Mukesh Kumar Aggarwal vs Cpcb & Ors on 12 August, 2021

[Cites 46, Cited by 2]

National Green Tribunal

Mukesh Kumar Aggarwal vs Cpcb & Ors on 12 August, 2021

Bench: Adarsh Kumar Goel

                                                                 Revised Order
                                                       Corrected on 19.08.2021

Item No. 03                                                        (Court No.1)

                 BEFORE THE NATIONAL GREEN TRIBUNAL
                     PRINCIPAL BENCH, NEW DELHI

                           (By Video Conferencing)


                     Original Application No. 93/2021

                       (With report dated 04.08.2021)

Mukesh Kumar Aggarwal                                               Applicant

                                     Versus

Central Pollution Control Board & Anr.                           Respondent(s)


Date of hearing:    12.08.2021


CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
       HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
       HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
       HON'BLE DR. NAGIN NANDA, EXPERT MEMBER

Applicant:          Mr. Salik Shafique, Advocate

Respondent(s):      Mr. Mukesh Kumar, Advocate for CPCB
                    Mr. Pradeep Misra, &
                    Mr. Daleep Dhyani, Advocates for UPPCB
                    Mr. S.P Singh Senior Advocate with Mr Raunak Parekh, Advocate
                    for Om Guru Ent Udyog (R-107)


                                     ORDER

1. The issue for consideration is the remedial action against air pollution caused by brick kilns in Mathura District, particularly Mant and Chhata areas, where large number of brick kilns are functioning -

practically without any regulation, in violation of environment norms.

The said activity is source of emissions rendering air pollution beyond prescribed and tolerable limits, posing health hazard, threatening the right of citizens to breathe fresh air. Serious and unchecked violations are acknowledged in the report dated 4.8.2021 filed before this Tribunal by a joint Committee of CPCB, State PCB and the District Magistrate but no adequate remedial action has been taken even on that basis. The 1 problem is much more grave than the report depicts, as rightly submitted on behalf of the applicant for cogent reasons. We note that notices have not been issued to the individual brick kilns. However, there is no violation of natural justice as the statutory authorities, in exercise of their statutory powers can take remedial action, as per law. We are dealing with the general problem and not passing order against any individual. We gave liberty to any aggrieved person to appear to respond to the report of the Committee. One Brick kiln owner has chosen to enter appearance and we have heard his learned Counsel. Under the circumstances, we propose to direct action in terms of the recommendations of the joint Committee forthwith, pending further exhaustive report. Details follow.

Applicant's Case

2. The applicant has stated that he is permanent resident of Kosi Kalan (Rural), Tehsil Chhata, District Mathura and is living with his old age parents. They are severely affected by the air pollution in Mathura District where AQI crosses 400. One of the identified causes of air pollution is 350 brick kilns operated by coal using polluted fuel like spent organic, solvent, oily residue, pet coke, filter press cake, plastic rubber, leather waste etc. Operation of such brick kilns is against declared norms for siting by maintaining prescribed distance of habitations, educational institutions and hospitals. The said kilns do not have the requisite consents and are non-compliant with regard to the siting norms prescribed by CPCB as well as under the Uttar Pradesh Brick Kilns (Siting Criteria for Establishment) Rules, 2012. The applicant has filed satellite images of a kiln in village - Surir situated at the distance only 20 kms from Kosi Kalan and Mathura, Uttar Pradesh, where a cluster of around 65 brick kilns is being operated within the 2 small area of 4 km. belt which is highly populated residential area. A Government Hospital is situated only at the distance of 265 mtrs.

Rashtriya Inter College is situated at the distance of 400 mtrs. Air quality of Mathura is as bad as air quality of NCR and safeguards are needed at par with the Taj Trapezium Zone (TTZ). But while remedial measures have been taken for preventing polluting activities in NCR and TTZ, similar measures are required for Mathura District.

3. The applicant has referred to Comprehensive Environment Pollution Index (CEPI) compiled by the CPCB with regard to the Industrial areas in the country, based on the air, water and land pollution. CPCB has on that basis categorised industrial areas as critically polluted/severely polluted and polluted. Those above the score of 70 are critically polluted. The score of Mathura industrial area is 91.10. Brick kilns are mushrooming and are being allowed to be set up without requisite consents and safeguards. Adverse health impacts of polluted air quality have been noted inter-alia in judgement of Hon'ble Supreme Court in M.C. Mehta v. UOI1, M.C. Mehta v. UOI2, M.C. Mehta v. UOI3 and K. Guruprasad Rao v. State of Karnataka4 and order of this Tribunal dated 17.02.2021 in O.A. No. 1016/2019, Utkarsh Panwar v.

CPCB & Ors. wherein the Tribunal directed stopping of all brick kilns in NCR beyond the assimilative carrying capacity in the air in NCR, till such brick kilns shift to PNG. Till shifting to PNG, it was directed that the brick kilns cannot operate except in limited number and only from March to June when assimilative air capacity permits such operations. The operative part of the said order is as follows:-

"1to15...xxx.................................xxx....................................xxx 1 (1998) 9 SCC 149 2 (2000) 7 SCC 422 3 (2002) 4 SCC 378 4 (2012) 12 SCC 736 3

16. We have heard Counsel for the brick kiln operators at great length and also perused the written submissions filed by them but their effort being to revisit the earlier order against which their appeal stands dismissed, we do not find any reason to pass any different order. As already observed in the beginning of this order, the data in Table 15 in the CPCB report shows that in severe air quality condition, coal fired brick kilns using zig zag technology are not sustainable in view of carrying capacity of the region. Only from March to June, limited number of brick kilns operated by zig zag technology can be permitted. Thus, unless there is change to cleaner fuel (PNG), brick kilns beyond the capacity shown by Table 15 above cannot be allowed.

17. There is variance of figures of brick kilns permissible during March to June within the carrying capacity. Nature of brick kiln activity being continuous, only such number can be allowed which can be sustained throughout the said period i.e. the minimum figure of a particular month out of the four months, which comes to 444 in Haryana (in the month of May) and 200 in UP (in the month of June). Thus, only this number can be allowed for the time being during the period air quality is not severe. Shortlisting for the purpose may be done applying a suitable siting criteria taking into account inter-se distance, distance from sensitive locations and compliance of consent conditions. Further, location of brick kilns be scattered on pro-rata basis, in different directions of the area, having regard to background and carrying capacity parameters. On that broad basis, selection criteria be worked out by a joint Committee of CPCB and State PCBs. Those brick kilns which switch over to PNG will be entitled to operate even beyond months of March to June and even beyond the number of brick kilns on Zig-Zag technology within the carrying capacity. This can be revisited if air quality improves or if carrying capacity increased as a result of measures adopted by the State authorities in future, by reducing pollution load from different sources.

18. The Tunnel kiln technology with PNG can be followed, if viable, on which it may be permissible for the brick kilns to function even in severe conditions for existing or new brick kilns. The direction dated 27.11.2020 by CPCB also shows the need for reducing pollution load and not to allow activities by using coal.

19. As mentioned earlier, the recommendation that the brick kilns can be allowed with effective monitoring appears to be hypothetical in view of monitoring having been found to be hardly effective, on performance audit of PCBs, as will be shown in later part of this para. While in absence of carrying capacity, brick kilns are not permissible in 'severe' air quality situation, need for improving monitoring and minimising pollution is undisputed. In this regard, matter has been considered by this Tribunal in OA 95/2018, Aryavart Foundation v. M/s Vapi Green Enviro Ltd. & Ors.5, and in the light of report of performance audit of State PCBs, it has been found that performance is inadequate in terms of staff, equipment and functioning. Similar situation has been found in OA 837/2018, Sandeep Mittal Ministry of Environment, Forests & Climate Change 5 vide order dated 05.02.2021 4 & Ors.6, in relation to monitoring of EC conditions by the MoEF&CC. We have recently come across several cases of industrial accidents7 and one of the reasons for the same is inadequate monitoring. In OA 85/2020, Aryavart Foundation through its President v. Yashyashvi Rasayan Pvt. Ltd. & Anr.8, directions have been issued to improve the same. We have already noted in other proceedings9 that as per 6 Vide order dated 01.02.2021 7 i. Order dated 01.06.2020, relating to incident of gas leak dated 07.05.2020 in LG Polymers India Pvt. Limited at Vishakhapatnam, resulting in death of 11 persons and injuries to more than 100, apart from other damage (OA No. 73/2020, In re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh);

ii. Order dated 03.02.2021, relating to incident dated 03.06.2020 in a chemical factory, Yashyashvi Rasayan Pvt. Ltd. at Dahej, District Bharuch, Gujarat resulting in deaths and injuries and other damage (OA No. 85/2020) (Earlier OA 22/2020) (WZ), Aryavart Foundation through its President vs. Yashyashvi Rasayan Pvt. Ltd. & Anr.); iii. Order dated 06.08.2020, in relation to incident of oil well blow out on 27.05.2020 at Baghjan in the Tinsukia District of Assam resulting in deaths, injuries and damage to the environment (OA No. 43/2020(EZ), Bonani Kakkar vs. Oil India Limited & Ors.). iv. Orders dated 06.07.2020 and 22.12.2020, relating to incident dated 30.06.2020 on account of gas leakage at Sainor Life Sciences factory at Parawada in industrial area on the outskirts of Vishakhapatnam (OA No. 106/2020, News item published in the local daily "Economic Times" dated 30.06.2020 titled "Another Gas Leakage at Vizag Factory kills two, critically injures four...");

v. Orders dated 08.07.2020 and 22.12.2020, dealing with the incident dated 01.07.2020 resulting in death of 6 person and injury to 17 due to blast of boiler in M/s Neyveli Thermal Power Station (NLCIL), Cuddalore (OA No. 108/2020, News item published in the "Indian Express" dated 01.07.2020 titled "Tamil Nadu Neyveli boiler blast: 6 dead, 17 injured") and;

vi. Orders dated 23.07.2020 and 22.12.2020, in relation to incident of fire engulfed the chemical plant of Visakha Solvents Ltd, Vizag on 13.07.2020 at Ramky CETP Solvents building in Pharma City resulting in injuries (OA No. 134/2020, News item published on 13.07.2020 in the local daily named "India Today" titled "Massive fire engulf Vizag chemical plant, explosions heard, injuries reported"). vii. Order dated 18.12.2020, in relation to incident of explosion in a plastic recycling factory at Sujapur in Malda on 1.12.2020 resulting in death of six persons, including two minors and serious injuries to four persons (OA No. 272/2020, News item published in the "Times of India" dated 20.11.2020 entitled "Six killed as blast tears through Malda Plastic recycling factory").

viii. Order dated 18.12.2020, in relation to incident of methane gas leak in a sugar factory called Lokenete Bapurao Patil Agro Industries Ltd. in Mohol Taluka of Solapur District, Maharashtra on 21.11.2020 resulting in deaths and injuries and other damage (OA No. 274/2020, News item published in the "Indian Express" dated 23.11.2020 entitled "Maharashtra: Two Killed, eight injured in methane gas leak in sugar factory"). ix. Order dated 08.01.2021, in relation to Gas Leak in Agro Company (O.A No. 107/2020, In RE: News item published in the local daily "Indian Express Sunday Express" dated 28.06.2020 titled "Gas Leak in Agro Company Claims life of one") x. Order dated 18.01.2021, in relation to News item published in Navbharat Times dated 24.12.2020 titled "Gas leaks in IFFCO Plant, 2 Officers dead" (O.A No. 04/2020, In re :

News item published in Navbharat Times dated 24.12.2020 titled "Gas leaks in IFFCO Plant, 2 Officers dead") xi. Order dated 11.02.2021, in relation to accident of toxic gas leak in Rourkela Steel Plant in Orissa" (O.A. No. 09/2021, In re: News item published in The Indian Express dated 07.01.2021 titled "Four workers dead due to toxic gas leak in Rourkela Steel Plant") 8 Vide order dated 03.02.2021 9

(i) Vide order dated 21.09.2020, OA 673/2018, In Re: News item published in "The Hindu"

authored by Shri Jacob Koshy, titled "More river stretches are now critically polluted:

CPCB"

(ii) Vide order dated 21.08.2020, OA 681/2018, News item published in "The Times of India" Authored by Shri Vishwa Mohan titled "NCAP with multiple timelines to clean air in 102 cities to be released around August 15"

(iii) Vide order dated 14.11.2019 in OA 1038/2018, News item published in "The Asian Age" Authored by Sanjay Kaw Titled "CPCB to rank industrial units on pollution levels"

official statistics, 100 industrial clusters are polluted, 351 river stretches are polluted and 122 cities are non-attainment in terms of air quality, apart from huge gaps in waste generation and management. Inspite of monitoring of the said issues by this Tribunal, the situation is far from any improvement. Thus, it is undeniable that stringent steps for monitoring to achieve goal of sustainable development are required. While monitoring must certainly improve, such suggestion is not enough to presume that pollution load by coal-fired brick kilns will reach zero so as to sustain coal-fired brick kilns in NCR in severe air quality conditions. In such situation, potential damage to public health cannot be ignored, while dealing with the issue of activity having potential for pollution, in the area having no carrying capacity to sustain further pollution load.

20. Thus, we conclude that going by the order dated 15.10.2020, in 'severe' air quality conditions, coal-fired brick kilns cannot be allowed to operate in NCR even if zig zag technology is used and improved procedures are followed, as suggested by the Committee, unless there is switch over to the PNG. All other issues have already been dealt with in the earlier order. In para 7 of order dated 05.03.2020 and para 8 of order dated 23.03.2020, we have already held that compliance by an individual brick kiln, otherwise contributing to pollution load beyond carrying capacity, does not confer a right to continue such activity, when such activity attracts GRAP in 'severe' air quality condition. As noted in par 11 of the order dated 15.10.2020, the CPCB has found that there is no assimilative capacity during the period air quality is 'severe' and only during months of March to June there is a limited capacity. Inter-se distance of atleast 500 meters is required to be maintained in location of brick kilns. When brick kilns start, they should not be allowed to start simultaneously but their firing should be staggered to avoid adverse impact on the environment. Other safeguards of fugitive dust emission management need to be adopted. In para 18 of order dated 15.10.2020, the issue of non-availability of plea of discrimination to GRAP, attracting some polluting categories and not attracting other polluting activities, has already been dealt with. Accordingly, we reiterate this mandate.

21. In view of the above discussion, unless there is change to cleaner fuel (PNG), brick kilns beyond the number mentioned in Table 15 above cannot be allowed, in the NCR. Since there is variance of figures given during March to June, only such number can be allowed which can be sustained throughout the period i.e. the minimum figure of a particular month out of the four months which comes to 444 in Haryana (in the month of May) and 200 in UP

(iv) Vide order dated 28.02.2020 in OA No. 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016.

(v) Vide order dated 18.01.2021 in OA 710/2017, Shailesh Singh, v. Sheela Hospital & Trauma Centre, Shahjahanpur & Ors. with regard to bio-medical waste

(vi) Vide order dated 29.01.2021 in OA 804/2017, Rajiv Narayan v. Union of India & Ors.

with regard to hazardous waste.

(vii) Vide order dated 15.01.2021in OA 512/2017, Shailesh Singh v. State of UP with regard to e-waste.

(viii) Vide order dated 08.01.2021 in EA 13/2019 in OA 247/2017, Central Pollution Control Board v. State of Andaman & Nicobar & Ors. with regard to plastic waste.

(in the month of June). Such shortlisting may be done applying a suitable siting criteria taking into account inter-se distance and distance from sensitive locations and compliance of consent conditions for which the CPCB, State PCB may work out an appropriate mechanism. Further, location of brick kilns be scattered on pro-rata basis, in different directions of concerned area, having regard to background and carrying capacity parameters. Needless to say, those brick kilns which switch over to PNG will be entitled to operate even beyond months of March to June and even beyond limited number mentioned, subject to compliance with law."

4. In Mathura, brick kilns are operative throughout the year without any study of the assimilative air capacity of the area and without following the laid down siting criteria and without consents. The statutory regulatory authorities have not taken any meaningful action.

The applicant has also pointed out letters of CPCB seeking information on the subject from the UP State PCB but it appears that no further action has been taken. Brick kilns in question do not even follow Zig Zag Technology which is being followed in other air polluted areas and even outside the air polluted areas, in pursuance of directions of State PCB dated 28.06.2017 as follows:-

"1. All the Brick kilns operating without permission and valid consent from SPBs, 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 emission from the Brick Kilns operations. This condition should be incorporated in the consent conditions while grating the Consent by the UP Pollution Control Board.

5. Ensure that fine dust not to accumulate all around the brick kiln."

5. The applicant has filed a list of 189 Brick kilns which according to the applicant are violating the siting criteria or other environmental norms. It is also submitted that even if there is compliance by any individual brick kiln, if the assimilative air capacity cannot sustain coal 7 fired brick kilns, such brick kilns cannot operate adding further to the already polluted air. The applicant has stated that the brick kilns in question are contributing upto 28% air pollution.

Order dated 13.4.2021

6. Vide order dated 13.04.2021, the Tribunal required a joint Committee comprising CPCB, State PCB and District Magistrate, Mathura to verify the facts and furnish a factual and action taken report in terms of compliance of siting and environmental norms, including the assimilative capacity of the air to sustain particular number of brick kilns. It was further directed that the Committee may look into the report dated 06.07.2020 furnished in O.A. No. 1016/2019, supra, relating to control of pollution in the NCR, as well as discussion in the said order.

The State PCB was also to verify whether brick kilns in question are operating without consent, as alleged, in which case the State PCB was to take remedial action, following due process of law. The report was to be and has been uploaded on the website of the CPCB, so as to be accessed by any affected party. Objections to the report, if any, could be filed before the hearing.

7. In view of above, the State PCB has filed report dated 04.08.2021 after inspection at Mant (Sureer, Sureer Kalaan, Sureer vizau, Bazna, Naujheel, seoopatti, morkee areas) and Chhata (Unjhaani bangar, shergarh, Rampur, baadha bangar, rajagarhi, Mehrauli, shernagar areas) clusters of brick kiln units in Mathura district during 18 to 25, June, 2021. The report has found that most of the brick kilns continued to work on old technology (induced draft - FCBTK) though CPCB has issued guidelines for shifting to zig zag (induced draft) which has been directed to be followed by this Tribunal. Siting guidelines requiring inter se 8 distance and distance from vulnerable locations - schools, hospitals and habitations etc. are not being followed by many. Prohibited polluting fuel is being used by some. Most of them are not registered with GST authorities. No safeguards against fugitive dust are followed, in violation of consent conditions. The air of the area does not have assimilative capacity to sustain the number of brick kilns operating even during the period the air quality is comparative better. There are no air quality monitoring stations at the relevant locations. Data is taken from other places. There are objections to which reference will be made in later part of this order about inaccurate depiction and if right norms are followed, situation may be much more grave. Extracts from the report, highlighting certain parts, are reproduced below:

".... Majority of brick kilns units located here are of two types:

(1) Fixed Chimney Bull's Trench Kiln (FCBTK) based on natural draft.

(2) Zig-zag Kiln (natural and forced draft).

 As per the list provided by UPPCB, Mathura there are 227 Brick kiln units are located in Mathura district which have valid consent to operate (CTO). Detailed list is attached as Annexure-4.

 Out of 227 Brick kiln units, 189 units are operational at present; rest 38 units are not functional due to various reasons like closure direction by UPPCB and environmental compensation imposition. Detailed list is attached as Annexure-5, 6.

 30 no. of Brick kiln units are Zig-zag type and rest 159 no. of the Brick kiln units are old Fixed Chimney Bull's Trench Kiln (FCBTK) type.

 65 no. of Brick kiln units are registered in the State GST, Mathura as per list received from Assistant Commissioner, Sales Tax (SGST) Kosi Kalaan, Mathura. (Annexure-7)

1. Compliance of Siting:

Mant Cluster:

 Joint team inspected Mant cluster of brick kilns units located in Sureer, Sureer kalaan, Sureer vizau, Bazna, 9 naujheel, seoopatti, morkee areas of Mant tehsil, Mathura.

 As per information and documents produced by UPPCB, Mathura to the Joint inspection team, 168 no. units are operating presently in Mant area. Majority of brick kilns here are old type based on FCBTK type with natural draft.

 As informed by RO UPPCB Mathura that consent to establishment (CTE) for new Brick Kiln is issued by UPPCB after getting siting report from concerned SDM, because revenue village and Khasra no. proposed siting location of Brick Kilns, as per Uttar Pradesh Brick kiln (Sitting Criteria for Establishment) Rules, 2012 can be verified by the concerned dept. under SDM of that area.  Siting locations of the brick kilns was not found as per the Uttar Pradesh Brick kiln (Sitting Criteria for Establishment) Rules, 2012 (UP Govt. notification no. 921/55, parya/12-94(parya)/2012 Dated: June 27, 2012 (Annexure-8). UPPCB Mathura informed to joint inspection team that mostly Brick Kilns units at Mant location were established before said notification of UP Govt. 2012.

 All the units located at Mant were found using permissible fuel for brick kilns i.e. Coal/Toori (agriculture waste fuel) except five brick kilns, those were found using plastic and rubber parts of old vehicles, shredded old automobile tyre and remnants of vehicle and other combustible machinery scraps (Annexure-09, Pg. no. 19) along with the toori. UPPCB issued closure directions to these units.  Greenery and plantation was observed in some units only.

 No paved road and 3 meter boundary wall was observed.

 Dust emission was noticed in moving areas of all brick kiln units as no water sprinkler facility was found.  There was no permanent provision for stack emission monitoring at most of the Brick Kiln units. Temporary arrangement was made by the monitoring teams for stack monitoring. (Annexure-10, Pg. no. 21-23)  During the visit many units were found not operational and due to corona pandemic, few brick kilns units of this particular location were selected randomly for stack emission monitoring by the Joint inspection team. As per the monitoring report provided by the UPPCB, Mathura (Annexure-11) out of 12 brick kilns units, 10 units were found complying with the emission norms and 02 were failed.

 UPPCB Mathura assured the joint inspection team that direction will be issued for making necessary arrangement/up-gradation of the unit, to achieving the standard emission norms/compliance.

Chhata Cluster:

 Joint team inspected the Chhata cluster of brick kilns units located in Unjhani bangar, shergarh, rampur, baadha bangar, rajagarhi, mehrauli, shernagar areas of Chhata tehsil of Mathura.

 As per information and documents produced by UPPCB, Mathura to the Joint inspection team, 59 no. of brick kilns units are operating presently in Chhata area.  As informed by RO UPPCB Mathura that consent to establishment (CTE) for new Brick Kiln is issued by UPPCB after getting siting report from concerned SDM, because revenue village and khasra no. proposed siting location of Brick Kilns, as per Uttar Pradesh Brick kiln (Sitting Criteria for Establishment) Rules, 2012 can be verified by the concerned dept. under SDM of that area.  Majority of brick kilns in this area are Zig-zag Kiln (natural and forced draft) type. Siting locations of the brick kilns was found as per the Uttar Pradesh Brick kiln (Sitting Criteria for Establishment) Rules, 2012 (UP Govt. notification no. 921/55-parya/12-94(parya) /2012 Dated: June 27, 2012. The UPPCB Mathura informed to joint team that mostly brick kiln units were established after said notification of UP Govt.

 Only permissible fuel was found in all brick kilns units.  Greenery and plantation was not observed in majority of units.

 No paved road and 3 meter boundary wall was observed.

 Dust emission was noticed in all moving areas of brick kiln units as no water sprinkler facility was found.  There was no permanent provision for stack emission monitoring at most of the units. Temporary arrangement was made by the monitoring teams for stack monitoring of the brick kiln units.  During the visit many units were found not operational and due to corona pandemic, few brick kilns of this particular location were selected randomly for stack emission monitoring by the Joint inspection team. As per the monitoring report provided by the UPPCB, Mathura out of 09 brick kilns units, 08 units were found complying the emission norms and 01 failed.

 UPPCB Mathura assured the joint inspection team that direction will be issued for making necessary arrangement/up-gradation of the unit, to achieving the standard emission norms/compliance.

2. Compliance status of Environmental Norms:

 All the operational units were found having valid Consent to Operate (CTO) issued by the UPPCB Mathura.

 As per the list provided by UPPCB Mathura, total 227 no. of brick kilns were granted permission for operation in Mathura district.

 Out of these, 33 no. brick kilns units are not in operational presently; in addition, closure directions have been issued by UPPCB to 05 units.

 It was informed to joint inspection team by Regional officer, UPPCB Mathura that it is mandatory for every operating Brick Kiln to perform stack monitoring of the unit by any NABL accredited laboratory each year during the operating season to check the compliance of environmental norms and submit test report to UPPCB. If a unit fails to achieve the standard environmental norms, direction will be issued for the compliance by making necessary arrangement/up-gradation.

 To know the status of permission from mining department Mathura, a letter was issued by UPPCB Mathura to the District Mining department for providing list of permitted brick kiln units in Mathura. However, Department of Sales Tax (SGST) has submitted list of 65 no. registered Brick Kilns units.

 During the field visit, many units were found not operational. Out of operational units 21 no. of brick kiln units could be selected randomly by Joint inspection team due to constraint of Corona pandemic time and their stack emission monitoring was carried out.

 As per the monitoring report of 21 brick kilns units provided by the UPPCB Mathura, 18 units were found complying the norms and 03 were failed to achieve the standard. UPPCB Mathura assured the joint inspection team that direction will be issued to 03 units for making necessary arrangement/up-gradation of the unit, to achieving the standard emission norms/compliance (Emission norms for Brick Kilns as per MoEF&CC notification no. 423 Dated: 22.07.2009).

 As informed by the RO UPPCB Mathura to the joint inspection team that no brick kiln unit is operational in TTZ area falling under Mathura district.

 As per the UPPCB Mathura, brick kilns are permitted to operate only in 04 months period i.e. March to June every year in Mathura district.

3. Compliance status for calculating Assimilative capacity of the air to sustain particular number of brick kilns:

As per the direction of NGT court, committee has referred the report dated 06.07.2020 furnished by CPCB in O.A. No. 1016/2019. A formula was used by the CPCB to determining district-wise carrying capacity of ambient air in Report in compliance to Hon'ble NGT order dated 17.03.2020 (Uploading date 23.03.2020) in the matter of O.A. No. 1016 of 2019 titled as Utkarsh Panwar Vs. CPCB & Ors. before Hon'ble National Green Tribunal, Principle Bench, New Delhi. Same formula was used to calculate the assimilative capacity of the air to sustain particular number of brick kilns in Mathura.

Since, gravity settling Chambers are provided in the brick kilns as air pollution control Mechanism, wherein large particles get separated and settled down, therefore, it was assumed that the particle size of particulate emissions from the brick kiln stacks are broadly upto 10 pm. The following components were derived in 12 order to assess the carrying capacity of Mathura District w.r.t. PM10:

i. Estimation of Existing Pollution Load w.r.t PM10, ii. Estimation of Assimilative Carrying Capacity w.r.t PM10 iii. Estimation of Supportive Carrying Capacity w.r.t PM10 The value of emission load derived with stack emission of 750 mg/Nm3, is as follows:

Emission load from brick kilns having capacity of 20000 bricks/day, considering stack PM emission of 750 mg/Nm3 at 17% 02: 3000 Kg/day Estimation of total existing PM10 Load:

Total area of Mathura district in Km2: a; Average Atmospheric Mixing Height during a particular month in Km: b Total Volume of Air in Mathura district during a particular month in Km3: a x b = c Average PM10 Concentration of Ambient Air in Mathura district for a particular month in Kg/Km3: d Therefore, Total estimated load of particulate matter (PM10) in ambient air of Mathura district during a particular month (x): c x d=x Ka There is no continuous/manual ambient air quality monitoring station operational in Mant and Chhata Tehsil, Mathura which are approximately 25-35 km. away from Mathura city.

So, the ambient air quality data has been taken from Mathura city, where 02 no. manual ambient air quality monitoring stations are being operated by RO UPPCB Mathura. Average of both the manual monitoring stations has been taken for calculating total PM10 load in the different months of year 2020 at Mathura. Estimated total existing PM10 Load in Mathura during different months of year 2020 is given at Table-1 Table: 1 S. No. Month (Year-2020) Estimated Load 1 Jan 248276 Kg 2 Feb 346420 Kg 3 Mar 295241 Kg 4 Apr 195207 Kg 5 May 195792 Kg 6 Jun 281795 Kg 7 Jul 208946 Kg 8 Aug 234257 Kg 9 Sep 237760 Kg 13 10 Oct 282598 Kg 11 Nov 220489 Kg 12 Dec 218582 Kg [Area of Mathura District adopted from District Mathura website https://mathura.nic.in, Average Mixing height monthly data (year-2020) adopted from Continuous air quality station East Arjun Nagar, Delhi-CPCB (Appx. 75 Km away from Brick kiln cluster), as there is no SODAR machine installed/operational in Mathura] Estimation of Assimilative Carrying Capacity w.r.t.

PM10:

Total Volume of Air in Mathura district during a particular month in Km 3 :c P ar tic u l ate M at te r ( P M 1 0 ) r e q u ir ed to k e e p A m b ie n t A i r Q u al i t y at S a ti s f ac to r y Level/Prescrib ed NAAQ Stan d ard : 100 pg/m i.e. 100 Kg /Km (Ref: A ir Q u ali ty 3 3 Index/NAAQ Std) Therefore, Assimilative Capacity w.r.t PM10 in ambient air of Mathura district during a particular month (y): C X 100=y Kg Calculated assimilative carrying capacity in the different months of year 2020 at Mathura is given at Table-2:-

Table: 2 S. No. Month (Year-2020) Assimilative Carrying 1 Jan Capacity 149115 Kg 2 Feb 196830 Kg 3 Mar 196173 Kg 4 Apr 206568 Kg 5 May 199788 Kg 6 Jun 199854 Kg 7 Jul 136121 Kg 8 Aug 184454 Kg 9 Sep 176118 Kg 10 Oct 173906 Kg 11 Nov 143175 Kg 12 Dec 138782 Kg Estimation of supportive carrying capacity of Mathura w.r.t. PM10:

Month wise supportive carrying capacity of Mathura district, as determined by using the above is summarized in Table-3:-

Supportive Carrying Capacity (z)=Assimilative Carrying Capacity (y)

- Total Estimated Load (x) Table:3 14 S. No. Month Supportive Carrying Capacity 1 Jan -99161Kg 2 Feb -149591Kg 3 Mar -99067Kg 4 Apr 11361Kg 5 May 3996Kg 6 Jun -81940Kg 7 Jul -72825Kg 8 Aug -49803Kg 9 Sep -61641Kg 10 Oct -108691Kg 11 Nov -77314Kg 12 Dec -79800Kg Total number of brick kilns which can be operated month wise in Mathura district:

Month wise Supportive Carrying Capacity of Mathura district / Emission load from one brick kiln.

Assuming that all the brick kilns units were in operation during monitoring, the number of brick kilns which are required to be shut was calculated by dividing the excess load by the emission load of one brick kiln. As per the report of UPPCB Mathura, appx. 3000 Kg/ day Fuel (Toori/Coke) used by Brick Kiln unit with the capacity of 20,000 bricks/day during operation. The number of brick kilns, which can be operated in such cased was determined as follows:

No. of brick kilns which can be operated = Total number of brick kilns Operational in that particular month - (Negative Supportive Carrying Capacity/ Emission Load from one brick Kiln) Table: 4 Maximum No. of Brick Kiln can S.No. Month of Year be 1 Jan operated 156 2 Feb 139 3 Mar 156 4 Apr 193 5 May 190 6 Jun 162 7 Jul 165 8 Aug 172 9 Sep 168 10 Oct 153 11 Nov 163 12 Dec 162 Summary of observations during the inspection are as below:

 Only brick kilns units with valid CTO issued by UPPCB were found operational in Mathura district. No brick kiln was found operating in TTZ area falling in Mathura district.  Some of the operational brick kilns located in the Mant area were found not complying the siting norms. It was informed to Joint inspection team that these units were established before Uttar Pradesh Brick kiln (Sitting Criteria for Establishment) Rules, 2012 was issued.  The Brick kiln units operational in the Chhata region, were found complying the UP Government siting criteria norms.  There is need to up-gradation of present old type FCBTK brick kiln units in to zig-zag type kiln technology for optimal combustion and emission reduction.

 Only permitted fuel burning should be allowed and strict action (closure of unit as well as environmental compensation) may be taken, if any violation is found.  As per the UPPCB Mathura, brick kilns are permitted to operate only in 04 months period i.e. March to June only.  As per the AAQM data of Mathura district and calculation for Supportive Carrying Capacity of the air, maximum no. of brick kiln may permitted during different months in Mathura district is as per Table.4.  Display board containing the name of Brick Kiln unit & details, address, owner name and contact, last monitoring date and data was not displayed at the units in Mant as well as Chhata in Mathura.

 As per Regional officer, UPPCB Mathura, it is mandatory for each operating Brick Kiln unit to perform stack monitoring of the unit each year during the operating season by NABL accredited laboratory, to check the compliance of standard emission norms and submit test report to UPPCB.

 All the moving area around the main Brick Kiln is unpaved, which is huge source of fugitive dust emissions during brick kiln operations. It was observed that fine dust was accumulated all around the brick field.

 Arrangement for water sprinkling on earthen surface inside the premises of Brick Kiln units was not available.

 There was no sufficient greenery or boundary wall constructed around the Brick Kiln units to stop the fugitive emission of dust.

 There was no permanent provision for stack emission monitoring at the stack of most of the Brick Kiln units like pot hole, ladder, platform etc.  Majority of Brick Kilns units are based on natural draft. Some units have zigzag setting with induced draft also known as Hydra brick kiln units in this region.

 Heaps of Toori (permissible agriculture waste fuel) was found openly stored in premises of Brick Kilns, which need to be covered.

 Non-availability of trained workers (firemen and brick setters) to optimizing combustion for operating Brick Kilns efficiently.

Recommendations:

 There is need to convert all old FCBTK (natural draft) Brick Kiln units in to improved zig-zag Kilns with induced draft technology, as soon as possible.  Strict compliance of the siting criteria as per the Uttar Pradesh Brick kiln (Sitting Criteria for Establishment) Rules, 2012 (UP Govt. notification no. 921/55-parya/12- 94(parya)/2012 Dated: June 27, 2012. The Brick kiln units, which are not as per the siting criteria norms, may be relocated.

 The housekeeping at Brick Kiln units needs to improve.

Approach road and moving areas around the Brick Kiln needs to be paved properly to minimize the fugitive dust emissions.

 As per the AAQM data of Mathura district and calculation for Supportive Carrying Capacity of the air, maximum no. of brick kiln may permitted during different months in Mathura district is as per Table.4. However, competent authority may take the decision and may issue directions for the operation of Brick Kiln Units and compliance of norms.

 The unit operators should develop a buffer zone of wide green cover along the periphery to arrest fugitive particulate matter from spreading out.  There should be arrangement for water sprinkling on earthen surface inside the premises of Brick Kiln units during operational hours.

 Display board with all the details should be fixed at the entrance of the unit.

 Appropriate provision for stack emission monitoring at the stack should be provided.

 Only permissible fuel should be used for running Brick Kilns and need to store properly at the site.  A standard operating procedure (SOP) should be formulated and training should be given to workers (firemen and brick setters) for operating Brick Kilns efficiently."

8. The applicant has filed objections to the report as follows:

"A Majority of Brick Kilns Operates with Old and Polluting FCBTK Technology in Violation of the CPCB direction as well as orders of This Hon'ble Tribunal.

4. The Joint Committee in its report has submitted that there are two brick kilns cluster namely Mant and Chhata clusters in District, Mathura. That as per the report (Refer Page No. 119) there are 168 numbers units are operating presently in Mant cluster out which only 22 are operating 17 with zig-zag technology and 146 are of old FCBTK technology. This itself is in violation of the CPCB Directions dated explained in more detail later. That in Chhata cluster there are 59 numbers brick kilns and about 52 out of 59 are operating with old FCBTK technology again in violation of the above mentioned directions. That in conclusion it is submitted that as per the list provided by the joint committee in Page No.165 of the report out of total 189 brick kilns in Mathura District only 30 are operating with zig-zag technology.

5. It is pertinent mention that the CPCB as early as on 27.06.2017 issued a statutory direction under Section 18(1) of Air Act, 1981 to all the States (including the State of Uttar Pradesh) for prevention of pollution from different types of brick kilns. The CPCB directed that all the brick kilns operating without consent, not meeting prescribed siting guidelines and standards should be closed down immediately. That further, the CPCB sought status of zig-zag conversion from the States and directed them to enforce siting criteria and further directed that the roads should be paved to suppress dust. True copy of the CPCB direction dated 27.06.2017 is marked and appended as ANNEXURE A/1.

6. That in the meantime this Hon'ble Tribunal in O.A. No. 718 of 2017, Anil Kumar vs Union of India & Ors vide order dated 22.01.2019 directed the CPCB to ensure compliance of the its direction dated 27.06.2017. True copy of the order dated 22.01.2019 in O.A. No. 718 of 2017 is marked and appended as ANNEXURE A/2.

7. That the CPCB in compliance with this Hon'ble Tribunal order dated 22.01.2019 in O.A. No. 718 of 2017 issued further direction dated 25.06.2019 under Section 18(1) of Air Act, 1981 to the Uttar Pradesh Pollution Control Board (UPPCB)directing them to provide a status report on the zig-zag conversion of brick kilns and the CPCB further directed that all the brick kilns operating without consent, not meeting prescribed siting guidelines and standards should be closed down immediately among other things. True copy of the CPCB direction dated 25.06.2019 is marked and appended as ANNEXURE A/3.

8. That what is shocking is that the UPPCB instead of complying with the direction of this Hon'ble Tribunal and the CPCB direction regarding conversion to zig-zag technology issued new Consent to Establish to 54 numbers of brick kilns between the year 2020- June,2021. That as per own report of the joint committee there are only 30 brick kilns operating with zig-zag technology and hence the UPPCB must have issued CTE between January 2020 to July, 2021 to brick kiln having old FCBTK technology. True copy of the list of brick kilns granted CTE between 12.09.2018 to 18 09.07.2021 and January 2020-July, 2021 obtained from the UPPCB website is marked and appended as ANNEXURE A/4.

9. That in light of above submission it is amply clear that out of 189 number of brick kilns only 30 brick kilns are operating with zig-zag technology in complete disregard of the direction of this Hon'ble tribunal and the statutory direction of CPCB and hence this Hon'ble tribunal may direct immediate closure of the brick kilns operating with the FCBTK technology in the District of Mathura.

B. CARRYING CAPACITY STUDY/ ASSIMILATIVE STUDY BEING INADEQUATE

10. That to carry out the study, the Joint Committee has considered the entire area of Mathura district i.e. 3,340 km2 ignoring the fact that substantial area of Mathura district comes under the Taj Trapezium Zone and hence no polluting i.e. Orange and Red Category industry can be operational is these areas. That the CPCB ought to have considered that the industrial cluster i.e. Mant and Chhata or area outside TTZ area are considered for the study and not the entire district.

11. That the Joint Committee in its report has observed that there are no continuous/ manual ambient air quality monitoring station operational in Mant and Chatta, Tehsil i.e. brick kilns cluster and there are 02 number of manual ambient air quality monitoring station at Mathura city which are approximately 25¬35 km away from the brick kiln cluster (Page No. 123 of the report). Further, the joint committee notes that the average mixing height monthly date (year- 2020) is adopted from continuous air quality station East Arjun Nagar, Delhi- CPCB appx. 75 km away from brick kilns cluster. (page No. 124 of the report). That it is humbly submitted before this Hon'ble Tribunal that considering data from such huge distances for sampling would not give correct conclusions on assimilative study.

12. It is pertinent to mention that the joint committee in its report permitted majority of the brick kilns to operate throughout the year (See Table No. 4 at page No. 126 of the report). That in fact out of total 189 brick kilns 153 is allowed in October, 163 in November, 162 in December and 156 in January ignoring the fact these months pollution level are very high in entire Delhi & NCR and operation of brick kilns in Mathura being at distance of merely 60-70 kms is likely to have huge impact on air quality of Delhi & NCR as well the Mathura itself. It is important to submit that this Hon'ble Tribunal in O.A. No. 1016 of 2019 vide final order dated 17.02.2021 only allowed the Brick Kilns to be operated during the months of March to June as per the carrying capacity study. There is no justification given in the report as to why such brick 19 kilns should operate throughout the year. This Hon'ble Tribunal may take a strict note of the same and order accordingly.

13. It is further submitted that the Joint Committee has not provided any details regarding data of Average Mixing Height used while carrying out the study. Further, the report is completely silent on the average monthly AQI data used for preparation of the report.

14. It is also important to submit that this Hon'ble Tribunal vide order dated 13.04.2021 directed the joint committee to look into the report dated 06.07.2020 furnished in O.A. No. 1016/2019, Utkarsh Panwar as well as discussion in the said order for preparation of the study. It is humbly submitted that the Joint committee in O.A. No. 1016 of 2019 (Utkarsh Panwar case) as well as in O.A. No. 1088 of 2018, (Dinesh Chahal case) used pollution load of 1000 kg/day for individual brick kiln but in this present case the Joint committee used pollution load of 3000 kg/day for individual brick kiln. That if the joint committee applies the same formula in the present case the number of brick kilns which may be allowed as per Table No. 4 will reduce to alteas the lf in number.

15. Further, the Joint Committee has completely disregarded the fact that the UPPCB, Regional Office at Mathura vide public notice dated 15.04.2021 has only permitted the brick kilns of Mathura to be operated during the months of March - June. That the Joint committee recommendation of allowing huge number of brick kilns throughout the year is in complete derogation of the steps taken by the UPPCB. True copy of the public notice dated 15.04.2021 is marked and appended is marked and appended as ANNEXURE A/5.

C. NO OBSERVATION ON FIRING PERIOD

16. The joint committee in its report dated 08.02.2021 in the matter of Utkarsh Panwar case had recommended that even if there is enough supportive carrying capacity to operate all the zig-zag type brick kilns in any district, the start-up firing may be allowed in three batches of 33% of the total Zig-Zag type brick kilns which can be operated, with a gap of 7 days within two batches. This is to ensure that PM 10 emission load in the ambient air mostly remains within assimilative carrying capacity. The Joint committee in the present case made no such observation and recommendation regarding the firing period despite of the fact that majority of the brick kilns in Mathura district are located in close proximity to each other in violation of the sitting criteria.

D. OLD/WRONG PRESCRIBED STANDARD ADOPTED FOR CARRYING OUT STUDY.

17. The Joint Committee for carrying stack monitoring of the brick kilns adopted prescribed standard of 750 mg/Nm3 while the new norm adopted by the Zig-Zag technology is 250 mg/Nm3. (monitoring results are pages 200 to 220 of the of the report.

18. That the Government of India vide notification G.S.R 176 (E) notified prescribed standards for brick kilns which was subsequently amended vide notification no. G.S.R 543(E) dated 22.07.2009. The Particulate matter standards of the Brick Kilns of Small Unit was 1000 mg/Nm3, Medium Unit was 750 mg/Nm3 and large Unit was 750 mg/Nm3.

19. Thereafter, the MoEF on in the year 2015 issued Environment Protection draft Amendment Rules, 2015. The Particulate matter standards as per the draft rules for Natural Draft Kilns was 500 mg/Nm3 and Induced Draft Kilns was 250 mg/Nm3.

20. The MoEF& CC on 15.03.2018 published draft prescribed standards for brick kilns under the Environment Protection Rules, 1986. The proposed prescribed standard for particulate matter is 250 mg/Nm3 for all class of brick kilns.

21. That the CPCB has filed a report dated 28.01.2020 in O.A. No. 1016 of 2019, Utkarsh Panwar versus CPCB & Ors states that brick kilns of zig-zag technology are meeting the present particulate matter standard of 750 mg/Nm3 as well proposed draft standard of 250 mg/Nm3 under the Environment Protection Rules, 1986. Further, the CPCB in its report stated that a PNG based brick kiln operated by M/s Weinberger Building Material Solutions emission level is 125 mg/Nm3 emissions. That as the majority of brick kilns in Mathura is being of FCBTK technology they cannot reduce their emissions level with the present technology.

E. Non Compliance of the Uttar Pradesh Brick Kilns (Siting Criteria for Establishment) Rules, 2012

22. The Applicant has filed google images as annexure A/4 in the Original Application which shows that brick kilns are adjacent to each other in close proximity and some cases less than 250 meters from the Government Hospital habitation area, school, colleges and highway in violation of the Uttar Pradesh Brick Kilns (Siting Criteria for Establishment) Rules, 2012.

23. That the of the Applicant is confirmed by the joint committee in its report at Page No. 120. The committee in its report states that the brick kilns at Mant cluster was not found as per the siting criteria. This is a ground alone to prohibit the operation of the said brick kilns.

24. The Joint Committee without giving any detail regarding the date of establishment of the brick kilns states that some of brick kilns were established prior to notification of the UP Siting Criteria Rules, 2012 and therefore they are not conforming with the siting criteria. It is surprising that even after nine years of notification of Uttar Pradesh Brick Kilns (Siting Criteria for Establishment) Rules, 2012, the UPPCB and CPCB has failed to implement the said rules.

25. It is also important to submit that this Hon'ble Tribunal in O.A. No. 1088 of 2018, Dinesh Chahal &Ors vs UOI &Ors vide order dated emphasized on the importance of siting criteria and safe distance of brick kilns from habitation. The relevant extract of the order is reproduced below:

"Under the precautionary principle which is a part of Article 21 of the Constitution has laid down by the Hon'ble Supreme Court in the case of Indian Council for Environ Legal Action v. Union of India &Ors., every regulatory authority must follow the precautionary principle and not permit any action which may deteriorate the air quality beyond the limits. The impact of brick kilns activities on air quality is acknowledged. The Hon'ble Supreme Court noted the recommendations of NEERI that distance of brick kilns needs to be considered from human habitations in the perspective of health effects on general population and effect on vegetation3. Studies on brick kilns also indicate that brick kilns are a leading cause of air pollution contributing upto 28% to the sources of air pollution. During operational phase of brick kilns, the air quality is severely polluted."

26. That the Joint Committee instead of giving exact numbers of brick kilns violating the siting criteria is using word such as 'some' and 'majority' for reasons best known to them.

F. EMERGENCE OF MATHURA AS HUB OF BRICK KILNS AND ESTABLISHMENT OF NEW UNITS IN 'CRITICALLY POLLUTED AREA'

27. That the data obtained from the website of the Uttar Pradesh Pollution Control website reveals that the UPPCB between the 2018 -19, eight (8) numbers of brick kilns were granted Consent to Establish and between 2020 - July, 2021 fifty four (54) new brick kilns were granted Consent to Establish. True copy of the data is already annexed as Annexure A/4. That this recent development seems to be a conspiracy to avoid the implication of order of this Hon'ble Tribunal in Utkarsh Panwar case for Delhi & NCR region.

28. It is also pertinent to mention that CPCB's CEPI Scores for Industrial Areas/Clusters monitored during 2018, 22 mention Mathura as '91.10 score' and hence Mathura is a 'Critically Polluted Area'. Further, as per the CPCB uniform categorization of industries, the Brick Kilns unit falls under 'Orange' category and hence the UPPCB cannot be allowed to issue consent to establish to new units as per order dated 10.07.2019 of this Hon'ble Tribunal in 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". But the UPPCB has issued CTE to 62 new units. The relevant extract of the order in para 28 is reproduced below:

"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 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. That there are number of brick kilns which are located in very small area and these brick kilns continuously requires raw material i.e. Soil, the Joint Committee has made no observation regarding source of such minor mineral and whether necessary permissions have been obtained for the same or not.

G. Violation of Consent Condition and CPCB Directions

30. That almost all the brick kilns of the Mathura district are not following the consent conditions. The joint committee now in its report pointed out the infirmities but it is surprising that the UPPCB has failed to take action 23 against any of the brick kilns. The following violations among others were observed by the joint committee:

i. Greenery and Plantation was not observed in majority of the units.

ii. No paved road and 3 meters boundary wall were observed.

            iii. No    permanent       arrangement     of    stack
                 monitoring.

iv. Absence of water sprinklers to suppress the dust.

v. No display board consisting of name of the unit, address, monitoring data among other things.

vi. Out of 189 brick kilns only 65 number of brick kilns are registered for GST.

31. It is also important that banned fuel such as plastic, rubber parts of old vehicles, shredded old automobile tyres and remnants of vehicles and other combustible machinery scraps were also found being used by the brick kilns units. The Joint committee in its report at Page No. 121 states that only permissible fuel was found in Chhata cluster but in the same report at Page No. 134 annexed photograph stating that Brick Kiln at Chhata was found using non permitted fuel.

32. It is humbly submitted before this Hon'ble Tribunal that Mathura and adjacent Vrindavan are place of great heritage importance with huge cultural and religious significance. That Mathura is birth place of "Lord Krishna"

and also holy temple of "Bankey Bihari" is situation here. That this place is visited by several lakhs of devotees every year and some people make this place as their permanent home after retirement. That presence of these large numbers of polluting and non-conforming industries will have huge impact on the health of lakhs of people who visit Mathura temporarily or reside permanently.

33. In light of the above submissions it is humbly submitted that this Hon'ble Tribunal may consider the objections of the Applicant and pass appropriate directions. Further, this Hon 'ble Tribunal may direct the UPPCB to revoke and not renew the consent of the violating brick kilns till the consent conditions are fulfilled."

9. We have heard learned Counsel for the appearing parties. Learned Counsel for the applicant submitted that Zig-Zag technology is mandatory under the CPCB direction as the said technology comparatively produces lesser pollution. All brick kilns using old polluting technology FCBTK be closed. Reliance has been placed on the order of this Tribunal on the subject dated 22.01.2019 in OA 718/2017, 24 Anil Kumar v. Union of India & Ors. In violation of the directions of the CPCB, fresh consents are being given by the State PCB for operation of brick kilns using old FCBTK technology. Infact time has come to close coal fired activities in area where air quality is poor or above. Out of 189 brick kilns, only 30 brick kilns are using Zig-Zag technology. The remaining are required to be closed. It is preferable to shift to gas based fuel.

Mathura District is part of Taj Trapezium Zone (TTZ) where 'orange' and 'red' category industries are not permitted. Even if Mant and Chhata or other areas all under outside TTZ, the level of air quality has to be considered before granting/renewing any consent having regard to mandate of Air (Prevention and Control of Pollution) Act, 1981. In the report, the data considered is of the entire year and not of the months during which air quality is beyond norms and pollution level is high.

Data is not of the local area where the brick kilns are working. The report ignores the order of this Tribunal dated 17.02.2021 in OA 1016/2019, Utkarsh Panwar v. Central Pollution Control Board & Ors., whereby the Tribunal allowed operation of brick kilns only from March to June, having regard to the air quality, limiting to the number which was sustainable as per carrying capacity. Carrying capacity needs to be worked out following correct norms and correct data. Brick kilns not complying with the consent conditions need to be closed till compliance as per precautionary principle. Siting criteria is to apply even to old brick kilns as every renewal is at par with new consent. No doubt the earlier order in Utkarsh Panwar is for Delhi and NCR, the principle underlying the said order has to be followed. Further reference has to be made to the notification issued by the Govt. of India prescribing standards for brick kilns. The prescribed standards are:

"18. .... Standards of the Brick Kilns of Small Unit was 1000 mg/Nm3, Medium Unit was 750 mg/Nm3 and large Unit was 750 mg/Nm3.

19. Thereafter, the MoEF on in the year 2015 issued Environment Protection draft Amendment Rules, 2015. The Particulate matter standards as per the draft rules for Natural Draft Kilns was 500 mg/Nm3 and Induced Draft Kilns was 250 mg/Nm3.

20. The MoEF& CC on 15.03.2018 published draft prescribed standards for brick kilns under the Environment Protection Rules, 1986. The proposed prescribed standard for particulate matter is 250 mg/Nm3 for all class of brick kilns."

The Uttar Pradesh Brick Kilns (Siting Criteria for Establishment) Rules, 2012 requires a distance from 250 meters from the Government Hospital habitation area, school, colleges and highway. But in violation of the said criteria, there are brick kiln clusters in violation thereof. 54 brick kilns have been recently granted consent to establish without considering the air quality data. The CEPI score for Industrial Areas/Clusters monitored during 2018, mention Mathura as '91.10 score' and hence Mathura is a 'Critically Polluted Area'. Further, as per the CPCB uniform categorization of industries, the Brick Kilns unit falls under 'Orange' category and hence the UPPCB cannot be allowed to issue consent to establish to new units. Brick kilns which are located in very small area and these brick kilns continuously require raw material i.e. Soil, the Joint Committee has made no observation regarding source of such minor mineral and whether necessary permissions have been obtained for the same or not.

The brick kilns are also violate the consent conditions. The joint Committee has found:

"i. Greenery and Plantation was not observed in majority of the units.

ii. No paved road and 3 meters boundary wall were observed. iii. No permanent arrangement of stack monitoring. iv. Absence of water sprinklers to suppress the dust.

v. No display board consisting of name of the unit, address, monitoring data among other things.

vi. Out of 189 brick kilns only 65 number of brick kilns are registered for GST."

Banned fuel such as plastic, rubber parts of old vehicles, shredded old automobile tyres and remnants of vehicles and other combustible machinery scraps were also found being used by the brick kilns units.

The Joint committee in its report at Page No. 121 states that only permissible fuel was found in Chhata cluster but in the same report at Page No. 134 annexed photograph stating that Brick Kiln at Chhata was found using non permitted fuel.

10. We have considered the issue and also heard learned Counsel for the State PCB/CPCB/Brick kiln owner. From the above resume, it is seen that there are acknowledged serious violations of environmental norms in permitting the operation of brick kilns but the statutory authorities have failed to enforce the law, to protect public health and citizens right to breathe clean air which has to prevail over right to business. Precautionary principle is completely ignored. Air quality norms are violated. Consents have been mechanically given and renewed without any regard to statutory obligation of assessing air quality. There is no effective monitoring mechanism against violations. Even after violations are found, closure is not being ordered till compliance, which has to be the norm under the law. Even air quality monitoring stations have not been set up at air pollution hot spots. Norms applied for calculating carrying capacity are not as required thereby permitting more pollution than permissible. Even those found using prohibited fuel have not been proceeded against. Those registered for GST are also not proceeded against. How will air standards be enforced? Public 27 trust doctrine is given a go by. Casualty is public health particularly of innocent citizens who look to the State for their protection. They are helpless when the State fails in its duty.

11. This Tribunal, vide order dated 17.02.2021 in OA 1016/2019, Utkarsh Panwar v. Central Pollution Control Board & Ors., considered the issue of permissibility of brick kilns beyond the assimilative carrying capacity in the NCR and in the light of the Expert Committee report. This Tribunal directed that brick kilns be allowed to operate only from March to June using Zig-zag technology only to the extent of such number of brick kilns as were found to be viable in terms of the carrying capacity. The Tribunal directed that if the brick kilns shift to PNG, units may be allowed to function if pollution norms can be maintained. This Tribunal banned fire crackers where air quality is poor and above vide order dated 1.12.2020 in OA 249/2020. Vide order dated 15.7.2019 in OA 710/2017, the Tribunal directed District Environment Committees headed by District Magistrates to prepare District Environment Plans to control and regulate pollution as per Constitutional mandate. In OA 681/2018, vide order dated 8.10.2018, steps were directed to be taken for control of air pollution in cities identified as 'non-attainment' by Air Quality Monitoring Committees, to be headed by the Environment Secretaries, by preparing action plans.

12. Extract from order dated 1.12.2020 in OA 249/2020 is reproduced below:

"18. ..........If the air quality is 'poor' and above, it has been held by the Hon'ble Supreme Court in the table quoted in para 4 above that there is danger of heart diseases, respiratory illness and other serious health impact even before Covid. Covid is going to further aggravate the situation and therefore atleast in areas where air quality is 'poor' and above, no 28 bursting of fire crackers should be permitted in view of 'Precautionary' principle, to be statutorily enforced by this Tribunal under Section 20 read with section 15 of the National Green Tribunal Act, 2010.

32. .........In view of above discussion, following directions are issued:

i. There will be total ban on sale and use of all kinds of fire crackers during Covid-19 pandemic in the NCR and all cities/towns in the country where the ambient air quality falls under the 'poor' and above category.

v. We further direct that the Air Quality Monitoring Committees (AQMC) in terms of order of this Tribunal dated 08.10.2018 in OA No. 681/201810 to coordinate with the District Magistrates.11 for compliance of the above directions."

13. Applying the same principles, we are of the view that the brick kilns ought to be permitted to the extent of carrying capacity, correctly calculated, strictly as per consent conditions, siting criteria and other environment norms. When air quality standards are exceeded, only non polluting technology has to be followed.

Existing guidelines have to be strictly adhered to. Precautionary principle has to be applied and non compliant activity stopped.

14. The impact of air pollution on public health is noted in the order of the Hon'ble Supreme Court in Arjun Gopal & Ors. v. UOI & Ors.12:

Table 1 AQI Associated Health Impacts Good Minimal impact.

The said order is as follows:

"15. xxx xxx xxx i. xxx xxx xxx ii. The Action Plans may be prepared by six-member committee comprising of Directors of Environment, Transport, Industries, Urban Development, Agriculture and Member Secretary, State Pollution Control Board or Committee of the concerned State. The Committee may be called Air Quality Monitoring Committee (AQMC). The AQMC will function under the overall supervision and coordination of Principal Secretary, Environment of the concerned State/Union Territory. This may be further supervised by the Chief Secretaries concerned or their counterparts in Union Territories by ensuring intra-sectoral co-ordination."

The District Environment Committee has been directed to be constituted by this Tribunal to prepare and execute District Environment Plan vide order dated 15.07.2019 in OA No. 710/2017, Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahjanhanpur & Ors.

(2017) 1 SCC 412 29 (0-50) Satisfactory May cause minor breathing discomfort to sensitive people. (51-100) 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 (201-300) discomfort to people with heart disease. Very Poor May cause respiratory illness to the people on prolonged exposure. Effect may (301-400) be more pronounced in people with lung and heart diseases. Severe May May cause respiratory impact even on healthy people, and serious health (401-500) impacts on people with lung/heart disease. The health impacts may be experienced even during light physical activity.

15. In the said order, the Tribunal held that coal fired brick kilns be not allowed in Delhi and NCR except to the extent of carrying capacity.

The observations of the Tribunal are reproduced below:

"10. ..... Coal as a fuel adds to air pollution and when air quality is 'severe' brick kilns can be allowed on replacing coal by cleaner fuel like Piped Natural Gas (PNG). This is the reason behind GRAP not permitting other coal-fired brick kilns. The logic applies to zig zag technology kilns also, though compared to FCBTK, it is better. It does not result in zero pollution during 'severe' conditions when any addition to pollution load is hazardous to health. Since, as per independent study, there was no carrying capacity of the air quality of the NCR Region to sustain coal-fired brick kilns during 'severe' conditions, using zig-zag technology, which does not eliminate pollution could not justify such brick kilns. It will suffice to reproduce the operative orders passed on five last occasions which are as follows:

A. Order dated 18.12.2019:

"4. In view of the above, while CPCB may conduct further study for assessment of different types of brick kilns with reference to source emissions from different types of fuels, having regard to the conclusion that average fugitive SPM values are almost same in FCBTK and Zig-Zag brick kilns, the interim order directing closure of brick kilns in NCR will continue till the next date. Thereafter, brick kilns in NCR may be allowed only consistent with the carrying capacity and siting criteria, subject to GRAP, consent conditions and background concentration of ambient air quality."

B. Order dated 06.02.2020:

"3. Since brick kilns can be permitted only after ascertaining the carrying capacity as above, let a report about carrying capacity of the NCR region in above terms be furnished by CPCB before the next date by e-mail at [email protected]."

C. Order dated 05.03.2020:

"4. In view of the above, a report has been filed by the CPCB on 04.03.2020 as follows:

"As per information provided by SPCBs, there are total 3278, 2854 and 19003 brick kilns in Haryana, Punjab and Uttar Pradesh respectively, out of which 1918, 701 and 1343 brick kilns have been converted to Zig-Zag technology. With regard to NCR regions, out of 2187, 2216 and 251 brick kilns in Haryana, Uttar Pradesh and Rajasthan respectively, 1504, 1032 and 127 brick kilns have been converted to Zig-Zag technology. Brick Kilns based on Zig-Zag technology using agro- residues are located only in NCR districts. Different types of activities with potential of air pollution, including operation of brick kilns in Delhi-NCR are regulated through a Graded Response Action Plan (GRAP) by Environmental Pollution Control Authority. As per GRAP, Brick kilns in NCR are required to be shut under severe conditions i.e. when PM2.5 and/or PM10 concentration goes beyond 250 µg/m3 and/or 430 µg /m3 respectively.

In view of the expected higher concentration of PM emissions during winter months, brick kilns in the NCR regions were kept closed during this period as per directions of EPCA. However, now, 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, PM 10 concentration in summer months (March- June) is lower (Average 219 µg /m3 ) in comparison to winter months (Average 283 µg /m3).

The past data of 2019 w.r.t. PM10 & PM2.5 concentration in Delhi, is summarized in Table 1:

Table 1: Monthly data of CAAQMs w.r.t. PM Concentration for 2019, in Delhi Month PM 2.5, µg /m3 PM10, µg /m3 January 203 322 February 122 215 March 83 184 April 83 236 May 89 247 June 63 209 July 47 143 31 August 35 85 September 40 98 October 128 247 November 202 312 December 209 316 Therefore, in view of submission that 65 Nos brick kilns are proposed to be monitored in both NCR and Non-NCR regions, involving total 585 stack emissions' samples, in compliance of the directions of Hon'ble NGT in the matter of 0.A. No. 1016/2019 and 0.A. No. 1088/2018, it is humbly prayed as under:

I. Brick Kilns based on Zig-Zag technology using agro-residues are located only in NCR districts and if these are to be monitored to assess the performance of brick kilns operating on agro- residues, under comparable situations, the Zig-Zag type brick kilns in NCR regions, which are presently dosed, may have to be made operational, to facilitate monitoring.

II. Atleast 04 months' time period may be granted to CPCB, for Monitoring of 65 brick kilns in NCR and Non-NCR regions and submission of report covering i) Impact of brick kilns operation on loss/degradation of top soil, ii) study involving Carrying Capacity Assessment of brick kilns with adequate samples in terms of number of brick kilns and days for which monitoring be conducted, iii) Evaluation of the performance of brick kilns against the background concentration and carrying capacity of the area and iv) Impact on Brick Kilns operation on ambient air, in the matters of O.A. No. 1016/2019 and O.A. No. 1088/2018, after commencement of operation of brick kilns in NCR regions."

5. We have heard learned Counsel for the CPCB and for the brick kilns, including those who have filed applications for being implead as party in pursuance of order of Hon'ble Supreme Court dated 20.02.2020 in C.A. No. 1733-

35/2020.

6. Learned Counsel for the CPCB submitted that having regard to the data of air quality, even though as per GRAP brick kilns are to be mandatorily shut throughout NCR only under 'severe conditions', no polluting activity, including brick kilns, can be permitted beyond 'carrying capacity' and air quality norms under the Air (Prevention and Control of Pollution) Act, 1981. On the other hand, the stand of the brick kilns is that unless the conditions are 'severe' to attract GRAP and unless prohibited by EPCA, 'Zig-Zag' technology brick kilns have right to operate irrespective of the air quality norms. Reliance has also been placed on norms for brick kilns under Schedule-I, Sr. No. 74 of Environment (Protection), Rules 1986. Alternatively, it is submitted that at such locations where air quality is within norms, brick kilns may be allowed. By way of example, it is stated that the ambient air quality data at Alwar, as on 18.02.2020, is within norms.

7. We do not find any merit in the contention that only in 'severe' conditions brick kilns can be prohibited even if the air quality is beyond permissible norms and the area has no assimilative or supportive capacity. Emission norms of individual brick kilns is not a conclusive factor for dealing with the issue, if the carrying capacity of the area does not allow the brick kilns in question. However, we do need to consider the submission that where air quality is within the norms and there is carrying capacity, brick kiln can be allowed.

8. In view of the above, it is necessary to look at the relevant data at different locations '24 hourly' and 'monthly average' during the relevant months. Since such data is maintained by the CPCB/PCBs, the CPCB may collect such data for corresponding months of March, April, May and June in the year 2019 and furnish the same before the next date. The break-up of location of the brick kilns District-wise may also be furnished to consider as to which of the brick kilns can be allowed after verification that such brick kilns are actually working on 'Zig-Zag' technology, pending further assessment of the carrying capacity by the CPCB, as already directed earlier vide order dated 06.02.2020."

D. Order dated 23.03.2020:

"6. We have considered the above data which shows that in the corresponding months when brick kilns were operating, standard of air quality was not as per prescribed norms. Thus, the air quality of the area is unable to take further pollution load. In this regard, it may be noted that while considering the issue of operation of brick kilns in non-NCR area, where GRAP was not applicable as such, in O.A. No. 1088/2018, Dinesh Chahal & Ors. vs. Union of India & Ors., the Tribunal vide order dated 30.04.2019 observed that standards of ambient air quality are required to be maintained under Section 17(g) of the Air Act, 1981:

"3. ... The matter was again considered on 21.02.2019 with reference to the contention that the impugned order was only for Non-NCR to which order of CPCB or EPCA did not apply. The Tribunal held that even in Non-NCR, Standards of Ambient Air Quality laid down under Section 17 (g) of the Air Act are required to be followed. If the impugned order has been passed without undertaking any study on status of ambient air quality without any carrying capacity assessment to take the additional load at concerned areas and without any safeguards on 'Precautionary' principle, the same may not be justifiable having regard to the acknowledged adverse impact of operation of the brick kilns on the ambient air quality. Reference was made to the Judgements of the Hon'ble Supreme Court in M.C. Mehta v. Union of India, (1998) 9 SCC 149, M.C. Mehta v. Union of India (2000) 7 SCC 422, M.C. Mehta v. Union of India, (2002) 4 SCC 378, K. Guruprasad Rao v. State of Karnataka, (2012) 12 SCC 33 736 wherein the Hon'ble Supreme Court directed closure or shifting of brick kiln industries and M.C. Mehta v. Union of India, (2001) 9 SCC 235 laying down that brick kilns may be allowed to operate after studying the impact on human population and vegetation."

7. Learned Counsel for the brick kiln operators, however, submit that prohibition on operation of brick kilns be lifted as some individual brick kilns meet the air quality emission standards laid down under the Environment (Protection) Rules, 1986 and the brick kilns are not the only source of pollution. Contribution of all the brick kilns taken together, to the air pollution, was about 3%. It was also mentioned that as at present air quality norms are within limit in seven districts out of 15 districts of NCR.

8. As observed earlier, the question is not merely of an individual brick kiln not emitting pollution or the extent of contribution of the brick kilns taken separately, but of the capacity of the area being already air polluted and unable to take the load of pollution. When there is no carrying capacity in the area for further air pollution, we find it difficult to permit operation of the closed brick kilns to uphold the 'Sustainable Development' principle. When even without operation of the brick kilns the air quality is not within the norms, the impact of operation of the brick kilns cannot be ignored. Thus, we find it difficult to accept the submission that the individual brick kilns maintaining the prescribed standards for discharge of emissions are entitled to operate or that they be allowed to operate on the ground that pollution caused by the brick kilns is less than other pollution from other sources irrespective of carrying capacity of the area. The fact remains that brick kilns add to the air pollution and thereby affect right of citizens to breathe fresh air.

9. We may now consider another aspect of the matter i.e. impact of the brick kilns on the top soil. As noted in order dated 05.03.2020, CPCB has undertaken to look into this aspect and has not yet completed its study. As per available study, there is huge environmental cost in using top soil for making brick making.13 Reference may also be made to a study on "The Impact of Brick Kiln operation to the degradation of topsoil quality of Agricultural Land".14 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 13 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.

www.researchgate.net/publication/282431176_The_impact_of_brick_kiln_operation_to_the_degradation_of_to psoil_quality_of _agricultural_land.

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 directed15:

"25. Accordingly, we allow the applications and direct the GPCB to close all coal gasifiers industries and units operating with the help of coal gasifiers without prejudice to such units switching over to non-coal gasifiers or PNG or technology consistent with the above report. The GPCB must initiate immediate steps for prosecution of the industries which have operated in violation of law and recover compensation for causing damage to the environment and public health."

11. Issue of allowing operation of brick kilns may give rise to following questions:

(i). The use of cleaner fuels or any other alternative measures to be used to prevent air pollution.

(ii). Siting and carrying capacity.

12. In view of the fact that there is no carrying capacity of the air quality in NCR region to permit any further addition to PM load by permitting unconditional operation of brick kilns using fuel which adds to PM load and since it may be necessary to consider the issue of utilizing fly ash, we require an expert opinion on following issues:

(a) how brick kilns can be allowed in NCR without damage to the air quality;

(b) conditions subject to which it may be done;

(c) number of brick kilns to be allowed and criteria for fixing such numbers.

13. Let CPCB look into the above issues and furnish a further report within one month for further directions in the matter. The applicants are free to put forward their viewpoint before CPCB."

E. Order dated 15.10.2020:

7. Accordingly, in above backdrop, the CPCB has given its report dated 06.07.2020. The CPCB considered suggestions/objections of the Brick Kiln Owner Association in terms of order of this Tribunal which have been summed up in the report as follows:-

Order dated 06.03.2019 in O.A. No. 20/2017 (WZ), Babubhai Ramubhai Saini vs. Gujarat Pollution Control Board & Ors.

"(a) The brick kilns are complying with the directions of CPCB w.r.t. shifting from the Old Fixed Chimney Bull Trench Kiln Technology to Zig-Zag Technology.

(b) The brick Kilns have been established as per siting criteria.

(c) The Hon'ble Supreme Court of India in Civil Appeal No. 1742-43 of 2020 (Diary No. 5935/2020) vide order dated 20/02/2020 requested Hon'ble NGT to decide the O.A. No. 1016/2019, in the light of the provisions of the Graded Response Action Plan (GRAP) of MoEF&CC and EPCA order dated 14/02/2020.

(d) The brick kilns in NCR regions are required to be closed under Severe Category (PM10 > 430 ug/m3 or PM2.5 > 250 ug/m3) under GRAP.

(e) Brick Kilns based on Zig-Zag technology are less polluting and are complying with the both existing and proposed standards for stack emissions.

(f) PNG, CNG and industrial LPG are not available in majority of places where brick kilns are situated.

(g) The blanket ban on operation of brick kiln industries has affected livelihood rights of approximately one million people in the national Capital region.

(h) The brick Kiln industries are seasonal and hence only operate from January to June and indefinite closure for the want of study would cause and has already caused irreparable damage to the brick kiln industry.

(i) Utilization of fly ash may not be treated as a true alternative unless the harmful impacts of fly ash bricks are not studied.

(j) A report on "Source Apportionment of PM2.5 and PM10 of Delhi NCR for identification of major sources" prepared by ARAI and TERI for Department of Heavy Industry, Ministry of Heavy Industries and Public Enterprises, New Delhi, in the year 2016, reveals that brick kiln industry contributed only about 8% to the air pollution of Delhi and NCR. It was further found that the brick kilns shifting to Zig-Zag technology would further lead to reduction of 3%, 4% and 6 % in total PM2.5, PM10 and SO2 emissions. The contribution of the brick kilns is very less in Delhi and NCR after conversion to Zig-Zag technology.

(k) The utilization of fly ash in the manufacture of bricks is not only unfeasible because of several issues involved in the transportation of fly-as to brick- kilns. It poses several health hazards to the inhabitants residing in buildings made thereof, in addition to health hazards to laborers working at brick- kilns and on construction sites.

(l) Various kinds of industrial and other activities contribute together to saturate the carrying capacity of the region. It is submitted that saturation of the carrying capacity of Delhi-NCR cannot be the basis for 36 denying permission to brick kilns to operate. This is particularly because brick kilns emissions are not amongst the main contributors to air pollution in Delhi- NCR.

(m) Any directions that prohibit brick kilns from operating in Delhi- NCR on account of saturation of the carrying capacity, without first prohibiting the other more polluting activities, would be arbitrary and violative of Article 14 and Article 19(1)(g) of the Constitution of India.

(n) The brick kilns may be allowed to operate at par with other activities that together contribute to the carrying capacity of Delhi-NCR, subject to the conditions of the Consent to Operate and guidelines issued by the regulatory bodies so as to avoid fugitive dust emissions.

(o) The directions issued by the EPCA from time to time are sufficient to ensure that the brick kilns operate in Delhi-NCR without any damage to the air quality.

(p) The brick kilns that do not comply with the conditions of the Consent to Operate and other guidelines issued by the regulatory bodies from time to time may also be closed down with immediate effect.

(q) The brick kilns, which have adopted the zig-zag technology, may be permitted to operate in Delhi-NCR."

xxx...................................xxx..........................................xxx

11. Considering the objections of the brick kilns owners, it was observed:-

"15. We are unable to find any substance in the objections. CPCB has duly explained that the Carrying Capacity is based on monthly average data on PM10 generated from CAAQMS and where no such data was available, Aerosol Optical Depths were extrapolated to PM. Further, carrying capacity has been assessed by taking mixing heights into consideration and comparing with identical air shed of districts geographical area and dispersion air volume conditions. With regard to emission load, the load is based on actually monitored values taking stack diameter, velocity, temperature and pressure of flue gases and standard of 250 mg/Nm 3 at 17% O 2. Overall fact is that entire NCR has no carrying capacity to take load of the pollution of the brick kilns as already levels of PM10 and PM2.5 are exceeding daily/annual standards. As per Table 15 of the Report, no brick kiln has scope to operate except, some may, during March to June.

16. Other issues raised are no longer res integra and are covered against the objectors by the law laid down by the Hon'ble Supreme Court. Reference may be made to some of the judgements dealing with the issue.

Supreme Court judgments dealing with Air quality of NCR, Precautionery principle, control of pollution from one source hen there are multiple sources and enforcement of environment norms where right to trade is pleaded

17. In Arjun Gopal & Ors. v. UOI & Ors.16, it was observed that the residents of NCR faced severe air quality standards which were worst in the World. It had serious adverse health impact. Life of citizens in NCR had been brought to virtual standstill. The Capital was smoked into an environmental emergency of unseen proportions. It will be appropriate to extract some observations from the judgment:-

"4. The onset of winter and the festival/marriage season this year, presented to the residents of NCR severe concerns regarding the air quality standards. According to reports, the air quality standards in early November of this year were the worst in the world. It is reported that the PM2.5 levels recorded were "beyond scale" values (see India's Air Quality Among World's Worst Over Diwali Weekend: Report. 4-11-2016, Hindustan Times). The report indicates that 24-hour average of PM2.5 levels in South Delhi in 2016 were 38% higher than on the Diwali night of 2015. The day after Diwali, these levels were twice as high as the day after Diwali in 2015, crossing 650 μg/m3, which is 26 times above the WHO's standards or levels considered safe. Shockingly, on the morning of 1-11-

2016, Delhi woke up to an average PM2.5 level of over 700 μg/m3 -- some of the highest levels recorded the world over and 29 times above WHO standards. The report further states that the WHO guideline for 24- hour average PM2.5 levels is 25 μg/m3 and with an annual average PM2.5 level of 122 μg/m3, Delhi's air is the worst among global megacities with dense populations. We have particularly referred to the PM 2.5 levels because of the extreme effects and near invisibility of this type of particulate matter. PM2.5 or particulate matter 2.5 (PM2.5), refers to tiny particles or droplets in the air that are two-and-one- half microns or less in width. It may be noted that the widths of the larger particles in the PM2.5 size range would be about thirty times smaller than that of a human hair. These particles primarily emanate from vehicle exhausts and other operations that involve the burning of fuels such as wood, heating oil or coal, and of course, use of fire crackers.

5. In India, air quality standards are measured in terms of the Air Quality Index (hereinafter "AQI"). The AQI was launched in India on 17-10-2014 by the Ministry of Environment and Forests. According to the press release of the Press information Bureau of the same date, it consists of a comprehensive set of 16 (2017) 1 SCC 412 38 parameters to monitor and asses the air quality. The AQI considers eight pollutants (PM10, PM2.5, NO2, SO2, CO, O3, NH3, and Pb), and based on the levels of these pollutants six categories of AQI ranging from "Good" to "Severe" have been prescribed. The index also suggests the health effects of the pollution categorywise. The gradation of AQI and its health impact is extracted below:

Tables 1 and 2 have already been reproduced in para 1 above and are not being repeated.

xxx.............................xxx ......................................xxx xxx.............................xxx ......................................xxx

6. Reports indicate that AQI in Delhi was much above the severe standard, shooting off the AQI 500 mark on many days this November. On the day after Diwali, it was more than 14 times the safe limits (see Delhi's Pollution Levels Peaks at 14-16 Times Safe Limits, 31-10-2016, The Hindu). The adverse health effects of these hazardous levels of pollution are only too evident from the table given above. We do not intend to refer to the multiplicity of reports and data on this front.

7. The hazardous levels of air pollution in the last few weeks has spared very few from its ill effects. The life of the citizens of NCR was brought to a virtual standstill, not to speak about the plight of the thousands of mute flora and fauna in NCR.

Schools were declared shut, denizens of the city advised to stay indoors, construction activities stopped, power stations shut and ban imposed on burning of garbage and agricultural waste. The fall in air quality has had a significant impact on people's lifestyle as well. The rising costs to protect against air pollution are substantial. It has come to our notice that people are queuing up to purchase protective masks and air purification systems in the wake of dense smog all over the NCR. In short, the capital was "smogged" into an environmental emergency of unseen proportions.

8. The adverse effects of these extreme levels of air pollution spare no one -- the young, the old, the infirm and even the future generations. A study of the data of the Global Health Depository of the World Health Organisation reveals that India has the world's highest death rate from chronic respiratory diseases and that about 1.5 million people in India die annually due to indoor and outdoor pollution (see Delhi Wakes up to an Air Pollution Problem it cannot Ignore, 15-2-2015, The New York Times). The Kolkata-based Chittaranjan National Cancer Institute (CNCI), in a study commissioned and handed over to the Central 39 Pollution Control Board, found that key indicators of respiratory health, lung function to palpitation, vision to blood pressure, of children in Delhi, between four and 17 years of age, were worse off than their counterparts elsewhere. It also found that more than 40% of the school children suffer from lung damage (see Landmark Study Lies Buried, 2-4-

2015, The Indian Express). We note with apprehension that there are nascent studies that suggest that pollution can lower children's IQ, hurt their test scores and increase the risks of autism, epilepsy, diabetes and even adult-onset diseases like multiple sclerosis (see Holding Your Breath in India, 29-5-2015, The New York Times).

9. It has been brought to our notice that the severe air pollution in the NCR is leading to multiple diseases and other health related issues amongst the people. It is said that the increase in respiratory diseases like asthma, lung cancer, bronchitis, etc. is primarily attributable to the worsening air quality in the NCR. The damage being caused to people's lungs is said to be irreversible. Other health related issues like allergies, temporary deafness are also on the rise. Various experts have pointed towards multiple adverse effects of air pollution on human health like premature deaths, rise in mortality rates, palpitation, loss of vision, arthritis, heart ailments, cancer, etc.

10. When we refer to these extreme effects, we are not merely referring to the inconvenience caused to people, but to abject deprivation of a range of constitutionally embedded rights that the residents of NCR ought to have enjoyed. Needless to state, the grim situation of air quality adversely affected the right to education, work, health and ultimately, the right to life of the citizens, and this Court is constitutionally bound to address their grave concerns. May we remind ourselves, that this is not the first time that this Court was impelled into ensuring clean air for the citizens of the capital region (see M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 6 SCC 60] , [M.C. Mehta v. Union of India, (1998) 9 SCC 589] , M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 8 SCC 648] and M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1998) 8 SCC 206] )."

18. In the context of banning sale of crackers having adverse impact on the air quality, it was held that even if there were several sources of pollution, a particular polluting activity could be prohibited. No equality could be pleaded in this regard. Right to trade was not absolute and could be restricted for protection of Environment which was a specific Directive Principle of State Policy enforcement of which 40 was a reasonable restriction on fundamental right to trade. The 'Precautionary Principle' of environmental law allows prohibition of a polluting activity even in absence of scientific certainty. Relevant extracts are as follows:-

"37 The aforesaid findings are sufficient to negate the arguments of the opposite side that there is absence of scientific study about the adverse effect of firecrackers during Diwali. In environmental law, "precautionary principle" is one of the well-recognised principles which is followed to save the environment. It is rightly argued by the petitioners that this principle does not need exact studies/material. The very word "precautionary"

indicates that such a measure is taken by way of precaution which can be resorted to even in the absence of definite studies. In Vellore Citizens' Welfare Forum [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647], this Court explained the principle in the following manner: (SCC pp. 658 & 660, paras 11 & 14-16) "11. Some of the salient principles of "Sustainable Development", as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that "the precautionary principle" and "the polluter pays principle" are essential features of "Sustainable Development". The "precautionary principle"

-- in the context of the municipal law -- means:

(i) Environmental measures -- by the State Government and the statutory authorities -- must anticipate, prevent and attack the causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(iii) The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.

***

14. In view of the abovementioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.

15. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of 41 law. To support we may refer to H.R. Khanna, J.s' opinion in ADM, Jabalpur v. Shivakant Shukla [ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521] , Jolly George Varghese case [Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360] and Gramophone Co.

case [Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534 : 1984 SCC (Cri) 313] .

16. The constitutional and statutory provisions protect a person's right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment. ..."

38. The precautionary principle accepted in the aforesaid judgment was further elaborated in A.P. Pollution Control Board case [A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718] as under: (SCC pp. 732-34, paras 31-35) "31. The "uncertainty" of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum v. Union of India [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] a three-Judge Bench of this Court referred to these changes, to the "precautionary principle" and the new concept of "burden of proof" in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various international conferences and to the concept of "sustainable development", stated that the precautionary principle, the polluter pays principle and the special concept of onus of proof have now emerged and govern the law in our country too, as is clear from Articles 47 , 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in Vellore case [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] in this behalf read as follows: (SCC p. 660, para 14) '14. In view of the abovementioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.' The Court observed that even otherwise, the abovesaid principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law. In fact, on the facts of the case before this Court, it was directed that the authority to be appointed under Section 3(3) of the Environment (Protection) Act, 1986 'shall implement the "precautionary principle" and the "polluter pays principle"'.

The learned Judges also observed that the new concept which places the burden of proof on the developer or industrialist who is proposing to alter the status quo, has also become part of our environmental law.

32. The Vellore [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them.

33. A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier, the concept was based on the "assimilative capacity" rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy- makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the "precautionary principle", and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:

'Principle 15.--In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing cost-effective measures to prevent environmental degradation.'

34. In regard to the cause for the emergence of this principle, Charmian Barton, in the article earlier referred to in "The Status of the Precautionary Principle in Australia"

[(1998) 22 Harvard Environmental Law Review 509 at p. 547] says:

'There is nothing to prevent decision-makers from assessing the record and concluding that there is inadequate information on which to reach a determination. If it is not possible to make a decision with "some"

confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through judicial and legislative means is necessary.' In other words, the inadequacies of science is the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of 43 caution and prevent environmental harm which may indeed become irreversible.

35. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, 'the consequences of its application in any potential situation will be influenced by the circumstances of each case'. (See First Report of Dr. Sreenivasa Rao Pemmaraju -- Special Rapporteur, International Law Commission dated 3-4-1998, paras 61 to

72.)"

(emphasis in original)

39. In such cases which pertain to the protection of environment, thrusting of "onus of proof" on the developer/industrialist in Vellore Citizens' Welfare Forum [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] was also elaborated by the Court in the following manner: (A.P. Pollution Control Board case [A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718] , SCC pp. 734-35, paras 36-38) "36. We shall next elaborate the new concept of burden of proof referred to in Vellore case [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] at p. 658. In that case, Kuldip Singh, J. stated as follows: (SCC p. 658, para 11) '(iii) The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.'

37. It is to be noticed that while the inadequacies of science have led to the "precautionary principle", the said "precautionary principle" in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, -- is placed on those who want to change the status quo (Wynne, "Uncertainty and Environmental Learning: Reconceiving Science and Policy in the Preventive Paradigm" [(1992) 2 Global Environmental Change 111 at p. 123] ). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair.

Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, "Shifting the Burden of Proof: How the Common Law can Safeguard Nature and Promote an Earth Ethic" [(1990) 20 Environmental Law 891 at p. 898] .) (Quoted in "The Status of the Precautionary Principle in Australia" [(1998) 22 Harvard Environmental Law Review 509 at p. 547] at pp. 519, 550.)

38. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3-4-1998, Para 61.)"

(emphasis in original)

41. It may be stressed that in Vellore Citizens' Welfare Forum case [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] , this Court had banned the tanneries when it was found that they were causing immense damage to the environment. Thus, environment protection, which is a facet of Article 21, was given supremacy over the right to carry on business enshrined in Article 19(1)(g). We state at the cost of repetition that right to health, which is recognised as a facet of Article 21 of the Constitution and, therefore, is a fundamental right, assumes greater importance. It is not only the petitioners and other applicants who have intervened in support of the petitioners but the issue involves millions of persons living in Delhi and NCR, whose right to health is at stake. However, for the time being, without going into this debate in greater details, our endeavour is to strive at balancing of two rights, namely, right of the petitioners under Article 21 and right of the manufacturers and traders under Article 19(1)(g) of the Constitution.

44. Applying the aforesaid principle, in the first blush it may appear that the aforesaid argument has substantial force in it. However, that would be only one side of the picture as there are two contra-arguments which are sufficient to take the sheen out of the aforesaid plea. First aspect is that the argument of economic hardship is pitched against right to health and life. When the Court is called upon to protect the right to life, economic effect of a particular measure for the protection of such right to health will have to give way to this fundamental right. Second factor, which is equally important, is that the economic loss to the State is pitched against the economic loss in the form of cost of treatment for treating the ailments with which people suffer as a result of burning of these crackers. Health hazards in the form of various diseases that are the direct result of burning of 45 crackers have already been noted above. It leads to asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment. Some of the diseases continue on a prolonged basis. Some of these which are caused because of high level of PM2.5 are even irreversible. In such cases, patients may have to continue to get the medical treatment for much longer period and even for life. Though there are no statistics as to what would be the cost for treating such diseases which are as a direct consequence of fireworks on these occasions like Diwali, it can safely be said that this may also be substantial. It may be more than the revenue which is generated from the manufacturers of the crackers. However, we say no more for want of precise statistical data in this behalf."

Carrying Capacity Concept

19. Carrying capacity is a facet of sustainable development. It is inherent in 'Precautionary Principle' as well as in 'Inter-generational Equity'. In MC Mehta v. UOI & Ors.17, construction activity in the catchment area of Badkhal were directed to be restricted/regulated to the level of Carrying capacity. It was observed that:-

"Preventive measures have to be taken keeping in view of the carrying capacity of the ecosystem operating in the environmental surroundings under consideration."

20. In Vellore Citizens' Welfare Forum v. UOI & Ors.18, it was observed that quality of human life is to be improved within the carrying capacity to supporting ecosystem. Relevant extract is as follows:-

"10....... During the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. "Sustainable Development" as defined by the Brundtland Report means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists."

21. These observations are reiterated in (2006) 6 SCC

371. 19 17 (1997) 3 SCC 715 18 (1996) 5 SCC 647 19 Para 66 to 76 46 Pollution from Brick kilns - shifting from coal to Natura gas as fuel

22. In M.C. Mehta (Taj Trapezium Pollution) v. UOI & Ors.20, the Hon'ble Supreme Court held that pollution caused by brick kilns in Taj Trapezium area was harmful to the Taj. Brick kilns within radius of 20 km were directed to be closed/relocated and replacement of the fuel by natural gas was suggested.21 CNG replaced for diesel as fuel, closing Thermal Plant and controlling carbon emitting activities to control pollution

23. In M.C. Mehta v. UOI & Ors.22 the issue for consideration was vehicular pollution on account of use of diesel considering the constitutional obligation, adverse impact of air pollution on health, the Hon'ble Supreme Court directed allocation of CNG and replacement of diesel vehicles of CNG.23 In M.C. Mehta v. UOI & Ors.,24 various directions were issued to deal with the adverse air quality in Delhi including phasing out of old vehicles, closing Badarpur Thermal Power Station increasing Metro frequency, stopping burning of waste, vacuum cleaning of roads.

Tribunal's Approach to the subject

24. The Tribunal has a mandate to follow these principles under Section 20 read with Section 15 of the National Green Tribunal Act, 2010 and can issue appropriate directions for enforcement of these principles, as laid down in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors.,25 and the Director General (Road Development) NHAI v. Aam Aadmi Lok Manch.26 Environmental rule of law requires strict enforcement of these principles as laid down in Hanuman Laxman Aroskar v. UOI).27

25. This Tribunal in O.A. No. 681/2018, vide order dated 21.08.2020, dealt with the remedial measures for restoration of air quality in 122 Non-attainment cities, including Delhi where air quality is generally beyond norms. The Tribunal directed stopping polluting activities, including brick kilns and assessment of carrying capacity of urban areas to take policy decisions to control polluting potential activities beyond carrying capacity. The Tribunal observed:-

"3. The Tribunal noted the concern arising from such large scale air pollution which grapples the country in spite of statutory mechanism under the Air Act, directions of the CPCB under section 18(1)(b), dated 29.12.2015 20 (2001) 9 SCC 235 21 Para 1 & 2 22 (2002) 4 SCC 356 23 Para 1,3,11,21 to 24, 26 & 29 24 (2016) 4 SCC 269 25 2019 SCC online SC 322, Para 43-47 26 AIR 2020 (SC) 3471, Para 75 27 (2019) 15 SCC 401 47 and directions of the Hon'ble Supreme Court for control of vehicular pollution28, industrial and construction sector pollution29, power sector pollution30 and agricultural sector pollution31 and orders of this Tribunal dealing with the said issues32. The Tribunal also referred to a Comprehensive Action Plan (CAP) for air pollution control for NCR prepared in pursuance of order of the Hon'ble Supreme Court dated 06.2.2017 by the Environment Pollution (Prevention and Control) Authority (EPCA) in consultation with the CPCB and Delhi Pollution Control Committee (DPCC) on 05.04.201733 and Graded Response Action Plan (GRAP) notified by the MoEF&CC on 12.01.2017 stipulating specific steps for different levels of air quality such as improvement in emission and fuel quality and other measures for vehicles, strategies to reduce vehicle numbers, non-motorised transport network, parking policy, traffic management, closure of polluting power plants and industries including brick kilns, control of generator sets, open burning, open eateries, road dust, construction dust, etc.34

4. Implementation of prescribed norms in the light of legal provisions and court directions remains a challenge.

The consequence is that India is being ranked high in terms of level of pollution compared to many other countries with enormous adverse impact on public health. Most victims are children, senior citizens and the poor.35

5. The GRAP categorises levels of pollution as severe plus, severe, very poor, moderate to poor. The action to be taken in such situations includes stopping entry of trucks, stopping construction activities, odd and even scheme of 28 Rural Litigation and Entitlement Kendra, Dehradune and Others Vs State of U.P. Others (1985) 2 SCC 431, M.C. Mehta v. Union of India (2001) 3 SCC 756, M.C. Mehta v. Union of India (1998) 6 SCC 63, M.C. Mehta v. Union of India (2002) 4 SCC 356, M.C. Mehta v. Union of India (1998) 6 SCC 60 29 M.C. Mehta v. Union of India (1997) 2 SCC 353, M.C. Mehta v. Union of India and Shriram Foods and Fertilizer Industries and Anr. (1986) 2 SCC 176, Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P. (1985) 2SCC 431, Mohd. Haroon Ansari v. District Collector (2004) 1 SCC 491, Union of India v. Union Carbide Co. (1989) 1 SCC 674, M.C. Mehta v. Union of India (1992) 3 SCC 256, Sterlite Industries (India) Ltd. etc. v. Union of India & Ors.(2013) 4SCC 575 , M.C. Mehta v. Union of India (2004) 6 SCC 588, M.C. Mehta v. Kamal Nath (2000)6 SCC 213 30 Consumer Education and Research Centre v. Union of India (1995)3 SCC 42, Dahanu Taluka Environment Protection group and Ors. v. Bombay Suburban Electricity Supply Company Ltd. and Ors (1991) 2SCC 539 31 Arjun Gopal and Ors v. Union of India and Ors (2017) 16 SCC 280, Dr. B.L Wadhera v.

Union of India and Ors (1996) 2 SCC 594 32 Vardhman Kaushik v. Union of India and Ors. O.A no. 21 of 2014, Vikrant Kumar Tongad v. Environment Pollution (Prevention and Control) Authority and Ors, O.A No. 118 of 2013, Satish Kumar v. Union of India and Ors, O.A. No. 56 (THC) OF 2013, Smt. Ganga Lalwani V. Union of India and Ors. O.A No. 451 of 2018 33 Report No.71, EPCA-R/2-17/L-21, Comprehensive Action Plan for air pollution control with the objective to meet ambient air quality standards in the National Capital Territory of Delhi and National Capital Region, including states of Haryana, Rajasthan and Uttar Pradesh.

S.O.118(E), Notification, Ministry of Environment, Forest and Climate Change 35 https://www.thehindu.com/sci-tech/energy-and-environment/india-ranks-177-out-of-180- in-environmental-performance-index/article22513016.ece, https://www.ndtv.com/delhi- news/delhis-air-pollution-has-caused-of-death-of-15-000-people-study-1883022.

private vehicles, shutting of schools, closing of brick kilns, stone crushers, hot mix plants, power plants, intensifying public transport services, mechanized cleaning of road, and sprinkling of water, stopping the use of diesel generator sets, enhancing parking fees, etc.

6. The MoEF&CC has by various notifications put restrictions on activities in Coastal areas, Flood plains, Taj corridor Eco-sensitive zones, etc. in view of ecological sensitivity and impact of such activities on environment if such activities are carried out in unregulated areas. This needs to be extended to the NACs in view of impact on public health and environment to give effect to the 'Precautionary' and 'Sustainable Development' principles."

7to13..xxx......................xxxx........................................ xxx

14. According to the CPCB, draft framework has been prepared and SA study completed in four States (for 05 cities). Study was under progress in 14 States (for 54 cities), and at proposal stage in 10 States (for 37 cities). Methodology for carrying capacity has been shared with State PCBs/PCCs. Twelve (12) States/UTs have given the details of the carrying capacity and the remaining have yet to take necessary steps. CC/SA studies are pre requisite for meaningful planning to enforce environmental law. This pre-requisite should have been undertaken long ago. Air quality norms have been statutorily laid down under the Air (Prevention and Control of Pollution) Act, 1981 as well as the Environment (Protection) Act, 1986 and such norms are being flagrantly violated, which has been made by the Parliament a criminal offence. If the rule of law has to have meaning and guilty are to be punished, the policies of the State have to be based on scientific studies to contain polluting activities within the scope of Carrying Capacity."

26. Dealing with the issue of air pollution in manufacture of tiles at Morbi in Gujrat, vide order dated 6.3.2019 OA 20/17 Babubhai v GPCB, this Tribunal directed closure of industries operating with coal unless they shifted to natural gas. This was referred in the earlier order of this Tribunal in the present matter. It was further observed that while under the orders of the Hon'ble Supreme Court, GRAP was laid down providing for closing of specified activities on crossing of air quality norms as laid down in the GRAP, the same did not debar consideration of further situations requiring closure/regulation.

Conclusion

27. Thus, in view of report of the CPCB, at this stage it is not possible to vacate direction not to permit operation of brick kilns in NCR beyond the carrying capacity found by 49 the CPCB. All applications of the brick kiln owners seeking rejection of CPCB report and vacation of interim order against operation of brick kilns, without air quality assimilative capacity permitting such activity will stand rejected subject to further exploring viable options, including change to clean fuel like natural gas. We are conscious that brick kilns may be necessary. Object of this order is not to stop any legitimate business activity but to enforce the right to breathe fresh air which is right to file. The source apportionment studies, placed on record, show that brick kilns contribute 5-7% PM. Air pollution Control devices to be installed by the polluting sources including the brick kilns need to comply not only the consent standards but are also the Ambient Air Quality norms and available assimilative capacity of the region. If the right to fresh air is not enforced, the consequences of brick kilns beyond carrying capacity of the air quality in the area are disastrous in terms of deaths and air borne diseases. This will be contrary to the mandate of the Constitution and the environmental law, particularly the principle of 'Sustainable Development'. It is well established that deteriorated ambient air quality in terms of PM10 and PM2.5 affects respiratory system particularly, the lungs which may make individuals more vulnerable to get other related fatal diseases.36

28. Accordingly, we direct CPCB to constitute a Committee of five experts to suggest ways and means, if any, by which sustenance of brick kilns activities may be viable. It will be open to CPCB to nominate in-house or other Experts. The CPCB may also explore viability of PNG as replacement of coal and other best practices in terms of fuel used, at other places or in other Countries. It will be open to the brick kilns owners/associations to give any other suggestions or alternatives for consideration by CPCB in spirit of collaboration with a view to find a solution within two weeks from today. Subject to the report of the expert Committee finding it viable, possibility of permitting operation of brick kilns, having regard to the extent of pollution load and its effect on the air pollution level in NCT of Delhi may be considered. The CPCB may constitute an expert Committee within three weeks which may give its report within six weeks thereafter. Further report may be furnished in the matter before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."

xxx .............................. xxx ............................................xxx

14. The report also annexes a study of Tunnel kiln technology, using PNG as fuel, employed by M/s Wienerberger Building Solutions Private Limited, KIADB Industrial Area, Kunigal, 36 https://airqualitynews.com/2020/08/13/the-link-between-air-pollution-and-covid- 19/http://www.babushahi.com/full-news.php?id=107487 50 Karnataka, (which has not been found viable by the Committee), as follows:-

"5.0 Plant Description:

M/s Wienerberger Building Materials Solutions Private Limited, a Brick Manufacturer founded in 1819 in Vienna, Austria, is having 204 plants spread across 30 countries, is engaged in using natural, eco-friendly building material of international quality standards. The unit located in Plot No. 1 & 2, Kunigal Industrial Area, Phase II, Gottikere Village, Kunigal, Karnataka has Tunnel kiln, a continuous moving ware kiln technology. Wienerberger at Kunigal is the production facility, 70 kms from Bangalore, is Austria-based Wienerberger's first Asian manufacturing unit. The fully automated, state-of-the-art facility manufactures bricks called porotherm perforated clay bricks. The environment friendly production unit runs 365 days a year, producing 450 tonnes of bricks per day. Quality is ensured by the latest European production equipments 24 hour factory production control with in-house laboratory for chemical and physical tests of raw materials and finished products. The unit makes different types of horizontal and vertical perforated light weight clay bricks. The porotherm horizontally perforated light weight clay bricks has following advantages:

 Weighs 60 % less than conventional walling material  Compressive strength ≥3.5 N/mm2  Density of approx. 700-800kg/m3  Conveniently large and light weight bricks  Excellent thermal insulation  Low water absorption ~ 15% Brick is a 100 % natural clay product with natural additives like coal ash, rice husk and granites slurry. No toxic or any chemical additives are used, thereby free from toxic gases."

15. The report also refers to direction issued by the CPCB on 27.11.2020 under Section 18 (1) (b) of the Air (Prevention & Control of Pollution) Act, 1981 for upcoming industrial units in NCR to use only gas and also refers to an earlier order requiring even the existing industries in NCR Delhi, to shift to PNG by 31.03.2019 where gas supply is available. The relevant part of the order is quoted below:-

"xx xx xx xx Whereas, considering the Considering deteriorating air quality in NCR-Delhi and also the fact that already directions have been issued to all the existing industries in NCR-Delhi to switch over to cleaner fuels, it is decided that only those new industrial units shall be allowed to set-up in NCR- Delhi, which use cleaner fuels namely, natural gas (PNG/CNG), liquefied petroleum gas, bio gas, propane, butane etc. and 51 Now therefore, in view of the above and exercising the powers conferred under section 8(1)(b) of Air (Prevention and Control of Pollution) Act, 1981, you are hereby directed to allow only those new industrial units in NCR- Delhi, which are using cleaner fuels, namely, natural gas (PNG/CNG), liquefied petroleum gas, bio-gas, propane, butane etc."

16. We have heard Counsel for the brick kiln operators at great length and also perused the written submissions filed by them but their effort being to revisit the earlier order against which their appeal stands dismissed, we do not find any reason to pass any different order. As already observed in the beginning of this order, the data in Table 15 in the CPCB report shows that in severe air quality condition, coal fired brick kilns using zig zag technology are not sustainable in view of carrying capacity of the region. Only from March to June, limited number of brick kilns operated by zig zag technology can be permitted. Thus, unless there is change to cleaner fuel (PNG), brick kilns beyond the capacity shown by Table 15 above cannot be allowed.

17. There is variance of figures of brick kilns permissible during March to June within the carrying capacity. Nature of brick kiln activity being continuous, only such number can be allowed which can be sustained throughout the said period i.e. the minimum figure of a particular month out of the four months, which comes to 444 in Haryana (in the month of May) and 200 in UP (in the month of June). Thus, only this number can be allowed for the time being during the period air quality is not severe. Shortlisting for the purpose may be done applying a suitable siting criteria taking into account inter-se distance, distance from sensitive locations and compliance of consent conditions. Further, location of brick kilns be scattered on pro-rata basis, in different directions of the area, having regard to background and carrying capacity parameters. On that broad basis, selection criteria be worked out by a joint Committee of CPCB and State PCBs. Those brick kilns which switch over to PNG will be entitled to operate even beyond months of March to June and even beyond the number of brick kilns on Zig-Zag technology within the carrying capacity. This can be revisited if air quality improves or if carrying capacity increased as a result of measures adopted by the State authorities in future, by reducing pollution load from different sources.

18. The Tunnel kiln technology with PNG can be followed, if viable, on which it may be permissible for the brick kilns to function even in severe conditions for existing or new brick kilns. The direction dated 27.11.2020 by CPCB also shows the need for reducing pollution load and not to allow activities by using coal.

19. As mentioned earlier, the recommendation that the brick kilns can be allowed with effective monitoring appears to be hypothetical in view of monitoring having been found to be hardly effective, on performance audit of PCBs, as will be shown in later part of this para. While in absence of carrying capacity, brick kilns are not permissible in 'severe' air quality situation, need for improving 52 monitoring and minimising pollution is undisputed. In this regard, matter has been considered by this Tribunal in OA 95/2018, Aryavart Foundation v. M/s Vapi Green Enviro Ltd. & Ors.37, and in the light of report of performance audit of State PCBs, it has been found that performance is inadequate in terms of staff, equipment and functioning. Similar situation has been found in OA 837/2018, Sandeep Mittal Ministry of Environment, Forests & Climate Change & Ors.38, in relation to monitoring of EC conditions by the MoEF&CC. We have recently come across several cases of industrial accidents and one of the reasons for the same is inadequate monitoring. In OA 85/2020, Aryavart Foundation through its President v. Yashyashvi Rasayan Pvt. Ltd. & Anr.39, directions have been issued to improve the same. We have already noted in other proceedings40 that as per official statistics, 100 industrial clusters are polluted, 351 river stretches are polluted and 122 cities are non-attainment in terms of air quality, apart from huge gaps in waste generation and management. Inspite of monitoring of the said issues by this Tribunal, the situation is far from any improvement. Thus, it is undeniable that stringent steps for monitoring to achieve goal of sustainable development are required. While monitoring must certainly improve, such suggestion is not enough to presume that pollution load by coal-fired brick kilns will reach zero so as to sustain coal-fired brick kilns in NCR in severe air quality conditions. In such situation, potential damage to public health cannot be ignored, while dealing with the issue of activity having potential for pollution, in the area having no carrying capacity to sustain further pollution load.

20. Thus, we conclude that going by the order dated 15.10.2020, in 'severe' air quality conditions, coal-fired brick kilns cannot be allowed to operate in NCR even if zig zag technology is used and improved procedures are followed, as suggested by the Committee, unless there is switch over to the PNG. All other issues have already been dealt with in the earlier order. In para 7 of order dated 05.03.2020 and para 8 of order dated 23.03.2020, we have already held that compliance by an individual brick kiln, otherwise 37 vide order dated 05.02.2021 38 Vide order dated 01.02.2021 39 Vide order dated 03.02.2021 40

(i) Vide order dated 21.09.2020, OA 673/2018, In Re: News item published in "The Hindu"

authored by Shri Jacob Koshy, titled "More river stretches are now critically polluted:

CPCB"

(ii) Vide order dated 21.08.2020, OA 681/2018, News item published in "The Times of India" Authored by Shri Vishwa Mohan titled "NCAP with multiple timelines to clean air in 102 cities to be released around August 15"

(iii) Vide order dated 14.11.2019 in OA 1038/2018, News item published in "The Asian Age" Authored by Sanjay Kaw Titled "CPCB to rank industrial units on pollution levels"

(iv) Vide order dated 28.02.2020 in OA No. 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016.

(v) Vide order dated 18.01.2021 in OA 710/2017, Shailesh Singh, v. Sheela Hospital & Trauma Centre, Shahjahanpur & Ors. with regard to bio-medical waste

(vi) Vide order dated 29.01.2021 in OA 804/2017, Rajiv Narayan v. Union of India & Ors.

with regard to hazardous waste.

(vii) Vide order dated 15.01.2021in OA 512/2017, Shailesh Singh v. State of UP with regard to e-waste.

(viii) Vide order dated 08.01.2021 in EA 13/2019 in OA 247/2017, Central Pollution Control Board v. State of Andaman & Nicobar & Ors. with regard to plastic waste.

contributing to pollution load beyond carrying capacity, does not confer a right to continue such activity, when such activity attracts GRAP in 'severe' air quality condition. As noted in par 11 of the order dated 15.10.2020, the CPCB has found that there is no assimilative capacity during the period air quality is 'severe' and only during months of March to June there is a limited capacity. Inter-se distance of atleast 500 meters is required to be maintained in location of brick kilns. When brick kilns start, they should not be allowed to start simultaneously but their firing should be staggered to avoid adverse impact on the environment. Other safeguards of fugitive dust emission management need to be adopted. In para 18 of order dated 15.10.2020, the issue of non-availability of plea of discrimination to GRAP, attracting some polluting categories and not attracting other polluting activities, has already been dealt with. Accordingly, we reiterate this mandate.

21. In view of the above discussion, unless there is change to cleaner fuel (PNG), brick kilns beyond the number mentioned in Table 15 above cannot be allowed, in the NCR. Since there is variance of figures given during March to June, only such number can be allowed which can be sustained throughout the period i.e. the minimum figure of a particular month out of the four months which comes to 444 in Haryana (in the month of May) and 200 in UP (in the month of June). Such shortlisting may be done applying a suitable siting criteria taking into account inter-se distance and distance from sensitive locations and compliance of consent conditions for which the CPCB, State PCB may work out an appropriate mechanism. Further, location of brick kilns be scattered on pro-rata basis, in different directions of concerned area, having regard to background and carrying capacity parameters. Needless to say, those brick kilns which switch over to PNG will be entitled to operate even beyond months of March to June and even beyond limited number mentioned, subject to compliance with law."

16. In view of earlier orders quoted above and discussion in paras 10 to 12, we are of the view that steps need to be forthwith taken to stop operation of brick kilns already found to be operating in violation of environmental norms till compliance by the State PCB in exercise of its statutory power, following due process of law, till compliance. This will include brick kilns not following consent conditions, operating in excess of carrying capacity, CPCB guidelines and orders of this Tribunal, and those violating siting guidelines. Necessary action be ensured within two months. At the same time, there is need for further study of carrying capacity, applying correct data and norms. Air quality monitoring equipments be installed in the concerned area and if online monitoring 54 stations cannot be set up, easily available equipments be used to continuously monitor air quality. Stringent monitoring mechanism be put in place. Process of mechanically giving consents be reviewed by the State PCB in view of binding 'precautionary' principle. Public health needs to be given due preference to the need for establishment of brick kilns. Violators be strictly proceeded against by way of prosecution, recovery of compensation and preventing pollution. While determining carrying capacity, other sources contributing pollution loads may be factored in while considering concentrations of PM10 in microgram per cubic metre in addition to loads given in kgs. Further, mixing heights data may be referred from the nearest location of IMD station. It is also necessary to clarify reasons of high CEPI score (91.1) particularly for Air and remedial action plan.

17. Our directions are summed up as follows:

(A). Brick kilns operating in violation of environmental norms -

without consent, in violation of consent conditions, in violation of siting criteria, beyond carrying capacity be forthwith closed, following due process of law, exercising statutory powers by the State PCB.

(B) The State PCB in coordination with the District Magistrate and the Air Quality Monitoring Committee headed by Secretary Environment may ensure setting up of air quality monitoring stations at appropriate locations and also take other steps for effective monitoring of compliance of air quality norms in the area in question.

(C) Consent given to all the brick kilns be reviewed by the State PCB in the light of CPCB directions as well as the air quality norms, siting criteria and carrying capacity. Shortlisting as 55 per carrying capacity may be done on the basis of technology used, inter se distance, distance from sensitive locations and comparative level of compliance.

(D) Tunnel kiln technology with PNG may be appropriately encouraged in the interest of reduction of pollution load.

(E) Five-member Committee is constituted to undertake further study of carrying capacity of the area in terms of number of brick kilns which can be sustained applying right parameters and based on relevant data of air quality, overcoming deficiencies pointed out hereinabove. The Committee will comprise of the following:

i. Justice Anil Kumar Sharma, former Judge of Allahabad High Court now available at Mathura - Chairman.

ii. Representative of CPCB of the level not below Additional Director - Member.

iii. Professor Mukesh Khare, former Prof. IIT Delhi -

Member.

      iv.    Member Secretary, SEIAA, UP - Member.

       v.    Chief Engineer Environment, UP State PCB - Member.

The CPCB and the State PCB will be the nodal agency for coordination and compliance. The Committee may visit the site and interact with the stakeholders. The Committee may meet within 15 days from today to take stock of the situation.

Thereafter, it may visit the site and study the available data of air quality and location of the brick kilns. It will be free to conduct proceedings online except for visit to the site which may be undertaken by all or such members as may be decided by the Chairman of the Committee. The Committee will be free to 56 consult any other expert/institution. The Committee may give its report to this Tribunal within three months by e-mail at judicial-

[email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. The report may be uploaded on the website and it will be open to any aggrieved party to file their response, if any, before the next date. Justice Anil Kumar Sharma will be entitled for honorarium @ Rs. 2 lac per month and Prof. Mukesh Khare will be entitled for honorarium @ Rs. 1.5 lac per month. The said honorarium will be payable by the State PCB out of the 'consent funds' available with it. Logistic support may be provided by CPCB/State PCB/District Magistrate to enable the Committee to complete its task.

A copy of this order be forwarded to Justice Anil Kumar Sharma, former Judge of Allahabad High Court now available at Mathura, CPCB, Professor Mukesh Khare, Member Secretary, SEIAA, UP District Magistrate UP, Environment Secretary, UP and UP State PCB by e-mail for compliance.

A copy of the order be also sent to Chief Secretary UP for information and being forwarded to any other concerned department including the GST department for appropriate remedial action.

List for further consideration on 16.12.2021.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM Brijesh Sethi, JM 57 Dr. Nagin Nanda, EM August 12, 2021 Original Application No. 93/2021 DV 58

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