National Green Tribunal
Jith Kumar vs State Of Kerala Represented By Its Chief ... on 13 August, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No. 2, 3 & 4:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No.442 of 2013 (SZ)
With
Original Application No.20 of 2017 (SZ)
With
Original Application No.276 of 2017 (SZ)
IN THE MATTER OF:
Jith Kumar ...Applicant(s)
Versus
The State of Kerala and others. ....Respondent(s)
With
Abdul Bhasheer . ...Applicant(s)
Versus
Kochi Municipal corporation & Ors. ....Respondent(s)
With
Lawyers Environmental
Awareness Forum ...Applicant(s)
Versus
State Level Environment Impact
Assessment Authority,
Trivandrum and others. ....Respondent(s)
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Original Application No.442 of 2013 (SZ)
For Applicant(s) : None.
For Respondent(s): M/s. E.K. Kumaresan for R1.
M/s. G.M. Syed Nurullah Sheriff for R2.
Mr. K.R. Harin for R3.
M/s. V.K. Rema smrithi for R4.
Original Application No.20 of 2017 (SZ)
For Applicant(s) : None.
For Respondent(s): Mr. K.R. Harin for R1.
Mr. E.K. Kumaresan for R6 & R9
M/s. Rema Smrithi for R2.
M/s. D. S. Ekambaram for R3.
Mrs. Vidyalakshmi Vipin for R4
M/s. ME. Saraswathy for R7.
Original Application No.276 of 2017 (SZ)
For Applicant(s): None.
For Respondent(s): Mrs. Vidhyalakshmi vipin for R1
M/s. D. S. Ekambaram for R2.
Mr.E.K. Kumaresan for R3, R5 & R9
Mr. K.R. Harin for R4.
M/s. Rema Smrithi for R6
M/s. M.R. Gokul krishnan for R8.
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Date of hearing: 13.08.2020.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
ORDER
1. As per order dated 30.01.2020, this Tribunal had considered the status report submitted by the corporation and also by the Kerala State pollution Control Board and directed the corporation to come with a concrete proposal as how they were going to dispose of legacy waste and posted the case to 20.03.2020. On 20.03.2020, this Tribunal had considered the submission made by the standing counsel for the State Government, Kerala State Pollution Control Board and counsel for Cochin Corporation. It was revealed from the submission We gathered that the disposal of legacy waste in Brahmapuram Dumping ground has been taken over by the Government invoking the provisions of the Disaster Management Act, 2015 as per G.O. (Ms) No.8/2020/DMD/ Dated, Thiruvananthapuram,05.03.2020 and authorised the District Collector, to take immediate action in co-ordination with the Kerala State Industrial Development Corporation (KSIDC). After considering the reports and submission the following order was passed by the Tribunal:
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7) "It is seen from the Government order that disposal of legacy waste in Brahmapuram Waste Dumping yard has been brought under the provisions of Disaster Management Act, 2005 and the scientific management of legacy waste as accumulated in Brahmapuram Waste Dumping Yard will have to be taken under the supervision of the Government and local self Government Department and the work will be carried out under the provisions of section 24(e) of Disaster Management Act, 2005.
8) The process of tender initiated by the Corporation of Kochi to dispose of the legacy waste has been cancelled. The Kerala State Industrial Development Corporation will be the nodal agency identified by the Government for managing the process relating to the Solid Waste Disposal and Management. It has been entrusted with the task of initiating an urgent transparent and competitive bidding process to identify the experienced and technically competent agency to manage and dispose of the legacy waste in a Brahmapuram strictly according to the provisions prescribed in Solid Waste Management Rules, 2016.
9) The Kerala State Industrial Development Corporation (KSIDC) will undertake this project under the supervision of the local self Government Department. The District collector, Ernakulam shall 4 render all assistance to Kerala State Industrial Development Corporation (KSIDC) in furtherance of the above instructions.
10) It may be mentioned here that it appears the Government of Kerala has taken this decision in order to escape from strictures to be passed by the Principal Bench of National Green Tribunal in Original Application No. 606 of 2018for non implementation of the Solid Waste Management Rules, 2016 in the State in its letter and spirit.
11) Further, in the earlier orders of the Principal Bench, there was a direction to forego the normal tender process for the purpose of undertaking Bio-mining so as to avoid delay and undertake the process that has been carried out by the Indore Corporation and adopt it as a model for the purpose for expediting the process of the scientific disposal of the waste in Brahmapuram unit.
12) Further under Rule 12 of the Solid Waste Management Rules, the duties of the District Magistrate or District Collector or Deputy Commissioner has been enumerated which reads as follows:-
"Duties of District Magistrate or District Collector or Deputy Commissioner - The District Magistrate or District Collector or as the case may be, the Deputy Commissioner shall,-
(b) review the performance of local bodies, at least once in a quarter on waste segregation, processing, treatment and 5 disposal and take corrective measures in consultation with the Commissioner or Director of Municipal Administration or Director of local bodies and Secretary-in-charge of the State Urban Development."
13) The issue regarding Brahmapuram is in the public domain for more than thirteen years now, because the present case has been filed in the year 2006 before the Hon'ble High Court of Kerala which was later transferred to this Tribunal and renumbered as case of the year 2013.
14) Even prior to 2016 rules, there existed the 2000 Rule. There also certain responsibility has been cast on the District collector in respect of supervision of Waste Management in the District.
15) If the District Collector had taken cognisance of the matter when issues of fire occurred in the Brahmaapuram Waste Management Plant on several occasions and had he directed the corporation to make the corrective measures to dispose of the legacy waste in a scientific manner then invoking the Disaster Management Act, 2005 for dealing with the issue would not have arisen.
16) Further, as per order in Original Application 606 of 2018 the Principal Bench of National Green Tribunal, State Governments have been directed to form committees at State, District and Taluk 6 level and Chief Secretary of the respective State have been directed to monitor the implementation of rules and give necessary directions to the local bodies to implement the rules strictly.
17) However, in spite of all these things no effective steps have been taken either by the Corporation or by the State Government to meet this situation. Even in the Government order, it is not mentioned as to how much time it will take for the Government to solve the issue.
18) There is no action plan by the KSCDIC also for this purpose. If normal procedure will have to be followed, then it will again take a longer time for solving the issue and that will only aggregate the problem of pollution on account of non disposal of the legacy waste that has accumulated in the Brahmapuram Dump Yard especially since monsoon is fast approaching in Kerala.
19) Under such circumstances we direct the District Collector, Ernakulam to submit an action plan which he has to implement for the purpose of discharging his obligation under rule 12 (b) of Solid Waste Management, Rules 2016 for the purpose of solving the issue of disposal of Solid Waste collected and kept indisposed in Brahmaapuram Dumping Yard.
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20) The District Collector is expected to review the situation as expected as provided under Rule 12 and also specify the action taken by him so far to solve the issue as expected by the District magistrate as provided in that rule and what is the future action that he is expected to do in co-ordination with Kerala State Industrial Development Corporation (KSIDC) to improve the situation of disposal of the legacy waste with a shorter time line.
21) They are also expected to follow the directions given by the Principal Bench in this regard in Original Application No. 606 of 2018 and other connected matters as well.
22) The Government of Kerala is also directed to file a detailed action plan which they propose to implement without making further delay for disposal of legacy waste collected in Brahmapuram Dumping Yard as delay in disposal is likely to affect environment which cannot be tolerated by this Tribunal at this issue has been pending for more than a decade now.
23) There is a duty cast on the State Government also to provide priority for protecting environment and showing lethargic attitude in disposing the waste management in dumping yards will indirectly affect the health of the people which cannot be perpetrated by the State agency.
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24) The District Collector, Ernakulam as well as Chief Secretary State of Kerala are directed to submit the action taken report within a period of two months.
25) Cochin Corporation is also directed to file a detailed action plan which they are proposed to implement in discharging their duty as provided under the Solid Waste Management Rules, 2016 to solve this issue.
26) The Kerala Pollution Control Board is also directed to file a status report regarding the improvement of disposal of legacy waste in Brahmapuram Dumping Yard. The order may be communicated to the Chairman State Level Monitoring Committee as well for information."
2. The case was posted to 02.03.2020 to comply with the directions mentioned above by the officials narrated in the order. On 03.07.2020, it was adjourned to today by notifications.
3. When the matter came up for hearing today through Video Conference. Sri. There was no representation for the applicants in all cases. In Original Application No. 442 of 2013, M/s. E.K. Kumaresan represented R1, Sri. Syed Nurruallah Shreiff represented R2, Sri. K.A. Harin represented R3 and Smt. V.K. Rema Smrithi represented R4. Original Application No. 20 of 2017 Mr. K.R. Harin represented R1, Mr. E.K. Kumaresan represented 9 R6 & R9, Smt. V.K.Rema Smrithi represented R2, Sri. D.S. Ekambaram represented R3, Mrs.Vidyalakshmi Vipin represented R4, and M/s. ME. Saraswathy represented R7. In Original Application No.276 of 2017 Mrs. Vidyalakshmi Vipin represented R1, Sri. D.S. Ekambaram represented R2, M/s. E.K. Kumaresan represented R3,R5 and R9, Sri. K.R. Harin represented R4, Smt. Rema Smrithi represented R6, and Mr. M.R. Gokul Krishnan represented respondents 8.
4. We have received a report from Kerala State pollution Control Board which reads as follows:
In continuation to the report already filed dated 18.03.2020, I may explain the updated status on the matter contained in the above-mentioned application and are as follows,
1. It is respectfully submitted that certain advancement observed in tackling the pollution problems in the State is the constitution of "Environmental Monitoring Cell" as insisted by the Principal Bench of the Hon'ble Tribunal.
It was formed to coordinate the activities as per the provisions of the Solid waste Management Rules 2016 as well as other environment related rules and the committee will function under the administration of State Level Monitoring Committee (SLMC). Accordingly, Environment Management Cell was formed and started functioning in which Board officer is also a member. Copy of the GO dated 27.02.2020 constituting Environment Monitoring Cell is produced herewith and Marked as Annexure R2-A.
2. I may humbly submit that the Corporation of Kochi is still collecting biodegradable waste from the neighbouring 5 Municipalities and 3 Panchayaths. Inspection conducted by the Board at Brahmapuram waste dumping yard of Corporation of Kochi, identified that about 350 T/Day of waste is being brought to Brahmapuram Plant and they are not able to 10 manage these wastes since no satisfactory facilities are seen provided except windrow composting for minor portion of waste. Similarly in the case of non-biodegradable wastes, no satisfactory waste management facilities are observed. Also, it was seen that the fresh waste are brough to this plant and dumped over the legacy waste already existing.
3. It is dutifully submitted that though specific guidelines are published by CPCB for legacy waste disposal and are not practiced there. Regarding biomining of legacy waste , It may be noted that recently the Government of Kerala had intervened and vide G.O(M.S) No. 8/2020/DMD Dated 05.03.2020 decided to take over the works of bio mining under the provisions of Disaster Management Act 2005. The tender floated by the Kochi Corporation was cancelled on the grounds that the bidder selected by Corporation has experience as a sub-contractor only and Kerala State Industrial Development Corporation assigned the charge of tendering the work, A copy of the Government order is produced herewith and marked as Annexure R2-B.
4. I may humbly submit that notices were already sent to the above mentioned neighbouring Municipalities to show cause for not assessing environmental Compensation who are still transferring their bio degradable fraction of solid waste to Brahmapuram waste dump yard, though the Solid waste management Rules 2016 is specifically insisting all the local bodies to manage their own wastes at their area itself.
5. It is respectfully submitted that the Board had already identified certain violations with regard to management of solid waste by the Corporation which are illustrated as follows, a. As explained by them they had established Solid waste treatment plant in 2008 as per Municipal solid waste (Management and Handling) Rules 2000. The facility is provided at Brahmapuram in Vadavucode-Puthencruz Grama Panchayath and operated by Kochi Corporation. They have been allotted about 110 Acres of land; but major portion of this area is low lying closely surrounded by 'Kadambrayar' stream, which is identified by CPCB as one of the polluted river stretch. The Solid Waste Treatment Facility of 11 Kochi Corporation at Brahmapuram was issued conditional authorization which was valid up to 30.04.2010 as per the Municipal Solid Waste Management Rules 2000. Thereafter, the facility provided for the disposal of solid waste was not scientifically functional due to improper management and was operated as a solid waste dumping yard. Almost all the windrow sheds are found to be in dilapidated condition due to uneven settlement of foundations / constructional failures. An average of 365.19 T/day of wastes [Based on the data collected for the months of May, June & July 2019] reaches the yard out of which 234.91 T/day is biodegradable fraction. Thereafter, the data collected during January to May 2020 shows that they had collected 368.76 MT/d, 334.48 MT/d, 328.63 MT/d, 225.04 MT/d and 265.24 MT/d of solid wastes from their area as well as from other local bodies. Since no satisfactory facilities for fresh waste management, the deposited wastes gradually get converted into legacy waste. There are no satisfactory suggestions to use these legacy wastes in the waste to energy plant proposed by Corporation of Kochi. The manure they are producing is not having sufficient fertilizer value (not meeting the standard as per SWM Rules 2016). Also, the manure produced is containing heavy metals too. No records were seen provided by Corporation of Kochi for accounting the quantity of manure named "City Compost".
b. The Corporation has already initiated certain procedures for establishing Waste to energy plant having capacity 500MT/day at Brahmapuram waste dump site viz. Completed public hearing, obtained Environmental Clearence/Consent of the Board etc. for which some clearing of land alone has been done. Though they have committed during several SLMC meetings to start installation works in the month of November 2019, no such works have been started there. During inspection conducted by Board officials, plastic and plastic mixed waste are seen dumped outside boundary wall of solid waste disposal site. It was identified from the log books that though non-biodegradable mixed waste of 3,995.13 metric tonnes per month are being collected there and 12 stored outside the plant, only 33.72 metric tonnes per month are reported to be sent for reprocessing, details of which has already been reported to Hon'ble NGT as per report dated 06.09.2019 c. No valid authorization for the existing facility. Applied for ICO submitted on 02.05.2017 was returned on 28.07.2018 asking the details of leachate treatment plant, present status of MSW plant, fee for the current term etc. Since no scientific processing of solid waste are there and solid waste are transported from other local bodies also, renewal of the authorization to Kochi Corporation and other 5 Municipalities that are transferring their waste to Brahmapuram Dumping yard are not effected till date. d. Board had already suggested Corporation of Kochi to provide anaerobic digesters for fresh bio-degradable waste as a short-term measure but the present practice of depositing fresh biodegradable waste over the legacy waste will lead to accumulation of dumped waste till the waste to energy plant is materialized.
6. It is respectfully submitted that the Hon'ble Tribunal has also passed orders fixing strict timeline on 10.01.2020 while considering OA No. 606/2018 and O.A. no. 519/2019 applicable to all the States as follows:
a) In view of the fact that most of the statutory timelines have expired and directions of the Hon'ble Supreme Court and this Tribunal to comply with Solid Waste Management Rules, 2016 remain unexecuted, compensation scale is hereby laid down for continued failure after 31.03.2020. The compliance of the Rules requires taking of several steps mentioned in Rule 22 from Serial No. 1 to 10 (mentioned in para 12 above). Any such continued failure will result in liability of every Local Body to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body from 01.04.2020 till compliance. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the 13 ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this Tribunal.
b) Legacy waste remediation was to 'commence' from 01.11.2019 in terms of order of this Tribunal dated 17.07.2019 in O.A. No. 519/2019 para 283 even though statutory timeline for 'completing' the said step is till 07.04.2021 (as per serial no. 11 in Rule 22), which direction remains unexecuted at most of the places .Continued failure of every Local Body on the subject of commencing the work of legacy waste sites remediation from 01.04.2020 till compliance will result in liability to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this Tribunal.
7. It is respectfully submitted that the order dated 03.07.2020 of the Hon'ble Tribunal, Principal Bench, New Delhi in O A 514 of 2019, a connected case registered "Suo Motu" on a report submitted by Hon'ble Justice A V Ramakrishna Pillai, Chairman, SLMC which was concluded and read as follows "We find that the steps taken to be inadequate having regard to the serious adverse consequences of acknowledged unscientific handling of waste management. Suggestion C above shows that 1 Lakh litre collection capacity for the leachate is nearing completion and the leachate is to be diverted to septage treatment plant. It is doubtful whether leachate can be treated in any ordinary septage treatment plant as it contains heavy metals. The progress appears to be very slow and in disregard to the statutory and constitutional obligation of providing clean environment". 14
8. I may humbly submit that the restrictions imposed due to lockdown in view of the outbreak of COVID-19 and its wide spreading blocked the smooth functioning of waste management in the State and field surveys by the Board staff specially allocated to such duties as per the order in O.A 606 of 2018 by the Hon'ble Tribunal. However, in compliance with the said order and considering the non compliance of waste management Rules 2016, Board is proposing further follow up actions by initiating legal actions including prosecution against responsible officials of the Corporation and assessment of Environmental Compensation.
9. I may humbly submit that the delay occurred in filing this report is due to time constraints faced by me and may be condoned.
Dated this the 17th day of July 2020"
5. They have also annexed two annexure as annexure R2-A and R2-B constituting a Environmental Monitoring Cell by G.O. dated 27.02.2020 and also the copy of the order assigning Kerala State Industrial Development Corporation (KSIDC) in charge of tendering legacy waste remediation process by the Government. But, there is no specific report submitted by any of the officials whom this Tribunal had directed to submit their independent report regarding the ground level action taken for remedying the situation.
6. The learned counsel appearing for the Kerala State Pollution Control Board submitted that recommendations have been issued to the Board for launching prosecution against Cochin Corporation and also for imposing environmental compensation and sanction has been issued by the proceedings dated 31.07.2020and they will 15 be submitting further action taken report before the next hearing date on the basis of the sanction granted.
7. The learned counsel appearing for the Kerala State namely, Sri. E.K.S. Kumaresan submitted that he will be filing a detailed report as sought for by order dated 20.03.2020, regarding the action taken, on the basis of the notification issued by the Kerala State Government under the Disaster Management Act, 2005 as mentioned above and also the present status before the next hearing date.
8. The Corporation is also directed to submit the action taken by them at the ground level to remedy the situation as the matter is pending before the Hon'ble High Court since 2012, and before this Tribunal from 2013 onwards. But, no effective progress is seen being done in spite of the fact that there were stringent direction issued by the National Green Tribunal, Principal Bench, in Original Application No. 606 of 2018 in respect of implementation of Solid Waste Management Rules, 2016in all States including the State of Kerala, where certain stringent strictures have been passed in respect of this particular dumping ground.
9. Considering the present pandemic situation and also the monsoon that is going on in Kerala, we feel that two months time is granted to them to submit the report.
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10. The above authorities, whom this Tribunal had directed to submit as per order dated 20.03.2020 are directed to submit the present status report and the action taken for remedying the situation taking into account the importance and the quick action required as per the provisions of the Disaster Management Act, 2005 which has been invoked by the Government for meeting this situation treating this as a disaster.
11. The Registry is directed to communicate this order to all the above mentioned officials whom this Tribunal mentioned in the order dated 20.03.2020 to comply with the direction.
12. For consideration of further report post on 10.11.2020.
...................................J.M. (Justice K. Ramakrishnan) ...............................E.M. (Shri. Saibal Dasgupta) O. A. No. 442/2013, 20/2017 & O.A. 276/2017 13th August, 2020. (Sr.) 17