National Green Tribunal
Central Pollution Control Board vs News Item Published In ,Asian Age, ... on 10 July, 2019
Bench: Adarsh Kumar Goel, K. Ramakrishnan
Item No. 05 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 1038/2018
News item published in "The Asian Age" Authored by Sanjay Kaw
Titled "CPCB to rank industrial units on pollution levels"
Date of hearing: 10.07.2019
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): NONE
For Respondent (s): Mr. Pradeep Misra, Advocate for UPPCB
Mr. TVS Raghavendra Sreyas, Advocate for
APPCB
Mr. Dhanajay Baijal, Advocate for TSPCB
Mr. Jogy Scaria, Advocate for KSPCB
Ms. Sakshi Popli, Advocate for DPCC
Mr. Rajkumar, Advocate for CPCB
ORDER
1. The issue for consideration is the remedial action against the polluting industries in the identified polluting industrial clusters. The Tribunal, vide order dated 13.12.2018, treated the news item published in "The Asian Age" dated 06.12.2018 authored by Mr. Sanjay Kaw titled "CPCB to rank industrial units on pollution levels"
as an application in view of substantial question of environment which could be dealt with by the Tribunal under Sections 14, 15 and 20 of the National Green Tribunal Act, 2010.
2. We may note the background of the issue briefly. The Central Pollution Control Board (CPCB) in exercise of its statutory functions under the Air (Prevention and Control of Pollution) Act, 1981 (the Air 1 Act), the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act) and the Environment (Protection) Act, 1986 (the EPA Act) carried out the physical study of the industrial clusters in the country with reference to the Comprehensive Environmental Pollution Index (CEPI) which includes weightages on nature of pollutants, ambient pollutant concentrations, receptors (number of people affected) and additional high risk element. On the basis of the study jointly carried out by the CPCB and State PCBs in 2009-10, 88 industrial clusters were notified as Polluted Industrial Areas (PIAs). These PIAs were ranked as 'critically polluted area' (CPA), 'severely polluted area' (SPA) and 'other polluted areas' (OPAs), depending upon the CEPI scores of each of these industrial areas. Where the CEPI score crossed 70, the areas are designated as CPAs, where the index was between 60-70, they are designated as SPAs and those below 60 as OPAs. As per the CPCB's monitoring of industrial clusters based on CEPI-2009, 43 industrial clusters in 16 cities were identified as CPAs and 32 were identified as SPAs. The CPAs and SPAs were to bring the pollution levels within the norms by formulating and implementing an action plan with short term and long term measures within one year or more. New units in the said areas were prohibited but such ban was later on lifted.
3. In 2016, the criterion for determining CEPI was revised. CPCB revised its CEPI criteria and laid out components which included, scale of industrial activity, scale of exceedance of environmental quality (level of exposure), health related statistics and compliance status of industries.
4. On 26.04.2016, the CPCB issued directions under Section 18 of the Air Act and the Water Act to the SPCB of Andhra Pradesh, Telangana, 2 Uttar Pradesh, Karnataka, Punjab, Jharkhand, Haryana, Gujarat, Govt. of NCT Delhi, Tamil Nadu, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh, West Bengal, Kerala, requiring continuous environmental quality monitoring in all CPAs and SPAs, installation of Continuous Ambient Air Quality Monitoring Stations (CAAQMS), Continuous Water Quality Monitoring Stations (CWQMS) for CEPI score evaluation as per revised formulae and to formulate their action plans before 15.06.2016. The polluting sources were required to be notified in public domain on websites, environmental quality data was also to be placed in public domain, State Governments were to notify the scaled maps of the industrial areas. The object of placing such data in public domain was to give warning for bringing the pollution levels within the prescribed limits. The polluted clusters were to be kept in mind for permitting setting up of further industries or expanding of the existing industries.
5. Based on the CEPI-2016 criterion, CPCB carried out further monitoring in the year 2017-18 where it was found that number of identified polluted industrial clusters went up to 100. The said number includes 38 critically polluted, 31 severely polluted and remaining 31 as other polluted areas.
6. The Tribunal vide order dated 13.12.2018 directed all the State Pollution Control Boards/Committees (PCCs) to finalize time bound action plans within three months so as to bring all polluted industrial clusters within the safe parameters under the provisions of the Air Act and the Water Act. The SPCBs and CPCB were free to take coercive measures, including recovery of compensation for damages to the environment on 'Polluter Pays' principle and also to adopt precautionary measures on 'Precautionary' principle. The CPCB was 3 directed to serve a copy of the above mentioned order to all the SPCBs who were to furnish the same to the respective Chief Secretaries of the States for necessary action. The MoEF&CC was directed to take steps on the basis of report of the CPCB. Action taken reports were to be furnished by the CPCB and the MoEF&CC to this Tribunal before 31.05.2019. In the States, action plans were to be prepared by Committees headed by the Chief Secretaries.
7. Ill effects of industrial pollution on the environment and public health are well acknowledged. This has made it necessary to strictly apply the principles of 'Sustainable Development' and permit any activity to be carried out without degrading the environment. The statutory scheme under the Air Act, the Water Act and the EPA Act provides for standards for air and water quality which must be maintained and violation thereof is a criminal offence1. Any violation has to be visited with stopping of polluting activity, prosecution and compensation for restoration of environment. Accordingly, in the order dated 13.12.2018 this Tribunal observed:
"5. Purpose of economic development in any region is to provide opportunities for improved living by removing poverty and unemployment. While industrial development invariably creates more jobs in any region, such development has to be sustainable and compliant with the norms of environment. In absence of this awakening or tendency for monitoring, industrialization has led to environmental degradation on account of industrial pollution. It is imperative to ensure that steps are taken to check such pollution to uphold statutory norms. Adequate and effective pollution control methods are necessary.
6. Dust, smoke, fume and toxic gas emissions occur as a result of highly polluting industries such as thermal power plants, coal mines, cement, sponge iron, steel and ferrow alloys, petroleum and chemicals unless right technology is used and precaution taken. Industry specific clusters have not only become hazardous but 1 Section 7 read with Section 15 of the EPA Act, Section 24 read with Section 41 and Section 45A of the Water Act, Section 21 and Section 22 read with Section 37 of the Air Act.4
also cause irreparable damage to our ecology and environment, often breaching the environment's carrying capacity, adversely affecting public health.
7. In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Ors2, the Hon'ble Supreme Court observed, as guiding rules for Sustainable Development, that humanity must take no more from nature than man can replenish and that people must adopt lifestyles and development paths that work within the nature's limit. In Vellore Citizens Welfare Forum Vs. Union of India, the Hon'ble Supreme Court recognized the Precautionary Principle and explained that environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation.
8. This Tribunal has applied the same principles in deciding matters before it in terms of Section 20 of the National Green Tribunal Act 2010.
13. The action plan to be prepared in the States may be done by the Committee constituted by the Chief Secretary within one month from today as several Departments may be involved in the exercise. The final preparation of the action plan including its execution may be overseen by the Chief Secretary of the concerned State, along with the other connected major environmental issues of the States, such as pollution of river stretches, non- attainment cities in terms of air quality and solid waste management, utilization of treated sewage, covered by order of this Tribunal dated 20.09.2018 in Original Application No. 673/2018, News Item Published in 'The Hindu' authored by Shri. Jacob Koshy titled "More river stretches are now critically polluted: CPCB", order dated 08.10.2018 in Original Application No. 681/2018, News Item Published In 'The Times of India' Authored by Shri. Vishwa Mohan Titled "NCAP with Multiple Timelines to Clear Air in 102 Cities to be released around August 15", order dated 20.08.2018 in Original Application No. 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016 and order dated 27.11.2018 in Original Application No. 148/2016, Mahesh Chandra Saxena Vs. South Delhi Municipal Corporation & Ors. The Chief Secretary will take meetings on all these issues once in three months (quarterly) and will forward Report to NGT by e-mail."
8. We may also note that on 16.01.2019, while considering the issue of compliance of Solid Waste Management Rules, 2016 and other Waste Management Rules in O.A. No. 606/2018, Compliance of MSW Rules, 2016, the Tribunal required the presence of the Chief Secretaries in 2 (2006) 6 SSC 383 5 person after monitoring the subjects mentioned in the said order which included polluted industrial clusters.
9. Accordingly, the Chief Secretaries appeared before this Tribunal and filed their respective versions on the subject. They have been asked to take necessary steps to enforce the environment norms and furnish periodical reports to this Tribunal. The directions include monitoring of important environmental issues including the issue of polluted industrial clusters by a Central Monitoring Committee with representatives from the Central Government and the Chief Secretaries of the States, undertaking carrying capacity study of the areas where violation of environmental norms is established, training programme of the officers concerned with the enforcement of the environmental norms, preparation of annual environmental plan for the country giving status of gaps in compliance of environmental norms.3 The Tribunal noted the private studies which may need to be verified assessing the number of deaths and diseases from pollution4:
"38. Death attributable to pollution to be 2.51 million in 2015, highest in the world. Air pollution, the number of deaths in India from ambient air pollution was 1.09 million, while deaths from household air pollution from solid fuels were 0.97 million. In the case of water pollution, 0.5 million deaths were caused by unsafe water source, while unsafe sanitation caused 0.32 million deaths. Deaths from air pollution were a result of diseases such as heart disease, stroke, lung cancer, and chronic obstructive pulmonary disease (COPD). Pollution has been responsible for the most non- communicable disease deaths. India ranks a dismal 110 of 149 countries on the Sustainable Development Index. With rapid urbanization, the country is facing massive waste management challenge. Over 377 million urban people live in 7,935 towns and cities and generate 62 million tonnes of municipal solid waste per annum. Only 43 million tonnes (MT) of the waste is collected, 11.9 MT is treated and 31 MT is dumped in landfill sites. An alarming 80% of India's surface water is polluted. Indian cities generate 10 billion gallons or 38 billion litres of municipal waste water every day, out of which only 29% of it is treated.
40. In case extent of convictions for the environment related offences do not correspond to the extent of crime, paradigm shift in 3 O.A 606/2018, order dated 17.05.2019, at para 27 4 Ibid 6 policies and strategies for implementation of law may need to be considered. Similarly, the mechanism for recovery of compensation may need to be revised on that pattern. Such review of policy cannot be left to the Local Bodies or the Pollution Control Boards but has to be at highest level in the State and further review at the national level. As noted in some of the studies, the ranking of the country in compliance of environmental norms needs to be brought to respectable higher position which may be possible only if there is change in policies and strategies for implementation of necessary norms at every level in right direction. The scale of compensation needs to be suitably revised so that the same is deterrent and adequate to meet the cost of reversing the pollution."
10. Some of the States have also filed their reports in the present proceedings apart from the reports of the Chief Secretaries mentioned above. Further, a report has also been filed by the CPCB. According to the CPCB report, order dated 13.12.2018 stands served to all the State PCBs and the PCCs. The CPCB with the concurrence of MoEF&CC carried out environmental quality monitoring in 21 States across the country in respect of the said 100 industrial clusters based on the revised CEPI-2016, by engaging the services of approved laboratories. The said reports have been analysed. Further information has been sought from the State PCBs/ PCCs. Comprehensive exercise and consultative process has been undertaken and CEPI scores of all the 100 Polluted Industrial Areas (PIAs) were submitted to MoEF&CC on 11.01.2019 and the MoEF&CC replied in letter dated 25.02.2019 that there are some gaps in the information. Further information relating to such gaps were sought from the States by the MoEF&CC. Thereafter, updated CEPI scores for all 100 PIAs have been submitted by CPCB to MoEF&CC on 10.04.2019. The CPCB has also prepared a protocol and submitted the same to the MoEF&CC on 17.05.2019 for consideration and appropriate action.
11. During the hearing today, a copy of the letter dated 17.05.2019 was handed over by the Learned Counsel for the CPCB, indicating the 7 latest CEPI scores for 100 polluted industrial areas/clusters monitored during 2018. The said scores are as follows:
The CEPI Scores in descending order for Industrial Areas/Clusters monitored during 2018 Sl. Name of Polluted Industrial Air Water Land * CEPI # Status of No. Areas (PIAs) Score Environment
1. Tarapur(Maharashtra) 72.00 89.00 59.25 93.69 Ac_Wc_Ls
2. Najafgarh-Drain basin 85.25 86.00 55.75 92.65 Ac_Wc_Ls including Anand Parbat, Naraina, Okhla, Wazirpur(Delhi)
3. Mathura(Uttar Pradesh) 86.00 81.00 45.00 91.10 Ac_Wc_Ln
4. Kanpur(Uttar Pradesh) 66.00 85.00 45.00 89.46 Ac_Wc_Ln
5. Vadodara(Gujarat) 82.00 80.75 48.75 89.09 Ac_Wc_Ln
6. Moradabad(Uttar 76.00 71.50 68.75 87.80 Ac_Wc_Lc Pradesh)
7. Varanasi-Mirzapur(Uttar 67.50 80.00 39.63 85.35 Ac_Wc_Ln Pradesh)
8. Bulandsahar-Khurza(Uttar 79.50 76.00 36.75 85.23 Ac_Wc_Ln Pradesh)
9. Gurgaon(Haryana) 70.00 80.00 36.75 85.15 Ac_Wc_Ln
10. Manali (Tamil Nadu) 59.75 72.25 71.75 84.15 As_Wc_Lc
11. Panipat(Haryana) 66.00 72.75 60.00 83.54 Ac_Wc_Lc
12. Firozabad(Uttar Pradesh) 76.00 72.00 32.50 81.62 Ac_Wc_Ln
13. Udham Singh Nagar 33.00 79.50 26.00 81.26 An_Wc_Ln (Uttarakhand)
14. Jodhpur (Rajasthan) 67.00 66.00 65.00 81.16 Ac_Wc_Lc
15. Pali (Rajasthan) 66.00 65.00 65.50 80.48 Ac_Wc_Lc
16. Ankleshwar (Gujarat) 72.00 57.50 51.00 80.21 Ac_Ws_Ls
17. Gajraula Area(Uttar 71.00 70.00 45.00 80.14 Ac_Wc_Ln Pradesh)
18. Vapi (Gujarat) 66.00 75.00 30.00 79.95 Ac_Wc_Ln
19. Siltara Industrial Area 76.00 51.75 31.75 79.94 Ac_Ws_Ln (Chhattisgarh)
20. Bhiwadi (Rajasthan) 66.50 71.00 44.75 79.63 Ac_Wc_Ln
21. Vellore -North Arcot 49.00 75.00 35.75 79.38 An_Wc_Ln (Tamil Nadu)
22. Sanganer Industrial Area 65.00 71.88 39.50 79.10 Ac_Wc_Ln (Rajasthan)
23. Byrnihat (Assam) 67.00 70.50 39.50 78.31 Ac_Wc_Ln
24. Peenya(Karnataka) 41.00 66.00 70.00 78.12 An_Wc_Lc
25. Jaipur (Rajasthan) 61.88 71.88 31.75 77.40 Ac_Wc_Ln
26. Surat (Gujarat) 46.00 68.25 56.00 76.43 An_Wc_Ls
27. Chandrapur 75.00 23.75 23.75 76.41 Ac_Wn_Ln (Maharashtra)
28. Agra(Uttar Pradesh) 60.00 66.88 47.00 76.22 Ac_Wc_Ln
29. Pattancheru Bollaram 56.00 70.00 32.25 75.42 As_Wc_Ln 8 (Telangana)
30. Jalandhar (Punjab) 53.50 66.88 44.50 74.76 As_Wc_Ln
31. Ludhiana (Punjab) 53.50 71.00 16.00 73.48 As_Wc_Ln
32. Tiruppur (Tamil Nadu) 33.00 65.00 64.00 72.39 An_Wc_Lc
33. Ghaziabad(Uttar Pradesh) 57.50 66.00 32.25 72.30 As_Wc_Ln
34. Mettur (Tamil Nadu) 41.25 19.38 69.38 71.82 An_Wn_Lc
35. KIADB Industrial Area, Jigini, 52.00 66.00 28.25 70.99 As_Wc_Ln Anekal (Bengaluru)
36. Vatva(Gujarat) 57.00 66.00 25.50 70.94 As_Wc_Ln
37. Raipur (Chhattisgarh) 67.00 45.75 25.00 70.77 Ac_Wn_Ln
38. Rajkot(Gujarat) 51.75 61.50 45.75 70.62 As_Wc_Ln
39. Aurangabad(Maharashtra) 45.00 65.38 28.75 69.85 An_Wc_Ln
40. Dombivali (Maharashtra) 62.00 63.50 27.25 69.67 Ac_Wc_Ln
41. Nashik(Maharashtra) 56.50 60.00 42.00 69.49 As_Wc_Ln
42. Batala (Punjab) 63.00 62.75 25.50 68.92 Ac_Wc_Ln
43. Noida(Uttar Pradesh) 59.75 62.75 27.00 68.76 As_Wc_Ln
44. Baddi(Himachal Pradesh) 63.00 63.75 19.75 68.26 Ac_Wc_Ln
45. Vijayawada(Andhra 60.50 49.25 38.75 68.04 Ac_Wn_Ln Pradesh)
46. Bandel (West Bengal) 59.50 47.00 42.75 67.64 As_Wn_Ln
47. Ramgarh(Jharkhand) 56.75 50.00 46.25 66.75 As_Ws_Ln
48. Kukatpally (Telangana) 43.75 61.00 32.00 66.46 An_Wc_Ln
49. Ib-Valley (Orissa) 48.75 59.00 36.75 66.35 An_Ws_Ln
50. Tuticorin (Tamil Nadu) 29.75 46.00 61.00 66.34 An_Wn_Lc
51. Navi 56.00 63.00 16.00 66.32 As_Wc_Ln Mumbai(Maharashtra)
52. Meerut(Uttar Pradesh) 52.00 65.00 6.00 66.09 As_Wc_Ln
53. Parwanoo(Himachal 19.00 61.88 53.75 65.77 An_Wc_Ls Pradesh)
54. Kala Amb(Himachal 17.00 64.00 27.75 65.70 An_Wc_Ln Pradesh)
55. Bidar(Karnataka) 31.00 60.00 45.50 65.64 An_Wc_Ln
56. Durgapur (West Bengal) 62.50 43.50 18.75 65.56 Ac_Wn_Ln
57. Aligarh(Uttar Pradesh) 56.25 61.88 11.88 64.42 As_Wc_Ln
58. Hajipur(Bihar) 57.50 41.13 39.25 64.36 As_Wn_Ln
59. Hazaribagh(Jharkhand) 61.00 20.00 41.00 64.20 Ac_Wn_Ln
60. Coimbatore (Tamil Nadu) 47.25 53.75 45.25 63.64 An_Ws_Ln
61. Singrauli (UP & MP) 45.00 57.25 27.75 62.59 An_Ws_Ln
62. Cuddalore (Tamil Nadu) 25.00 58.25 41.25 62.56 An_Ws_Ln
63. Faridabad(Haryana) 55.25 53.75 28.75 62.17 As_Ws_Ln
64. Bhavnagar (Gujarat) 61.00 15.50 15.50 61.94 Ac_Wn_Ln
65. Howrah (West Bengal) 60.50 20.00 16.00 61.76 Ac_Wn_Ln
66. Paradeep (Orissa) 43.00 57.50 17.00 60.61 An_Ws_Ln
67. Erode (Tamil Nadu) 34.13 47.00 52.75 60.33 An_Wn_Ls
68. Saraikela (Jharkhand) 57.75 17.50 34.00 60.26 As_Wn_Ln 9
69. Kattedan(Telangana) 42.25 50.75 45.25 60.17 An_Ws_Ln
70. Dhanbad(Jharkhand) 43.00 57.50 12.50 59.78 An_Ws_Ln
71. Indore(Madhya Pradesh) 18.50 56.88 20.75 58.53 An_Ws_Ln
72. Bhadravati(Karnataka) 45.00 52.00 30.00 58.48 An_Ws_Ln
73. Mandideep (Madhya 56.00 55.25 10.00 58.43 As_Ws_Ln Pradesh)
74. Mangalore(Karnataka) 15.00 54.50 54.25 58.20 An_Ws_Ls
75. Barajamda(Jharkhand) 51.88 25.63 46.75 57.64 As_Wn_Ln
76. Korba (Chhattisgarh) 43.75 17.75 54.00 57.57 An_Wn_Ls
77. Ahmedabad(Gujarat) 53.50 48.50 16.00 57.11 As_Wn_Ln
78. Haridwar (Uttarakhand) 50.75 52.38 13.75 55.70 As_Ws_Ln
79. Asansol (West Bengal) 54.00 16.25 13.75 55.03 As_Wn_Ln
80. Chembur(Maharashtra) 52.25 50.75 10.00 54.67 As_Ws_Ln
81. Morbi (Gujarat) 51.00 47.25 14.00 54.24 As_Wn_Ln
82. Mandi Govindgarh 23.75 53.75 1.50 53.91 An_Ws_Ln (Punjab)
83. Raichur(Karnataka) 32.75 47.88 32.50 53.42 An_Wn_Ln
84. West 51.88 25.88 11.25 53.28 As_Wn_Ln Singhbhum(Jharkhand)
85. Greater Kochin (Kerala) 47.38 35.88 29.50 52.94 An_Wn_Ln
86. Pimpari- 52.00 6.25 5.25 52.16 As_Wn_Ln Chinchwad(Maharashtra)
87. Gwalior (Madhya 50.00 43.13 7.75 51.67 As_Wn_Ln Pradesh)
88. Junagarh (Gujarat) 47.00 25.00 35.00 51.64 An_Wn_Ln
89. Jajpur (Orissa) 43.50 26.25 41.25 49.62 An_Wn_Ln
90. Nagda -Ratlam (Madhya 12.00 47.00 28.00 48.78 An_Wn_Ln Pradesh)
91. Jamshedpur(Jharkhand) 46.00 19.25 20.25 48.10 An_Wn_Ln
92. Mahad(Maharashtra) 41.00 35.75 29.00 47.12 An_Wn_Ln
93. Bhillai-Durg 43.00 32.75 19.75 46.69 An_Wn_Ln (Chhattisgarh)
94. Angul Talchar (Orissa) 44.75 13.25 23.00 46.43 An_Wn_Ln
95. Haldia (West Bengal) 45.00 35.00 3.75 45.72 An_Wn_Ln
96. Vishakhapatam (Andhra 27.25 12.75 42.75 44.74 An_Wn_Ln Pradesh)
97. Dewas (Madhya Pradesh) 28.00 31.63 31.75 37.79 An_Wn_Ln
98. Jharsuguda (Orissa) 36.00 21.50 8.75 37.20 An_Wn_Ln
99. Digboi (Assam) 23.50 25.25 6.50 26.39 An_Wn_Ln
100. Pithampur (Madhya 13.50 19.50 6.75 20.23 An_Wn_Ln Pradesh) 10
12. Question for consideration is whether mere making of action plans obviates the requirement of enforcing the law. Continued polluting activities are criminal offences under the law of the land. The rule of law requires prohibiting such activities to5 safeguard the environment and the innocent victims6.
13. The answer has to be in the negative. Once the industrial clusters have been notified as polluting, while action plans may certainly be prepared, the polluting activity, which is a criminal offence, cannot be allowed to be continued. The essence of rule of law is that no activity which is against the law is allowed to continue and the person violating the law is punished according to law.7 Thus merely requiring improvement does not obviate the need for punishing the law violators/polluters; stopping polluting activity and recovering compensation for the damage already caused so as to recover the cost of restoration8 is the mandate of law. This having not been done, the Tribunal is under a duty to direct the statutory regulators to perform their functions and take steps forthwith for stopping polluting activities, initiating prosecutions against the polluters and assessing and recovering compensation from such identified polluters at least for five years which is the period specified under Section 15(3) of the National Green Tribunal Act, 2010.
5 Under Section 5 of the EPA Act, Section 31A of the Air Act and Section 33A of the Water Act, the power of Board to give directions includes the power to direct the closure, prohibition or regulation of any industry, operation or process; or the stoppage or regulation of the supply of electricity or water or any other service. 6 https://www.thelancet.com/journals/lanplh/article/PIIS2542-5196(18)30261-4/fulltext stating 1.24 million deaths in India in 2017, which were 12·5% of the total deaths, were attributable to air pollution, including 0.67 million from ambient particulate matter pollution and 0.48 million from household air pollution.
7Goa Foundation Vs. Union of India and Ors., (2014) 6 SCC 590, at para 72-75,the Supreme Court noted the power that rests with the Pollution Control Board under Section 31 A of the Air Act and Section 33 A of the Water Act and directed that the authorities should take stringent actions in line with these power in cases of polluting industries.
8Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection Association & Ors., (2009) 9 SCC 737, in paras 26, 27, 33 & 34, the Supreme Court emphasis on developmental activities to be such that it does not compromises with the ability of the future generation to meet their needs and in this regard, authorities are to take into consideration the macro effect of wide-scale land and environmental degradation caused by absence of remedial measures. 11
14. We reiterate that economic development is not to be at the cost of health of the public and in violation of law of the land. Unless the polluting industries tackle the problem they have created, their operations have to be stopped/suspended.9 Reference may be made to the judgement in the case of Indian Council for Enviro Legal Action & Ors. Vs. Union of India & Ors.10:
"Respondents 4 to 8 have earned the dubious distinction of being categorised as "rogue industries". They have inflicted untold misery upon the poor, unsuspecting villagers, de-spoiling their land, their water sources and their environment - all in pursuance of their private profit. They have forfeited all claims of any consideration by this Court. Accordingly, we herewith order the closure of all plants and factories of Respondents 4 to 8 located in Bichhri village. The RPCB is directed to seal all factories/units/plants of the said respondents forthwith."
15. We may note that this Tribunal has dealt with cases of industrial pollution and exercising its jurisdiction under Sections 14, 15 and 20 of the NGT Act, 2010 directed the regulatory authorities to prohibit polluting activities, prosecute the polluters and assess and recover compensation. In the case of Morbi Industrial Cluster11, which ranks at 81 based on its CEPI score, (where air pollution is critical though overall index places it in OPA), the Tribunal noted the air quality as shown in the inspection report furnished in the said case, to be as follows:
"Ambient Air Quality Status: As per National Green Tribunal committee report average ambient air quality (7 Stations) monitored PM10 = 552.66 µg/m3, PM2.5 = 289.61 µg / m3, SO2 = 152.81 µg /m3. Compared to that, Average ambient air quality monitored (4 Stations) in last 3 months (Aug- 18 to Nov-18) is PM10 = 199.1 µg /m3, 9 M.C Mehta (Badkhal and Surajkund Lakes Matters) vs. Union of India & Ors., (1997) 3 SCC 715 at para 10 & 11, where the Supreme Court prohibited any construction activities around the said lakes on account of precautionary principle to protect these lakes; Vellore Citizens Welfare Forum Vs. Union of India & Ors., (1996) 5 SCC 647 at para 9, where the Supreme Court discussed the rights guaranteed under Article 21 of the Constitution of India and directed that all tanneries which have not obtained the consents will be not reopened and that no new tanneries will be permitted to be open in the prohibited area.10
(1996) 3 SCC 212 at para 70.11
Order dated 06.03.2019 in Original Application No. 20/2017 (WZ), Babubhai Ramubhai Saini Vs. Gujarat Pollution Control Board & Ors.
12
PM2.5 = 60.6 µg /m3. Though not meeting with standards, this shows improvement in air quality of Morbi- Wankner Region."
16. Since the industries in the said area were operating in violation of Air Act, having adverse consequences on health and environment, applying the Sustainable Development and Precautionary principles, the Tribunal directed the GPCB to close all the coal gasifier industries and take steps for prosecution of such industries which violated the law and recover compensation for the damage to the public health to be assessed by a Joint Committee of GPCB, CPCB and NEERI, taking into account the cost of restoration of the environment and the element of deterrence.12
17. The Tribunal observed:
" 22. Purpose of economic development in any region is to provide opportunities for improved living by removing poverty and unemployment. While industrial development invariably creates more jobs in any region, such development has to be sustainable and compliant with the norms of environment. In absence of this awakening or tendency for monitoring, industrialization has led to environmental degradation on account of industrial pollution. It is imperative to ensure that steps are taken to check such pollution to uphold statutory norms. Adequate and effective pollution control methods are necessary.
23. We may also note that as per data compiled by the CPCB Morbi Wankaner is one of the polluted industrial clusters. Vide order dated 13.12.2018 in Original Application No. 1038/2018, this Tribunal considered the subject matter of critically polluted industrial clusters and directed preparation of action plans by the respective States for remedying the situation.
24. Even though, this area is polluted but not 'critically polluted', the same may not be covered by the said order, but the fact remains that there is high amount of pollution as shown by the latest report of the GPCB quoted above in para no. 13. PM10 is equal to 552.66 and PM2.5 is equal to 289.61. Stringent 12 Order dated 06.03.2019 in Original Application No. 20/2017 (WZ), Babubhai Ramubhai Saini Vs. Gujarat Pollution Control Board & Ors.13
measures are, thus, required in the interest of protection of environment and public health.
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. This amount may be assessed by a Committee with representatives of CPCB, GPCB and NEERI. The CPCB will be the nodal agency for coordination and compliance. The Committee may suggest restoration plan."
18. The Tribunal also considered the case of pollution in the Taloja industrial area13 which finds mention under the title 'Navi Mumbai' at rank 51 based on its CEPI score. High level of pollution was found on the basis of joint inspection conducted by the CPCB and the Maharashtra PCB dated 02.01.2018, as the CETP was not functioning properly. The Maharashtra State PCB gave notice to 92 industries for closure. Apart from requiring the CETP operators to deposit a sum of Rs. 10 crores as compensation, steps were required to be taken to remedy the pollution. The Tribunal held that only option was to permit only such industries to function which had stand alone ETP and are fully compliant with the norms and to close the industries which were non-compliant.14
19. The Tribunal directed as follows:
"13. In view of above undisputed position that pollution is still continuing, the only option is to shut down the industries which are source of pollution till remedial action is taken. Learned Counsel for the MIDC as well as MPCB are unable to provide any other solution. It is made clear that mere fact that MIDC has assigned the work to a contractor does not absolve MDIC of its responsibility of operating CETP as per norms.
13 O.A No. 125/2018, Arvind Pundalik Mhatre v. Ministry of Environment and Forest & Climate Change & Ors.14
O.A No. 125/2018, Arvind Pundalik Mhatre Vs. Ministry of Environment and Forest & Climate Change & Ors., order dated 09.04.2019 14
14. Accordingly, we direct the MPCB to forthwith suspend the Consent to Operate to the industries in the area not meeting the norms and permit them to operate only after remedial steps are taken. Steps in this direction be taken within two weeks from today. Whether a particular industry is complying or not complying with the norms is the matter to be decided by the MPCB in accordance with law. Action taken report be furnished to the Committee and the Committee may take a final call in the matter, in case of any surviving issue."
20. Taking cognizance of the untreated effluents being discharged by textile units in Tronica city, Loni area, Ghaziabad, the Tribunal in Rashid Ali Warsi Vs. UPSIDC & Ors.15, directed closure of 53 units until the time CETP was made functional. Thereafter, vide order dated 13.11.2018, the Tribunal allowed operation of only those units which were later found to be achieving the norms.
21. The Tribunal in the case of M.C Mehta vs. Union of India & Ors.16 dealt with the issues regarding continuous illegal discharge of untreated sewer and industrial effluents in Ganga and its tributaries and the connecting drains, apart from the dumping of solid waste, hazardous waste, plastic waste, muck and other wastes. The Tribunal after noting that leather industries at Jajmau, Banthar and Unnao were discharging untreated effluents in the river Ganga, directed that activities of such industries must be straightaway closed till they comply with the norms.17
22. In view of water pollution caused by absence/dysfunctional CETPs/ETPs/STPs, the Tribunal has, in the case of Aryavart Foundation Vs. M/s Vapi Green Enviro Ltd. & Ors. 18, directed all defaulting industries, other than green and white category, connected 15 Order dated 25.05.2018 16 O.A 200/2014, order dated 14.05.2019 17 Ibid at Para 16 & 17 18 O.A 95/2018, order dated 11.01.2019 15 with CETP, to make deposits with the CPCB towards interim environmental compensation, pending assessment of actual compensation and further action 19, on the following scale:
(i) Large Industries - Rs. 1 crore each
(ii) Medium Industries - Rs. 50 Lakhs each
(iii) Small Industries - Rs. 25 Lakhs each
23. In the present case, in view of massive exercise already done by CPCB, it is not necessary to require any further verification about the existence of pollution in the said PIAs. The Tribunal can direct that the polluting activities cannot be allowed to continue till adequate measures are taken as the Tribunal is bound to apply the 'Sustainable Development'20, 'Precautionary'21 and 'Polluter Pays'22 principle under Section 20 of the National Green Tribunal Act, 2010 to protect the environment and the victims. The statutory regulatory bodies can be required to straightaway identify the particular industrial units in the said PIAs that are causing pollution, particularly those units which fall under the red and orange category and take action against them by way of closing the polluting activity, initiating prosecution and assessing and recovering compensation. Pending such assessment, interim compensation may be recovered on the scale adopted by this Tribunal in the case of Vapi industrial area23.
19 Para 55, of O.A 95/2018, order dated 11.01.2019 20 M.C Mehta Vs. Union of India (1997) 2 SCC 353, where the Supreme Court of India held - The development of industry is essential for the economy of the country, but at the same time the environment and the ecosystems have to be protected. The pollution created as a consequence of development must be commensurate with the carrying capacity of our ecosystem. 21 M.C Mehta vs. Union of India & Ors., (2009) 6 SCC 142, at para 23, 30 & 46, the Supreme Court addressed the issue of wide threat to forest ecology vis-à-vis the mining activities in the Aravalli hills and explained that it is important to evoke the precautionary principle to impose complete ban on mining in the Aravalli Range in state of Haryana.
22Indian Council for Enviro Legal Action & Ors. Vs. Union of India & Ors., (1996) 3 SCC 212 Para 16, Vellore Citizens Welfare Forum Vs. Union of India & Ors. (1996) 5 SCC 647 Para 12-18 - holding that "Polluter Pay"
principle is 'accepted principle and part of environmental law of the country, even without specific statute. M.C Mehta Vs. Union of India & Ors., W.P (C) No. 13029/2015 order dated 24.10.2017 of the Supreme Court of India., O.A 95/2018, order dated 11.01.2019 & O.A No. 593/2017, order dated 03.08.2018: The Tribunal directed CPCB to take penal action against those accountable for failure in setting up CETPs/STPs/STPs and to recover compensation for damage to the environment, 23 Supra 15 16
24. CPCB has compiled data of industrial clusters which are polluting in terms of air, water and other norms together. Under the law, even air pollution or water pollution or other pollution, are independent offences. The sustainable development and precautionary principle require any polluting activity to be prohibited and compensation recovered for damage caused from polluters. If there is air pollution, actionable under the Air Act, even if there is no violation of Water Act or EPA Act, such pollution cannot be ignored. There has to be prosecution, stopping of polluting activity and recovery of compensation for restoration of the environment. We have seen that even when norms of air, water and other pollution are being violated, prosecution, stopping of polluting activities and recovery of compensation is not taking place for which there is no justification. Likewise action to prohibit polluting activity, initiating prosecution and recovery of compensation is required not merely for the PIAs based on violation of norms under all the heads, but also for areas where air, water or other pollution is found individually. Thus areas not covered by PIAs are also required to be governed by our directions for enforcing the law by way of stopping polluting activity and taking other steps. The fact that such pollution is taking place is evidenced by there being acknowledged pollution in the form of 351 polluted river stretches24 and 102 non-attainment cities25.
25. CPCB must compile data of polluted industrial areas not confined to more than one parameters as is now being done, but also with respect to polluted areas based on water, air or other pollution individually. Compiling data for categorizing areas as polluted areas based on water pollution alone, or air pollution or other pollution 24 O.A. 673/2018, News Item Published in 'The Hindu' authored by Shri. Jacob Koshy titled "More river stretches are now critically polluted: CPCB", Order dated 20.09.2018 25 O.A. 681/2018, News Item Published In 'The Times of India' Authored by Shri. Vishwa Mohan Titled "NCAP with Multiple Timelines to Clear Air in 102 Cities to be released around August 15" order dated 08.10.2018 17 alone may be a step in the right direction. Let this be now done in the next three months, with the assistance of State PCBs/PCCs or other experts. In this regard we may note that dealing with the industrial water pollution, this Tribunal directed the CPCB to compile its monitoring report with reference to 97 CETPs installed in different states as this was linked to 100 PIAs also.26
26. Needless to state that there is no right to carry on business in violation of pollution norms and right of statutory authorities is coupled with duty. Such right, does not carry any unlimited discretion of not taking action when pollution norms are violated.
27. In view of the material compiled by the CPCB, with the assistance of SPCBs/PCCs, in respect of polluted industrial areas, where action is not being taken by statutory authorities, the Tribunal has to exercise its jurisdiction of directing performance of statutory functions and duties by the State boards/committees, following similar direction by the Apex Court27.
28. Accordingly, we direct the CPCB in coordination with all State PCBs/PCCs to take steps in exercise of statutory powers under the Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974, Environment (Protection) Act, 1986 or any other law to prohibit operation of polluting activities in the said CPAs and SPAs within three months and furnish a compliance report to this Tribunal. The Central Pollution Control Board, in coordination with the State Boards/PCBs may make 26 O.A No. 593/2017, order dated 19.02.2019, Paryavaran Suraksha Samiti & Anr. Vs. Union of India & Ors. 27 M.C Mehta (Calcutta Tanneries' Matter) Vs. Union of India & Ors., (1997) 2 SCC 411, at para 17, the Supreme Court directed the Board to take action against defaulting tanneries which, including those which had not complied with the conditions under Water Act as mentioned in their consents. In M.C Mehta Vs. Union of India & Ors., (2004) 6 SCC 588, paras 37,48, 517 69, the Supreme Court passed direction on closure of industrial units which were illegally operating and were in violation of the Master Plan. 18
assessment of compensation to be recovered from the said polluting units for the period of last 5 years, taking into account the cost of restoration and cost of damage to the public health and environment and the deterrence element. The scale of deterrence may be related to the period and the frequency of defaults. Such other factors as may be found relevant may also be taken into account. No further industrial activities or expansion be allowed with regard to 'red' and 'orange' category units till the said areas are brought within the prescribed parameters or till carrying capacity of area is assessed and new units or expansion is found viable having regard to the carrying capacity of the area and environmental norms. Pending assessment of compensation, interim compensation be recovered at the scale adopted by this Tribunal in the case of Vapi Industrial area as mentioned in para 22 above.
29. We further direct CPCB, with the assistance of SPCBs/PCCs or other experts, to compile information with regard to polluted industrial areas based on water pollution norms separately, air pollution norms separately and other pollution norm separately and notify such information on public domain within three months. On completing this exercise, action against identified individual polluters may be initiated on the same pattern on which direction have been issued in para 28 and furnish a report to this Tribunal in this regard also, before the next date.
30. We direct the MoEF&CC to take steps for enforcement of action plan for improvement of the situation.
31. We may also mention that hearing individual industrial unit is not considered necessary for passing the above order as the CPCB/State 19 PCBs must exercise their respective statutory powers by following the procedure prescribed under the statute even without intervention of this Tribunal. The Tribunal is only requiring such statutory bodies to perform their duties to uphold the law without going into an individual case28. Direction is with reference to data compiled, or to be compiled, by the said bodies only.
32. It is made clear that white and green or non-polluting industries which are not causing any pollution will not be affected by this order except that the parameters thereof may be monitored with a view to see that under the garb of label of white/green or otherwise, the polluting activity is not continued.
33. We direct that the CPCB will be at liberty to have an appropriate panel of Experts to augment its capacity, in case the available man- power is found to be inadequate to execute the above order and for this purpose utilise the environment funds available under the environmental compensation head. In this regard, reference may also be made to order dated 22.01.2019, of this Tribunal in O.A No. 101/2019, Central Pollution Control Board Vs. Assam State Pollution Control Board & Ors. which enables CPCB to utilise the environment fund for the purpose.
34. Let a compliance report be filed by the CPCB after three months but before the next date by email on [email protected]. List for further consideration on 05.11.2019.
28 M.C Mehta Vs. Union of India & Ors., (2001) 3 SCC 756, at para 8, the Supreme Court repeated the stand that in re M.C Mehta Vs. Union of India (1998) 6 SCC 63, the Court had passed directions to all bus operators in Delhi to make a shift from diesel and other fuels to CNG, the Supreme Court's directions are all in rem and not in personam.
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Adarsh Kumar Goel, CP S.P. Wangdi, JM K. Ramakrishnan, JM Dr. Nagin Nanda, EM July 10, 2019 Original Application No. 1038/2018 AK 21