Illegal brick kilns without valid consents do not qualify as 'existing' units exempt from siting criteria under environmental notifications.

JUDGMENT

Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member

1. The applicant, who is resident of Nanjundapuram in Thadagam of Coimbatore District, is challenging the Memo No. T1/TNPCB/F.029331/Brick kilns/2018 dated 14.02.2023 issued by the 1^st respondent stating that the siting criteria prescribed by the 2^nd respondent, MoEF&CC, vide Notificaiton GSR 143 (E) dated 22.02.2022 applies only to brick kilns established on or after 22.02.2022 and not to the existing brick kilns.

2. According to the applicant only those legally existing and operating bick kilns i.e., those in existence and operation with valid consent from the Tamil Nadu Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, Hill Area Conservation Authority Regulations, 1990 (HACA) approval etc can be considered as existing units. Those brick kilns which are being operated illegal without any kind of such approval cannot be termed as „existing‟.

3. The genesis of the impugned memo is based on the notification issued by MoEF&CC in GSR 143 (E) dated 22.02.2022. The said general statutory rules bring in an amendment to the Environment (Protection) Rules, 1986 by which the emission norms and technology were prescribed and the note under the same prescribes the siting criteria. The relevant notes are 6 7 and 8 which are extracted below:

“6. Brick kilns should be established at a minimum distance of 0.8 kilometre from habitation and fruit orchards. State Pollution Control Boards/Pollution Control Committees may make siting criteria stringent considering proximity to habitation, population density, water bodies, sensitive receptors, etc.

7. Brick kilns should be established at a minimum distance of one kilometer from an existing brick kiln to avoid clustering of kilns in an area.

8. Brick kilns shall follow process emission/fugitive dust emission control guidelines as prescribed by concerned State Pollution Control Boards/Pollution Control Committees.”

4. The above said notes specify the distance between two kilns as 01 km and distance between habitations, orchards should be 0.8 kms. The above notes specifically mandates the State Pollution Control Boards or the Pollution Control Committees to make the siting criteria more stringent depending upon sensitive receptors, water bodies etc. The above said siting criteria is based on the fact that there should not be a cluster of brick kilns and the habitations should be separated by at least a distance of 01 km.

5. While so, the impugned memo issued by the Tamil Nadu Pollution Control Board dated 14.02.2023 interpreting the notification of MoEF&CC stating that the said amendments would apply only to new brick kilns and not to brick kilns that were in existence earlier. The applicant has challenged the above impugned memo on the following grounds:

(i) As it would be advantageous to the existing illegal operators the same is challenged by the applicant as ex facie illegal and in violation of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.

(ii) It is not in consonance with the MoEF&CC notification in GSR 143(E) dated 14.02.2022.

(iii) The Tamil Nadu Pollution Control Board cannot read beyond the powers prescribed under the said notification of the MoEF&CC.

(iv) The existing brick kilns referred to in the MoEF&CC notification would only mean th