w w w . L a w y e r S e r v i c e s . i n



Environmental Health & Safety Research & Development Centre (EHSRDC), Through its Managing Director, Bangalore & Others v/s Karnataka State Pollution Control Board (KSPCB), Through its Member Secretary, Bangalore & Others


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    Original Application No. 209 of 2017 (SZ)

    Decided On, 09 October 2020

    At, National Green Tribunal Southern Zone Chennai

    By, THE HONOURABLE MR. JUSTICE K. RAMAKRISHNAN
    By, JUDICIAL MEMBER & THE HONOURABLE MR. SAIBAL DASGUPTA
    By, EXPERT MEMBER

    For the Applicants: Naveen R Nath, A. Sheik Peer, Advocates. For the Respondents: R1, M.R. Gokul Krishnan, R2, Darpan, R3, G.M. Syed Nurullah Sheriff, R4, Thirunavukarasu, Advocates.



Judgment Text

1. When the matter came up for hearing today through Video Conference, Sri. A. Sheik Peer represented for the applicant. Sri. M.R. Gokul Krishnan represented 1st respondent, Sri. Darpan represented 2nd respondent, Sri. G.M. Syed Nurullah Sheriff represented 3rd respondent and Sri. Thirunavukarasu represented 4th respondent.2. The above application has been filed by the applicants seeking the following reliefs:-“a) Quash the notifications dated 24.03.2015, 03.02.2016 & 06.09.2016 issued by the Karnataka State Pollution Control Board as being illegal and contrary to the Environment (Protection) Act, 1986, the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981.b) Pass a consequential order declaring that only Statutorily E (P) Act recognized Laboratories duly gazetted in the Official Gazette can render services relating to the maintenance, monitoring and evaluation and regulation of Environmental Standards and that the respondent No.1/KSPCB cannot empanel Laboratories other than such statutorily recognized Laboratories under the provisions of the Environment (Protection) Act, 1986; the Water (Prevention & Control of Pollution) Act, 1974 andc) Pass any such other or further order as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.”3. The applicants are statutorily recognized laboratory and analyst under Environment (Protection) Act, 1986 as evidenced by Annexure 1 & 2, notifications respectively. It is alleged in the application that environmental laboratories and government analysts form an integral part of the monitoring and evaluation of the environmental standards, enforcement of environmental and pollution related laws and as such are an important part of the regulatory process required for protecting the environment. The qualitative and quantitative data/report and results produced by these laboratories/analysts form an effective tool in the assessment of environmental health, pollution levels and enforcement of the directives and orders of this Tribunal as well as the Central and State Pollution Control Board as well as in respect of technical standard prescribed. These laboratories and analysts are vested with critical functions to ensure compliance with and assessment of environmental standards for sustainable development and regulatory purposes. These statutorily appointed agencies and persons discharge very sensitive and critical functions. Their functions have to be based on highest scientific, metrological and technical standards. Unless such standards are maintained, Environmental protection will be in chimera.4. Section 12 of the Environment (Protection) Act, empowers the Central Government to establish environmental laboratories or recognize environmental laboratories under the Act. Section 12 also empowers the Central Government to frame rules regarding the functions of the environmental laboratory, procedure for the submission of the said laboratory of samples of air, water, soil or other substances for analysis or tests, the form of the laboratory report thereon and the fees payable for such report, any other matters, as may be necessary or expedient to enable that laboratory to carryout its functions.5. Section 13 of the Environment (Protection) Act provides that the Central Government by notification appoint/recognize persons having prescribed qualification as government analysts for the purpose of analysis of sample of air, water, soil or other substances sent for analysis to any environmental laboratory established or recognized under Section 12 (1) of the Environment (Protection) Act, 1986 by a notification.6. Section 14 highlights the evidentiary significance of the reports of these laboratories and of the role of Government Analysts by providing that “any document purporting to be a report signed by a Government Analyst may be used as evidence of the facts stated therein in any proceeding under this Act.” Thus, the scheme of the Act contemplates appointment of ‘Statutory Laboratories’ and ‘Statutory Analysts’.7. Rules 9 & 10 of the Environment (Protection) Rules, 1986 deal with the functions of the environmental laboratory and prescribed qualification for Government Analysts. Similarly, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 also provide a statutory obligation on the part of the Government in establishing the notified environmental laboratories for the purpose of enabling the Board to conduct the test. The Central Government by Annexure-3, Notification delegate its power under Section 12 & 13 of the Act on Central Pollution Control Board. The Central Government by notification dated 15.06.2006 has also prescribed charges/fees payable for collection, sampling and analysis of different environmental samples evidenced by Annexure A-4. Subsequently, the Central Government and the Central Pollution Control Board in June, 2008 published Annexure A-5, detailed guidelines and procedure for recognition of environmental laboratories in the country which is prevailing now. A separate window has been created for this purpose at the Central Pollution Control Board and MoEF&CC websites for better understanding and to display the relevant guidelines and amendments from time to time. Despite this regulatory frame work being in place, the KSPCB released parallel guidelines dated 24.03.2011 and 02.04.2011 for the empanelment of all private laboratories in the State and categorized laboratories as ‘A’, ‘B’ and ‘C’ based on infrastructure of these laboratories evidenced by Annexure A-6 (Series).8. The Karnataka Pollution Control Board had empanelled private laboratories without following the procedure prescribed, and through a mere administrative decision. This was seriously objected by the Central Government which wrote to the State Government and the Pollution Control Board requesting for withdrawal of such illegal parallel guidelines evidenced by Annexure A-7 (Series). The State Government also took cognizance of the illegal actions of the KSPCB and issued statutory directives to the Board directing it to declare the empanelment of as many as 67 Private Laboratories as illegal evidenced by Annexure A-8. Consequent to this, the KSPCB by Annexure A-9, Memorandum dated 06.09.2014 cancelled the empanelment of the laboratories and the certificate issued but again they had taken a decision permitting the laboratories having NABL accreditation to undertake Laboratory tests and analysis of all kinds as per Annexure A-10, Official Memorandum dated 24.03.2015. The NABL is a body primarily responsible for accreditation of Laboratories. It is a Constituent of the Quality Council of India. The accreditation standards evolved by them are based on certain standardized industry norms and not based on any statutory fixed norms.9. Karnataka State Pollution Control Board (KSPCB) also issued office memorandum dated 03.02.2016 and 06.09.2016, directing its officers to verify the scope of accreditation while accepting test reports. The action of the Pollution Control Board is under challenge on the ground that they are against the directions given by the MoEF&CC and CPCB and against the provisions of the Environment (Protection) Act, 1986 as well.10. The first respondent filed an interim reply affidavit contending that the application is not maintainable. Though, the cause of action arose in the year 2015 itself, the application was filed beyond that time provided under the Section 18 of the National Green Tribunal Act, 2010. The State of Karnataka as per their letter of the Department of Ecology and Environment dated 28.07.2014, issued directions under Section 18 (1) (b) of the Karnataka State Pollution Control Board to cancel the empanelment of Private Laboratories. On 06.09.2014, as per the directions of the Department of Ecology and Environment, Government of Karnataka, the Karnataka State Pollution Control Board had cancelled the empanelment of Private Laboratories. As per Environment (Protection) Act, 1986, all new environmental Laboratories (Private/Government/NGO Autonomous/public undertaking/ Educational Industries/State or Central Pollution Control Board Laboratories) should acquire, either ISO 172059 (NABL Accreditation) or ISO 9001 along with OHSAS 18001 certification before submission of application for consideration of recognition under the Environment (Protection) Act, 1986.11. Accordingly, KSPCB Central Laboratory obtained NABL and ISO certification. On 28.06.2017, the Board had called for meeting of MoEF&CC and NABL recognized laboratory heads regarding acceptance of test reports from laboratories having only MoEF&CC recognition and NABL accreditation. The above issue was deliberated and finally the Chairman of the KSPCB opined that all environmental laboratories should have MoEF&CC recognition which is comprehensive and NABL accreditation (ISO 17025 or ISO 9001 with OSHAS) which is a pre-requisite to acquire MoEF&CC recognition. With regards to the time required to obtain MoEF&CC accreditation as requested by the laboratories, Chairman agreed tentatively to accept a time limit of 6 months for obtaining MoEF&CC accreditation subject to the progress made by each laboratory on the matter. At present in the entire State of Karnataka, there are only 3 private Environmental Laboratories who have obtained recognition from MoEF&CC. Further, contended that the State of Karnataka is having more than 65,000 working industries which are required to carry out water, air, noise and soil samples monitoring as per mandate under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. It is practically impossible to get the samples analysed by these limited MoEF&CC recognized laboratories. Further, it is not practicable to carry samples for analysis to the laboratory located far away from the industry and same will not give reliable results. In this back ground, the Chairman of the KSPCB has extended 6 months time to get recognition from MoEF&CC by NABL accredited laboratories in the interest of complying with the Environmental Laws by the industries which are mandatory bound to carryout water, air, noise and soil samples analysis. So, they prayed to permit the NABL accredited laboratories to get MoEF&CC recognition in reasonable time in the interest of Environment and public at large. The Office Memorandum under challenge is only a temporary arrangement till the laboratories obtain MoEF&CC accreditation. So, they prayed for dismissal of the application.12. The 4th respondent filed counter statement contending that they are not raising the issue of limitation and jurisdiction in the present reply statement. They have also contended that the applicant has throughout the application averred that the State Pollution Control Boards cannot confer recognition to laboratories under the Environment (Protection) Act, 1986, Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981. But, however under the provisions of Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981, the State Pollution Control Board can recognize a laboratory to enable the Board to perform its functions efficiently within their state.13. The Central Government vide Gazette Notification No.128 dated 27.02.1991 had delegated power of granting recognition to laboratories or institutions as Environmental Laboratories to this respondent and they have been delegated the power to appoint or recognize analysts under clause (b) of sub section (i) of Section 12 and Section 13 of the Environment (Protection) Act, 1986 and they have further contended that most of the allegations are not concerned about them but they have not mentioned as to whether the Act of the State Pollution Control Board in not following the guidelines given by the MoEF&CC and Central Pollution Control Board in the matter of recognition of laboratories for carrying out the analysis under the respective environmental laws against the guidelines issued by MoEF&CC is legal or not and also about the action taken by the State Pollution Control Board’s action against the same inspite of central governments direction to cancel the empanelment.14. Third respondent filed counter contending that under Section 17(2) of the Water (Prevention & Control of Pollution) Act, 1974, the State Pollution Control Board may establish or recognize a laboratory/laboratories to enable the Board to perform its functions under this section efficiently, including the analysis of samples of water from any stream or well or of samples or trade effluents. Section 17 (2) of the Air (Prevention & Control of Pollution) Act, 1981 also provides such a power.15. Further, MoEF&CC recognises private laboratories as environmental laboratories under the provisions of Section 12 of the Environment (Protection) Act, 1986 and the power with respect to grant of recognition to Government/Autonomous/Public Sector Undertaking/ Education Institution/Central or State Pollution Control Board laboratories as environmental laboratories under the above provisions has been delegated to the Central Pollution Control Board (CPCB). The MoEF&CC has earlier vide letters dated 06.03.2014 and 09.04.2014, requested the Karnataka State Pollution Control Board and Department of Forest, Ecology & Environment, State Government of Karnataka to look into the issue of parallel guidelines for empanelment of laboratories by KSPCB, which may weaken the procedure laid down under the Environment (Protection) Act, 1986. Further, as per KSPCB’s Office Memorandum / Circular dated 24.03.2015 and 03.02.2016, MoEF&CC has written to KSPCB that accreditation of NABL or ISO:9001 certification is one of the essential pre-requisites for consideration of laboratories to be recognized under the Environment (Protection) Act, 1986 and therefore, laboratories accredited with NABL are not to be considered at par with laboratories recognized under the Environment (Protection) Act, 1986 for the purpose of analysis of environmental samples and the MoEF&CC has requested the Board to issue appropriate corrigendum to all guidelines/ instructions issued by the Board in this regard.16. The short question that arises for consideration is whether the Karnataka Pollution Control Board is entitled to issue parallel official memorandum recognizing laboratories against the guidelines granted by the MoEF&CC and Central Pollution Control Board.17. The learned counsel appearing for the applicant submitted that inspite of the fact that the Central Government as well as the State Government had directed the Karnataka State Pollution Control Board to strictly abide by guidelines issued by the Central Pollution Control Board in respect of giving accreditation certificate for conducting analysis of water, air and soil samples etc. under the environmental laws, they are not following the same and allowing the private laboratories who are not recognized or notified under the Environment (Protection) Act, 1986 to proceed with the analysis which is illegal.18. On the other hand, the learned counsel appearing for the 1st respondent submitted that in order to meet the exigencies, the Board has no other option but to follow this as a temporary measure till the private laboratories have obtained accreditation under the Environment (Protection) Act.19. The learned counsel appearing for MoEF&CC as well as CPCB submitted that they have already issued directions to the State Pollution Control Board to strictly comply with the provisions of the Environment (Protection) Act, 1986 and follow the guidelines issued by them in this regard.20. There is no dispute regarding the fact that only those laboratories which has obtained accreditation as provided under the Environment (Protection) Act, 1986 alone are entitled to conduct the analysis so as to get its legality approved as provided under Environmental laws.21. Section 12 of the Environment (Protection) Act, 1986 deals with the environment laboratories which reads as follows:-“12. Environmental laboratories —(1) The Central Government may, by notification in the Official Gazette,— a. establish one or more environmental laboratories;b. recognise one or more laboratories or institutes as environmental laboratories to carry out the functions entrusted to an environmental laboratory under this Act.(2) The Central Government may, by notification in the Official Gazette, make rules specifyinga. the functions of the environmental laboratory;b. the procedure for the submission to the said laboratory of samples of air, water, soil or other substance for analysis or tests, the form of the laboratory report thereon and the fees payable for such report;c. such other matters as may be necessary or expedient to enable that laboratory to carry out its functions.”22. Section 13 of the above said Act deals with the Government Analysts which reads as follows:-“13. Government Analysts. —The Central Government may, by notification in the Official Gazette, appoint or recognise such persons as it thinks fit and having the prescribed qualifications to be Government Analysts for the purpose of analysis of samples of air, water, soil or other substance sent for analysis to any environmental laboratory established or recognised under sub-section.”23. Section 14 of the said Act deals with the presumption regarding the report submitted by the Government Analysts which reads as follows:-“14. Reports of Government Analysts. —Any document purporting to be a report signed by a Government Analyst may be used as evidence of the facts stated therein in any proceeding under this Act.”24. So, it is clear from the above provisions that the environment laboratories which are having accreditation with the Central Government / MoEF&CC / CPCB alone will have the legal right to conduct the analysis in order to get the legal presumption of acceptance as provided under Section 14 of the Environment (Protection) Act, 1986.25. Rules 9 & 10 of the Environment (Protection) Rules, 1986 respectively deals with the functions of environment laboratories and qualification of the Government analysts which reads as follows:-“9. Functions of environmental laboratoriesThe following shall be the functions of environmental laboratories:-(i) to evolve standardized methods for sampling and analysis of various types of environmental pollutants;(ii) to analyze samples sent by the Central Government or the officers empowered under sub-section (1) of section 11.(iii) to carry out such investigations as may be directed by the Central Government to lay down standards for the quality of environment and discharge of environmental pollutants, to monitor and to enforce the standards laid down;(iv) to send periodical reports regarding its activities to the Central Government;(v) to carry out such other functions as may be entrusted to it by the Central Government from time to time.10. Qualification of Government Analyst:A person shall not be qualified for appointment or recognized as a Government Analyst unless he is a:-(a) graduate in science from a recognized university with five years experience in laboratory engaged in environmental investigation, testing or analysis; or(b) post-graduate in science or a graduate in engineering or a graduate in medicine or equivalent with two years experience in a laboratory engaged in environmental investigations testing or analysis; or(c) post-graduate in environmental science from a recognized university with two years experience in a laboratory engaged in environmental investigations, testing or analysis.”26. Section 17 (2) of the Water (Prevention & Control of Pollution) Act, 1974 gives power to the Board to establish or recognize a laboratory/laboratories to enable the Board to perform its functions under this section efficiently including the analysis of samples of water from any stream or well or sample of any sewage or trade effluents.27. Section 17 (2) of the Air (Prevention & Control of Pollution) Act also provides similar power as provided under the Water (Prevention & Control of Pollution) Act, 1974 in respect of establishment or recognition of laboratories who are entitled to conduct the analysis.28. It is also an admitted fact that Annexure A4 (Series) are such Notifications issued by the MoEF&CC recognizing the laboratories who are entitled to perform the analysis as provided under Environment (Protection) Act and Rules. Annexure A5 is the guidelines for recognition of Environment laboratories under the Environment (Protection) Act, 1986 issued by the Central Pollution Control Board/MoEF&CC which provides the guidelines under which the recognition, certification and accreditation etc., can be granted including the fees to be charged by each sample and the manner in which the samples will have to be collected etc.29. In contravention of the above guidelines, the KSPCB had empanelled certain private laboratories who have not obtained accreditation under the Environment (Protection) Act, 1986 from the MoEF&CC to carry out the sample analysis. When this was brought to the notice of the MoEF&CC, they had issued Annexure A7, Letter DO No. Q-15018/30/2013/CPW dated 06.03.2014 which reads as follows:-“D.O. No.Q-15018/30/2013-CPW06th March, 2014Dear Sir,Your attention is drawn to (i) a letter from Ms. Maneka Sanjay Gandhi, M.P. and (ii) a Legal Notice from the LINK LEGAL – India Law Services, received by the Ministry highlighting that the Karnataka State Pollution Control Board (KSPCB) has empanelled a number of environmental laboratories, which are neither established nor recognized by the Ministry of Environment and Forests under Section 12 of the Environment (Protection) Act, 1986.2. You may recall that the MoEF had revised the extant guidelines (1994-95) for establishment and recognition of environmental laboratories and procedures streamlined. The revised guidelines under E (P) A, 1986 were made more comprehensive and stringent to eliminate consideration of sub-standard laboratories and are being implemented from January, 2009.3. It may also be noted that the MoEF has made it mandatory since August, 2009 that while submitting EIA / EMP reports, the laboratories through which the samples are got analysed should be approved under the E (P) A, 1986 and the Rules made there under. The admissibility and authenticity of the environmental samples is recognisable only if it has a certification by the Government Certified Environmental Laboratory under the notified E(P) A, 1986. All the projects of Karnataka or any other State are to be screened from the view point.4. The KSPCB is reportedly by passing this statutory requirement of E (P) Act, 1986 and implementing its own set of guidelines and recognizing the private laboratories under some executive orders.5. The analysis report signed by the Government Analyst is used as an evidence for the legal matters. However, KSPCB does not appear to notify the Govt. Analysts under any Act.6. The parallel guidelines of empanelment by KSPCB may weaken the procedures laid down under the E (P) Act, 1986. In this way, we would be losing hold on any violations across the Country as every State would start doing the same ignoring the required environment assessment procedures.7. I request you to kindly look into the matter and factual position may be provided to the Ministry on priority so that a suitable reply to the Hon’ble MP could be sent.With regards.Yours Sincerely,(Dr. Rashid Hasan)”30. Another letter DO No.Q-15018/30/2013/CPW dated 09.04.2014 was also issued in this regard which reads as follows:-“D.O. No.Q-15018/30/2013-CPW09th April, 2014Subject: Empanelment of Environmental Laboratories by Karnataka State Pollution Control Board.Dear Sir,Your attention is drawn to (i) a letter from Ms. Maneka Sanjay Gandhi, M.P. (copy enclosed) and (ii) a Legal Notice from the LINK LEGAL – India Law Services, received by the Ministry highlighting that the Karnataka State Pollution Control Board (KSPCB) has empanelled a number of environmental laboratories, which are neither established nor recognized by the Ministry of Environment and Forests under Section 12 of the Environment (Protection) Act, 1986.2. You may recall that the MoEF had revised the extant guidelines (1994-95) for establishment and recognition of environmental laboratories and procedures streamlined. The revised guidelines under E (P) A, 1986 were made more comprehensive and stringent to eliminate consideration of sub-standard laboratories and are being implemented from January, 2009.3. It may also be noted that the MoEF has made it mandatory since August, 2009 that while submitting EIA / EMP reports, the laboratories through which the samples are got analysed should be approved under the E (P) A, 1986 and the Rules made there under. The admissibility and authenticity of the environmental samples is recognisable only if it has a certification by the Government Certified Environmental Laboratory under the notified E(P) A, 1986. All the projects of Karnataka or any other State are to be screened from the view point.4. The KSPCB is reportedly by passing this statutory requirement of E (P) Act, 1986 and implementing its own set of guidelines and recognizing the private laboratories under some executive orders.5. The analysis report signed by the Government Analyst is used as an evidence for the legal matters. However, KSPCB does not appear to notify the Govt. Analysts under any Act.6. The parallel guidelines of empanelment by KSPCB may weaken the procedures laid down under the E (P) Act, 1986. In this way, we would be losing hold on any violations across the Country as every State would start doing the same ignoring the required environment assessment procedures.7. I request you to kindly look into the matter and factual position may be provided to the Ministry on priority so that a suitable reply to the Hon’ble MP could be sent.With regards.Yours Sincerely,(Rashid Hasan)”31. Relying on those letters, the Government of Karnataka has also issued Annexure A8, Order No. FEE-17-EPC-2014 dated 28.07.2014, directing the Karnataka Pollution Control Board to cancel the empanelment of private laboratories which were accepted by the Board against the norms issued by the MoEF&CC and strictly adhere to the directions and guidelines given in this regard which reads as follows:-“Government of KarnatakaNo. FEE 17 EPC 2014 Secretariat, Govt. of Karnataka Multi stored Building, Bangalore Dated: 28.07.2014Directions to Karnataka State Pollution Control Board under section 18 of sub section 1 (b) of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981Dr. Rashid Hasan, Advisor, Ministry of Environment and Forests vide letter dated 09.04.2014 has informed that, Ministry of Environment and Forests had revised the guidelines for establishment and recognition of environmental laboratories and procedures were streamlined. The revised guidelines were made more comprehensive and stringent to eliminate sub-standard laboratories and those guidelines were being implemented since 2009. However, it has been reported that Karnataka State Pollution Control Board, keeping aside the said statutory guidelines, has proposed its own set of guidelines and is recognizing the laboratories under the same. Such parallel guidelines may weaken the rules laid down under the E(P) Act, 1986 and that the ministry may lose hold on violation of environmental rules across the country. A copy of the above letter had sent to the Member Secretary, Karnataka State Pollution Control Board on 08.05.2014 and was directed to verify the factual position and was informed to submit the detailed report to Government within one week. However, this office has not received any such report till date from Karnataka State Pollution Control Board.In order to utilize the services of private laboratories, Karnataka State Pollution Control Board has to follow the guidelines under Karnataka Transparency in Public Procurements Act, 1999. However, there is no provision under the said act to empanel laboratories to obtain any type of services.Karnataka State Pollution Control Board has empanelled 67 private laboratories, which have not been approved under Water Act, Air Act or E (P) Act and rules made there under. Hence, it is decided that the empanelment of these laboratories do not possess any legal sanctity.Therefore, as per the letters of Govt. of India, subsequent developments and the vested provisions of State Government under Section 18 of sub section 1 (b) of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, the under signed hereby direct Karnataka State Pollution Control Board to declare empanelment of 67 laboratories, not approved under Water Act, Air Act and E(P) Act and rules made there under, be cancelled and priority, recognition, certificates, recommendation, etc given by Karnataka State Pollution Control Board be revoked with immediate effect. The action taken report in this regard shall be submitted to Government immediately.By order and in the name of theGovernment of KarnatakaSd/-G.H. AnusuyammaUnder Secretary to GovernmentForest, Ecology and Environment DepartmentTo,1) The Chairman,Karnataka State Pollution Control Board,No.49, Paraisara Bhavan, Church Street, Bangalore – 560001.2) The Member Secretary,Karnataka State Pollution Control Board,No. 49, Paraisara Bhavan, Church Street, Bangalore – 560001.Copy to:Personal Secretary to Hon’ble Ministry, Forest, Ecology and Environment for intimation to Hon’ble Minister.”32. Relying on these letters, the Karnataka Pollution Control Board has issued Annexure A9, Memorandum cancelling the empanelment made earlier by them which reads as follows:-“No. KSPCB/CEO/AQMC/2014-15, 3082 Date:06, Sep. 2014MEMORANDUMIn order to ensure that the Private Laboratories render quality services to the Industries by equipping themselves with proper instruments/ equipments and skilled/qualified manpower, the Board in its 159th & 161st meeting has resolved to empanel the Private Laboratories. Further, revised procedures/guidelines for empanelment have been evolved by Laboratory and Library committee of the Board during its meeting held on 06.03.2010, 09.07.2011 and 05.02.2011 and the same is being reviewed constantly by the said committee. At present 76 Private Laboratories have been empanelled by the Board with different grades, viz. A, B & C.The Board has received a letter from Ministry of Environment and Forests, Government of India vide D.O. No.: Q-15018/30/2013-CPW, dated 06.03.2014 and 02.04.2014, wherein it was observed that, the parallel guidelines of empanelment by the Karnataka State Pollution Control Board may weaken the procedures laid down under the EP Act, 1986.The Board in its 192nd meeting held on 25.06.2014 has discussed in detail about the process of empanelment visa – viz of observation of MoEF as mentioned in its dated 06.03.2014 and 02.04.2014 besides the provision of KTPP Act. After detailed deliberations the Board has approved to dispense with empanelment of Private Laboratories forthwith. Further, the Board has received directions under Section 18 (1) (b) of Water Act, 1974 and Air Act, 1981, from department of Ecology and Environment, Government of Karnataka, wherein the Government has directed to cancel the empanelment of Private Laboratories. Hence, the following order.ORDER* The process of Empanelment of Private Laboratories by the Board is dispensed forthwith.* The Private Laboratories empanelled by the Board stands cancelled, forthwith and as such the Empanelment Certificates stands null and void.* This order will come into force with immediate effect.Approved by the competent Authority viz. ‘Chairman’Sd/-MEMBER SECRETARY”33. It is thereafter, the Pollution Control Board had issued the present impugned Official Memorandums granting six months time to the private NABL accredited laboratories who have been empanelled by them to obtain accreditation from MoEF&CC and on that basis allowed the private NABL accredited laboratories to continue for six months but not having accreditation/approval from the MoEF&CC which is also not in tune with the guidelines and directions given by the MoEF&CC and CPCB under the Environment (Protection) Act, 1986.34. Since, in the reply statement submitted by the KSPCB, they have mentioned that it was only a temporary arrangement, that such official memorandum has been issued till the laboratories who are having NABL accreditation to get accreditation/approval from the MoEF&CC as required under the Environment (Protection) Act in order to enable them to carry out their statutory obligation of taking samples and obtaining analysis report for proceeding against the violating industries and persons as provided under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981, we have directed the 1st respondent/KSPCB to submit their status report regarding the manner in which the accreditation is being given to the laboratories who have been empowered to carry out the analysis for the purpose of enabling the Board to discharge their functions as provided under the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981.35. The 1st respondent has filed a status report which reads as follows:-“Status Report filed on behalf of the 1st Respondent1) I, Srinivasulu Member Secretary, Karnataka State Pollution Control Board, having office at Parisar Bhavan, #49, Church Street, Bangalore, do hereby solemnly affirm and sincerely state as follows:2) I state that I am the Member Secretary of the 1st respondent herein and as such I am well acquainted with the facts of the case from available records. I am filing this reply affidavit on behalf of the 1st respondent in my official capacity and I am authorized to do so.3) I humbly submit that on 28.07.2014, based on the letter of Department of Ecology and Environment, Government of Karnataka had issued direction under Section 18 (1) (b) to the Karnataka State Pollution Control to cancel the empanelment of Private Laboratory.4) I humbly submit that on 06.09.2014 as per direction of the Department of Ecology and Environment, Government of Karnataka, the Karnataka State Pollution Control Board had cancelled the empanelment of Private Laboratories.5) I humbly submit that as per the Environmental Protection Act, 1986 all new environmental laboratories (Private/Government/ NGO Autonomous/public undertaking/ Educational Industries/State / Central Pollution Control Board Laboratories) should acquire, either ISO 172059 (NABL Accreditation) or ISO 9001 along with OHSAS 18001 certification before submission of application for consideration of recognition under the Environment (Protection) Act, 1986. Accordingly, KSPCB Central Laboratory has obtained NABL and ISO certification.6) I humbly submit that on 28.06.2017, the Board had called for meeting of MoEF and NABL recognized laboratory heads regarding accepting of test reports from laboratories having only MoEF recognition and NABL accreditation. The above issue was deliberated and finally the Chairman of the KSPCB opined that all environmental laboratories should have MoEF recognition which is comprehensive and NABL accreditation (ISO 17025 or ISO 9001 with OSHAS) is a pre-requisite to acquire MoEF recognition. With regards to the time required to obtain MoEF & CC accreditation on as requested by the laboratories, the Chairman agreed tentatively to accept a time limit of 6 months for obtaining MoEF&CC accreditation subject to the progress made by each laboratory on the matter. Copy of the meeting proceedings are enclosed herewith.7) I humbly submit that at present in the entire State of Karnataka, there are only 3 Private Environmental Laboratories who have obtained recognition from MoEF & CC. I state that the State of Karnataka is having more than 65,000 working industries and which are required to carry out water, air, noise and soil samples monitoring as per mandate of Water Act and Air Act. It is practically impossible to get the sample analysed by these limited MoEF recognized laboratories. Further, it is not practicable to carry samples for analysis to the laboratory located far away from the industry. In this background the Chairman of the KSPCB has extended 6 times to get recognition from MoEF by the NABL accredited laboratories in interest of comply with the Environmental Laws by the industries which are mandatory bounded to carryout water, air, noise and soil samples analysis. In the above stated facts, the Hon’ble Tribunal may be pleased to permit the NABL accredited laboratories to get MoEF recognition in reasonable time in the interest of Environment and public at large.8) I humbly submit that National Accreditation Board for Testing and Calibration Laboratories (NABL) is an autonomous body under the aegis of Department of Science & Technology, Govt. of India is registered under the Societies Act. Science & Technology, Govt. of India and is registered under the Societies Act. NABL has been established with the objective to provide Govt. Industry Associations and industry in general with a scheme for third party assessment of the quality and technical competence of testing and calibration laboratories. In order to achieve this objective, NABL provides laboratory accreditation services to laboratories that are performing tests/calibrations in accordance with NABL criteria, which are based on internationally accepted standards and guidelines such as ISO/EBC Guide 25, ISO/IEC 17025 and EN 45001.9) I humbly submit that the Office Memorandum under challenge is only a temporary arrangement till the laboratories obtain MoEF &CC accreditation. The applicant very well knowing these facts has conveniently suppressed the same and is portraying a different scenario before this Hon’ble Tribunal. Under the above circumstances, I humbly submit that this Hon’ble Tribunal may be pleased to dismiss the above application on the point of limitation as it is scrupulously barred by limitation with heavy cost and pass such further or other orders as this Hon’ble Tribunal may deem fit and proper in circumstances of the case and thus render justice.10) I humbly submit that as per the Board meeting held on 28.05.2020, the Board held as follows: “The objections made by Members Sri. Venkatram and Sri. Hanuma Gowda Markal was discussed in detail and in view of less number of EP approved laboratories in the State and also considering the huge number of water samples, which are being collected (including lake sample as directed by Hon’ble NGT in O.A. No.325/2015), it is felt that the laboratories who have obtained accreditation from NABL and recognition under Environment (Protection) Act, 1986, may also be considered for monitoring purpose. However, it was also decided to give 6 months time for obtaining recognition under the EP Act, 1986 for all those laboratories who have not yet obtained recognition under the EP Act, 1986, but have obtained NABL accreditation. The subject will be reviewed after 6 months.”This for kind perusal of this Honourable Tribunal.”36. It is also quite unfortunate that from 2014 onwards, the KSPCB is following the same procedure of extending time to the laboratories who are having NABL Accreditation to get accreditation from the MoEF&CC under the Environment (Protection) Act, 1986 and allowing them to conduct the analysis of water, air and soil etc., under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. It may be mentioned here that it is quite unfortunate that the State Government has not taken any steps to increase the number of laboratories having the accreditation under the Environment (Protection) Act under the Government supervision itself. It is seen from the report of the Pollution Control Board that they have got only three such Government institutions and three such private laboratories as notified under Environment (Protection) Act, 1986 and in view of the large scale industrialization and other polluting units coming up, they will have to rely on certain private laboratories for carrying out their statutory obligation of taking action against those institutions who are violating the environmental norms. In Pepsico India Holdings Pvt. Ltd Vs Food Inspector and others reported in 2011(1) SCC 176, the Hon’ble Supreme Court has heavily come on the State Government as well as Central Government in not establishing the notified laboratories to analysis food samples under the then existing Prevention of Food Adulteration Act and come to the conclusion that if it is not notified under the Act, then any analysis report submitted by them will not be having statutory presumption provided under the section and that cannot be relied on for the purpose of conviction of the persons who have been proceeded against under said provision.37. Further, the Principal Bench of National Green Tribunal also considered the effectiveness of the monitoring regime to ensure that the accredited laboratories furnished credible report with regard to the water, air and other samples in O.A. No.627 of 2019 Social Action for Forest and Environment (SAFE) Vs. Union of India & Ors. and directed the CPCB to furnish a response to the said allegations made in the application and the MoEF&CC was also directed to furnish information about the list of laboratories and analysts recognized monitoring mechanism in place and result of such monitoring etc.38. Thereafter, it was again considered on 04.02.2020 and referred to the mechanism provided by the MoEF&CC which is extracted in Para No.4 of the order which reads as follows:-“4. A report has also been filed by the MoEF&CC on 03.02.2020 mentioning the guidelines on the subject, stating as follows:“7. The Guidelines provide for a monitoring mechanism comprising of internal Analytical Quality Control (AQC) or within laboratory AQC at the recognized laboratories, external AQC or between laboratory AQC, compulsory participation in AQC exercises organized by the Central Government/ CPCB or an organization designated to test the capabilities and integrity of the data generated by the recognized laboratories and periodic surveillance by Central Government/ CPCB, every alternate year, to assess the proper functioning, systematic operation and reliability of data generated at the laboratory. MoEF&CC has not designated any organization other than CPCB for the above purposes.8. As per records available with this Ministry, XXXII AQC exercise was carried out by CPCB during 2017. Based on this exercise, corrective measures are taken by CPCB. A copy of letter issued by CPCB to participant laboratories is enclosed as Annexure-VI.9. MoEF&CC vide Office Memorandum (OM) dated 12.08.2011, issued an addendum to the Guidelines, thereby making it mandatory for laboratories to have (i) either ISO 17025 [National Accreditation Board for Testing and Calibration Laboratories (NABL) accreditation] or International Organization for Standardization, ISO 9001 certification and (ii) Occupation Health and Safety Management System (OHSAS 18001) certification for consideration of recognition under the Environment (Protection) Act, 1986. The said OM also provided the schedule for implementation of the above essential prerequisite. The then existing recognized laboratories with validity upto 31.08.2012 were given a 12 month additional time to achieve eligibility under the essential prerequisite of mandatory accreditation/ certification, while for all new laboratories, the pre-requisite came into force with immediate effect. The recognition granted by MoEF&CC since then is subject to such accreditations/certifications and their renewals from time-to-time. OM dated 12.08.2011 is attached at Annexure-IV.10. Laboratory accreditation under NABL recognizes technical competence of the laboratory for specific tests/ measurements, based on third party assessment and in agreement with international/ national standard/ procedure. Accreditation and thereafter its renewal by NABL are carried out following defined accreditation procedures, regular surveillance and on-site reassessment, as applicable. NABL accreditation, inter alia, mandates periodic participation of the accredited laboratory in Inter Laboratory Comparison (ILC)/ Proficiency Testing (PT) programmes for control and assurance of quality. The relevant details of accredited laboratories are available in public domain (NABL website).11. ISO 9001 is an international standard that specifies requirements for a Quality Management System (QMS) and this certification, which is issued by a designated third party, ensures that the laboratory has the ability to consistently provide products and services that meet customer and regulatory requirements.12. Occupational Health and Safety Management Certification is an international standard which provides a framework to identify, control and decrease the risks associated with health and safety within the workplace. Compliance with this, as certified by a designated third party, ensures that the laboratory has a system in place for occupational health and safety.13. A provision for joint inspection of the applicant laboratories by a team comprising of officers from the MoEF&CC, CPCB and SPCB concerned was originally included in the Guidelines of 2008. However, further to the addendum of 2011 in respect of mandatory accreditation/ certification and its implementation across all recognized laboratories, MoEF&CC decided to discontinue the provision of joint inspection subject to the laboratory possessing the mandatory accreditation/ certification for all activities in totality prior to submission of application for recognition. A copy of the letter dated 16.07.2015 issued by MoEF&CC in this regard is placed as Annexure-V.14. Periodic surveillance of the recognized private environmental laboratories is also undertaken by MoEF&CC to ascertain compliance with Terms & Conditions, including renewal of mandatory accreditations/ certifications. The major observation of a desktop surveillance exercise carried out during 2017-18 was that many of the laboratories were not timely reporting the discontinuation of the notified government analysts. Non-compliant laboratories, which were due for renewal, were issued show cause/ warning letters. A sample letter issued to one such laboratory is placed as Annexure-VII. In addition, all recognized laboratories were issued advisories on 11.07.2017 to compulsorily follow the Terms & Conditions. A copy of the said letter is placed at Annexure-VIII.15. MoEF&CC has limited the validity of recognition to the date of expiry of mandatory accreditation/ ce

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rtifications, whichever is earlier, rather than granting it for 5 years as prescribed in the Guidelines. Further extension of recognition will be granted only after renewal of mandatory accreditation/ certification. This revision has now been implemented for 24 laboratories recommended by the Expert Committee in the last two meetings held on 30.08.2019 and 03.12.2019. Surveillance exercise carried out during 2019-20 revealed that all the laboratories possess the mandatory accreditation/ certifications.16. Further, revision of the guidelines considering the present analytical requirements, advancements in technical facilities, feasibility of online monitoring of activities, ease of doing business, etc. is in process in consultation with CPCB, NABL and other experts in the field.”39. Thereafter, the Principal Bench had disposed of the case, holding that there was a need for robust and elaborate network of recognized laboratories on PAN India basis which meet the quantitative yardstick of CPCB and MoEF&CC and directed the CPCB to take up the matter with the State Pollution Control Boards and Pollution Control Committees for taking appropriate action in this regard.40. That also shows the importance and relevance of proper mechanism regarding the performance audit of even accredited laboratories, accredited by the MoEF&CC as provided under the provisions of the Environment (Protection) Act, 1986. It is true that State Pollution Control Boards have been given power to give accreditation to the laboratories in the absence of required state owned environmental laboratories having accreditation under the Environment (Protection) Act, 1986 with private laboratories but they are not entitled to dilute the guidelines and directions issued by the MoEF&CC in respect of empanelling such private laboratories for this purpose.41. Further, it is quite unfortunate that the State of Karnataka has not taken any steps to provide or increase the number of environmental laboratories inspite of the fact that the State of Karnataka has developed an industrial hub having large number of polluting industries. Whenever development activities are allowed to flourish to boost economic development, the State Government has got equal responsibility of increasing the infrastructure of the Board to implement and enforce environment laws in its letter and spirit which includes not only enhancing the staff strength but also establishing as many as required accredited and notified environment laboratories to enable the Board officials to discharge their statutory functions effectively to protect environment. The Karnataka State Pollution Control Board is also simply extending the time by six months enabling the private laboratories to get the accreditation and inspite of the fact that they did not obtain necessary accreditation/approval from the MoEF&CC, they are continuing with the analysis by extending the time from time to time by their own official memorandums and getting the sample analysed by such laboratories which are not having recognition under the Environment (Protection) Act, 1986 which is not permissible under law.42. So under such circumstances, we have no other option but to allow the application filed by the applicant with the following direction.a) The Official Memorandum issued by the Karnataka State Pollution Control Board (KSPCB) which is under challenge and also further Memorandum issued which was produced along with the status report dated 24.06.2020 extending the time by another six months to enable the private laboratories having NABL accreditation to obtain necessary accreditation from the Ministry of Forests, Environment & Climate Change (MoEF&CC) under the Environment (Protection) Act, 1986 are quashed.b) The State of Karnataka is directed to take effective steps to empanel the private laboratories in tune with the guidelines provided by the Ministry of Forests, Environment & Climate Change (MoEF&CC) and Central Pollution Control Board (CPCB) for the purpose of carrying out the functions provided under Section 12 & 13 of the Environment (Protection) Act, 1986.c) The State Government is also directed to take steps to increase the number of Government Laboratories and Government analysts having accreditation and recognition as provided under the Environment (Protection) Act, 1986 for the purpose of discharging their functions as provided under Section 12 and 13 of the Environment (Protection) Act, 1986 and enable the Pollution Control Board to discharge their functions effectively in accordance with law.d) The State Government as well as the Karnataka State Pollution Control Board (KSPCB) are directed to take steps either to establish their own laboratories or give accreditation to those laboratories which are complying with the norms provided by the Central Pollution Control Board (CPCB) and Ministry of Forests, Environment & Climate Change (MoEF&CC) and having accreditation/approval of the MoEF&CC as required under the Environment (Protection) Act, 1986 within a period of six months.e) The parties are directed to bear their respective costs in the application.43. With the above directions and observations, this application is disposed of.
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