The Central Pollution Control Board decides to refuse consents to industries which do not meet the Online Monitoring guidelines and the OCEMS compliance monitoring protocol by 1-07-18

Published 05/07/2018

The Central Pollution Control Board decides to refuse consents to industries which do not meet the Online Monitoring guidelines and the OCEMS compliance monitoring protocol by 1-07-18.

Dr. Yashpal Singh

Chairman, The Wealthy Waste School, India

The CPCB has published a general notice vide number C-12011/33/Tech/2017-2018/20216 dated 11^th June 2018 through which it has “decided” that :

1. Time extension to submit the compliance reporting protocol information by the industries to the CPCB, is given till 30-06-2018.
2. Failing the deadline given (i.e.30-06-2018) name of industries, state wise shall be placed on the CPCB website.
3. The online data , submitted by the industrial units, has to meet the guidelines provided by the CPCB . In the absence of information on the protocol, it is not possible to accept the online data as correct, hence the SPCB’S will also monitor the compliance in this regards.
4. All the SPCB’s and PCC’s will link the consent management system with OCEMS-compliance monitoring protocol. The list of defaulters, State wise, will be published on CPCB website on 1-07-18.
5. Applications pending at SPCB’s will be rejected for renewal of consents to operate in case of defaulters provided by CPCB.
6. Industrial units having valid consents will be issued 15 days notice with an intention to withdraw the Consent to operate and
7. Effect withdrawal of consents to all defaulting units by 31-07-18

The said notice does not appear to have been endorsed to any authority or agency nor does it mention the clause under which it has been issued. It is only indicated to be a decision of the Board.

If implemented the decision will have a serious effect on the Consent Management procedures and may also result in closure of many industries.

The CPCB has also come up with Guidelines for Continuous Emission Monitoring Systems in June 2018 and the ‘notice’ as above mentions that the online data has to meet these guidelines.

These guidelines extend the installation of On line continuous monitoring systems across the Board and  at page 1, mention that-

“The GSR 96(E), January 29, 2018 notified by MoEF and CC under Environment (Protection) Act, 1986 mandates installation of CEMS with the boilers used in the Industries namely Sugar, Cotton Textile, Composite Woolen Mills, Synthetic Rubber, Pulp and Paper, Distilleries, Leather Industries, Calcium Carbide, Carbon Black, National Rubber, Asbestos, Caustic Soda, Small Boilers, Aluminium Plants, Tanneries, Inorganic Chemicals, and other such industries using boilers shall adhere to specified Emission norms.”

This interpretation of the notification no. GSR 96(E) dated 29-01-2018 appears to be grossly misconstrued because of the following reasons.

1. The notification dated 29-01-2018 only provides that the industries mentioned therein (and as quoted in the guidelines as above) shall adhere to the emission norms. There is no mention to online monitoring.
2. While the notification no. GSR 96 (E) dated 29-01-2018 speaks only of SO₂ and NO_x emission standards, the guidelines have prescribed requirements for other parameters like PM, F, NH₃, CL₂, HCL, TOC etc. The requirements for OCEMS with regards to these parameters should therefore not be attributed to statutory requirements as in GSR 96 (E) dated 29-01-2018.
3. As regards a reference to on line continuous monitoring systems, a draft notification issued by the MoEF and CC on 25-10-2017 vide No-GSR 1343(E) (and which has been consequently finalized vide GSR 96(E) dated 29-01-2018 referred above) only mentions that in case of Petcoke and Petcoke Blend, “Continuous on line SO₂ emission monitoring system to be installed and linked with the Central Pollution Control Board and State Pollution Control Board on line pollution Monitoring Systems.”

The said draft notification has nowhere indicated the intention of the Ministry to stipulate installation of online monitoring systems across all industries as mentioned at page 1 of the guidelines published by the CPCB in June 2018.

4. GSR No. 96 (E) dated 29/01/2018, in terms of installation of OCEMS, mentions that “The emissions from such industries needs to be monitored and all such industries as referred at S.No. 105 C of the Table would be required to install online monitoring system as per online monitoring mechanism put in place by the Central Pollution Control Board from time to time.”

This mention has made only with specific reference to S. No. 106B, which deals with emission standards from ‘Other Fuels” and suggests that:

1. Emissions from industries using ‘other fuels’ have to be monitored. There is no mention of the procedures but they will have to be the same as prescribed in the Air, Water and E.P. Acts. There is also no mention of any requirements of online continuous monitoring systems in either the notification or the Acts.
2. Only Industries as referred in S. No. 105C of the Table would be required to opt for OCEMS. There is no Table 105C in the notification GSR 96(E) dated 29-01-2018 and hence the reference is ambiguous. S. No. ‘105C’ only finds a reference in the draft notification no. GSR 1343 (e) dated 25-10-2017 and is restricted to industries using Petcoke and Petcoke blend as fuels and proposes to restrict the installation of OCEMS only to continuous SO₂ emission monitoring for petcoke and petcoke blends.  This draft notification stands null and void and S. No. 105A, 105B, 105C and 105D of this draft notification lose entity with the amendment which has added S.No. 106, 106A and 106B after Sr.No. 105 (Standards for emission from Automobile repair workshops).

Since there is no S.No. 105C under the E.P. Rules of 1986, therefore the implementation of installation of online monitoring systems on all industries based on the standards as prescribed in the amendment dated 29-01-2018 appears misjudged and wrong and there is also no direction of the MoEF and CC as a general standard that all 17 category industries or industries as mentioned in the guidelines have to install OCEMS.

5. The Honourable NGT in its orders of 13-07-2017( Ganga Matter, M.C. Mehta vs. Union of India ) has held at para 37 that “Similarly the online monitoring systems or continuous Emission Monitoring System should also be applied on a case to case basis with reference to the facts and circumstances of the given unit”

The attempt of the CPCB to impose installation of OCEMS across the Board is therefore not conforming to the orders of the Honourable NGT in this regards and also against the directives of the MoEF and CC, which the CPCB claims as a basis for such directions, in the guidelines of June 2018.

6. This decision if implemented will also impact development by triggering large scale refusal of consents and may need to be looked into because while it introduces a threat of closure of industries, it also introduces a major unproductive expenditure on the industry and the costs certainly have the potential of being transferred to the consumer.
7. Procedures for collection and sampling of data have been prescribed under the Water, Air and the E.P. Acts and sample collection and analysis that does not conform to the procedures as prescribed is not admissible as legal evidence in any court of law. On line monitoring, not being a prescribed procedure for sampling under the Water, Air or the E.P. Act 1986 suffers from this inadequacy and may not be used as an evidence. The utility of the online monitoring system for regulatory purposes is therefore limited and again points to it being productive only if it is a voluntary self regulating feature rather than a system inviting punitive action, for which a set procedure has been prescribed by Law.
8. OCEMS, as conceived, has the best utility if it is imposed as a voluntary self regulating exercise. Subjecting results to regulatory scrutiny without legal support makes the exercise meaningless.
9. The Honourable NGT, with regards to OCEMS, has in its Judgement of 13-07-2017 (M.C. Mehta vs Union of India. OA 3727) pronounced that, “Similarly the Online Monitoring System or Continuous Emission Monitoring System should also be applied on a case to case basis with reference to the facts and circumstances of the given unit. They must be feasible, for instance, it there is a tannery unit which has consent for processing of say 10 hides per day, it cannot be expected to become ZLD or to install online monitoring system would be opposed to any accepted principles of technology and safeguards of economic advancement. They would be compelled to operate and discharge then effluents only and strictly as per the prescribed norms in default, they would be liable to be shutdown”.

The NGT further goes on to pronounce that, “ There has to be a specialized technically sound and dedicated mechanism with every Board including CPCB which monitors entire input of online monitoring system or continuous monitoring system. This monitoring should include not only collection of data but to ensure that action taken in default and operational deficiencies in the units are rectified within the prescribed time, failing which the unit should be ordered to be closed down. The concept of self regulation would achieve its object, only when there is effective supervisory control.”

The quality of reports being received by the Boards, especially the percentage of non compliances being reported, with regards to the prescribed standards, through the online monitoring systems already in place and the action taken may need to be examined in detail for utility.

10. It therefore appears important that
11. Since the Honourable NGT has pronounced that online continuous emission monitoring system should be directed to be installed on a case to case basis only and not across the Board and also since the basic assumption of the CPCB, that installation of online continuous Emission Monitoring Systems has been prescribed by the MoEF and CC notification dated 29-01-2018, is misconstrued and misinterpreted, the entire issue could be examined by the regulatory authorities who could also like to examine the efficacy of the current installations and the feasibility of future installation as provided in the NGT order.
12. A conscious reconsideration and intervention of the decision is also required in this matter of installation of online continuous Emission monitoring systems because it may lead to large scale closure of industries, additional unproductive costs being transferred to consumers and could also lead to a voluntary self regulating mechanism finding the same fate as Environmental Statements under the E.P. Act.
13. Since online monitoring results may not be admissible as evidence in any Court Of Law therefore the Ministry may also like to examine notifying  amendments in  sampling procedures, as prescribed under the Water, Air and E.P. Acts, before including OCEMS as a regulatory tool before online monitoring is imposed even on a case to case basis.