National Green Tribunal
Aryavart Foundation vs M/S Vapi Green Enviro Ltd on 5 February, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 95/2018
(M.A. No. 1029/2018 &
I.A. No. 326/2019, I.A. No. 81/2020,
I.A. No. 183/2020 & I.A. No. 184/2020)
(With reports dated 11.05.2020 and 30.09.2020)
Aryavart Foundation Applicant
Versus
M/s Vapi Green Enviro Ltd. & Ors. Respondent(s)
Date of hearing: 05.02.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Mr. S.S. Hooda, Advocate
Respondent: Mr. Shlok Chandra, Advocate for CPCB
Mr. Pinaki Misra, Senior Advocate with Mr. Mandeep Kalra, Advocate for
M/s Vapi Green Enviro Ltd.
Mr. B.R. Gajjar, RO, GPCB
ORDER
1. The question for consideration is the remedial measures against pollution of river Daman Ganga and drain Bill Khadi in District Valsad in Gujarat on account of discharge of effluents by industries and the CETP in Vapi Industrial Cluster, operated by M/s Vapi Green Enviro Ltd. In the course of consideration of the said question, further issue of compliance of judgement of the Hon'ble Supreme in Techi Tagi Tara Vs. Rajendra Singh Bhandari & Ors., (2018) 11 SCC 734 with regard to manning and functioning of the statutory environmental regulators was also taken up as will appear from the later part of this order throughout India.
12. The matter has been considered on several occasions for preventive and remedial measures against discharge of untreated pollutants by more than 500 industries in the Vapi Industrial cluster. Non-compliances were found by the Expert Committees constituted by this Tribunal. It was observed that there was large scale failure of the CETP system and also failure of the monitoring by the State PCBs. Vide order dated 13.05.2019, after considering report of the joint Committee dated 09.05.2019, finding continuing discharge of the pollutants and assessing compensation on "Polluter Pays" principle, the Tribunal issued directions for payment of compensation as well as for conducting performance audit.
3. On 28.08.2019, this Tribunal considered the following reports, filed in response to the earlier directions of the Tribunal:
I. Report dated 14.08.2019 from CPCB in respect of performance of CETP;
II. Report dated 05.08.2019 furnished by the CPCB on behalf of the joint Committee with regard to payment of compensation by the polluting industries;
III. Report dated 10.07.2019 from the CPCB on the subject of performance audit of the State PCBs/PCCs; and IV. Report dated 17.08.2019 from the MoEF&CC on the subject of compliance of judgment of the Hon'ble Supreme Court Techi Tagi Tara Vs. Rajendra Singh Bhandari & Ors.1
4. On appeal being filed before the Hon'ble Supreme Court against the order dated 28.08.2019, being Civil Appeal No. 9398/2019, M/s Vapi 1 (2018) 11 SCC 734 2 Green Enviro Limited v. Aryavart Foundation and Ors., the order of this Tribunal has been stayed. In view thereof, we defer the issue which is subject matter of appeal before the Hon'ble Supreme Court i.e. about the pollution by the industries in the Vapi Industrial area and performance of CETP. In that regard, the proceedings are deferred sine die.
5. However, we proceed to deal with the other aspects i.e. performance audit of PCBs and compliance of judgment in Techi Tagi Tara (supra) which, in our view as well understanding of learned Counsel for the parties, is not before the Supreme Court i.e. the consideration of the 3rd and 4th reports of the CPCB mentioned above and the related reports. In that respect, the earlier directions of this Tribunal are in paras 14 to 16 and part of para 17, as follows:
"14. What is expected is performance audit on issues such as adequacy with regard to environmental monitoring, efficacy of regulatory setup/mechanisms, staffing both technical and scientific manpower, scientific equipment, logistics support, competence etc. rather than ranking the States. Let the same be done and state-wise reports submitted based on thorough analysis in terms of statutory functions. CPCB may devise an appropriate mechanism for the purpose. We also direct that all vacant positions in the SPCBs/PCCs may be filled up at the within four months and the Chief Secretaries of the States/UTs may ensure that there is no embargo in doing so, so that effective steps for protection of environment can be taken. It is also necessary to direct that the laboratories established by the SPCBs/PCCs, at headquarters as well as regional centers, are duly recognized for purposed of enforcement of environmental laws. The concerned authorities may take further steps accordingly. The CPCB may compile a report and file before the next date. SPCBs/PCCs may utilize the funds available with them, under EC/Consents or other heads instead of approaching other authorities and on that pretext not performing their essential function. The MoEF&CC may consider constituting an appropriate authority for the purpose with representatives from Central and State authorities on the pattern of Compensatory Afforestation Fund Management and Planning Authority (CAMPA) or otherwise. A compliance report be filed by the MoEF&CC before the next date.3
IV. Report dated 17.08.2019
15. Report furnished on 17.08.2019 by the MoEF&CC is on the subject of compliance of judgment of the Hon'ble Supreme Court in Techi Tagi Tara Vs. Rajendra Singh Bhandari & Ors.2. The report shows that further action is required for compliance of judgement of Hon'ble Supreme Court.
16. Let further follow up action be taken by the MoEF&CC to monitor compliance of judgment of the Hon'ble Supreme Court in Techi Tagi Tara Vs. Rajendra Singh Bhandari & Ors. and report furnished to this Tribunal before the next date after ascertaining that uniformity in terms of qualifications, experience and special skill sets is adhered to especially with regard to key position of Chairman and Member Secretary of SPCBs/PCCs.
17. In view of the above discussion our directions are summed up as follows:
(i). xxx ..........................xxx ........................xxx.........
(ii). xxx ..........................xxx ........................xxx.........
(iii). Performance audit be done with reference to issues such as adequacy with regard to environmental monitoring, efficacy of regulatory setup/mechanisms, staffing both technical and scientific manpower, adequacy of laboratories and scientific equipment, logistics support, competence etc. rather than ranking the States and state-wise reports submitted along with recommendations based on thorough analysis in terms of statutory functions before the next date. CPCB may devise an appropriate mechanism for the purpose. CPCB and MoEF&CC may file a compliance report with reference to observations in para 14 above.
(iv). Let further follow up action be taken by the MoEF&CC to monitor compliance of judgment of the Hon'ble Supreme Court in Techi Tagi Tara Vs. Rajendra Singh Bhandari & Ors. and report furnished to this Tribunal before the next date."
6. We have perused the reports filed by the MoEF&CC on 11.05.2020 and by the CPCB dated 30.09.2020. The report of the MoEF&CC dated 11.05.2020 merely gives the status of recruitment rules and some suggestions for improvement of PCBs/PCCs as follows:
"1.0 xxx .....................................xxx ..........................xxx
a) Ten States namely; Chhattisgarh, Goa, Gujarat, Kerala, Sikkim, Nagaland, Jharkhand, West Bengal, Tamil Nadu 2 (2018) 11 SCC 734 4 and Haryana have been notified RRs of Chairman & Member Secretary and whereas five States namely;
Chhattisgarh, Jharkhand, Kerala, West Bengal & Nagaland have already made appointments in line with the notified rules. Tamil Nadu PCB has appointed Chairman & appointment of Member Secretary, TNPCB is in progress.
b) Madhya Pradesh, HP & Punjab have notified RRs of Chairman. Punjab has appointed Chairman. In HPSPCB, appointment process of Chairman is under process, besides RRs of Member Secretary is under process.
c) Thirteen SPCBs namely; Andhra Pradesh, Bihar, Karnataka, Maharashtra, Meghalaya, Odisha, Telangana, Tripura, Uttar Pradesh, Rajasthan, Assam, Jammu & Kashmir and Uttarakhand informed that draft RRs have been forwarded to their respective State Govts for notification.
d) Mizoram SPCB informed that Govt. of Mizoram has been constituted a drafting Committee to frame the RRs for appointment of Chairman and Member Secretary.
e) Delhi PCC informed to CPCB that there is no sanctioned post of Chairman in DPCC and in the absence of sanctioned post, it is not feasible to frame RRs for the post of Chairman. Further, RRs for the post of Member Secretary is under process on the lines of uniform RRs, provided by CPCB.
f) Puducherry PCC requested CPCB for need of amendments in existing notification (Constitution of Puducherry). However, CPCB has not accepted the proposal submitted due to the said proposal was not in line of Water Act, 1974 and Air Act, 1981.
g) Chandigarh PCC informed CPCB that MoEF&CC has reconstituted Chandigarh PCC by notification issued by CPCB in year 2015. However, the Chandigarh PCC has not responded on RRs of Chairman & Member Secretary of CPCC till date.
h) Remaining 5 SPCBs/PCCs namely; Arunachal Pradesh, Andaman & Nicobar, Daman & Diu and Dadra & Nagar Haveli, Lakshadweep and Manipur have not responded to CPCB's reminders in this issue till date."
With regard to functioning of the PCBs/PCCs, suggestion has been made for improvements on following aspects:
"2.0 xxx .....................................xxx ..........................xxx I. Monitoring of Environmental quality and polluting sources:
II. Regulatory Actions and environmental Governance: III. Data Management & Public Outreach:
IV. Advisory for Decision Making:
5
V. Research & Development and Training:
VI. Imposition of environmental damages compensation
liability
VII. HR-Requirement:
VIII. Adequate Infrastructure facilities
IX. Capacity Building
X. Remediation of contaminated sites"
7. The report of the CPCB dated 30.09.2020 gives the status of performance audit of SPCBs/PCCs in three parts: i) environmental issues in the area, ii) gaps in infrastructure in terms of key manpower and procurement of necessary equipment and iii) gaps in compliance status on key environmental issues.
8. It has been found that there are serious deficiencies and undue delay in recruiting the sanctioned manpower, adequacy and upgradation of laboratories and performance in terms of monitoring of various compliances resulting in continued damage to the environment, which requires remedial measures. Serious deficiencies include failure of sewage and waste management - solid waste, hazardous waste, bio-medical waste etc., inadequacy, operation and functioning of STPs, ETPs and CETPs.
9. The executive summary in the report is as follows:
"xxx .............................xxx ....................................xxx........... The Performance Audit of each State Pollution Control Board contained three sections. The first part shows about general information, State's potential in terms of resources, environmental factors and performance with reference to other indices. The second part is the summary of the audit findings mainly dealing with infrastructure, monitoring, regulatory and other actions with recommendations. Third part contains information at a glance on all environmental aspects.
Serious concerns were mentioned regarding the infrastructure in the form of manpower, laboratories and other facilities available at State Pollution Control Boards and Pollution Control Committees. The information is collected from the States on the aspects related to infrastructure were detailed in the report.
MANPOWER: It has been reported from time to time that shortage of manpower is the chief cause for under performance of State 6 Pollution Control Boards. CPCB requested all SPCBs / PCCs to provide the Scientific, Technical and Administrative manpower details w.r.t. Group A, B, and C in prescribed format.
Category Group A Group B Group C Total
Sanctioned 1,749 2,629 5,060 9,438
In Place 1,092 1,591 2,413 5,096
Vacancy 657 1,038 2,647 4,342
It is evident that about 46 % posts are vacant and need to be filled up urgently.
North Eastern States and UTs have skeleton staff attending urgent matters only.
Six Boards namely Andaman & Nicobar (05), Arunachal Pradesh (56, including 49 Group C), Daman, Diu & Dadra and Nagar Haveli (10), Mizoram (11), Nagaland (14) and Sikkim (19) have filled all sanctioned posts.
Arunachal Pradesh, Delhi, Himachal Pradesh, Jammu & Kashmir, Madhya Pradesh, Meghalaya, Punjab, Sikkim Board had administrative staff more than Scientific & Technical manpower.
LABORATORIES: The strengthening of laboratories at SPCBs is one of the major concerns and expected regular upgradation and establishment of analytical facilities to meet the regulatory and research requirements. Shortage of funds was not a reason for most of the Boards. Similarly, there are no reasons for the State Boards for not obtaining the recognition of their laboratories under E (P) Act. NABL Accreditation is recommended for all laboratories and followed up by CPCB with moderate success. The shortage of scientific manpower, procurement delays in instruments, equipment, & consumables and need for quality control are important aspects identified during the audit process.
Six Central Laboratories at SPCBs had valid recognition as Environmental Laboratories.
Two applications are under process for renewal of recognition at MoEF&CC.
Three regional laboratories had valid recognition as Environmental Laboratories.
Five Laboratories have obtained accreditation for four major group of parameters.
Eight SPCBs have accreditation for more than two groups of parameters.
Five SPCBs notified adequate number of Board Analysts. Twelve Boards have notified more than one Analyst at Laboratories.
Thirteen SPCBs / PCCs have not notified any Analysts.
The two short comings related to recruitment and procurement need urgent attention all the SPCBs and if needed, professional services in private sector may be hired for effective and timely actions.7
PERFORMANCE: After examining the performance of SPCBs during the audit process, short-comings noted are mentioned here. Some of these shortcomings are prevailing in well-structured Boards also.
i. Many States / UTs have not yet felt the need for state specific Environment Policy. The existing Environment Policies at other States need a review in view of new thrust areas are related to the civic issues and waste management practices ii. There are many SPCBs / PCCs who have not yet prepared the Environment Status Reports. There is a strong need of preparing such reports regularly incorporating the inventory of wastes and management regulations revised in the year 2016. iii. Most of the SPCBs / PCCs (exceptions NE States and UTs such as Lakshadweep) do not have any kind of financial constraints and the budget utilization is mostly for the non-plan activities. There are many SPCBs which have built reserves funds.
iv. A number of States still do not have the industrial siting policy/criteria. It is very important step in regulating industrial growth, especially for the hilly states in view of the very sensitive ecology v. The Boards and Committees have not met regularly to review the functioning and provide much needed direction & vision. vi. The SPCBs / PCCs are not submitting annual reports as per the timelines specified in the various rules. This in- turn affects the timely compilation and preparation of the National Status Report by CPCB. Considerable improvement in compliance with reference to the submissions was seen after 2018.
vii. Many SPCBs / PCCs are yet to adopt to the practice of issuing the integrated / consolidated consents and conducting regular inspections of the industries for timely identification and action against the defaulters.
viii. Many SPCBs having CETPs have not yet prescribed the inlet standards. This implies that the uncertainty, of the member industries discharging their effluents into the CETP not complying these standards, continues to prevail.
ix. The quantity of the hazardous waste shown as 'sent to the TSDF' pose risk in the absence of effective verification and tracking.
x. The present implementation status of Bio-Medical Waste Management Rules 2016, is reasonably satisfactory, while the compliance with reference to Batteries Management Rules, 2001 is very poor.
xi. The present network of the Air / Water Quality Monitoring Stations provides representative Air / Water Quality of the State only for selected areas and water bodies. The Class II towns and stagnant water bodies in States need to be included in monitoring networks.
xii. Majority of the SPCBs / PCCs are not well-equipped for the quality assurance in the analysis & data generation at their laboratories. Representative analysis data is essential for the preparation of action plans for abatement and control of pollution.8
xiii. The monitoring network of coastal waters is very small and practically insignificant. The recent data from coastal districts show serious issues of sewage and solid waste management.
xiv. Many SPCBs expressed the need for technical guidance and regular professional trainings in effective discharge of their functions xv. SPCBs have challenges in their working because of geographical & climatic conditions and different procedures and processes followed for implementation of Rules Compliance Status: The State Boards are deploying most of the resources in consent management and finally at compliance of industrial operations. The performance of SPCBs is expected to be better in the segment of Regulatory in view of time and resources spent. During audit exercise, the compliance outcome is categorised in 17-categories of industries, Grossly Polluting Industries (GPI), Water Polluting industries needed ETPs, Sewage Treatment Plants and CETPs.
Industries Grossly Sewage 17-Cat. of discharging Common Polluting Treatment Compliance industries Trade ETPs Industries Plants Effluent Gross Total 4,359 2,747 64,001 189 1,122 Functional 3,813 2,500 62,174 189 1,114 Complying with standards 3,497 2,225 60,980 132 878 Percentage of non- 8.3 11 1.9 30 21 Actions taken against non-complying Industries (%) Show-cause notice 55 27 55 30 40 Closure 33 52 13 9 0 Legal case 2 1 1 14 5 Pending action 10 20 31 47 55 i. There are 4,359 Industries of 17-Categories identified by the States and 546 of these were closed down on their own. The overall compliance of the industries is 91.7 %, 3,497 industries are complying with the prescribe standards. The states Tamil Nadu, Odisha, Kerala, Uttar Pradesh, Bihar, Madhya Pradesh and Haryana have shown better compliance.
ii. Gujarat, West Bengal, Jharkhand and Puducherry have recorded less than 80 % compliance, while Rajasthan, HP, Assam and Uttarakhand have reported less than national average compliance percentage of 91 % iii. The non-complying industries, 316 are mostly located in Gujarat (97), Maharashtra (40), UP (25), West Bengal (24) and Rajasthan (20).
iv. The SPCBs generally issue Show-Cause Notices (SCNs), then closure and finally file legal cases. There were only 6 legal cases filed by States, 4 by Telangana, while 105 units were issued Closure directions and 174 were issued SCNs v. The water polluting industries with discharges to a water course having BOD of 100 kg/day and / or handling hazardous substances are categorised as Grossly 9 Polluting Industries. The inventory of these units was not updated by many States.
vi. There were 2,747 GPI units identified in the country and 247 of these were found closed on their own. Most of the operating GPIs are located in Uttar Pradesh (1,079) followed by Haryana (638) Andhra Pradesh (193) and Gujarat (178) vii. The overall compliance percentage was 89 and Gujarat, West Bengal, Jharkhand, Uttarakhand, Uttar Pradesh and Arunachal Pradesh have reported lesser compliance than the national average.
viii. The non-complying units are located in UP, Gujarat, Jharkhand and Arunachal Pradesh. UP has issued closure directions to 84 units out of 143 in the country and also the state was in the process of taking required action against 39 noncomplying industries. Only three legal cases are filed against the non-complying units, two in Jharkhand and one in UP.
ix. In the country; 64,001 industrial units were identified Generating Trade Effluents & Requiring ETPs from 32 States and UTs. Uttar Pradesh has not provided the details and there were no units reported in Manipur and Lakshadweep. x. It was identified that 1,827 units were operating without functional ETPs. Assam has maximum of 795 units followed by J & K (212), Karnataka (156) and Gujarat (117). SPCBs have issued closure directions to 804 and Show- Cause Notices (SCN) to 842 units. Legal cases were filed against 6 units, while action was pending for remaining 164 industries.
xi. The 60,980 industrial units having functional ETPs complied with prescribed standards and the remaining 1,194 units failed to comply. Closure directions were issued to 163 units, SCNs to 652, 13 legal cases filed and action was pending against 366 non-complying units. The non-complying units were located in Assam (237), Maharashtra (208), Punjab (143) and Rajasthan (120).
xii. Nineteen States have reported 189 Common Effluent Treatment Plants (CETPs) operating in the country and most of these are located in Tamil Nadu (36), Gujarat (34), Maharashtra (26) and Haryana (19).
xiii. The compliance status of CETPs is very poor at 70 %, mainly because of undisciplined member units. Some of the agencies involved in management of CETPs were unprofessional and found lacking required skilled manpower. xiv. SPCBs have issued closure directions to five CETPs and filed legal cases against eight CETPs. The non-complying CETPs were reported in Gujarat (15), Tamil Nadu (9), Rajasthan (9) and Delhi (8).
xv. The sewage generation from urban population in the country was estimated as 70,089 MLD and the treatment capacity was reported as 27,240 MLD in 2018. After 2018, the States have calculated the gap in generation and installed capacity to create additional capacity needed for treatment. xvi. The total operating STPs reported in the country were 1,122 and 236 of these STPs were not complying with discharge standards. These STPs are located in Punjab (47), West 10 Bengal (42), Karnataka (31), Rajasthan (30) and Uttar Pradesh (22).
xvii. Most of the SPCBs preferred issuing SCNs (98) to non-complying STPs and only 13 legal cases were filed. The action needed against the defaulters was delayed in 137 cases, mostly in Punjab, Rajasthan and UP.
xviii. As per the information furnished by SPCBs / PCCs, about 10.71 Million MT of hazardous waste was generated during 2018-19 by 69,054 units. About 45 % of waste is utilized / recycled and about 31 % of waste is disposed through TSDFs / SLFs xix. There are 42 Common HW Treatment, Storage and Disposal Facilities (TSDFs) available in 18 States / UT, which includes 18 integrated TSDFs, having both Secured Landfills and Incinerators. In remaining 17 States / UTs the generated waste is mostly stored at occupier's premises.
xx. About 1,050 applications for utilization of different categories of HW under Rule 9 of HOWM Rules, 2016 have been received at CPCB. Upon technical examination and evaluation followed by successful trial runs, 54 SOPs for utilization of 40 different categories of HW have been developed and circulated to all SPCBs / PCCs. Gujarat is in forefront in utilising the hazardous wastes in industrial processes xxi. As per compiled information from the Annual Reports of 2018, there were 2,70,416 Health Care Facilities (HCFs) reported in the country, 97,382 of HCFs bedded and 1,73,831 non-bedded. About 41 % of HCFs, 1,10,356 HFCs have obtained authorization under BMWM Rules, 2016.
xxii. About 615 TPD of biomedical waste was generated by the HCFs and 534 TPD of waste is treated and disposed. There were 200 Common Biomedical Waste Treatment Facilities (CBWTFs) and 12,326 captive treatment facilities installed by HCFs for the treatment & disposal of biomedical waste. In addition, 28 CBWTFs were under construction.
xxiii. All States / UTs; except Arunachal Pradesh, Goa, Jharkhand, Kerala and Uttarakhand had granted more than 75 % authorizations to the Health Care Faculties (HCFs), applied for authorization under the Bio-Medical Waste Management Rules. xxiv. Municipal Solid Waste generation in the country was reported as 1,62,836 TPD. About 92 % (1,49,346 TPD) of waste is collected and 37 % (60,683 TPD) of the collected waste is treated. About 27 % (44,835 TPD) of total waste is landfilled in 3,115 dumpsites. The remaining 43,828 TPD of solid waste was unaccounted, littered and dumped in drains, canals and low-lying areas Overall Recommendations: Based on the information gathered through questionnaires, visits of the Expert Teams for auditing and interactions, the following general recommendations are made:
i. The State Governments should allow the recruitment of the staff required by the respective SPCB and if needed, comprehensive assessments may be carried out for building suitable infrastructure for effective and improved performance.11
ii. Based on the information collected on manpower at SPCBs, it was observed that large number of sanctioned posts are still vacant. It is recommended that recruitment process may be outsourced availing professional services, wherever internal shortcomings were observed.
iii. The State should prepare / revisit their Environmental Policies incorporating all the current aspects concerning the sustainability of the development, conservation of the resources and the objectives of the Environment Legislation of the country.
iv. The State Environmental Status Reports should be prepared / updated by the SPCBs incorporating the aspects of environmental quality parameters. v. The States should prepare / update their industrial siting policies / criteria and regulated strictly as per the criteria vi. The SPCBs should ensure preparation and submission of their annual reports with complete inventory details as per the timelines specified under the rules. vii. All the SPCBs should ensure issuing the consolidated consents & authorization from the year 2021 by processing all applications online in transparent manner.
viii. The SPCBs should prepare / update the protocols for regular inspection of the polluting industries for timely identification of & action against the defaulters. ix. The Online CEMS data generated from the system should be used for surveillance and monitoring for identifying habitual and frequent violators.
x. The SPCBs / PCCs should prescribe the inlet standards for CETPs for compliance of member industries. xi. The States and UTs should adopt 'Online Tracking' for all wastes from generation point to final disposal point. A national tracking system initiated by CPCB may be shared with SPCBs.
xii. The SPCBs should ensure 100 % compliance of the Batteries Management Rules, 2001 and submission of the report to CPCB by December, 2020.
xiii. The SPCBs should develop & upgrade their laboratories and obtain the NABL Accreditation and MoEF&CC recognition on top priority by 2021.
xiv. The SPCBs should identify air & water quality monitoring locations covering the district headquarters, minor rivers, ponds, lakes and other important water bodies of the State / UT.
xv. The SPCBs / PCCs, situated along the main coastline, should establish a representative number of stations / locations for the monitoring of coastal waters in the range of 80 to 150 stations.
It is expected that the State Pollution Control Boards and Pollution Control Committees prepare comprehensive plans for strengthening the organisations and also incorporate short- term & long-term actions for abatement and control of pollution with budgetary estimates and obtain required 12 approvals from the respective departments under State Government and UT Administration."
10. We have given due consideration to the report, which shows startling state of affairs tested on the touchstone of 'Sustainable Development' principle, accepted in Stockhome conference and which has been held to be part of right to life under article 21 of the Constitution in Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647.
11. Some of the significant observations include failure to fill up key positions, to acquire necessary equipment, to arrange continuous training, to prepare State Environment policy, to specify industries-
siting criteria, making inventory of grossly polluting industries, not specifying standards of inlet to the CETPs and hazardous waste, inaction against identified polluters, taking steps for bridging gaps in law and enforcement with regard to liquid and solid waste (of different kinds), including non-functional and noncompliant ETPS, STPs and CETPs, inadequate monitoring of environmental compliance in Class II towns and coastal areas, failure to compile and analyse data and filing annual reports, inefficiency shown by inaction against serious violations of environmental norms. Needless to say that such sorry state of affairs is reflection of poor governance, making environmental rule of law far from reality.
12. The environmental law principles, which this Tribunal is mandated to apply under sections 20 and 15 of the NGT Act, 2010, are - 'sustainable development', 'precautionery' and 'polluter pays'. In Hanuman Luxman, (2019) 15 SCC 401, (paras 142-156), significance of environmental rule of law has been highlighted to achieve sustainable development goals for 13 prosperity, health and well being. This requires filling of gap between law and enforcement. In T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, at page 621, it was observed that the State has to "forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is constitutional imperative on the Central Government, State Governments and bodies like municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve the man-made environment and natural environment."
13. In A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718, at page 732, it was observed "..Good governance is an accepted principle of international and domestic laws. .....It includes the need for the State to take the necessary "legislative, administrative and other actions" to implement the duty of prevention of environmental harm...". In Techi Taga Tara, supra, the Hon'ble Supreme Court referred to several Committees on need for revamping the regulatory bodies by appointing persons of outstanding ability and high reputation to the State PCBs and equipping them with laboratories and other equipment for performing statutory functions. Apart from the Tribunal being approached under sections 14 and 15 by aggrieved parties, pointing out degradation of environment and inaction of the statutory regulators, the Hon'ble Supreme Court has required this Tribunal to monitor compliance of such statutory obligations for protecting environment. This is not possible unless the statutory regulators are effective. Significant 14 issues so referred by the Hon'ble Supreme Court include a) liquid waste management, (2017) 5 SCC 326, Paryavaran Suraksha vs. Union of India & Ors. wherein it was directed that requisite STPs, ETPs, CETPs must be set up by 31.3.2018, failing which coercive measures may be taken against concerned authorities, to enforce statutory mandate of the Water (Prevention and Control of Pollution) Act enacted in 1974, prohibiting any water pollution, making it a criminal offence. b) compliance of solid waste management rules. Vide order dated 2.9.2014 in WP 888/1996, Almitra H. Patel Vs. Union of India & Ors. on the file of the Supreme Court, the issue has been referred to this Tribunal for monitoring compliance of Solid Waste Management Rules. c) In (2015) 12 SCC 764, MC Mehta v. UOI, issue of rejuvenation of Ganga stands referred to this Tribunal. d) Vide order dated 24.7.2017 in WP 725/1994, 'And quite flows Yamuna', rejuvenation of Yamuna stands referred to this Tribunal. It is not necessary to refer to several other orders. Finding that statutory regulators were not effective and serious damage was continuing, the Tribunal has appointed independent monitoring Committees3 on several issues.
In substance, monitoring of the enacted environmental laws including the Water Act, Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 and Rules framed thereunder needs to be reviewed and made effective in the interest of protection of 3 To monitor compliances with regard to:
(i) River Ghaggar in OA No. 138/2016 (TNHRC), Stench Grips Mansa's Sacred Ghaggar River
(ii) River Sutlej in OA 916/2018, Sobha Singh v. State of Punjab & Ors.
(iii) River Yamuna in OA 06/2012, Manoj Mishra v. UOI & Ors.
(iv) River Musi in OA 426/2018, Mohammed Nayeem Pasha & Anr. v. State of Telangana & Ors.
(v) River Ganga in OA 200/2014, M.C. Mehta v. Union of India & Ors.
(vi) River Jojari in OA 329/2015, Gram Panchayat Araba v. State of Rajasthan & Ors.
(vii) CETP in Taloja District in OA 125/2018, Arvind Pundalik Mhatre v. Ministry of Environment, Forest and Climate Change & Ors.
(viii) District Environment Plan in OA 360/2018 Shree Nath Sharma v. Union of India & Ors.
(ix) 'Rat Hole' coal mining in OA 110(THC)/2012, Threat to Life Arising Out of Coal Mining in South Garo Hills District v. State of Meghalaya & Ors.
(x) Solid waste management rules in OA 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issues.15
environment and public health. This is not possible unless the regulatory bodies are duly manned and equipped and function efficiently. The report shows that it is not happening and there are huge gaps. With such gaps, it is only a dream to expect clean environment - fresh water or fresh air.
Irreversible degradation of environment is bound to result in avoidable deaths and diseases and loss of scarce and good quality water, air and soil and biodiversity.
14. The findings in the report showing gaps resulting in large scale non-
compliances in enforcement of environmental laws are supported by observations of this Tribunal, which include the following:
(I) OA 593/2017, Paryavaran Suraksha Samiti & Anr. vs. Union of India & Ors.4, involves monitoring of liquid waste management in terms of orders of the Hon'ble Supreme Court in (2017) 5 SCC 326. We have found that as a result of continuing failure of the statutory authorities to ensure compliance, industrial as well as municipal liquid waste is being discharged resulting in pollution of groundwater as well as surface water, including water bodies, drains, streams, rivers and coastal areas. The Tribunal has noted that as per data compiled by the CPCB, 351 river stretches are declared polluted. Comprehensive Environment Pollution Index (CEPI) prepared by the CPCB shows that 100 industrial clusters are polluted. The Tribunal is also dealing with the remedial action for restoration of the 351 stretches in OA 673/20185, In Re: News item published in "The Hindu" authored by Shri Jacob Koshy, titled "More river stretches are now critically polluted: CPCB" for which the Tribunal has directed preparation 4 Vide order dated 21.09.2020 5 Vide order dated 21.09.2020 16 and execution of action plans for each of such stretches by constituting River Rejuvenation Committees (RRCs) for all States/UTs headed by Environment Secretaries which action needs to be overseen by the Chief Secretaries at the State level and by a Central Monitoring Committee (CMC) headed by Secretary, Jal Shakti alongwith NMCG and CPCB at the national level. OA 829/20196, Lt. Col. Sarvadaman Singh Oberoi v. Union of India & Ors. deals with the remedying of coastal pollution for which directions have been issued on the same pattern for preparation and execution of action plans by the RRCs to be overseen by the Chief Secretaries at the State level and by the CMC at the national level. The same order also deals with utilisation of treated water, being OA 148/2016, Mahesh Chandra Saxena vs South Delhi Municipal Corporation & Ors. and OA 325/20157, Lt. Col. Sarvadaman Singh Oberoi v. Union of India & Ors., dealing with the issue of restoration of water bodies by removing encroachments and preventing pollution has been dealt with by this Tribunal. OA 176/2015, Shailesh Singh v. Hotel Holiday Regency, Moradabad & Ors.8, the Tribunal has directed monitoring of groundwater extraction to give effect to the mandate in Hon'ble Supreme Court judgment in M.C. Mehta v. Union of India & Ors.
(1997) 11 SCC 312.
(II) Apart from water pollution, air pollution the issue air pollution has been dealt with by this Tribunal by separate order in OA 681/20189, News item published in "The Times of India" Authored by Shri Vishwa 6 Vide order dated 21.09.2020 7 Vide order dated 18.11.2020 8 Vide order dated 20.07.2020 9 Vide order dated 21.08.2020 17 Mohan titled "NCAP with multiple timelines to clean air in 102 cities to be released around August 15" requiring constituted Air Quality Monitoring Committees in all States/UTs to prepare and execute action plans for control of air pollution in 122 non-
attainment cities (where air quality is normally beyond the prescribed norms).
(III) The issue of solid waste management has been dealt with by this Tribunal in OA 606/2018 in pursuance of directions of the Hon'ble Supreme Court in Writ Petition No. 888/1996, Almitra H. Patel & Anr. v. Union of India & Ors. In the said matter, the Chief Secretaries of all States/UTs were required to remain present before this Tribunal10 and after interaction with them, separate orders for all States/UTs referring to the individual issues in such States/UTs,11 particularly issue of legacy waste dump sites and remediation of current waste on scientific basis were dealt with and the Chief Secretaries were directed to monitor compliance every month by creating a monitoring cell, directly under them, in terms of directions of the Hon'ble Supreme Court and the District Magistrates monitoring such compliances every fortnight. It has been found that there are more than 3000 dump sites where legacy waste has accumulated over the years but the remedial action has not been taken except at very few places. This is resulting in water and air pollution and soil degradation on continuous basis, to the detriment of the environment and the public health. The statutory timelines have come to an end.
Reference is made in this regard also to order dated 29.01.2021 in 10 Vide order dated 16.01.2019 11 Vide order dated 18.07.2019 (last such order is in respect of Jammu & Kashmir) 18 OA No. 519/2019, In re: News item published in "The Times of India"
Authored by Jasjeev Gandhiok & Paras Singh Titled "Below mountains of trash lie poison lakes" and order dated 28.02.2020 in OA No. 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016. It was directed, vide order dated 10.01.2020, that compensation will be payable for failure to comply with the requirement of taking steps mentioned in Rule 22 of the SWM Rules, 2016 at scales mentioned therein, depending on the size of local bodies, from 01.04.2020 till compliance. Compensation was also directed to be recovered at the laid down scale for delay in commencing and completing the legacy waste remediation measures.
(IV) With regard to bio-medical waste, the matter has been dealt with in OA 710/2017, Shailesh Singh, v. Sheela Hospital & Trauma Centre, Shahjahanpur & Ors.12, with regard to hazardous waste, matter has been dealt with in OA 804/2017, Rajiv Narayan v. Union of India & Ors.13, with regard to e-waste, matter has been dealt with in OA 512/2017, Shailesh Singh v. State of UP14, with regard to plastic waste, matter has been dealt with in EA 13/2019 in OA 247/2017, Central Pollution Control Board v. State of Andaman & Nicobar & Ors.15 for laying down liability to pay compensation for non-compliance.
15. The failure of monitoring has been found to have direct nexus to atleast 10 industrial accidents 16 which have taken place in the recent past which have been dealt with by this Tribunal.
12Vide order dated 18.01.2021 13 Vide order dated 29.01.2021 14 Vide order dated 15.01.2021 15 Vide order dated 08.01.2021 16 19
16. Vide order dated 03.02.2021 in OA No. 22/2020, Yashyashvi Rasayan Pvt. Ltd., the Expert Committee, appointed to suggest means to prevent disasters, recommended strengthening the monitoring mechanism by making appointments against all vacant posts to ensure that onsite and offsite emergency plans are in place and mock drills take place, to prevent any such incidents and medical facilities are available at the nearest point in case such incident takes place to save lives of the victims. This aspect has also been dealt with vide order dated 01.02.2021 in OA No. 837/2018, i. Order dated 01.06.2020, relating to incident of gas leak dated 07.05.2020 in LG Polymers India Pvt. Limited at Vishakhapatnam, resulting in death of 11 persons and injuries to more than 100, apart from other damage (OA No. 73/2020, In re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh); ii. Order dated 03.02.2021, relating to incident dated 03.06.2020 in a chemical factory, Yashyashvi Rasayan Pvt. Ltd. at Dahej, District Bharuch, Gujarat resulting in deaths and injuries and other damage (OA No. 22/2020(WZ) (Earlier OA 22/2020) (WZ), Aryavart Foundation through its President vs. Yashyashvi Rasayan Pvt. Ltd. & Anr.); iii. Order dated 06.08.2020, in relation to incident of oil well blow out on 27.05.2020 at Baghjan in the Tinsukia District of Assam resulting in deaths, injuries and damage to the environment (OA No. 43/2020(EZ), Bonani Kakkar vs. Oil India Limited & Ors.). iv. Orders dated 06.07.2020 and 22.12.2020, relating to incident dated 30.06.2020 on account of gas leakage at Sainor Life Sciences factory at Parawada in industrial area on the outskirts of Vishakhapatnam (OA No. 106/2020, News item published in the local daily "Economic Times" dated 30.06.2020 titled "Another Gas Leakage at Vizag Factory kills two, critically injures four...");
v. Orders dated 08.07.2020 and 22.12.2020, dealing with the incident dated 01.07.2020 resulting in death of 6 person and injury to 17 due to blast of boiler in M/s Neyveli Thermal Power Station (NLCIL), Cuddalore (OA No. 108/2020, News item published in the "Indian Express" dated 01.07.2020 titled "Tamil Nadu Neyveli boiler blast: 6 dead, 17 injured") and;
vi. Orders dated 23.07.2020 and 22.12.2020, in relation to incident of fire engulfed the chemical plant of Visakha Solvents Ltd, Vizag on 13.07.2020 at Ramky CETP Solvents building in Pharma City resulting in injuries (OA No. 134/2020, News item published on 13.07.2020 in the local daily named "India Today" titled "Massive fire engulf Vizag chemical plant, explosions heard, injuries reported"). vii. Order dated 18.12.2020, in relation to incident of explosion in a plastic recycling factory at Sujapur in Malda on 1.12.2020 resulting in death of six persons, including two minors and serious injuries to four persons (OA No. 272/2020, News item published in the "Times of India" dated 20.11.2020 entitled "Six killed as blast tears through Malda Plastic recycling factory").
viii. Order dated 18.12.2020, in relation to incident of methane gas leak in a sugar factory called Lokenete Bapurao Patil Agro Industries Ltd. in Mohol Taluka of Solapur District, Maharashtra on 21.11.2020 resulting in deaths and injuries and other damage (OA No. 274/2020, News item published in the "Indian Express" dated 23.11.2020 entitled "Maharashtra: Two Killed, eight injured in methane gas leak in sugar factory"). ix. Order dated 08.01.2021, in relation to Gas Leak in Agro Company (O.A No. 107/2020, In RE: News item published in the local daily "Indian Express Sunday Express" dated 28.06.2020 titled "Gas Leak in Agro Company Claims life of one") x. Order dated 18.01.2021, in relation to News item published in Navbharat Times dated 24.12.2020 titled "Gas leaks in IFFCO Plant, 2 Officers dead" (O.A No. 04/2020, In re :
News item published in Navbharat Times dated 24.12.2020 titled "Gas leaks in IFFCO Plant, 2 Officers dead") 20 Sandeep Mittal v. Ministry of Environment, Forests & Climate Change & Ors.
on the subject of monitoring the EC conditions.
17. As earlier observed, damage to environment is directly linked to the public health and neglecting compliance of environmental norms results in deaths and injuries. Violation of environmental norms needs to be taken as seriously as preventing crimes of homicides and assaults. It is more serious as the victims may be wide spread and unidentified. The consequences may even affect future generations. The compliance status is directly linked to effectiveness of monitoring which requires that the key office bearers of statutory regulators and oversight bodies are qualified, competent and reputed and exclusively dedicated to such work, instead of devoting part time, while simultaneously holding other positions. In this regard, the Tribunal has made observations vide order dated 02.02.2021 in OA 231/2014, Doaba Paryavaran Samiti v. State of U.P & Ors, finding that the Member Secretary of the PCB in UP was only devoting part-time, while holding several other positions. Adequate and well-equipped laboratories and effective machinery for implementation of "Polluter Pays"
principle for assessment and collection of compensation is another important aspect of environmental governance.
18. It is seen that several State PCBs do not even have constraint of funds. Still, the requisite manpower and the equipment are not being arranged. Moreover, due application of "Polluter Pays" principle, in exercise of regulatory powers under the Air, Water and EP Acts to compensate the environment, enables them to have requisite funds for hiring experts, installing monitoring equipment and taking other remediation and restoration measures, including restoration of contaminated sites. The quality and quantity of key manpower cannot be 21 compromised, if environmental governance is to improve to achieve the sustainable development goals. It is well known that most of the key environmental laws have been enacted in the wake of Stockholm Conference (1972) under Entry 13 of List-I read with Article 253 of the Constitution, with a view to achieve 'sustainable development' of which the 'Precautionary' principle, "Polluter Pays" principle, Intergenerational Equity and Public Trust Doctrine principles are integral part. Sad part is that even after 47 years of Water Act and 40 years of Air Act, water and air pollution is rampant, without serious adverse action. Though there are criminal offences with minimum prescribed sentence, hardly any punishment is handed down. Hardly any compensation is recovered from the violators. Victims continue to suffer and so does the environment. This requires attention of all concerned at higher levels in governance.
19. In view of above, the recommendations in the CPCB report need to be urgently implemented by all concerned for revamping and upgrading the regulatory bodies and their equipment which needs to be a continuous exercise. The Chief Secretaries of all States/UTs, in coordination with the Secretary Environment and Chairman State PCB/PCCs in their respective jurisdiction, need to forthwith study and address the issues emerging from the report, prepare and execute their respective action plans. This will include filling up all vacant posts by competent persons and procuring the requisite equipment. The CPCB may assist and monitor all the States for compliance of these directions. It will be open to the CPCB to prepare a format which may contain qualifications, minimum eligibility criteria, required experience for the key positions and the specifications of equipment. It is suggested that if some of the State PCBs find it difficult to select/recruit suitable candidates, a designated Committee of the MoEF&CC and CPCB, in consultation with such State PCBs, may explore 22 possibility of the central selection mechanism so that the talent pool so selected can be made available for posting at appropriate locations, where recruitment is found to be otherwise difficult. We have noted the observations in the report that at some places administrative manpower is more than technical manpower which may not be a desirable situation. Such situation may be reviewed and remedied by the concerned States. The observations that the work of regulators should be exclusive for the incumbents appointed applies to all key positions, including Chairman/Member Secretary, Regional Officers, Engineers and Scientists of PCBs/PCCs.
20. Further, for improving monitoring and planning, authentic data needs to be compiled at all levels. Initiative will have to be taken consistent with Digital India initiatives by the MoEF/MoJS/MoUD/CPCB and based on such policy decisions, the Environment departments of all States/UTs will have to compile data in their respective jurisdiction, preferably Districtwise. On that basis District Environment Data Grid (DEDG), State Environment Data Grid (SEDG) and National Environment Data Grid (NEDG) can be set up and continuously updated. The Grid can be connected to online monitoring systems. Comprehensive Environment Pollution Index (CEPI) is being prepared limited to the Industrial Area but the Grid can cover larger areas and aspects and can be source of research and planning. It can also facilitate monitoring of and be in sync with other government initiatives such as National Mission for Clean Ganga, Swachh Bharat and Jalshakti Abhiyan etc. Based on such data, it may also be easier to study 'carrying capacity' of different areas to plan siting policy for various activities.
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21. Further, there is need to study the extent of environmental loss and the contributors to the same. Though environment is priceless, normative parameters are now available to determine the compensation for the loss caused for failure to observe laid down rules and regulations such as not clearing legacy waste as per Solid Waste Management Rules, causing air/water pollution. Environment is wealth which needs protection from being plundered by law violators, for their monetary interests, by adequate monitoring and stringent vigilance. Its scientific management, including enforcement of polluter pays principle, requires study of level of pollution and contributors thereto and cost of restoration to be recovered by an efficient machinery. Such steps will advance the environmental rule of law and lead to sustainable development.
22. The directions on the subject are summed up as follows:
i. The Chief Secretaries of all States/UTs, in coordination with their respective Secretary Environment and Chairman State PCB/PCCs, need to forthwith study and address the issues emerging from the CPCB report, prepare and execute their respective action plans which will include filling up all vacant posts by competent persons and procuring the requisite equipment, including commissioning and upgradation of all laboratories and recognition under the EP Act, 1986. The CPCB may assist and monitor all the States for compliance of these directions. The steps in this regard be initiated and completed as far as possible within six months. In view of Section 33 of the NGT Act, 2010, whereunder the NGT Act has overriding powers over other statutes, any restriction placed by any administrative order will not stand in the way of carrying out this direction.
ii. We direct the CPCB to prepare a format which may contain qualifications, minimum eligibility criteria, required 24 experience for the key positions and the specifications of equipment. All States/UTs may act accordingly.
iii. MoEF&CC and CPCB may design a mechanism for annual performance audit of all the State PCBs/PCCs.
iv. It is suggested that if some of the State PCBs find it difficult to select/recruit suitable candidates, a designated Committee of the MoEF&CC and CPCB, in consultation with such State PCBs, may explore possibility of the central selection mechanism so that the talent pool so selected can be made available for posting at appropriate locations, where requirement is found to be otherwise difficult. A plan be prepared for continuous training of the incumbents at regional levels periodically.
v. In view of the findings in the report that at some places administrative manpower is more than technical manpower, such situation may be reviewed and remedied by the concerned States.
vi. The observations that the work of regulators should be fulltime for the incumbents appointed applies to all key positions, including Chairman/Member Secretary and Regional Officers, Engineers, Scientists of PCBs/PCCs. Such incumbents may not be given any other additional charge. Only exception can be in States where there are no significant environmental issues so as to provide the incumbents fulltime work. Such States may seek exemption in respect of this direction from CPCB, giving relevant information justifying such exemption.
vii. CPCB and State PCBs/PCCs, as directed earlier, may utilise EC funds on laboratory set up/upgradation, and on the mentioned areas in the report as well as on approved District Environment Plans. No approval of Central/State Government will be necessary in this regard in view of section 33 of the NGT Act, supra.25
viii. Consistent with Digital India initiatives, MoEF&CC/MoJS/CPCB may consider setting up and periodically updating National Environment Data Grid (NEDG) linked to the State Environment Data Grids (SEDGs) DEDGs and further linked to available portals like online air/water quality, Sameer and other monitoring stations to facilitate analysis, research and planning on the subject. It may be further interlinked to initiatives like NMCG/Swachh Bharat/Jal Jeevan Mission.
ix. To assess the extent of monetary loss caused to the environment on account of violation of environmental norms by failure to scientifically manage waste, violating Water/Air/EP/Forest (Conservation) Acts and other specified Acts for fixing accountability, for improving efficiency and better enforcement of 'Polluter Pays' principle.
x. To monitor the extent of carrying capacity for particular activities at different locations for planning suitability of siting of particular activities for giving effect to 'Precautionary' and 'Sustainable Development' principles The issue of manning and functioning of State PCBs/PCCs will stand disposed of accordingly. However, the issue of pollution in Vapi Industrial cluster which has been adjourned sine die will now be taken up after disposal of the matter pending in the Hon'ble Supreme Court.
All pending interlocutory/miscellaneous applications will stand disposed of with liberty to State PCBs/PCCs to point out their difficulties, if any, to the joint Committee of MoEF&CC and CPCB.
A copy of this order be forwarded to the MoEF&CC, Ministry of Jal Shakti, Ministry of Urban Development, GoI, CPCB, Chief Secretaries of all the States/UTs, all the State PCBs/PCCs by e-mail for compliance.
Adarsh Kumar Goel, CP 26 S.K. Singh, JM Dr. Nagin Nanda, EM February 05, 2021 Original Application No. 95/2018 (M.A. No. 1029/2018 & I.A. No. 326/2019, I.A. No. 81/2020, I.A. No. 183/2020 & I.A. No. 184/2020) DV 27