National Green Tribunal
Vanashakti Public Trust vs Maharashtra Pollution Control Board on 1 July, 2020
Item No. 01
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 1A/2018 (WZ)
Vanashakti & Ors. Applicant(s)
Versus
MPCB & Ors. Respondent(s)
Date of hearing: 01.07.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE MR. SIDDHANTA DAS, EXPERT MEMBER
For Applicant(s) : Mr. Zaman Ali, Advocates along with Siddharth
Acharya, Advocate
For Respondent(s) : Ms. Manasi Joshi, Advocate for MPCB
Mr. Aniruddha S. Kulkarni, Advocate for CPCB
ORDER
1. The Applicant, a publicist, is involved in the safeguard of Western Ghats in the Sawantwad-Dodamarg corridor from the ravages of mining and deforestation. Aggrieved by the inaction of the Respondent authorities for violation of provisions of the Environment (Protection) Act, 1986, Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 by allowing illegal activities namely of brick kilns and mining of miner mineral and topsoil, the applicant approaches this Tribunal.
2. It is alleged that these illegal activities has not only caused water and air pollution but also has affected the flora and fauna of the ecologically fragile areas close to the Tungareshwar Wildlife Sanctuary and Tansa River Valley. It has also been stated that the agriculture in 1 the Thane and Palghar region has affected due to mining and brick kiln activities.
3. After taking the cognizance of the matter, this Tribunal vide order dated 19.07.2018 has directed as follows:
"Heard.
Issue Notice upon the Respondents returnable in three (3) weeks.
The requisites to be filed within a week from hence.
We direct the Maharashtra Pollution Control Board (MPCB) and the District Collector, Palghar, the Respondents No. 1 and 3, to inspect the area in question where the illegal brick Kilns are said to be operating and, if upon inspection, it is found that the brick Kilns are indeed operating without the necessary Consent to Operate and the other clearances under the Rules, appropriate action be taken against them in accordance with law.
We permit the learned Counsel to be present during inspection. The Respondent No.1 MPCB and the Respondent No.3, the Collector, Thane, shall inform the Applicant of the date and time of the inspection in order to enable them to be present.
Let an action taken report (ATR) be filed by the Respondents No.1 and 3 within a period of one month from today.
Mrs. Ujwala Pawar, learned Counsel, appearing on behalf of the Respondent No.4 waives Notice. She has taken note of the order passed today and states that she shall convey it to the Respondents for compliance.
List on 31st August, 2018."
4. In compliance thereof, Central Pollution Control Board (CPCB), respondent no. 2 has submitted the report which is as follows:
"6. That the answering Respondent No.2 submits that CPCB vide its direction dated March 7, 2016 issued to State Pollution Control Boards/ Pollution Control Committees classified the brick kilns under Orange Category of Industries. The Industries falling under the Orange Category needs to obtain consent from the concerned State Pollution Control Board and comply with the conditions stipulated in the consent. In addition, the brick kilns are also required to take licence for mining of soil from the local mining department. List of Orange Category brick kilns industries annexed as Annexure I. 2
7. That the consent comes under the jurisdiction of State Pollution Control Board and the licence for mining comes under the jurisdiction of the Mining department and hence, the matter does not pertain directly to the answering Respondent No.2, the CPCB. However, the Respondent No.2, CPCB shall abide by the order and directions, if any of the Hon'ble NGT in the matter."
5. A separate report has also been sent by the Maharashtra State Pollution Control Board (PCB) with the following facts:
"3. I say and submit that the above Original Application No. 1/2018 is filed under sections 14, 15, 17 and 20 read with section 18 (1) of the National Green Tribunal Act, 2010 alleging that the establishment and operation of illegal brick kilns has caused extreme amount of water pollution and air pollution and affected the flora and fauna of the ecologically fragile areas close to Tungareshwar wildlife sanctuary and Tansa River valley and floodplains. I say that the Applicants further alleged that these operations have affected the agriculture in the Thane and Palghar region.
4. I say that as far as the withdrawal of the ground water by these establishments are concerned, they need to seek the permission from the Central Ground Water Authority. I say that vide order dated 19th Jully , 2018 , the Hon'ble Tribunal directed this Respondent and the Respondent No. 3 i.e the Collector , Palghar to inspect the area in question . I say that according to the Applicants, the areas of concern are villages in Palghar and Thane, which are close to the Highways, Waterbodies and Tungareshwar wildlife sanctuary. I say that pursuant to said order dated 19th July, 2018, the Officer of Maharashtra Pollution Control Board at Kalyan, representatives of the Applicant , Nayab Tahsildar, Bhiwandi and Talathi , Akloli jointly visited village Usgaon in Bhiwandi Taluka on 21/8/2018 . I say that during the joint visit along Ambadi -- Vasai road in Usagaon village, it is found that the total population of the said Usgaon village is less than 700 and the houses are in a scattered position. I say that approximately 35 brick kilns are found to be located at 300 meters upto 2 kms from the roadside. I say that these are traditional brick kilns establishments. I say that a brick clamp is a traditional method of baking bricks, done by stacking the unbaked bricks with fuel under or among them and then setting the fuel on fire . The clamp is considered a type of kiln. I say that in these mentioned 35 brick Kilns , it is found that there are around 20,000 to 40,000 bricks in total in each kiln and of the size is 9x4x3 and are into traditional brick making . I say that these brick Kilns are found to be seasonal in operation. I say that they are found to be changing their location from time to time depending upon the availability of raw material. I say that during the visit, the storage of coal was observed around the brick kilns. I say that at the time of the visit to these brick kilns, they are not found in operation and also their owners and labourers were not found to be 3 present on the site. I say that during the above visit dated 21/8/2018, two brick Kilns were found to be located along the roadside of village Angaon and also at village Borpada each, which were not in operation. Hereto annexed and marked Annexure "A" is the Visit Report dated 21/8/2018 along with its English Translation.
5) I say that the officer of the Maharashtra Pollution Control Board at Thane alongwith the representatives of the Applicant and respective Talathi's of villages Parol , Saivan and Shirsad, Incharge Circle Officer of Mandvi visited 13 villages in Vasai Taluka on 24/8/2018 and carried out survey of brick kilns . I say that during the joint it was observed that these brick kilns are located along the Shirsad -- Ambadi and Parol --
Bhiwandi State Highways. I say that coal was found to be stored near a brick kiln at Dhumalpada -- Tilher village and also at one location movement of truck transport carrying bricks was found in operation. I say that each brick kiln was having approximately 25,000 bricks. Hereto annexed and marked Annexure "B" is the copy of the visit report dated 24/8/2018 along with its English Translation.
6) I say that this Hon'ble Tribunal (WZ) vide common Judgement dated 24/2/2014 in Application No. 7/2013 (THC) filed by Sonyabapu Rajguru Vs State of Maharashtra & Others and in Application No. 36/2013 (THC) filed by Prabhakar Pangavhane Vs State of Maharashtra & Others directed the Respondent Board to formulate and notify the emission standards for clamp type of traditional brick kilns within a period of 4 months. Hon'ble Tribunal also directed CPCB to provide necessary technical assistance for the same. I say that in compliance of the said Judgement, the State Government after consultation with the Respondent Board notified the guidelines for the establishment of clamp type traditional brick kilns in the State of Maharashtra . I say that it is called "The Maharashtra Clamp Type Traditional Brick Kilns (Sitting Criteria for Establishment) Rules, 2016. Hereto annexed and marked Annexure "C" is the copy of the said Rules.
7) I say that as per Traditional Clam Type Brick Kiln Notification dated 26/8/2016 , the aforesaid traditional type brick kilns does not come under the purview of consent regime. The Tahasildar of concerned area is the appropriate authority to grant permission to the traditional type brick kiln."
6. The report of CPCB says that vide direction dated 07.03.2016, Control Committee has classified the brick kilns under orange category of industries and industries falling under the orange category need to obtain consent from the concerned State PCB and comply with the conditions stipulated in the consent. On the other hand, the State 4 PCB has stated that brick kiln industries do not come under the purview of consent regime. Keeping the reports as narrated above, we direct the CPCB and the State PCB to submit a joint report on the matter as to whether this industry comes within the consent regime or not. The matter with the brick kilns industries has been dealt by the Principal Bench of this Tribunal in Original Application No. 1016/2019, Utkarsh Panwar Vs. Central Pollution Control Board & Ors. and vide order dated 23.03.2020, it was discussed as follows:
"3.The matter was then considered on 06.02.2020 in the light of further report of CPCB dated 28.01.2020 to the effect that while stack emissions were less in kilns operated by 'Zig-Zag' as against FCBTK technology using same fuel, change of fuel to agro residue had to be studied in the light of carrying capacity of an area, existing PM load and assimilative capacity. The Tribunal directed that carrying capacity of the NCR region be undertaken and report furnished by CPCB.
4. On 05.03.2020, the Tribunal further reviewed the matter in the light of earlier orders and report filed by the CPCB to the effect that since severe conditions did not exist, EPCA had discontinued the ban on brick kilns in accordance with the GRAP. However, the Tribunal found that even if brick kilns are not to be mandatorily shut as per GRAP, the same cannot be allowed to be operated unless carrying capacity in terms of air quality permitted such operation without adversely affecting the environment. It was observed:
"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 5 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 /m 3 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, 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 /m3 ). Similarly, PM10 concentration in summer months (March-June) is lower (Average 219 µg /m3 ) in comparison to winter months (Average 283 µg /m3).
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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 6 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 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."
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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 7 operate after studying the impact on human population and vegetation."
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.1 Reference may also be made to a study on "The Impact of Brick Kiln operation to the degradation of topsoil quality of Agricultural Land".2 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 account 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 directed3:
1
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, 2015.2
www.researchgate.net/publication/282431176_The_impact_of_brick_kiln_operation_to_the_degradation_of_top soil_quality_of _agricultural_land.3
Order dated 06.03.2019 in O.A. No. 20/2017 (WZ), Babubhai Ramubhai Saini vs. Gujarat Pollution Control Board & Ors.8
"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.
7. As per report submitted by the State PCB, citing norms will apply to clearance establish after a particular period but the report does not show how many brick kilns existed there. Compliance of air quality norms is also not mentioned. It is undisputed that unit set up in violation of laid down siting criteria, cannot be allowed to continue. The Principal Bench of this Tribunal has already held vide order dated 10.07.2019 in Review Application No. 34/2019, Bhag Singh Vs. Union of India & Ors. that the siting criteria can be invoked for future while renewing the consent to operate. No vested right is created by mere establishment. Is such establishment affects public health and environment, consent to operate may not be renewed, having regard to the environmental status. The SPCB has also to have regard to the carrying capacity of the area to sustain activity of brick kilns while renewing consent to operate in the light of 'Precautionary' and 'Sustainable Development', principles of Environment Act. All that is required for accessing the carrying capacity is the existing air quality and the anticipated impact of the permitted activity, which can be 9 done by the State PCB itself from time to time. It is further argued that various technologies have been developed and have been adopted by various industries for making bricks from fly ash - sand line mixture. The fly ash technology, the pollution is almost negligible. In the said system, there could be no kiln and no firing to cure the bricks. The bricks are only to be steamed with electricity or by the process of auto plate. Various technologies have been suggested by the applicant which can be adopted by the brick kilns industries to be environmentally ambient.
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 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."
8. Learned Counsel for the Applicant, Shri Zaman Ali has submitted that the air quality of Palghar, Thane, Bombay and Pune is deteriorating and causing health hazards to common citizens.
9. In light of above facts, CPCB is directed to conduct a 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.
10. Different types of activities with potential of air pollution including operation of brick kiln in the cities mentioned above should be regulated through a Graded Response Action Plan (GRAP) by 10 Environmental Pollution Control Board. In view of the expected higher concentration of PM emissions during winter months, brick kilns in the regions of high pollution may be kept closed during this period. Learned Counsel for the CPCB has submitted for grant of some time for submission of report on the following points which were discussed during the arguments:
i) Impact of brick kilns operation on loss/degradation of top soil,
ii) study involving Carrying Capacity Assessment of brick kilns 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 quality.
11. Learned Counsel for the CPCB has further submitted that having regard to the data of air quality, even though GRAP brick kilns are to be mandatory, 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.
12. 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 11 need to consider the submission that where air quality is within the norms and there is carrying capacity, brick kiln can be allowed.
13. 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 that such brick kilns are actually working on 'Zig-Zag' technology, pending further assessment of the carrying capacity by the CPCB.
14. The 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.
15. In view of the fact that there may be no carrying capacity of the air quality in the region under question, permitting 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 the region 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.12
16. The State PCB and CPCB be directed to exercise the study with the direction mentioned above and furnish a further report within three months on email of NGT at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
17. List for further consideration on 15.10.2020.
Sheo Kumar Singh, JM Siddhanta Das, EM July 01, 2020 Original Application No. 1A/2018 (WZ) R 13