214521892# (Environmental Cost of using top-soil for brick making - a case study form India (MoEF, GoI project) (Published in Review of Market Integration, 2013) Vinish Kathuria, Professor, IIT Bombay - March 11, 2015.
5www.researchgate.net/publication/282431176_The_impact_of_brick_kiln_operation_to_the_degradation_of_to psoil_quality_of _agricultural_land.
11account of coal gasifiers in tile manufacturing, the Tribunal directed closing of coal gasifier industries without prejudice to such industries switching over to non-coal gasifiers, PNG or other such technology. It was directed6:
"25. Accordingly, we allow the applications and direct the GPCB to close all coal gasifiers industries and units operating with the help of coal gasifiers without prejudice to such units switching over to non-coal gasifiers or PNG or technology consistent with the above report. The GPCB must initiate immediate steps for prosecution of the industries which have operated in violation of law and recover compensation for causing damage to the environment and public health."
11. Issue of allowing operation of brick kilns may give rise to following questions:
(i). The use of cleaner fuels or any other alternative measures to be used to prevent air pollution.
(ii). Siting and carrying capacity.
12. In view of the fact that there is no carrying capacity of the air quality in NCR region to permit any further addition to PM load by permitting unconditional operation of brick kilns using fuel which adds to PM load and since it may be necessary to consider the issue of utilizing fly ash, we require an expert opinion on following issues:
(a) how brick kilns can be allowed in NCR without damage to the air quality;
(b) conditions subject to which it may be done;
(c) number of brick kilns to be allowed and criteria for fixing such numbers.
13. Let CPCB look into the above issues and furnish a further report within one month for further directions in the matter. The applicants are free to put forward their viewpoint before CPCB."
E. Order dated 15.10.2020:
7. Accordingly, in above backdrop, the CPCB has given its report dated 06.07.2020. The CPCB considered suggestions/objections of the Brick Kiln Owner Association in terms of order of this Tribunal which have been summed up in the report as follows:-
6Order dated 06.03.2019 in O.A. No. 20/2017 (WZ), Babubhai Ramubhai Saini vs. Gujarat Pollution Control Board & Ors.12
"(a) The brick kilns are complying with the directions of CPCB w.r.t. shifting from the Old Fixed Chimney Bull Trench Kiln Technology to Zig-Zag Technology.
(b) The brick Kilns have been established as per siting criteria.
(c) The Hon'ble Supreme Court of India in Civil Appeal No. 1742-43 of 2020 (Diary No. 5935/2020) vide order dated 20/02/2020 requested Hon'ble NGT to decide the O.A. No. 1016/2019, in the light of the provisions of the Graded Response Action Plan (GRAP) of MoEF&CC and EPCA order dated 14/02/2020.
(d) The brick kilns in NCR regions are required to be closed under Severe Category (PM10 > 430 ug/m3 or PM2.5 > 250 ug/m3) under GRAP.
(e) Brick Kilns based on Zig-Zag technology are less polluting and are complying with the both existing and proposed standards for stack emissions.
(f) PNG, CNG and industrial LPG are not available in majority of places where brick kilns are situated.
(g) The blanket ban on operation of brick kiln industries has affected livelihood rights of approximately one million people in the national Capital region.
(h) The brick Kiln industries are seasonal and hence only operate from January to June and indefinite closure for the want of study would cause and has already caused irreparable damage to the brick kiln industry.
(i) Utilization of fly ash may not be treated as a true alternative unless the harmful impacts of fly ash bricks are not studied.
(j) A report on "Source Apportionment of PM2.5 and PM10 of Delhi NCR for identification of major sources" prepared by ARAI and TERI for Department of Heavy Industry, Ministry of Heavy Industries and Public Enterprises, New Delhi, in the year 2016, reveals that brick kiln industry contributed only about 8% to the air pollution of Delhi and NCR. It was further found that the brick kilns shifting to Zig-Zag technology would further lead to reduction of 3%, 4% and 6 % in total PM2.5, PM10 and SO2 emissions. The contribution of the brick kilns is very less in Delhi and NCR after conversion to Zig-Zag technology.
(k) The utilization of fly ash in the manufacture of bricks is not only unfeasible because of several issues involved in the transportation of fly-as to brick- kilns. It poses several health hazards to the inhabitants residing in buildings made thereof, in addition to health hazards to laborers working at brick-kilns and on construction sites.13
(l) Various kinds of industrial and other activities contribute together to saturate the carrying capacity of the region. It is submitted that saturation of the carrying capacity of Delhi-NCR cannot be the basis for denying permission to brick kilns to operate. This is particularly because brick kilns emissions are not amongst the main contributors to air pollution in Delhi-NCR.
(m) Any directions that prohibit brick kilns from operating in Delhi- NCR on account of saturation of the carrying capacity, without first prohibiting the other more polluting activities, would be arbitrary and violative of Article 14 and Article 19(1)(g) of the Constitution of India.
(n) The brick kilns may be allowed to operate at par with other activities that together contribute to the carrying capacity of Delhi-NCR, subject to the conditions of the Consent to Operate and guidelines issued by the regulatory bodies so as to avoid fugitive dust emissions.
(o) The directions issued by the EPCA from time to time are sufficient to ensure that the brick kilns operate in Delhi-NCR without any damage to the air quality.
(p) The brick kilns that do not comply with the conditions of the Consent to Operate and other guidelines issued by the regulatory bodies from time to time may also be closed down with immediate effect.
(q) The brick kilns, which have adopted the zig-zag technology, may be permitted to operate in Delhi-NCR."
xxx...................................xxx.......................................xxx
11. Considering the objections of the brick kilns owners, it was observed:-
"15. We are unable to find any substance in the objections. CPCB has duly explained that the Carrying Capacity is based on monthly average data on PM10 generated from CAAQMS and where no such data was available, Aerosol Optical Depths were extrapolated to PM. Further, carrying capacity has been assessed by taking mixing heights into consideration and comparing with identical air shed of districts geographical area and dispersion air volume conditions. With regard to emission load, the load is based on actually monitored values taking stack diameter, velocity, temperature and pressure of flue gases and standard of 250 mg/Nm 3 at 17% O 2. Overall fact is that entire NCR has no carrying capacity to take load of the pollution of the brick kilns as already levels of PM10 and PM2.5 are exceeding daily/annual standards. As per Table 15 of the Report, no brick kiln has scope to operate except, some may, during March to June.14
16. Other issues raised are no longer res integra and are covered against the objectors by the law laid down by the Hon'ble Supreme Court. Reference may be made to some of the judgements dealing with the issue.
Supreme Court judgments dealing with Air quality of NCR, Precautionery principle, control of pollution from one source hen there are multiple sources and enforcement of environment norms where right to trade is pleaded
17. In Arjun Gopal & Ors. v. UOI & Ors.7, it was observed that the residents of NCR faced severe air quality standards which were worst in the World. It had serious adverse health impact. Life of citizens in NCR had been brought to virtual standstill. The Capital was smoked into an environmental emergency of unseen proportions. It will be appropriate to extract some observations from the judgment:-
"4. The onset of winter and the festival/marriage season this year, presented to the residents of NCR severe concerns regarding the air quality standards. According to reports, the air quality standards in early November of this year were the worst in the world. It is reported that the PM2.5 levels recorded were "beyond scale" values (see India's Air Quality Among World's Worst Over Diwali Weekend: Report. 4-11-2016, Hindustan Times). The report indicates that 24-hour average of PM2.5 levels in South Delhi in 2016 were 38% higher than on the Diwali night of 2015. The day after Diwali, these levels were twice as high as the day after Diwali in 2015, crossing 650 μg/m3, which is 26 times above the WHO's standards or levels considered safe. Shockingly, on the morning of 1-11-2016, Delhi woke up to an average PM2.5 level of over 700 μg/m3 -- some of the highest levels recorded the world over and 29 times above WHO standards. The report further states that the WHO guideline for 24- hour average PM2.5 levels is 25 μg/m3 and with an annual average PM2.5 level of 122 μg/m3, Delhi's air is the worst among global megacities with dense populations. We have particularly referred to the PM 2.5 levels because of the extreme effects and near invisibility of this type of particulate matter. PM2.5 or particulate matter 2.5 (PM2.5), refers to tiny particles or droplets in the air that are two-and- one-half microns or less in width. It may be noted that the widths of the larger particles in the PM2.5 size range would be about thirty times smaller than that of a human hair. These particles primarily emanate from vehicle exhausts and other operations that involve the burning of fuels such as 7 (2017) 1 SCC 412 15 wood, heating oil or coal, and of course, use of fire crackers.
5. In India, air quality standards are measured in terms of the Air Quality Index (hereinafter "AQI").
The AQI was launched in India on 17-10-2014 by the Ministry of Environment and Forests. According to the press release of the Press information Bureau of the same date, it consists of a comprehensive set of parameters to monitor and asses the air quality. The AQI considers eight pollutants (PM10, PM2.5, NO2, SO2, CO, O3, NH3, and Pb), and based on the levels of these pollutants six categories of AQI ranging from "Good" to "Severe" have been prescribed. The index also suggests the health effects of the pollution categorywise. The gradation of AQI and its health impact is extracted below:
Tables 1 and 2 have already been reproduced in para 1 above and are not being repeated.
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6. Reports indicate that AQI in Delhi was much above the severe standard, shooting off the AQI 500 mark on many days this November. On the day after Diwali, it was more than 14 times the safe limits (see Delhi's Pollution Levels Peaks at 14-16 Times Safe Limits, 31-10-2016, The Hindu). The adverse health effects of these hazardous levels of pollution are only too evident from the table given above. We do not intend to refer to the multiplicity of reports and data on this front.
7. The hazardous levels of air pollution in the last few weeks has spared very few from its ill effects. The life of the citizens of NCR was brought to a virtual standstill, not to speak about the plight of the thousands of mute flora and fauna in NCR.
Schools were declared shut, denizens of the city advised to stay indoors, construction activities stopped, power stations shut and ban imposed on burning of garbage and agricultural waste. The fall in air quality has had a significant impact on people's lifestyle as well. The rising costs to protect against air pollution are substantial. It has come to our notice that people are queuing up to purchase protective masks and air purification systems in the wake of dense smog all over the NCR. In short, the capital was "smogged" into an environmental emergency of unseen proportions.
8. The adverse effects of these extreme levels of air pollution spare no one -- the young, the old, the 16 infirm and even the future generations. A study of the data of the Global Health Depository of the World Health Organisation reveals that India has the world's highest death rate from chronic respiratory diseases and that about 1.5 million people in India die annually due to indoor and outdoor pollution (see Delhi Wakes up to an Air Pollution Problem it cannot Ignore, 15-2-2015, The New York Times). The Kolkata-based Chittaranjan National Cancer Institute (CNCI), in a study commissioned and handed over to the Central Pollution Control Board, found that key indicators of respiratory health, lung function to palpitation, vision to blood pressure, of children in Delhi, between four and 17 years of age, were worse off than their counterparts elsewhere. It also found that more than 40% of the school children suffer from lung damage (see Landmark Study Lies Buried, 2-4-2015, The Indian Express). We note with apprehension that there are nascent studies that suggest that pollution can lower children's IQ, hurt their test scores and increase the risks of autism, epilepsy, diabetes and even adult-onset diseases like multiple sclerosis (see Holding Your Breath in India, 29-5-2015, The New York Times).
9. It has been brought to our notice that the severe air pollution in the NCR is leading to multiple diseases and other health related issues amongst the people. It is said that the increase in respiratory diseases like asthma, lung cancer, bronchitis, etc. is primarily attributable to the worsening air quality in the NCR. The damage being caused to people's lungs is said to be irreversible. Other health related issues like allergies, temporary deafness are also on the rise. Various experts have pointed towards multiple adverse effects of air pollution on human health like premature deaths, rise in mortality rates, palpitation, loss of vision, arthritis, heart ailments, cancer, etc.
10. When we refer to these extreme effects, we are not merely referring to the inconvenience caused to people, but to abject deprivation of a range of constitutionally embedded rights that the residents of NCR ought to have enjoyed. Needless to state, the grim situation of air quality adversely affected the right to education, work, health and ultimately, the right to life of the citizens, and this Court is constitutionally bound to address their grave concerns. May we remind ourselves, that this is not the first time that this Court was impelled into ensuring clean air for the citizens of the capital region (see M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 6 SCC 17 60] , [M.C. Mehta v. Union of India, (1998) 9 SCC 589] , M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 8 SCC 648] and M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 8 SCC 206] )."
18. In the context of banning sale of crackers having adverse impact on the air quality, it was held that even if there were several sources of pollution, a particular polluting activity could be prohibited. No equality could be pleaded in this regard. Right to trade was not absolute and could be restricted for protection of Environment which was a specific Directive Principle of State Policy enforcement of which was a reasonable restriction on fundamental right to trade. The 'Precautionary Principle' of environmental law allows prohibition of a polluting activity even in absence of scientific certainty. Relevant extracts are as follows:-
"37 The aforesaid findings are sufficient to negate the arguments of the opposite side that there is absence of scientific study about the adverse effect of firecrackers during Diwali. In environmental law, "precautionary principle" is one of the well-recognised principles which is followed to save the environment. It is rightly argued by the petitioners that this principle does not need exact studies/material. The very word "precautionary" indicates that such a measure is taken by way of precaution which can be resorted to even in the absence of definite studies. In Vellore Citizens' Welfare Forum [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647], this Court explained the principle in the following manner: (SCC pp. 658 & 660, paras 11 & 14-16) "11. Some of the salient principles of "Sustainable Development", as culled out from Brundtland Report and other international documents, are Inter- Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that "the precautionary principle" and "the polluter pays principle" are essential features of "Sustainable Development". The "precautionary principle" -- in the context of the municipal law -- means:
(i) Environmental measures -- by the State Government and the statutory authorities -- must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for 18 postponing measures to prevent environmental degradation.
(iii) The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.
***
14. In view of the abovementioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.
15. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. To support we may refer to H.R. Khanna, J.s' opinion in ADM, Jabalpur v. Shivakant Shukla [ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521] , Jolly George Varghese case [Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360] and Gramophone Co. case [Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534 :
1984 SCC (Cri) 313] .
16. The constitutional and statutory provisions protect a person's right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment. ..."
38. The precautionary principle accepted in the aforesaid judgment was further elaborated in A.P. Pollution Control Board case [A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718] as under: (SCC pp. 732-34, paras 31-35) "31. The "uncertainty" of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum v. Union of India [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] a three- Judge Bench of this Court referred to these changes, to the "precautionary principle" and the new concept of "burden of proof" in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various international conferences and to the concept of "sustainable development", stated that the 19 precautionary principle, the polluter pays principle and the special concept of onus of proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in Vellore case [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] in this behalf read as follows: (SCC p. 660, para 14) '14. In view of the abovementioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.' The Court observed that even otherwise, the abovesaid principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law. In fact, on the facts of the case before this Court, it was directed that the authority to be appointed under Section 3(3) of the Environment (Protection) Act, 1986 'shall implement the "precautionary principle" and the "polluter pays principle"'.
The learned Judges also observed that the new concept which places the burden of proof on the developer or industrialist who is proposing to alter the status quo, has also become part of our environmental law.
32. The Vellore [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them.
33. A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier, the concept was based on the "assimilative capacity" rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there 20 would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the "precautionary principle", and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:
'Principle 15.--In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing cost-effective measures to prevent environmental degradation.'
34. In regard to the cause for the emergence of this principle, Charmian Barton, in the article earlier referred to in "The Status of the Precautionary Principle in Australia" [(1998) 22 Harvard Environmental Law Review 509 at p. 547] says:
'There is nothing to prevent decision-makers from assessing the record and concluding that there is inadequate information on which to reach a determination. If it is not possible to make a decision with "some" confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through judicial and legislative means is necessary.' In other words, the inadequacies of science is the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
35. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still 21 "evolving" for though it is accepted as part of the international customary law, 'the consequences of its application in any potential situation will be influenced by the circumstances of each case'. (See First Report of Dr. Sreenivasa Rao Pemmaraju -- Special Rapporteur, International Law Commission dated 3-4-1998, paras 61 to 72.)"
(emphasis in original)
39. In such cases which pertain to the protection of environment, thrusting of "onus of proof" on the developer/industrialist in Vellore Citizens' Welfare Forum [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] was also elaborated by the Court in the following manner: (A.P. Pollution Control Board case [A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718] , SCC pp. 734-35, paras 36-38)
"36. We shall next elaborate the new concept of burden of proof referred to in Vellore case [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] at p. 658. In that case, Kuldip Singh, J. stated as follows: (SCC p. 658, para 11) '(iii) The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.'
37. It is to be noticed that while the inadequacies of science have led to the "precautionary principle", the said "precautionary principle" in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, -- is placed on those who want to change the status quo (Wynne, "Uncertainty and Environmental Learning:
Reconceiving Science and Policy in the Preventive Paradigm" [(1992) 2 Global Environmental Change 111 at p. 123] ). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, "Shifting the Burden of Proof: How the Common Law can Safeguard Nature and Promote an Earth Ethic" [(1990) 20 Environmental Law 891 at p. 898] .) (Quoted in "The Status of the Precautionary Principle in Australia"
[(1998) 22 Harvard Environmental Law Review 509 at p. 547] at pp. 519, 550.)
38. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of 22 species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3-4-1998, Para 61.)"
(emphasis in original)
41. It may be stressed that in Vellore Citizens' Welfare Forum case [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] , this Court had banned the tanneries when it was found that they were causing immense damage to the environment. Thus, environment protection, which is a facet of Article 21, was given supremacy over the right to carry on business enshrined in Article 19(1)(g). We state at the cost of repetition that right to health, which is recognised as a facet of Article 21 of the Constitution and, therefore, is a fundamental right, assumes greater importance. It is not only the petitioners and other applicants who have intervened in support of the petitioners but the issue involves millions of persons living in Delhi and NCR, whose right to health is at stake. However, for the time being, without going into this debate in greater details, our endeavour is to strive at balancing of two rights, namely, right of the petitioners under Article 21 and right of the manufacturers and traders under Article 19(1)(g) of the Constitution.
44. Applying the aforesaid principle, in the first blush it may appear that the aforesaid argument has substantial force in it. However, that would be only one side of the picture as there are two contra-arguments which are sufficient to take the sheen out of the aforesaid plea. First aspect is that the argument of economic hardship is pitched against right to health and life. When the Court is called upon to protect the right to life, economic effect of a particular measure for the protection of such right to health will have to give way to this fundamental right. Second factor, which is equally important, is that the economic loss to the State is pitched against the economic loss in the form of cost of treatment for treating the ailments with which people suffer as a result of burning of these crackers. Health hazards in the form of various diseases that are the direct result of burning of crackers have already been noted above. It leads to asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment. Some of the diseases continue on a prolonged basis. Some of these which are caused because of high level of PM2.5 are even irreversible. In such cases, patients may have to continue to get the medical treatment for much longer period and even for life.23
Though there are no statistics as to what would be the cost for treating such diseases which are as a direct consequence of fireworks on these occasions like Diwali, it can safely be said that this may also be substantial. It may be more than the revenue which is generated from the manufacturers of the crackers. However, we say no more for want of precise statistical data in this behalf."
Carrying Capacity Concept
19. Carrying capacity is a facet of sustainable development. It is inherent in 'Precautionary Principle' as well as in 'Inter- generational Equity'. In MC Mehta v. UOI & Ors.8, construction activity in the catchment area of Badkhal were directed to be restricted/regulated to the level of Carrying capacity. It was observed that:-
"Preventive measures have to be taken keeping in view of the carrying capacity of the ecosystem operating in the environmental surroundings under consideration."
20. In Vellore Citizens' Welfare Forum v. UOI & Ors.9, it was observed that quality of human life is to be improved within the carrying capacity to supporting ecosystem. Relevant extract is as follows:-
"10....... During the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. "Sustainable Development" as defined by the Brundtland Report means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists."
21. These observations are reiterated in (2006) 6 SCC 371.10 Pollution from Brick kilns - shifting from coal to Natura gas as fuel
22. In M.C. Mehta (Taj Trapezium Pollution) v. UOI & Ors.11, the Hon'ble Supreme Court held that pollution caused by brick kilns in Taj Trapezium area was harmful to the Taj. Brick kilns 8 (1997) 3 SCC 715 9 (1996) 5 SCC 647 10 Para 66 to 76 11 (2001) 9 SCC 235 24 within radius of 20 km were directed to be closed/relocated and replacement of the fuel by natural gas was suggested.12 CNG replaced for diesel as fuel, closing Thermal Plant and controlling carbon emitting activities to control pollution
23. In M.C. Mehta v. UOI & Ors.13 the issue for consideration was vehicular pollution on account of use of diesel considering the constitutional obligation, adverse impact of air pollution on health, the Hon'ble Supreme Court directed allocation of CNG and replacement of diesel vehicles of CNG.14 In M.C. Mehta v. UOI & Ors.,15 various directions were issued to deal with the adverse air quality in Delhi including phasing out of old vehicles, closing Badarpur Thermal Power Station increasing Metro frequency, stopping burning of waste, vacuum cleaning of roads.
Tribunal's Approach to the subject
24. The Tribunal has a mandate to follow these principles under Section 20 read with Section 15 of the National Green Tribunal Act, 2010 and can issue appropriate directions for enforcement of these principles, as laid down in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors.,16 and the Director General (Road Development) NHAI v. Aam Aadmi Lok Manch.17 Environmental rule of law requires strict enforcement of these principles as laid down in Hanuman Laxman Aroskar v. UOI).18
25. This Tribunal in O.A. No. 681/2018, vide order dated 21.08.2020, dealt with the remedial measures for restoration of air quality in 122 Non-attainment cities, including Delhi where air quality is generally beyond norms. The Tribunal directed stopping polluting activities, including brick kilns and assessment of carrying capacity of urban areas to take policy decisions to control polluting potential activities beyond carrying capacity. The Tribunal observed:-
"3. The Tribunal noted the concern arising from such large scale air pollution which grapples the country in spite of statutory mechanism under the Air Act, directions of the CPCB under section 18(1)(b), dated 29.12.2015 and directions of the Hon'ble Supreme Court for control of vehicular pollution19, industrial and construction 12 Para 1 & 2 13 (2002) 4 SCC 356 14 Para 1,3,11,21 to 24, 26 & 29 15 (2016) 4 SCC 269 16 2019 SCC online SC 322, Para 43-47 17 AIR 2020 (SC) 3471, Para 75 18 (2019) 15 SCC 401 19 Rural Litigation and Entitlement Kendra, Dehradune and Others Vs State of U.P. Others (1985) 2 SCC 431, M.C. Mehta v. Union of India (2001) 3 SCC 756, M.C. Mehta v. Union of India (1998) 6 SCC 63, M.C. Mehta v. Union of India (2002) 4 SCC 356, M.C. Mehta v. Union of India (1998) 6 SCC 60 25 sector pollution20, power sector pollution21 and agricultural sector pollution22 and orders of this Tribunal dealing with the said issues23. The Tribunal also referred to a Comprehensive Action Plan (CAP) for air pollution control for NCR prepared in pursuance of order of the Hon'ble Supreme Court dated 06.2.2017 by the Environment Pollution (Prevention and Control) Authority (EPCA) in consultation with the CPCB and Delhi Pollution Control Committee (DPCC) on 05.04.201724 and Graded Response Action Plan (GRAP) notified by the MoEF&CC on 12.01.2017 stipulating specific steps for different levels of air quality such as improvement in emission and fuel quality and other measures for vehicles, strategies to reduce vehicle numbers, non-
motorised transport network, parking policy, traffic management, closure of polluting power plants and industries including brick kilns, control of generator sets, open burning, open eateries, road dust, construction dust, etc.25
4. Implementation of prescribed norms in the light of legal provisions and court directions remains a challenge. The consequence is that India is being ranked high in terms of level of pollution compared to many other countries with enormous adverse impact on public health. Most victims are children, senior citizens and the poor.26
5. The GRAP categorises levels of pollution as severe plus, severe, very poor, moderate to poor. The action to be taken in such situations includes stopping entry of trucks, stopping construction activities, odd and even scheme of private vehicles, shutting of schools, closing of brick kilns, stone crushers, hot mix plants, power plants, intensifying public transport services, mechanized 20 M.C. Mehta v. Union of India (1997) 2 SCC 353, M.C. Mehta v. Union of India and Shriram Foods and Fertilizer Industries and Anr. (1986) 2 SCC 176, Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P. (1985) 2SCC 431, Mohd. Haroon Ansari v. District Collector (2004) 1 SCC 491, Union of India v. Union Carbide Co. (1989) 1 SCC 674, M.C. Mehta v. Union of India (1992) 3 SCC 256, Sterlite Industries (India) Ltd. etc. v. Union of India & Ors.(2013) 4SCC 575 , M.C. Mehta v. Union of India (2004) 6 SCC 588, M.C. Mehta v. Kamal Nath (2000)6 SCC 213 21 Consumer Education and Research Centre v. Union of India (1995)3 SCC 42, Dahanu Taluka Environment Protection group and Ors. v. Bombay Suburban Electricity Supply Company Ltd. and Ors (1991) 2SCC 539 22 Arjun Gopal and Ors v. Union of India and Ors (2017) 16 SCC 280, Dr. B.L Wadhera v. Union of India and Ors (1996) 2 SCC 594 23 Vardhman Kaushik v. Union of India and Ors. O.A no. 21 of 2014, Vikrant Kumar Tongad v. Environment Pollution (Prevention and Control) Authority and Ors, O.A No. 118 of 2013, Satish Kumar v. Union of India and Ors, O.A. No. 56 (THC) OF 2013, Smt. Ganga Lalwani V. Union of India and Ors. O.A No. 451 of 2018 24 Report No.71, EPCA-R/2-17/L-21, Comprehensive Action Plan for air pollution control with the objective to meet ambient air quality standards in the National Capital Territory of Delhi and National Capital Region, including states of Haryana, Rajasthan and Uttar Pradesh.
25S.O.118(E), Notification, Ministry of Environment, Forest and Climate Change 26 https://www.thehindu.com/sci-tech/energy-and-environment/india-ranks-177-out-of-180- in-environmental-performance-index/article22513016.ece, https://www.ndtv.com/delhi- news/delhis-air-pollution-has-caused-of-death-of-15-000-people-study-1883022.
26cleaning of road, and sprinkling of water, stopping the use of diesel generator sets, enhancing parking fees, etc.
6. The MoEF&CC has by various notifications put restrictions on activities in Coastal areas, Flood plains, Taj corridor Eco-sensitive zones, etc. in view of ecological sensitivity and impact of such activities on environment if such activities are carried out in unregulated areas. This needs to be extended to the NACs in view of impact on public health and environment to give effect to the 'Precautionary' and 'Sustainable Development' principles."
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14. According to the CPCB, draft framework has been prepared and SA study completed in four States (for 05 cities). Study was under progress in 14 States (for 54 cities), and at proposal stage in 10 States (for 37 cities). Methodology for carrying capacity has been shared with State PCBs/PCCs. Twelve (12) States/UTs have given the details of the carrying capacity and the remaining have yet to take necessary steps. CC/SA studies are pre requisite for meaningful planning to enforce environmental law. This pre-requisite should have been undertaken long ago. Air quality norms have been statutorily laid down under the Air (Prevention and Control of Pollution) Act, 1981 as well as the Environment (Protection) Act, 1986 and such norms are being flagrantly violated, which has been made by the Parliament a criminal offence. If the rule of law has to have meaning and guilty are to be punished, the policies of the State have to be based on scientific studies to contain polluting activities within the scope of Carrying Capacity."
26. Dealing with the issue of air pollution in manufacture of tiles at Morbi in Gujrat, vide order dated 6.3.2019 OA 20/17 Babubhai v GPCB, this Tribunal directed closure of industries operating with coal unless they shifted to natural gas. This was referred in the earlier order of this Tribunal in the present matter. It was further observed that while under the orders of the Hon'ble Supreme Court, GRAP was laid down providing for closing of specified activities on crossing of air quality norms as laid down in the GRAP, the same did not debar consideration of further situations requiring closure/regulation.
Conclusion
27. Thus, in view of report of the CPCB, at this stage it is not possible to vacate direction not to permit operation of brick kilns in NCR beyond the carrying capacity found by the CPCB. All applications of the brick kiln owners seeking rejection of CPCB report and vacation of interim 27 order against operation of brick kilns, without air quality assimilative capacity permitting such activity will stand rejected subject to further exploring viable options, including change to clean fuel like natural gas. We are conscious that brick kilns may be necessary. Object of this order is not to stop any legitimate business activity but to enforce the right to breathe fresh air which is right to file. The source apportionment studies, placed on record, show that brick kilns contribute 5-7% PM. Air pollution Control devices to be installed by the polluting sources including the brick kilns need to comply not only the consent standards but are also the Ambient Air Quality norms and available assimilative capacity of the region. If the right to fresh air is not enforced, the consequences of brick kilns beyond carrying capacity of the air quality in the area are disastrous in terms of deaths and air borne diseases. This will be contrary to the mandate of the Constitution and the environmental law, particularly the principle of 'Sustainable Development'. It is well established that deteriorated ambient air quality in terms of PM10 and PM2.5 affects respiratory system particularly, the lungs which may make individuals more vulnerable to get other related fatal diseases.27
28. Accordingly, we direct CPCB to constitute a Committee of five experts to suggest ways and means, if any, by which sustenance of brick kilns activities may be viable. It will be open to CPCB to nominate in-house or other Experts. The CPCB may also explore viability of PNG as replacement of coal and other best practices in terms of fuel used, at other places or in other Countries. It will be open to the brick kilns owners/associations to give any other suggestions or alternatives for consideration by CPCB in spirit of collaboration with a view to find a solution within two weeks from today. Subject to the report of the expert Committee finding it viable, possibility of permitting operation of brick kilns, having regard to the extent of pollution load and its effect on the air pollution level in NCT of Delhi may be considered. The CPCB may constitute an expert Committee within three weeks which may give its report within six weeks thereafter. Further report may be furnished in the matter before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."
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14. The report also annexes a study of Tunnel kiln technology, using PNG as fuel, employed by M/s Wienerberger Building Solutions Private Limited, KIADB Industrial Area, 27 https://airqualitynews.com/2020/08/13/the-link-between-air-pollution-and-covid- 19/http://www.babushahi.com/full-news.php?id=107487 28 Kunigal, Karnataka, (which has not been found viable by the Committee), as follows:-
"5.0 Plant Description:
M/s Wienerberger Building Materials Solutions Private Limited, a Brick Manufacturer founded in 1819 in Vienna, Austria, is having 204 plants spread across 30 countries, is engaged in using natural, eco-friendly building material of international quality standards. The unit located in Plot No. 1 & 2, Kunigal Industrial Area, Phase II, Gottikere Village, Kunigal, Karnataka has Tunnel kiln, a continuous moving ware kiln technology. Wienerberger at Kunigal is the production facility, 70 kms from Bangalore, is Austria-based Wienerberger's first Asian manufacturing unit. The fully automated, state-of-the-art facility manufactures bricks called porotherm perforated clay bricks. The environment friendly production unit runs 365 days a year, producing 450 tonnes of bricks per day. Quality is ensured by the latest European production equipments 24 hour factory production control with in-house laboratory for chemical and physical tests of raw materials and finished products. The unit makes different types of horizontal and vertical perforated light weight clay bricks. The porotherm horizontally perforated light weight clay bricks has following advantages:
Weighs 60 % less than conventional walling material Compressive strength ≥3.5 N/mm2 Density of approx. 700-800kg/m3 Conveniently large and light weight bricks Excellent thermal insulation Low water absorption ~ 15% Brick is a 100 % natural clay product with natural additives like coal ash, rice husk and granites slurry. No toxic or any chemical additives are used, thereby free from toxic gases."
15. The report also refers to direction issued by the CPCB on 27.11.2020 under Section 18 (1) (b) of the Air (Prevention & Control of Pollution) Act, 1981 for upcoming industrial units in NCR to use only gas and also refers to an earlier order requiring even the existing industries in NCR Delhi, to shift to PNG by 31.03.2019 where gas supply is available. The relevant part of the order is quoted below:-
"xx xx xx xx Whereas, considering the Considering deteriorating air quality in NCR-Delhi and also the fact that already directions have been issued to all the existing industries in NCR-Delhi to switch over to cleaner fuels, it is decided that only those new industrial units shall be allowed to set-up in NCR-Delhi, which use cleaner fuels namely, natural gas (PNG/CNG), liquefied petroleum gas, bio gas, propane, butane etc. and 29 Now therefore, in view of the above and exercising the powers conferred under section 8(1)(b) of Air (Prevention and Control of Pollution) Act, 1981, you are hereby directed to allow only those new industrial units in NCR-Delhi, which are using cleaner fuels, namely, natural gas (PNG/CNG), liquefied petroleum gas, bio-gas, propane, butane etc."
16. We have heard Counsel for the brick kiln operators at great length and also perused the written submissions filed by them but their effort being to revisit the earlier order against which their appeal stands dismissed, we do not find any reason to pass any different order. As already observed in the beginning of this order, the data in Table 15 in the CPCB report shows that in severe air quality condition, coal fired brick kilns using zig zag technology are not sustainable in view of carrying capacity of the region. Only from March to June, limited number of brick kilns operated by zig zag technology can be permitted. Thus, unless there is change to cleaner fuel (PNG), brick kilns beyond the capacity shown by Table 15 above cannot be allowed.
17. There is variance of figures of brick kilns permissible during March to June within the carrying capacity. Nature of brick kiln activity being continuous, only such number can be allowed which can be sustained throughout the said period i.e. the minimum figure of a particular month out of the four months, which comes to 444 in Haryana (in the month of May) and 200 in UP (in the month of June). Thus, only this number can be allowed for the time being during the period air quality is not severe. Shortlisting for the purpose may be done applying a suitable siting criteria taking into account inter-se distance, distance from sensitive locations and compliance of consent conditions. Further, location of brick kilns be scattered on pro-rata basis, in different directions of the area, having regard to background and carrying capacity parameters. On that broad basis, selection criteria be worked out by a joint Committee of CPCB and State PCBs. Those brick kilns which switch over to PNG will be entitled to operate even beyond months of March to June and even beyond the number of brick kilns on Zig-Zag technology within the carrying capacity. This can be revisited if air quality improves or if carrying capacity increased as a result of measures adopted by the State authorities in future, by reducing pollution load from different sources.
18. The Tunnel kiln technology with PNG can be followed, if viable, on which it may be permissible for the brick kilns to function even in severe conditions for existing or new brick kilns. The direction dated 27.11.2020 by CPCB also shows the need for reducing pollution load and not to allow activities by using coal.
19. As mentioned earlier, the recommendation that the brick kilns can be allowed with effective monitoring appears to be hypothetical in view of monitoring having been found to be hardly effective, on performance audit of PCBs, as will be shown in later part of this para. While in absence of carrying capacity, brick kilns are not permissible in 'severe' air quality situation, need for 30 improving monitoring and minimising pollution is undisputed. In this regard, matter has been considered by this Tribunal in OA 95/2018, Aryavart Foundation v. M/s Vapi Green Enviro Ltd. & Ors.28, and in the light of report of performance audit of State PCBs, it has been found that performance is inadequate in terms of staff, equipment and functioning. Similar situation has been found in OA 837/2018, Sandeep Mittal Ministry of Environment, Forests & Climate Change & Ors.29, in relation to monitoring of EC conditions by the MoEF&CC. We have recently come across several cases of industrial accidents and one of the reasons for the same is inadequate monitoring. In OA 85/2020, Aryavart Foundation through its President v. Yashyashvi Rasayan Pvt. Ltd. & Anr.30, directions have been issued to improve the same. We have already noted in other proceedings31 that as per official statistics, 100 industrial clusters are polluted, 351 river stretches are polluted and 122 cities are non-attainment in terms of air quality, apart from huge gaps in waste generation and management. Inspite of monitoring of the said issues by this Tribunal, the situation is far from any improvement. Thus, it is undeniable that stringent steps for monitoring to achieve goal of sustainable development are required. While monitoring must certainly improve, such suggestion is not enough to presume that pollution load by coal- fired brick kilns will reach zero so as to sustain coal-fired brick kilns in NCR in severe air quality conditions. In such situation, potential damage to public health cannot be ignored, while dealing with the issue of activity having potential for pollution, in the area having no carrying capacity to sustain further pollution load.
20. Thus, we conclude that going by the order dated 15.10.2020, in 'severe' air quality conditions, coal-fired brick kilns cannot be allowed to operate in NCR even if zig zag technology is used and improved procedures are followed, as suggested by the Committee, unless there is switch over to the PNG. All other issues have already been dealt with in the earlier order. In para 7 of order dated 05.03.2020 and para 8 of order dated 23.03.2020, we have already held that compliance by an individual brick kiln, otherwise 28 vide order dated 05.02.2021 29 Vide order dated 01.02.2021 30 Vide order dated 03.02.2021 31
(i) Vide order dated 21.09.2020, OA 673/2018, In Re: News item published in "The Hindu"
authored by Shri Jacob Koshy, titled "More river stretches are now critically polluted: CPCB"
(ii) Vide order dated 21.08.2020, OA 681/2018, News item published in "The Times of India"
Authored by Shri Vishwa Mohan titled "NCAP with multiple timelines to clean air in 102 cities to be released around August 15"
(iii) Vide order dated 14.11.2019 in OA 1038/2018, News item published in "The Asian Age"
Authored by Sanjay Kaw Titled "CPCB to rank industrial units on pollution levels"
(iv) Vide order dated 28.02.2020 in OA No. 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016.
(v) Vide order dated 18.01.2021 in OA 710/2017, Shailesh Singh, v. Sheela Hospital & Trauma Centre, Shahjahanpur & Ors. with regard to bio-medical waste
(vi) Vide order dated 29.01.2021 in OA 804/2017, Rajiv Narayan v. Union of India & Ors. with regard to hazardous waste.
(vii) Vide order dated 15.01.2021in OA 512/2017, Shailesh Singh v. State of UP with regard to e-waste.
(viii) Vide order dated 08.01.2021 in EA 13/2019 in OA 247/2017, Central Pollution Control Board v. State of Andaman & Nicobar & Ors. with regard to plastic waste.
31contributing to pollution load beyond carrying capacity, does not confer a right to continue such activity, when such activity attracts GRAP in 'severe' air quality condition. As noted in par 11 of the order dated 15.10.2020, the CPCB has found that there is no assimilative capacity during the period air quality is 'severe' and only during months of March to June there is a limited capacity. Inter-se distance of atleast 500 meters is required to be maintained in location of brick kilns. When brick kilns start, they should not be allowed to start simultaneously but their firing should be staggered to avoid adverse impact on the environment. Other safeguards of fugitive dust emission management need to be adopted. In para 18 of order dated 15.10.2020, the issue of non- availability of plea of discrimination to GRAP, attracting some polluting categories and not attracting other polluting activities, has already been dealt with. Accordingly, we reiterate this mandate.
21. In view of the above discussion, unless there is change to cleaner fuel (PNG), brick kilns beyond the number mentioned in Table 15 above cannot be allowed, in the NCR. Since there is variance of figures given during March to June, only such number can be allowed which can be sustained throughout the period i.e. the minimum figure of a particular month out of the four months which comes to 444 in Haryana (in the month of May) and 200 in UP (in the month of June). Such shortlisting may be done applying a suitable siting criteria taking into account inter-se distance and distance from sensitive locations and compliance of consent conditions for which the CPCB, State PCB may work out an appropriate mechanism. Further, location of brick kilns be scattered on pro-rata basis, in different directions of concerned area, having regard to background and carrying capacity parameters. Needless to say, those brick kilns which switch over to PNG will be entitled to operate even beyond months of March to June and even beyond limited number mentioned, subject to compliance with law."
16. In view of earlier orders quoted above and discussion in paras 10 to 12, we are of the view that steps need to be forthwith taken to stop operation of brick kilns already found to be operating in violation of environmental norms till compliance by the State PCB in exercise of its statutory power, following due process of law, till compliance. This will include brick kilns not following consent conditions, operating in excess of carrying capacity, CPCB guidelines and orders of this Tribunal, and those violating siting guidelines. Necessary action be ensured within two months. At the same time, there is need for further study of carrying capacity, applying correct data and norms. Air quality monitoring equipments be installed in the concerned area and if online monitoring stations cannot be set up, easily available equipments be used to continuously monitor air quality. Stringent monitoring mechanism be put in place. Process of mechanically giving consents be reviewed by the State PCB in view of binding 'precautionary' principle. Public health needs to be given due preference to the need for establishment of brick kilns. Violators be strictly proceeded against by way of prosecution, recovery of compensation and preventing pollution. While determining carrying 32 capacity, other sources contributing pollution loads may be factored in while considering concentrations of PM10 in microgram per cubic metre in addition to loads given in kgs. Further, mixing heights data may be referred from the nearest location of IMD station. It is also necessary to clarify reasons of high CEPI score (91.1) particularly for Air and remedial action plan."
12. In view of above, we direct the State PCB to verify the factual position and if brick kilns are operating without requisite EC/consent or in violation of consent conditions (including the use of fuel) or siting criteria or carrying capacity, the same be closed forthwith, following due process of law. CPCB may in the light of experience in recent studies, consider regulatory measures in all similar situations throughout India.
13. We also constitute a four Member Joint Committee comprising CPCB (represented by an officer not below the rank of Additional Director), Member Secretary, SEIAA, UP, Member Secretary, State PCB and District Magistrate, Aligarh to visit the site and study the available data of air quality and location of brick kilns and ascertain the number of kilns which can be ascertained by the carrying capacity of the area in terms of air quality. The Committee may also interact with the stakeholders, including the inhabitants and the brick kilns in question. The joint Committee may also verify the compliance status by the brick kilns in terms of requisite EC/consent and compliance of consent conditions as well as siting criteria. Further, it may be ascertained whether there are monitoring facilities for monitoring emissions and if not, what is mechanism to ensure that consents conditions are being complied. State PCB will be the nodal agency for coordination and compliance. The meeting of the Committee may be held within 15 days. The Committee may also keep in mind earlier studies, including those in orders mentioned above. The report may be furnished to the Tribunal within three months by e-mail at judicial-
[email protected] preferably in the form of searchable PDF/ OCR Support PDF 33 and not in the form of Image PDF. The report may also be uploaded on the website of the CPCB so that any aggrieved person will be at liberty to file their response.
List for further consideration on 10.03.2022.
A copy of this order be forwarded to the CPCB, State PCB, SEIAA UP and District Magistrate, Aligarh by e-mail for compliance.
The applicant may serve a set of papers on CPCB, State PCB, SEIAA UP and District Magistrate, Aligarh and file an affidavit of service within one week.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dr. Nagin Nanda, EM November 26, 2021 Original Application No. 253/2021 SN 34