National Green Tribunal
Suo Motu vs The Chief Secretary, Government Of ... on 20 January, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.5 to 7:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 76 of 2017 (SZ)
With
Original Application No.259 of 2017 (SZ) &
M.A. No. 209 to 214 of 2017 (SZ)
With
Original Application No. 260 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Proceedings initiated based on the
News item published in "Malayala Manorama News
Paper" - Malayalam Edition dated 25.03.2017 on
the Caption "BLACK CITY". ...Applicant(s)
Versus
The Chief Secretary,
Government of Kerala and others.
...Respondent(s)
With
Lawyers Environmental Awareness
Forum (LEAF) ...Applicant(s)
Versus
State of Kerala and others. ...Respondent(s)
With
Lawyers Environmental Awareness
Forum (LEAF) ...Applicant(s)
Versus
State of Kerala and others. ....Respondent(s)
1
Date of hearing: 20.01.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
O.A. No. 76 of 2017 (SZ):
For Applicant(s): Suo Motu by Court.
For Respondent(s): Mr. E.K. Kumaresan for R1 to R3 & R6
Mrs. V.K.Rema Smrithi through
Ms. Niveditha S Menon for R4.
O.A. No. 259 of 2017 (SZ) &
M.A. No. 209 to 214/2017 (SZ)
For Applicant(s): None.
For Respondent(s): Mr.E.K. Kumaresan for R1, R3 & R4.
Mrs. V.K.Rema Smrithi through
Ms. Niveditha S Menon for R2.
Mr. D.S. Ekambaram through
Mrs. Jayalakshmi for CPCB.
M/s. Sandeep Gopalakrishnan for R5.
O.A. No. 260 of 2017 (SZ)
For Applicant(s): None.
For Respondent(s): Mr.E.K. Kumaresan for R1, R3 & R4.
Mrs. V.K. Rema Smrithi through
Ms. Niveditha S Menon for R2.
2
ORDER
1. As per dated 06.01.2020 in O.A. No.259/2017, this Tribunal had considered the pleadings and then appointed a Joint Committee to go into the question and submit a report with certain directions which were extracted in Para 4 of the order dated 12.06.2020 and since all these three cases are relating to the same issue, all these cases were considered together on 12.06.2020 and the reports filed by the authorities in all these cases were considered and then, passed the following order:-
"12. We feel it appropriate to direct the Central Pollution Control Board to evolve a procedure for measuring the carbon particles namely, Carbon Monoxide (Co) and Carbon Di-oxide (Co2) and black carbon in the air which also will plays a greater role in affecting the air quality.
13. Considering the fact that the consolidated report has been called for in Original Application No. 259 of 2017 and Original Application No. 260 of 2017, this Tribunal feels that without getting that report, it is not possible for us to dispose of the case effectively.
14. So, the committee constituted is directed to complete the study and submit the consolidated report considering all the allegations and directions given in all these cases and submit an action plan for remedying the situation including phasing out of the old diesel vehicles in the State and also the remedial measures for converting the same with green and clean fuel technology.
15. In Original application No. 260 of 2017, this Tribunal had directed the Government of Kerala to submit the status report of the number of old vehicles that are plying in the State and the action taken by the Motor Vehicles Department to phase out those old vehicles as per the provisions of the Motor Vehicles Act, 1988 and to convert the same to green and clean fuel technology, so as to improve the air quality in the state. Till date, no report has been filed by the State of Kerala.
16. So, considering the facts we are granting three months time to the committee as well as the State of Kerala to come with a proper action 3 plan for resolving the issue permanently and improve the status of pollution and make State of Kerala air pollution free.
17. The committee as well as the State Government are directed to file the report as well as the status report to this Tribunal on or before 07.10.2020 through e-mail or e-filing @ [email protected]."
2. The case was posted to 07.10.2020 for consideration of report and also the action plan from the departments to meet the situation. Thereafter, the matter was adjourned from time to time by notification and it was lastly posted to today as per notification dated 15.12.2020.
3. When the matter came up for hearing today through Video Conference, there is no representation for the applicant. Mr. E.K. Kumaresan represented respondents 1 to 3 & 6 in O.A. No.76/2017, respondents 1, 3 & 4 in O.A. No.259/2017 & O.A. No.260/2017, Smt. V.K. Rema Smrithi through Ms. Niveditha S Menon represented 4th respondent in O.A. No.76/2017, 2nd respondent in O.A. No.259/2017 & 260/2017, M/s.
Sandeep Gopalakrishnan represented 5th respondent in O.A. No.259/2017 and Mr. D.S. Ekambaram through Ms. Jayalakshmi represented Central Pollution Control Board who is a member of the committee.
4. We have received the report of the Joint Committee which reads as follows:-
"Report of the committee constituted in the matter of OA No. 259 of 2017, Lawyers‟ Environmental Awareness Forum (LEAF) Vs the State of Kerala & others submitted before the Hon‟ble National Green Tribunal, South Zone, Chennai, as per order dated 06/01/2020 4 The Committee constituted as per the order dated 06/01/2020 in the matter of O.A No. 259 of 2017, Lawyers‟ Environmental Awareness Forum (LEAF) Versus the State of Kerala & Others before The Hon‟ble National Green Tribunal, South Zone, Chennai, as per order dated 19/03/2020 hereby submit the following:
1. The petitioner in the O. A. No. 259/2017 (SZ) is an organisation constituted with members of Lawyer community known as Lawyers Environmental Awareness Forum (LEAF). The issue raised by the petitioner, in this case, is regarding the anticipated air pollution that would likely to be caused in the State of Kerala due to vehicular emission and other air emissions. It is further mentioned that if the same situation continues, then it will be worse than Delhi in respect of air pollution.
Based on the grievances made by the petitioner, the Hon‟ble NGT vide order dated January 6, 2020, directed to Constitute a Committee consisting Central Pollution Control Board (CPCB), MoEFCC, Regional Office, Chennai Motor Vehicle Department of Kerala, Kerala State Pollution Control Board (KSPCB). IIT - Chennai and NEERI, Chennai for the consideration of the following Terms of References:
a. The question of ambient air quality in the State of Kerala, especially in the cities viz., Thiruvananthapuram, Kollam, Kochi, Alappuzha, Kozhikode, Thrissur, Calicut, Kasarkode and Kannur and sources of pollution and also long term and short term steps to be evolved for the purpose of reducing pollution index and improve ambient air quality in the State of Kerala.
b. Frame necessary timeline for implementing the directions given in VARDHMAN KAUSHIK case in respect of banning of old vehicles and switch over to alternate clean fuel vehicles, including CNG and electric vehicles and c. Submit a report to this Tribunal within a period of three months. The Kerala State Pollution Control Board was engaged as the nodal agency for this purpose.
2. It is respectfully submitted that, in compliance with the above directives, a committee was constituted consisting of the following officials
1. Dr. M.T Karuppiah Scientist „D‟, MoEF& CC, Regional Office, Chennai
2. Dr. S Prabhu Scientist „C‟ Regional Office (South Zone) MoEF & CC Regional Office, Bengaluru 5
3. Smt. Poornima B M Scientist „D‟ Regional Directorate -South (Bengaluru) Central Pollution Control Board
4. Dr. Deepesh. V Scientist „C‟ Regional Directorate -South (Bengaluru) Central Pollution Control Board
5. Dr. R. Sivacoumar, Sr. Principal Scientist CSIR- NEERI Zonal Centre CSIR Complex, TTTI, Chennai.
6. Sri. Bijumon K Regional Transport Officer Enforcement Division, Thiruvananthapuram
7. Smt. Bindhu Radhakrishnan Senior Environmental Engineer Kerala State Pollution Control Board Thiruvananthapuram
3. It is submitted that a member from IIT -- Chennai was to be nominated, as per the NGT order but it was informed that their experts are currently engaged in the other committees formed by NGT in some other cases and they are unable to nominate the experts and requested to be excused till the experts complete the work in connection with other committees constituted. The communication in this regard is enclosed as Annexure R2(A).
4. It is respectfully submitted that the first meeting of the Committee was held at the Head Office of the KSPCB, Thiruvananthapuram on February 27, 2020. The minutes of the meeting is provided herewith and marked as Annexure R2(B). The second meeting of the committee was proposed to be conducted in the 3% week of March 2020. But soon after, lockdown due to Covid-19 was declared and hence the meeting could not be conducted and the report could not be prepared.
As the case was posted on 04/06/2020, a time extension was sought for filing the report and was granted by the Hon‟ble NGT.
5. It is submitted the O.A No. 76 of 2017(SZ), O.A No.260 of 2017 were heard along with O.A no. 259 of 2017. The Hon‟ble NGT has observed that since the consolidated report has been called for in O.A no.
6259 of 2017 and 260 of 2017, it is not possible to dispose of case effectively. The court has directed the Committee to conduct the study and submit the consolidated report considering all the allegations and directions given in all these cases and submit an action plan for remedying the situation including phasing out of the old diesel vehicles in the State and also the remedial measures for converting the same with green and clean fuel technology. The committee, as well as the State Government, are directed to file the report as well as the status report to the Tribunal on or before 07.10.2020.
6. It is submitted that in the present situation Covid-19 pandemic, the second meeting of the committee could be held only on 08.09.2020 through Google meet. In the joint committee meetings, CPCB representative have insisted for source apportionment study and emission inventory studies as per the conceptual guidelines prepared by CPCB. All other members were of the opinion to submit a report based on the present ambient air quality data and not to commit on source apportionment as modelling studies are not being preffered as it has many constraints to defend. All these comments are recorded in the minutes of 2 nd joint committee meeting and the minutes of the meeting is produced herewith and marked as Annexure R2(C).
7. It is submitted that the committee decided to file a report before the Hon‟ble NGT based on the data available with the KSPCB from the existing manual ambient monitoring stations under National Air Monitoring Programme, State Air Monitoring Programme and Continuous Ambient Air Quality Monitoring Stations collected immediately before, after, and during the lockdown. Accordingly, the report was prepared on the present air quality status and then circulated among all the committee members. Copy of the report is produced herewith and marked as Annexure R2(D)
8. It is respectfully submitted that Board had established 35 manual air quality monitoring stations and 9 CAAQMS across the State. The parameters SPM, RSPM, SO2, NOx are being monitored in all manual monitoring stations and monitoring of PM2.5 is started in certain stations. In CAAQMS SO2, NH3, CO, O3, PM10, PM2.5, etc are being monitored. In this study air quality data from 23 manual stations and 8 CAAQMS in the 8 cities (Thiruvananthapuram, Kollam, Alappuzha, Kochi, Thrissur, Kozhikkode, Kannur, and Kasaragod) in Kerala during the pre lockdown (1st March 2020 to 23 March 2020 ), lockdown (234 March 2020 to 31st May 2020) and post lockdown (1st June 2020 to 30 June 2020) periods 7 were analysed. It may kindly be noted that the districts named Calicut and Kozhikkode are one and the same.
9. It is respectfully submitted that the State Pollution Control Board issue consents to industrial units only after implementing adequate pollution control measures & compliance with the prevailing Rules. Periodical inspections are being conducted by the Board in industries and the pollution control measures adopted by them are being verified. The Board ensures connectivity of the Online Continuous Emission Monitoring System (OCEMS) of industries with the Board‟s portal. Adequate actions are also being taken to rectify the same, Non-compliance, if any, noticed by Board.
10. The district wise ambient air quality status as per the study is depicted as below:
a. In Thiruvananthapuram, the data from two CAAQMS and four manual ambient air quality monitoring stations were analysed. the concentration of SO2 and NOx are found to be below the prescribed standard limit as of 80 ug/m3. The 24 hours concentration of RSPM and SPM are found to be within the prescribed standard limit of 100ug/m 3 and 60ug/m3 respectively in the district.
b. In Kollam, data from one CAAQMS and two manual ambient air quality monitoring stations were analysed. It is observed that all the measured parameters in the manual and continuous monitoring stations are well within the prescribed limits c. In Alappuzha, data from two manual ambient air quality monitoring stations were analysed and observed that all the parameters are well within the prescribed limits.
d. In Kochi, data from seven manual ambient air quality monitoring stations and three CAAQMS and have been analysed and parameters are well within the prescribed limit for manual ambient air quality monitoring stations. In the case of the Vytilla CAAQM Station some exceedance in NOx, PM, and CO is noticed. Even then the monthly average value of NOx and PM is within the prescribed limit and only CO exceeded the limit.
e. In Thrissur, data from two manual ambient air quality monitoring stations have been analysed and observed that all the measured 8 parameters in the manual monitoring stations are well within the prescribed limits.
f. In Kozhikode (Calicut), data from one CAAQMS and two manual ambient air quality monitoring stations have been analysed and all the measured parameters in the manual and continuous monitoring stations are well within the prescribed limits.
g. In Kannur, data from one CAAQMS and one manual ambient air quality monitoring stations were analysed and observed that all the measured parameters in the manual and monitoring stations were well within the prescribed limit.
h. In Kasaragod, data from two manual ambient air quality monitoring stations were analysed and observed that all the parameters are well within the prescribed limits.
11. It is respectfully submitted that the overall result of the analysis reveals that in all the eight cities the concentration of RSPM, SPM, SOz2, and NOx were found to be within the prescribed standard limit in all the 22 manual monitoring stations. In the case of seven numbers of CAAQM stations, all parameters are within the prescribed standards and in the case of CAAQMS at Vytilla the parameters namely NOx, CO, and PM showed exceedance for a few days
12. It is respectfully submitted that the data analysis it is noted that, as a result of stringent restrictions on travelling, industry functioning, and shutting down of non-essential activities air quality improvement is noted during lockdown period all over the State. The air quality parameters have not risen beyond the standard rates and an increase is seen for particulate matter but that too falls within limits and hence the situation is not alarming and Hon‟ble NGT may kindly be noted that none of the cities in Kerala are included in non-attainment cities.
13. It is humbly submitted that the guidelines to implement the phasing out of the old vehicles and replacing the same with alternate greener and clean fuel efficiency vehicles are policy decisions of the State Govt the State Govt is also respondent, in this case, these policy decisions have to come up from the State Govt itself.
14. It is respectfully submitted that, in view of the result as shown in the report, the air quality of the mentioned district in Kerala is well within the prescribed limits. However, this may be shifted/varied due to 9 Vehicular Emissions, Burning of biomass, crop residues, and Solid waste, Dust emission from roods, Construction and Demolition Waste, Industrial Emission, etc. But the air quality can be maintained well by adopting the following short term and long term measures.
Short term steps suggested for improving Air Quality Sl. Action Implementing Agency NO.
1 Launching extensive awareness drive Motor Vehicle Department against polluting vehicles 2 Ensuring strict action against visibly Motor Vehicle Department polluting vehicles 3 Steps to prevent parking of vehicles in Motor Vehicle Department / non designated areas. State Police Traffic 4 Introducing Wet / Mechanized vacuum Local Self Government sweeping of roads. Department 5 Controlling dust pollution at Local Self Government construction sites by providing an Department appropriate covering system 6 Ensuring carriage of construction Police Department material in closed/ covered vessels.
Long term steps suggested for improving Air Quality Sl. Action Implementing Agency No. 1 Retrofitting of diesel vehicles with Motor Vehicle Department particulate filters 2 Installation of the vapour recovery system Petroleum and Explosives in fuelling stations Safety Organization (PESO)/ Pollution Control Board 3 Promoting battery operated vehicles Motor Vehicle Department 4 Banning of old diesel vehicles in a phased Motor Vehicle Department manner 5 Undertaking Green of open areas Local Self-Government Department/Public Works Department 6 Creation of green buffers along the traffic Local Self-Government corridors. Department/Public Works Department 7 Development of a proper system for Local Self Government ensuring garbage/ municipal solid waste/ Department bio mass/ leaves connection and disposal and to avoid open burning.
8 Promoting the use of LPG only and to Local Self Government avoid the use of kerosene/ firewood in Department restaurants/ dhabas/ roadside eateries.
9 Introduce water foundations at major State Highway Authority of
traffic intersection, wherever feasible Kerala (SHAK)/ National
Highway Authority of India/
Public Works Department
(PWD)
10 Take steps for blacktopping / pavement of Public Works Department
10
road shoulders to avoid road dust (PWD)
11 Prepare an action plan for public Motor Vehicle Department
transport on CNG mode
12 Ensure the proper collection of solid waste Local Self Government
(biomass) Department (LSGD)
13 Ensure strict enforcement of the ban on Agricultural Department
burning of agricultural waste and crop
residues
14 Ensure strict action against industrial Pollution Control Board.
units not complying with standards.
15 Ensure DG sets meeting the standards only Department of Electrical
be allowed to operate. Inspectorate/ Pollution Control
Board (KSPCB)
16 Undertake road widening and Public works Department
improvement of infrastructure for (PWD)
decongestion of road
15. It is respectfully submitted that the concentration of all the pollutant parameters measured in 29 stations out of 30 stations in eight cities during the period 1st March 2020 to 30% June 2020 is well within the limit with low-level concentration of pollutants. Only in one CAAQMS at Vyttila exceedance of the pollutant CO was observed for a short period. In view of in Air Quality status prevailing in these districts, the State Government shall co- ordinate all the concerned departments to-implement the above suggested short term and long term measures in order to maintain the good air quality of the State. The Hon‟ble NGT may be pleased to issue a favourable order accordingly."
5. We have also received the status report submitted on behalf of the 1 st respondent which reads as follows:-
"Status Report submitted on behalf of 1st respondent/State Government The 1st respondent submits its report as follows:
1. It is submitted that the Hon‟ble Tribunal in its order dated 19.03.2020 and 12.06.2020 in the above said O.A. No.260/2017, directed to 1st respondent to file a status report of number old vehicles that are plying the state and the action taken by the Motor Vehicle Department to face out those old vehicles as per the provisions of Motor Vehicle Act, 1988 and to convert the 11 same to green and clean fuel technology so as to improve the air quality in the State.
2. It is submitted that in order to ensure the environmental sustainability and to reduce pollution, the 1st respondent herein envisaged the Electric Vehicle Policy as part of this Government are encouraging the use of electric vehicles and planning to switch over from diesel to CNG/LNG/ Electricity as fuel for public transport buses including KSRTC.
3. It is submitted that as per the G.O. (RT) No.346/2020/Trans, dated 22.10.2020 permission has been granted for purchase of 310 CNG buses to KSRTC with a loan of 259 Crore from KIIFB and 50 Electric buses on Wet Lease basis under frame II scheme of the Central Government.
4. It is submitted that in addition 50 Diesel buses is to be converted into LNG buses tested and approved by various authorities including the Petroleum and Explosive Safety Organization, on the condition that after they star running the remaining buses can be converted to LNG. It is submitted that vide G.O. (RT) No.339/2020/Trans, dated 20.10.2020 administrative sanction has been given for a project to convert 400 Diesel Buses into LNG Buses with KIIFB Loan and also issued the administrative sanction for Project and Establishment for Hydrogen Generator and Dispensing Unit to study the performance, operation issues and safety to cater to the e-
mobility section at an estimated amount of Rs.9.66 Crores"
It is therefore prayed that this Hon‟ble Tribunal consider the detailed report and pass such further or other suitable orders and thus render justice.
Dated at Chennai on this the 19th day of January, 2021."12
6. The 1st respondent has also produced certain notification issued in the State of Kerala amending the Kerala Motor Vehicle Rules, 1989 by incorporating Rule 292A as follows:-
"292A. Special provision applicable to auto-rickshaws operated as public service vehicle:-
No auto-rickshaws older than fifteen years and powered by diesel fuel shall be permitted to be operated from 01st January, 2021 unless they are converted into vehicles powered by Electrical Energy, Liquid Petroleum Gas (LPG), Compressed Natural Gas (CNG) or Liquified Natural Gas (LNG)."
7. As per this Rules, they have only prohibited auto-rickshaws of more than 15 years using diesel fuel operation from 01.01.2021. Further, it is seen from the status report filed by the 1st respondent that they propose to purchase 310 CNG buses and electrically operated vehicles for KSRTC.
8. It is not known as to how many vehicles are there under the custody of the KSRTC which are more than 15 years old and using BS IV model fuel as even as per the directions of the NGT in Vardhman Kaushik case as approved by the Hon‟ble Apex Court, there is nothing mentioned about phasing out the old public carrying vehicles including the buses owned by the Government as well as the private operators which are more than 15 years old which is permitted as per the Motor Vehicles Rules.
9. Further as per the direction in Vardhman Kaushik case, after 01.04.2020 no diesel vehicles can use BS IV fuel, but they will have to convert into 13 BS VI. It is not known as to whether any such steps have been taken to implement that in the State of Kerala and if so, what is the number of vehicles which have been phased out to the new form of fuel.
10.Further, the Joint Committee report shows that except Vyttila in Ernakulam District, in all other areas the Ambient Air Quality is within the permissible level „Category Good‟. It may be mentioned here that the Ambient Air Quality analysis was done at the time when the Covid restrictions were there.
11.Further, the report suggested certain short term and long term measures to be taken by each department, but it is not given any timeline for carrying out such long term and short term measures provided. Further, it is for the individual department also to come with their proper action plan as to how they are going to implement these recommendations in an effective manner to control pollution in the State of Kerala.
12.Further, there was a direction given by this Tribunal to conduct Source Apportionment study and Emission Inventory study as per CPCB guidelines, but no such study was seen conducted by the committee.
13.So under such circumstances, we direct the committee to consider the observation made and conduct further Ambient Air Quality test when the activities in the State are in peak operation and then submit a further detailed report to this Tribunal regarding the result of the study that has 14 been conducted and the remedial measures, if any, to be given for that purpose.
14.Further, the independent departments who have directed to carry out certain recommendations are also directed to file their independent status report regarding the action plan with shorter timeline as to how they are going to implement the recommendations made by the committee to check the air pollution in the State of Kerala.
15.It is true that in the study conducted by the Central Pollution Control Board, the State of Kerala is not shown as critically polluted State but that doesn‟t mean that the city can be allowed to be critically polluted and thereafter, take measures to prevent the same. The general rule is "To treat the cause, not the disease" so as to make the environment clean, for which due scientific approach must be adopted by the state instrumentalist so as to curb the source of pollution and make the environment free from pollution by providing clean air for the people in the State which is part of their obligation to protect the Right to Life as enshrined under Article 21 of the Constitution of India.
16.The committee as well as the independent State respondents are directed to submit their reports as well as the status report and action plan to this Tribunal on or before 09.03.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with the necessary hardcopies to be produced as per Rules.
1517.The Registry is directed to communicate this order to the members of the committee, officers mentioned in the Joint Committee report and also to the Chief Secretary, State of Kerala, Principal Secretaries of Motor Vehicle Department and Environment, Local Administration, Public Works Department by e-mail immediately so as to enable them to comply with the direction.
18.For consideration of further report and independent status report to be filed by the state machineries, post on 09.03.2021.
.......................................J.M. (Justice K. Ramakrishnan) .................................E.M. (Shri. Saibal Dasgupta) O.A. No.76/2017, O.A. No.259/2017, O.A. No.260/2017 , 20th January, 2021. Mn.
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