National Green Tribunal
Sunetra Singh Yadav vs Up State Pollution Control Board on 21 November, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No.837/2022
(I.A. No. 294/2022)
Suntera Singh Yadav Applicant
Versus
UP Pollution Control Board &Ors. Respondent(s)
Date of hearing: 21.11.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Sidhinath Singh Sengar, Advocate for Applicant
ORDER
1. Grievance in this application is against failure of the statutory regulators in U.P in enforcing environmental norms in operation of the brick kilns as per details mentioned in the application.
2. Violations alleged include absence of requisite consent to establish and operate, illegal extraction of ground water for casting of bricks and for spraying on dust, not using mandatory zig-zag technology, not limiting operation to period when the air has assimilative capacity i.e. from March to June.
3. According to the applicant, above failure of the statutory regulators has resulted in deterioration of Air Quality Index (AQI). The applicant has 1 given chart of the data of AQI in the concerned Districts from November, 2021 to February, 2022 as follows:-
"
Month AQI
Agra Agra Firozabad Firozabad Firozabad
(Bodla) (Nunhai) CDGISN Tilak Raja ka
Marg Nagar Tal
Nov. 282 246 207 263 240
2021
Dec. 164 235 195 194 189
2021
Jan. 135 172 197 195 193
2022
Feb.2022 121 166 219 216 213
"
4. It is further stated that there is a proposal to legalize more than 3700 units operating in violation of laid down siting criteria which will further degrade air quality to the detriment of public health and the environment.
5. The applicant has relied upon directions of CPCB dated 28.06.2017 as follows:-
"1. All the Brick Kilns operating without permission and valid consent from SPC'Bs. not meeting prescribed norms and siting guidelines be closed down with immediate effect.
2 Provide status on conversion of natural draft to induced draft Brick Kilns (with rectangular kiln shape and zig-zag brick setting).
3. Enforce strictly the siting criteria guideline for Brick Kilns.
4. All the moving area around the main Brick Kiln should be paved with the bricks to minimize the fugitive dust emissions from the Brick Kiln operations. This condition should be incorporate in the Consent condition while granting the consent by the respective State Boards.
5. Ensure that tine dust not to accumulate all around the Brick Kiln."2
6. Further, reliance has been placed on order of this Tribunal dated 17.02.2021 in O.A No. 1016/2019, Utkarsh Panwar v. Central Pollution Control Board & Ors. and order dated 09.05.2022 in O.A No. 93/2021, Mukesh Kumar Aggarwal v. Central Pollution Control Board & Anr. Order dated 09.05.2022 in O.A No. 93/2021 (Supra) refers to order of Hon'ble Supreme Court dated 08.04.2022 in Civil Appeal Diary No.-18213/2021, NCR Brick Kiln Association Vs Central Pollution Control Board & Ors. as follows:-
"The permission to operate will be subject to the following conditions:
(1) The production will be permitted only subject to the units complying with notification dated 22.02.2022. For the sake of clarity, we quote the same:
MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE NOTIFICATION New Delhi, the 22nd February, 2022 G.S.R.143(E).--In exercise of the powers conferred by sections 6 and 25 of the Environment (Protection) Act, 1986 (29 of 1986), the Central Government hereby makes the following rules further to amend the Environment (Protection)Rules, 1986, namely:--
1. Short Title and commencement: -
(1) These rules may be called the Environment (Protection) Amendment Rules, 2022. (2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Environment (Protection) Rules, 1986, in the SCHEDULE-I, for entry at Sl. No. 74, the following entry shall be substituted, namely: -
"74 Brick Particulate matter in 250 mg/Nm3 Kilns stack emission Minimum stack height (Vertical Shaft Brick Kilns)
-Kiln capacity less 14 m (at than 30,000 bricks per least 7.5m day from loading platform)
-Kiln capacity equal 16 m (at or more than 30,000 least 8.5m 3 bricks per day from loading platform) Minimum stack height (Other than Vertical Shaft Brick Kilns)
-Kiln capacity less 24 m than 30,000 bricks per day 27 m
-Kiln capacity equal or more than 30,000 bricks per day Notes:
1.All new brick kilns shall be allowed only with zig-zag technology or vertical shaft or use of Piped Natural Gas as fuel in brick making and shall comply to these standards as stipulated in this notification.
2.The existing brick kilns which are not following zig-zag technology or vertical shaft or use Piped Natural Gas as fuel in brick making shall be converted to zig-zag technology or vertical shaft or use Piped Natural Gas as fuel in brick making within a period of (a) one year in case of kilns located within ten kilometre radius of nonattainment cities as defined by Central Pollution Control Board (b) two years for other areas. Further, in cases where Central Pollution Control Board/State Pollution Control Boards/Pollution Control Committees has separately laid down timelines for conversion, such orders shall prevail.
3.All brick kilns shall use only approved fuel such as Piped Natural Gas, coal, fire wood and/or agricultural residues.
Use of pet coke, tyres, plastic, hazardous waste shall not be allowed in brick kilns.
4.Brick kilns shall construct permanent facility (port hole and platform) as per the norms or design laid down by the Central Pollution Control Board for monitoring of emissions.
5.Particulate Matter (PM) results shall be normalized at 4% CO2as below:PM (normalized) = (PM (measured)x 4%)/ (%of CO2measured in stack), no normalization in case CO2measured ≥ 4%. Stack height (in metre) shall also be calculated by formula H=14Q0.3(where Q is SO2emission rate in kg/hr), and the maximum of two shall apply.
6.Brick kilns should be established at a minimum distance of 0.8 kilometre from habitation and fruit orchards. State PollutionControl Boards/Pollution Control Committees may make siting criteria stringent considering proximity to habitation, population density, water bodies, sensitive receptors, etc. 4
7.Brick kilns should be established at a minimum distance of one kilometre from an existing brick kiln to avoid clustering of kilns in an area.
8.Brick kilns shall follow process emission/fugitive dust emission control guidelines as prescribed by concerned State Pollution Control Boards/Pollution Control Committees.
9.The ash generated in the brick kilns shall be fully utilized in-house in brick making.
10.All necessary approvals from the concerned authorities including mining department of the concerned State or Union Territory shall be obtained for extracting the soil to be used for brick making in the brick kiln.
11.The brick kiln owners shall ensure that the road utilized for transporting raw materials or bricks are paved roads.
12.Vehicles shall be covered during transportation of raw material/bricks".
[F. No. Q-15017/35/2007-CPW] NARESH PAL GANGAWAR,Addl. Secy.
Note : The principle rules were published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number S.O. 844(E), dated the 19th November, 1986 and lastly amended vide number G.S.R. 724(E), dated the 04th October, 2021"
(2) The Officers of both Central Pollution Control Board and the State Pollution Control Boards shall conduct surprise inspections without any notice and warning to the persons running the units from time to time to ensure that the production is being carried out in terms of the aforesaid notification.
(3) Production will be further subject to the condition that it will be limited to the production capacity as per the consent granted by the respective State Pollution Control Boards as has been in fact documented in the compliance affidavit dated 06.04.2022 (Annexure R2) filed by respondent No. 2.
As an example, we would take the case of M/s. Shiv Brick Field, Pura Mahadev, Bagpat. Production will be limited to six lakhs for this unit. In similar vein other units will be entitled to undertake production, as per the consent granted by State Pollution Control Board in the affidavit which is filed by the Pollution Control Board. (4) The persons running the units shall report at the end of every cycle, the actual total production which has been carried out in their units (arising out of each cycle) to the respective State Pollution Control Boards. The State Pollution Control Boards shall promptly intimate the 5 Central Pollution Control Board, the said figures and on the date of the next hearing, the Central Pollution Control Board will produce a chart showing the production so that the Court may analyse as to whether there is a violation of this Court's order.
(5) The Central Pollution Control Board and the State Pollution Control Board will monitor the impact of the pollution which is generated as a result of the units being permitted to operate, and actually carrying out the production in such form as is measurable."
7. Further reference has been made to article "Innovation in Brick Kilns : Baghpat raising the bar" published on web portal www.Downtoearth.org.in dated 30.04.2019, media reports in Times of India dated 10.11.2021 and 18.11.2021, ETV Bharat UP dated 22.04.2022 and Hindustan Times, Lucknow Edition, dated 18.09.2022.
8. Lastly, the applicant has referred to the compliance status of the brick kilns in State of U.P. compiled by the UPPCB. List of the defaulter brick kilns in the 7 districts in U.P. issued by UPPCB dated 26.07.2021 which lists the defaulting brick kilns in Kasganj, Hathras, Etah, Firozabad, Agra, Etawah, and Mainpuri Districts of U.P. The chart of information in Annexure A-6 about the status of compliance of brick kilns in the State of U.P is as follows:-
"STATUS OF BRICK KLINS IN UTTAR PRADESH 6 S.N. Regional District Total No. Compliance Status of CTO Air Total No. of Status of Action Taken against Office of Brick Defaulter Defaulter Brick Kilns as shown in Kilns Brick Kilns Column No. 9 (6+8) Grant Reject Pending Not Closure order Procecution under Applied issued Section 37/39 of Air Act, 1981 1 2 3 4 5 6 7 8 9 10 11 1 Ghaziabad Ghaziabad 313 142 17 0 154 171 171 14 2 Hapur 126 116 10 0 0 10 10 12 3 G.B. Nagar G.B. Nagar 100 53 5 0 42 47 47 22 4 Prayagraj Prayagraj 617 308 0 0 309 309 309 20 5 Kaushambi 250 140 0 0 110 110 110 1 6 Fatehpur 436 230 0 0 206 206 206 0 7 Banda Banda 0 0 0 0 0 0 0 0 8 Chitrakoot 1 1 0 0 0 0 0 0 9 Hamirpur 14 14 0 0 0 0 0 0 10 Mahoba 1 1 0 0 0 0 0 0 11 Jhansi Jhansi 0 0 0 0 0 0 0 0 12 Lalitpur 0 0 0 0 0 0 0 0 13 Jalaun 13 7 0 0 6 6 6 6 14 Kanpur Nagar Kanpur 292 241 0 0 51 51 51 6 15 Farrukhabad 153 121 0 0 32 32 32 7 16 Kanpur Dehat Kanpur Dehat 249 242 0 0 7 7 7 1 17 Auraiya 137 124 0 0 13 13 13 3 18 Kannauj 129 103 0 0 26 26 26 6 19 Sonbhadra Mirzapur 356 145 0 0 211 211 211 10 20 Sonbhadra 10 4 0 0 6 6 6 0 21 Meerut Meerut 238 91 0 0 147 147 147 6 22 Baghpat 525 368 0 0 157 157 157 12 23 Muzaffar Muzaffarnaga 347 270 0 0 77 77 77 15 24 Nagar rShamli 206 151 0 0 55 55 55 3 25 Saharanpur Saharanpur 263 238 0 0 25 25 25 3 26 Aligarh Aligarh 536 307 26 3 200 226 226 1 27 Hathras 186 114 12 0 60 72 72 1 7 28 Etah 176 59 6 0 111 117 117 0 29 Kasganj 222 111 21 0 90 111 111 3 30 Mathura Mathura 227 184 0 10 33 33 33 0 31 Firozabad Firozabad 186 148 0 0 38 38 38 7 32 Etawa 205 60 0 0 145 145 145 0 33 Mainpuri 166 38 0 0 128 128 128 0 34 Agra Agra 113 77 0 0 36 36 36 2 35 Bulandshahar Bulandshahar 410 241 10 0 159 169 169 13 36 Lucknow Lucknow 263 220 9 0 34 43 43 2 37 Sitapur 269 255 0 0 14 14 14 6 38 Barabanki 333 316 7 0 10 17 17 6 39 Lakheempur 226 197 3 0 26 29 29 11 40 Raibareily Raibareily 386 288 17 0 81 98 98 0 41 Sultanpur 256 63 9 0 184 193 193 9 42 Amethi 233 100 14 0 119 133 133 4 43 Pratapgarh 355 129 23 0 203 226 226 0 44 Unnao Unnao 260 216 15 0 29 44 44 4 45 Hardoi 374 300 24 0 50 74 74 7 46 Gorakhpur Gorakhpur 448 160 0 0 288 288 288 2 47 Kushinagar 282 38 0 0 244 244 244 2 48 Maharajganj 338 177 0 0 161 161 161 2 49 Deoria 352 55 0 0 297 297 297 0 50 Basti Basti 241 83 0 0 158 158 158 19 51 Santkabir 167 82 0 0 85 85 85 7 Nagar 52 Siddharth Nagar 215 127 0 0 88 88 88 0 53 Balrampur 211 131 0 0 80 80 80 1 54 Azamgarh Azamgarh 672 146 526 0 0 526 526 6 55 Mau 382 69 313 0 0 313 313 4 8 56 Baliya 370 83 287 0 0 287 287 0 57 Varanasi Varanasi 424 154 0 0 270 270 270 3 58 Jaunpur 556 194 0 0 362 362 362 2 59 Gazipur 452 153 0 0 299 299 299 0 60 Chandauli 203 102 0 0 101 101 101 0 61 Bhadohi 209 41 0 0 168 168 168 0 62 Ayodhya Ayodhya 191 144 0 0 47 47 47 0 63 Ambedkar Nagar 275 128 0 0 147 147 147 0 64 Gonda 224 128 0 0 96 96 96 7 65 Behraich 300 161 0 0 139 139 139 2 66 Shravasti 103 25 0 0 78 78 78 0 67 Bijnoor Bijnoor 337 157 0 0 180 180 180 5 68 Amroha 239 65 0 0 174 174 174 11 69 Moradabad Moradabad 392 170 13 0 209 222 222 23 70 Rampur 197 137 16 0 44 60 60 1 71 Sambhal 423 175 20 0 228 248 248 3 72 Bareilly Bareilly 315 219 0 0 96 96 96 3 73 Pilibheet 202 165 0 0 37 37 37 1 74 Badayu 249 190 0 1 58 58 58 0 75 Sahjhanpur 268 198 0 0 70 70 70 0 Total 19395 10390 1403 14 7588 8991 8991 327 9
9. We have considered the matter. Categories of air quality and its adverse health effect can be noticed from following tables extracted from the judgment of the Hon'ble Supreme Court in Arjun Gopal & Ors. v. UOI & Ors.1:
10. Table 1 AQI Associated Health Impacts Good Minimal impact.
(0-50) Satisfactor May cause minor breathing discomfort to sensitive people. y Moderately May cause breathing discomfort to people with lung disease such as asthma, polluted and discomfort to people with heart disease, children and older adults. (101-200) Poor May cause breathing discomfort to people on prolonged exposure, and discomfort to people with heart disease.
(201-300) Very Poor May cause respiratory illness to the people on prolonged exposure.
Effect may be more pronounced in people with lung and heart diseases. (301-400) Severe May May cause respiratory impact even on healthy people, and serious health impacts on people with lung/heart disease. The health impacts (401-500) may be experienced even during light physical activity.
11.
12. Table 2 AQI Category, Pollutants and Health Breakpoints AQI category PM10 24-
PM2.524- NO2 24 O3 8- CO 8- SO2 24- NH3 2 Pb
(Range) hr hr -hr hr hr hr 4-hr 24-hr
(mg/m3
)
Good (0-50) 0-50 0-30 0-40 0-50 0-1.0 0-40 0-200 0-0.5
Satisfactory 51-100 31-60 41-80 51- 1.1-2.0 41-80 201- 0.5-
(51-100) 100 400 1.0
Moderately 101-250 61-90 81-180 101- 2.1-10 81-380 401- 1.1-
polluted (101- 168 800 2.0
200)
Poor (201-300) 251-350 91-120 181-280 169- 10-17 381- 801- 2.1-
208 800 1200 3.0
Very poor 351-430 121-250 281-400 209- 17-34 801- 1200- 3.1-
(301-400) 748* 1600 1800 3.5
Severe (401- 430+ 250+ 400+ 748+ 34+ 1600+ 1800+ 3.5+
500) *
13. The table of status of brick kilns shows that out of 1254 brick kilns operating in seven districts in question, the PCB has issued closure order to 647 units for not having CTO but status of compliance of emission standards is not given.
14. In view of acknowledged adverse impact of air pollution on health and environment, stringent compliance of norms cannot be wished away. 10
15. Thus, to ascertain the current compliance status and remedial action taken, we constitute a joint Committee to be headed by the ACS (Environment) UP, CPCB, State PCB, nominee of Director, U.P. Ground Water Department, District Magistrates and SSPs/SPs of the seven Districts - Kasganj, Hathras, Etah, Firozabad, Agra, Etawah, and Mainpuri, and the Commissioner, Agra Division. The nodal agency for coordination and compliance will be the Member Secretary, State PCB. Meeting may be held within two weeks from today to take cognizance of problem and remedial action plan may be prepared within one month. The verification process may be conducted in an appropriate manner, including the digital mode, simultaneously for all the Districts and also with reference to the record. Services of jurisdictional Regional Officers of the State PCB and/or other relevant public authorities may be used. Consented brick kilns must comply with the GRAP (existing AQI) and the Supreme Court's directions referred to earlier. The action plan may include closure of non-compliant units, till compliance is achieved including making available requisite platform and portholes for monitoring, recovery of compensation for past violations, prosecution wherever warranted. The action plan may be executed thereafter within next one month.
16. An action taken report of compliance status as on 31.01.2023 may be filed before this Tribunal by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF on or before 15.02.2023. A copy of the action taken report may be placed on the website of the State PCB and the State PCB may inform the brick kilns violating the norms of proceedings before this Tribunal by e-mail so that if they wish to respond to the report before this Tribunal, they may do so within two weeks thereafter by e-mail 11 at [email protected] preferably in the form of searchable PDF/ OCR Support PDF. The ACS (Environment) UP, Commissioner, Agra Division and Member Secretary, State PCB may remain present in person by V.C. on the next date.
List for further consideration on 13.03.2023. A copy of this order be forwarded to ACS (Environment) UP, CPCB, State PCB, Director, U.P. Ground Water Department, Commissioner, Agra Division and District Magistrates and SSPs/SPs Kasganj, Hathras, Etah, Firozabad, Agra, Etawah, and Mainpuri, U.P by email for compliance.
Adarsh Kumar Goel, CP Arun Kumar Tyagi, JM Prof. A. SenthilVel, EM Dr. Afroz Ahmad, EM November 21, 2022 Original Application No.837/2022 (I.A. No. 294/2022) AB 12