2011 PLP 1351 (CLD)

Judgment dictated. Issue notice to the appellant for 16-6-2011 intimating him to appear before the Tribunal for hearing the same. (Sd)/- (Sd)/- Khawaja Muhammad Afzal Ch. Muhammad Khalil (Chairperson) (Member Tech.) Through the instant appeal the appellant D.G. Khan Cement Company Ltd. challenges the validity and legality of Environmental Protection Order dated 23-8-2008 passed by the Agency under section 16 of PEPA 1997 and communicated to the appellant vide letter dated 23-8-2008. The operative part of the impugned order directs the appellant to comply with the following directions within 30 days. (i) Apply for paying penalty/fine regarding violation of section 12 of the Act ibid read with IEE/EIA Regulations, 2000 as envisaged in section 17 of the Act ibid in respect of mining/quarry site. (ii) Stop wastewater disposal of the factory into the water pond of Mauza Daleelpur. (iii) Control indiscriminate disposal of wastewater and treat in conformity with the NEQS. (iv) Restrain from diverting storm water to the agricultural fields/lands and populated area. (v) Control dust and gaseous emissions generated during abnormal plant conditions in conformity with the NEQS. (vi) Maintain a record of the times during which start up and upset conditions occur and shall mention the total time elapsed in such conditions besides maintaining separate documentation/Log Book of non-operation of pollution control devices on daily basis and furnish report to EPA, Punjab on monthly basis. OR Stop operation of pollution causing activities.

2. Regarding direction No. 1 of EPO learned counsel for the appellant argued that order of the respondent directing the appellant to "apply for paying penalty/ fine regarding violation of section 12 of the Act read with IEE/EIA 2000 as envisaged in section 17 of the Act in respect of mining/quarry site" is illegal without jurisdiction and contrary to the provisions of PEPA 1997. Under section 21(2) of PEPA 1997 such authority lies exclusively with the Environmental Tribunal. It is also stated by the learned counsel for the appellant that NOC dated 21-10-2004 appended with the appeal clearly states that "Punjab EPA has no objection to the construction of Messrs D.G. Khan Cement Ltd., Khairpur, Chakwal project at the proposed site". During pendency of the appeal learned counsel for the appellant filed several additional documents before the Tribunal to show that all the directions of EPO have been complied with. These documents include Environmental Approval granted by Director-General EPA, Punjab vide letter dated 2-4-2009, relevant part thereof reads as under. "After review of Initial Environmental Examination (IEE) report, EPA Punjab accords approval for quarry site in continuation of office Letter No.513/F-16/EIA dated 21-10-2004 for the establishment of cement plant." This shows that appellant has been provided with NOC for the construction of the unit as well as for Mining of the raw material."

3. Regarding the remaining directions of EPO, learned counsel has drawn our attention to Site Monitoring Report dated 9-4-2009 submitted by three members team of EPA Punjab appended as annex "E" to the application for additional documents which concludes as under:-- "In compliance with the directions of this Agency, the management has adopted appropriate remedial measures and seems to have complied with the directions of EPO".

4. Reference has also been made by learned counsel for the appellant to the letter dated 16-5-2009, appended as annex "D" to the application for additional documents of Deputy Director (R & I) addressed to the Deputy Secretary Planning, Chief Minister's Secretariat, Punjab. In the said letter it has been conceded that the appellant "has made necessary arrangements for controlling Environmental Pollution and indiscriminate disposal of wastewater along with dust and gaseous emissions generated during operation of the plant to bring them in conformity with NEQS.

5. In view of the documentary evidence produced by the appellant it is abundantly clear that he has complied with directions Nos. (ii) to (vi) contained in the impugned EPO. As regards direction No. (i) the same is declared to be without jurisdiction and of no legal effect. Appeal is therefore accepted. H.B.T./28/ET Appeal accepted.