This appeal is preferred against the condition contained in sub-clause XIX of Clause 5 incorporated in the decision dated 26.04.2017 of the EPA contending that the said condition while granting approval is clothed with malice. Submits that the installation of Ambient Air quality Monitoring Station is not the responsibility of the appellant keeping in view the command of section 6(a)(i) of PEPA 1997 (as amended in 2012). Learned counsel submits that proposed project of appellant is surrounded by other industrial units and as such the responsibility of the installation of Air Quality Monitoring Station cannot be imposed upon A the appellant.
2. On the other hand learned law officer submits that the condition was incorporated with the consent of the representative of the appellant. Ad-interim injunction in the shape of suspension of the operation of impugned sub-clause was granted by this Tribunal on 20.07.2017 subject to furnishing adequate security to the satisfaction of the Tribunal within 15 days for implementation of sub-clause under challenged in case of dismissal of appeal. But inspite of lapse of 12 hearings the appellant did not submit requisite security to comply with the order and the appellant was directed on 24.05.2018 to abide by the direction given to him on 20.07.2017. Tribunal heard the arguments and again directed the appellant to submit security or at least undertaking vide order dated 20.07.2017 and thereafter on 11.07.2018 the appellant submitted undertaking of Ubaid Zafar that in case of dismissal of the appeal appellant will abide by/conform the condition under challenge subject to appellant's legal right to challenge the before appellate forum.
3. Mr. Muzaffar Mahmood learned Member (General) is of the view that section 6(1)(g) proviso (i)
PEP Act 2012 mandates the EPA to establish systems and procedures for surveys, surveillance, monitoring, measurement, examination, investigation, research, inspection and audit to prevent and control pollution, and to estimate the costs of cleaning up pollution and rehabilitating the environment in various sectors. EPD vide gazette notification No, SO(G)/EPD/7-26/2013 dated 12th August, 2016 has notified the standards for Ambient Air in Punjab. The Rule 7(1) of Environmental Samples Rule 2001 bounds the authorized person to take sample under Clause (h) of section 7 of PEP Act 1997. The Said Clause reads as under; "Take samples of any materials products, articles or substances or of the effluent, wastes or air pollutants being discharged or emitted or of air, water or land in the vicinity of the discharge or emission".
4. The legal position bounds the EPA to take sample of any industry from its stake, discharge of effluent at the point of outlet of the factory or any material stored in the premises emitting dangerous vapors in the air or surrounding. Ambient air monitoring is an integral part of an effective air quality management system. Reasons to collect such data include to: assess the extent of pollution; Provide air pollution data to the general public in a timely manner; Support implementation of air quality goals or standards; Evaluate the effectiveness of emissions control strategies; Provide information on air quality trends; Provide data for the evaluation of air quality models: and Support research (e.g., long-term studies of the health effects of air pollution).
5. The locations for the monitoring stations depend on the purpose of the monitoring. Most air quality monitoring networks are designed to support human health objectives and monitoring stations are established in population centers. They may be near busy roads, in city centers, or at locations of particular concern (e.g., a school, hospital, particular emissions sources). Monitoring stations also may be established to determine background pollution levels, away from urban areas and emissions sources. Member General is of the view that characteristics of smoke, vapor and wind pollutants are that these are carried away from their source by the wind and pollutants may settle far away from the point of their emission. The establishment of air monitoring station within the premises of one particular Industrial unit does not qualify the purpose of its establishment especially when the procedure to take sample is provided in the Environmental Samples Rule 2001; Air Quality Monitoring stations are established by the State and not by individual proponents.
Environmental Protection Department in collaboration with JICA installed Automatic Air Quality Monitoring Stations at three Locations in Lahore. Viewing the section 6(1)(g) proviso (i) of PEP Act 1997 (As amended in 2012) it is crystal clear that establishment of the Air Monitoring System is the function/responsibility of the EPA.
6. Being Chairperson of this Tribunal and by virtue of section 20(4) PEP Act 2012, I am of the view that the inclusion of this clause of installing of Ambient Air Quality Monitoring Station at the proposed site within 6 months of start of construction activities to measures all the pollution in EQs for ambient and provide direct line access to EPA Punjab is well reasoned and not to be interfered.
The reasons are as follows;
7. EIA was filed by the unit with the Agency. Copy of the same is available in the record. PEPSICO Pakistan engaged Mainhardt for preparation of EIA to meet the requirement of PEPA 1997 (as amended in 2012). The project falls under Schedule-II Subsection (B) category food processing industry with total cost of 100 million and it requires Environmental Impact Assessment. This project is located in Multan Industrial Estate Phase II with total area of 26 acres. The product manufactures will be snacks that is Lays, Cheetos and Kurkery. The major raw materials are potato, vegetable oil, corn and pack material. The storage capacity of finished goods store is 150 ton with involvement of 200 workers in construction phase while in operational phase 300 workers. There are three boilers of natural gas, LPG and biomass, each capacity of 5 ton per hour. 1125 cubic meter per day water is required during operational phase which is to be pumped from deep underground. About 65MCF of the natural gas will be required during operational phase which is supplied by SNGC.
Assessm ent was also carried out to find primary and secondary pollutant level in the ambient air along with waste water drain.
8. Air Ambient Quality Monitoring was conducted to access the concentration of Primary Pollutants (Carbon monoxide, Carbon dioxide. Nitrogen dioxide, Suplher dioxide and PMio). A weather station was also installed along with ambient air quality instrument to access and measures environmental parameter like ambient air, wind speed and directions of air and other conditions.
The result of ambient air monitoring at first location is as under:- ParameterDuration unit Results NEQs PM10 24 hoursug/m 84 150 PM25 24 hoursug/m 16 35 CO 24 hoursug/m 0.41 10 NOx 24 hoursug/m 2.78 40 Sox 24 hoursug/m 3.72 120 Pb 24 hoursug/m 0 1.5 And these results show that there are carbon emissions in the area. As per result these are within standard NEQS. Apart from that as per EIA there will be emissions from stack of generators and boilers that will produce gasses like NOR, So., CO2, PM and CO. These gases will cause air pollution if not properly managed.
9. The proponent has given environmental 'management plan for the establishment of the unit and while submitting the EIA has mentioned therein that the generation of the particulate matter, smoke, dust CO2, and NOx in the ambient air from the activities like excavation/levelling, compaction, use of machinery and transport vehicles may deteriorate the air quality resulting impacts on human health, fauna and flora. To achieve this strategy was given to control the air emission through administrative and equipment control during the construction phase. Monitoring will be made through daily inspection of work, service of equipment, dust level monitoring and ambient quality monitoring from third party environmental laboratory once every three months.
10.Section 6(1)(q) Proviso mandates the EPA that before seeking approval of the Council it shall publish the proposed NEQs for public opinion and ensure the enforcement NEQs and further to establish standards of the ambient air, water and land, by notification in the Official Gazette.
Standards for ambient air have been notified. Section 6(1)(t) PEP Act 2012 also provides function of EPA i-e to take or cause to be taken all necessary measures for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution and promotion of sustainable development. One must bear in mind that once discharges have gone up the stack or out the pipe they have vanished from an enforcement point of view and have left no record in the world. EPA must act as discharges. occur, or it loses the chance of acting at all.
Furthermore, it is generally not in the interest of any particular firm or individual to provide independent evidence of discharges by another source routinely.
11.Under self-monitoring and Reporting System (SMART) industries in Pakistan are responsible for systematically monitoring their environmental performance and reporting the data to the EPA. Self Monitoring and Reporting Rules by Industry 2001 classify industries into three categories A, B and C, each corresponding to specified reporting frequency.
12. In exercise of the powers conferred by section 31 of the Pakistan Environmental Protection Act, 1997 (XXXIV of 1997), the Federal Government vide S.R.O. 528(1)12001 made National Environmental3 3 3 3 3 3 Quality Standards (Self-Monitoring and Reporting by Industry) Rule, 2001. According to these rules Environmental monitoring report means the report submitted by an industrial unit to the Federal Agency in respect of priority parameters i-e those parameters of the National Environmental Quality Standards which have been selected for purposes of submission of Environmental Monitoring Reports to the agency by an industrial unit. According to these rules. all industrial units shall be responsible for correct and timely submission of Environmental Monitoring Reports to the Federal Agency. On the basis of the pollution level of an industrial unit, the Director-General shall classify the unit into category "A", "B" or "C" for liquid effluents, and category "A" or "B" for gaseous emissions. Rule 8 relates to Special industries and without prejudice to the provisions of rule 4, the Director-General may classify a large industrial unit with very high pollution levels as "Special Industry" and in addition to complying with the requirements of rule 5, a Special Industry shall submit Environmental Monitoring Reports for such parameters and at such frequency as the Director-General may require. The provisions of these rules shall be in addition to, and not in derogation of the monitoring conditions laid down in an EIA approval. The agency shall compile, analyze and manage the data contained in the Environmental Monitoring Reports with the objective, inter alia, of enforcing the National Environmental Quality Standards and developing an environmental database.
13. According to these rules it is within the power of Director General who may classify a large industrial unit with very high pollution levels as "Special Industry" and may require Environmental Monitoring Reports for such parameters and at such frequency as the Director-General may require. This system is comprehensive and industry should come forward for this monitoring.
14.The precautionary principle proposed as a new guideline in environmental decision making, has four central component i,e, taking preventing action in the face of uncertainly; shifting the burden of proof to the proponents of an activity; exploring of vide range of alternatives to possibly harmful actions and increase public participating in decision making. Our existing jurisprudence in environment field is from the landmark judgment of Shehla Zia case (PLD 1994 SC 693), where it was held that environmental justice is enshrined within the right to life. (Article of the Constitution of Pakistan) The Courts have taken an active approach: in accepting environmental justice as an integral issue entrenched within the articles of the Constitution. Sustainable development is increasingly important for Pakistan and environmental justice must be seen in its proper form. The recent case of Ali Steel Industry v. Government of Khyber Pakhtunkhwa and another (2016 CLD 569) reiterated the constitutional nature of environmental rights: "Right to environment that is not harmful to the health or well-being of the people and an environment that protects the present and future generations is an essential party and social justice and even more integral to the right to life and dignity under our Constitution."
15.The court reaffirmed the importance and of precautionary and preventive measures to ensure the protection of rights under Articles 9 . and 14 of the Constitution. No illegality was found with respect to the sealing of the premises. The court stressed on the duty to combat environmental degradation.
16.The Precautionary Principle was recognized by the G8 Ministers in 2002 as a means to safeguard the protection of the environment. Principle 15 of the Rio Declaration (1992) stated the precautionary approach should be widely applied by states where there are threats of serious or irreversible damage, and should not postpone cost-effective measures to prevent environmental degradation. As a guiding principle, it facilitates a state in achieving sustainable development. The principle is widely accepted by international conventions and has been addressed in various cases by the ICJ. The Precautionary Principle is steadily achieving the status of customary norm, while some argue it has already reached such status. In Vellore Citizens Welfare Forum v. Union of India etc. Indian Supreme Court adopted Principle 15 and defined Precautionary Principles as: "(i) Environmental measures -- by the State Government and the statutory authorities -- must anticipate; prevent and attach 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 environment degradation.
(iii)The 'onus of proof is on the actor or the developer/ industrialist to show that his action is environmentally benign."
17. The brief descriptions of the Jcey principles are as follows; SUSTAINABILITY PRINCIPLE The development occurring today should not be at the expense of future generations' ability to meet their needs.
PREVENTION PRINCIPLE Preventing an environmental harm is cheaper, easier and less environmentally dangerous than reacting to environmental catastrophes. This principle advocates timely action to eliminate or minimize environmental damage.
PRECAUTIONARY PRINCIPLE This principle requires the state to take action where there is risk to human health or evidential uncertainty as to the existence or extent of risk.
POLLUTER PAYS PRINCIPLE Polluter should bear the cost of the pollution. INTEGRATION PRINCIPLE Government should take environmental issues into account in their decision making across all the sectors.
ACCESS TO INFORMATION AND PUBLIC PARTICIPATION Public access to environmental information and public participation in decision making which affects the environment.
18. National Environment Policy 2005 provides broad guidelines in the range of sub-sectors including water supply and management, air quality, noise, waste management, forestry and so on. The document follows preventive principles as it calls for setting up a Marine Pollution Control Commission. The documents recommend the Climate Change Policy and an action plan.
19. The need ' for environmental measures by the state and its officers is integral to achieve environmental justice and it is pertinent to now shift this focus on enforcements. The enforcement and protection of environmental justice is an integral to our goal of sustainable development.
Agenda 21 and Principle 15 focus on employing a precautionary principle that embodies an act now approach; favoring the idea that regulators should act in anticipation of environmental harm to ensure that it does not occur. (Para 34 M C. Mehta v. Union of India, 1997 (2) SCC 252: (AIR 1997 SC 734) The Bhurban Declaration (2002) builds on this idea.
20.In Kyoto Protocol 1997 UNFCCC aimed to reduce the emission of gases that contribute to global warming. In force since 2005, Protocol called for reducing the emission of six green house gases in 41 countries plus the EU to 5.2 percent below 1990 levels during the commitment period 2008 to 2012. It was widely hailed as the most significant environmental treaty ever negotiated. In 2015 196 Parties to the UNFCCC adopted the Paris Agreement to tackle Climate Change. It defines a universal, legal framework to strengthen the global response to the threat of climate change and all countries will develop plan to mitigate climate change.
The 2002 Johannesburg Principles affirmed that "......the fragile state of the global environment requires the Judiciary as the guardian of the Rule of law, to boldly and fearlessly implement and enforce applicable international and national laws, which in the field of environment and sustainable development will assist in alleviating poverty..."
This reinforces the need to apply a precautionary principle in such cases and ensure that environmental justice continues to protect life and nature for present and future generations.
20(sic.) Since the dawn of industrial revolution the green house gas level have been raised to an alarming level. Total green house gases emissions have increased by 80% creating a gigantic radioactive force. It has resulted trapping more heat ultimately resulting in raised temperature by 0.75 degree Celsius over the last ten decades. Global warming is constantly harming the environment and eco system in many ways;
1. Desertification
2. Melting of more snow and glacier
3. Rise in sea Level
4. Flooding
5. Acid Rain
6. Strong Storms and Natural Clamaties
7. Extinction of few species of both Flora and Fauna
8. More Frequent Earth Quakes and Tsunami
9. Health Hazards 10 Economic Impacts
21. Increase carbon dioxide has made the oceanic water of the world by 30% more acidic as it serves as a sink for this gas. This gas when reacts with oceanic water makes carbonic acid resulting in disturbance of marine life. The Global Ozone concentration has become two times larger. At ground level, ozone is an air pollutant that is a major component of smog which is extremely dangerous for both humans and plants. EPA also act with must "act now" approach and update the schedule and make rules to carry out the purposes of PEP Act including rules for implementing the provisions of the international environmental agreements, specified in the schedule of the PEP Act 2012.
22.I will apply 'polluter pays' principle' in this case. It is the commonly accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment. For instance, a factory that produces a potentially poisonous substance as a by-product of its activities is usually held responsible for its safe disposal. The polluter pays principle is part of a set of broader principles to guide sustainable development worldwide (formally known as the 1992 Rio Declaration).
23.Preventing environmental harm is cheaper, easier, and less environmentally dangerous than reacting to environmental harm that I already has taken place. The principle was the foundation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which sought to minimize the production of hazardous waste and to combat illegal dumping. Section 6(1)(t) PEP Act 2012 also provides function of EPA i,e, to take or cause to be taken all necessary measures for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution and promotion of sustainable development. It is within the power of DG to take preventive measures to control pollution. How there can be question of malice as no specific brand of monitoring station is mentioned by the EPA while granting NOC.
There should be regular reporting to provide correct information. The system of SMART must be made effective by the EPA.
24. It is the case if the appellant that there will be gaseous/carbon emissions, particulate matters as suggested by them in EIA. Climate change is an inevitable and urgent global challenge with long term implications for the 'sustainable development. We have to take a lead to mitigate climate change. Therefore I am, of the view that the impugned clause is not based of malice rather it is within the mandate of EPA to impose this condition while granting approval as a preventive measure for sustainable development. It is the duty of the proponent to install the monitoring station to monitor the air ambient to be within standards not only for construction phase but also in the operational phase. This appeal has no merit and same is hereby dismissed.