National Green Tribunal
Nityanand Mishra vs State Of M.P on 12 August, 2021
Item No. 03
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 34/2015(CZ)
Nityanand Mishra (Saraiyu River, Chitrakoot) Applicant(s)
Versus
State of Madhya Pradesh & Ors. Respondent(s)
Date of Hearing : 04.08.2021
Date of Uploading : 12.08.2021
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Mr. Ramdarshan Tiwari, Adv.
For Respondent(s): Mr. Sachin K. Verma, Adv.
Ms. Parul Bhadoria, Adv.
ORDER
1. The issues raised in this application are increasing pollution due to throwing of untreated sewage, dumping of garbage and against the encroachments, illegal construction in the shape of Hermitages (religious retreats), farm houses, commercial activities/residential houses/made by private and influential persons in the bank and in land of river Paysuni and Saryu of (Chitrakoot in District Satna, M.P.).
2. It is submitted by the learned counsel for the applicant that the famous religious place of our country, Chitrakoot where the lord Ram lived for more than twelve years during the exile period is famous for its religious importance. This place is situated on the bank of three rivers Mandakini, Paysuni and Saryu River. The river Paysuni and Saryu are amongst the highly sacrosanct river of the country, although its entire course is only 30 to 20 km. respectively, from its origin Sacrosanct Kamadgir Mountain of 1 Chihakoot Satna (M.P) to the Ram Ghat, where it falls in to the river Mandakini. There are many rivers larger in shape and longer in size in the world, even in the country or in state also, but these two rivers are sacred as Ganga in our country. These two rivers are great because for millions of people of this country since centuries to be cremated on its banks, or to die in Chitrakoot is wish of millions of Hindu. Many saints and sages from Tulsidas to Rahim have pursued their quest for knowledge and enlightenment on the banks of the river Mandakini, Paysuni and Saryu.
The famous Saint Tulsidas says about the River Paysuni in Ayodha kand at Doha Number - 248, Chaupai, Number- 2 ऩावन ऩॉम तिहॉ कार नहाह ॊ जो बफरोकक अघ ओघ नसाह (सफ रोग ऩववत्र ऩमस्ववनी नद भई िीनो सभम वनान कयिे है , स्जसके दर्शन से हे ऩाऩो के सभह ू नष्ट हो जािे है Thrice in the day (in the morning, at noon and at the evening) they bathed in the holy Payasvini river, the very sight of which wipes out hosts of sins.
Similarly about the Suryu River it was stated by famous Saint Tulsidas in the Ramcharit Manas in Ayodha kand at Doha Number 132 Chaupai Number 01 यघफय कहे उ रखन बर घाटू कयह किहॉ अफ ठाहय ठाटू रखन द घ ऩम उिय कयाया चहॉ ददसस कपये उ धनष स्जसभ नाया I Means Shri Ram said "Laksmana, here is a good descent into river, now make arrangements for our stay somewhere "Laksmana surveyed the north bank of the payaswini river and said" A rivulet bends round this bank like a bow with the river itself for its string ."
3. It is believed that the Lord Ram offers water and balls of food to the spirit of his departed father (Shardha Karm) at the meeting point of three rivers Mandakini, Paysuni and Suryu at Ram Ghat. Nearly a decade ago millions of Pilgrim came to chitrakoot and take a holy dip in river Mandakini, Paysuni and Saryu, drink its water under an abiding faith and belief to purifies themselves to achieve moksha releases from the cycle of birth and 2 death. According to the provisions of Article 21 read with article 48 (A) of the directive principles of State Policy Right to Life includes right to have fresh air and healthy environment. Nobody has the right to create pollution endangering the life of others on the grounds of commercial activities. This universe and living beings are creation of almighty called Bhagwan which means and includes" Chiti, Jal, Pawak, Gagan, Sameera, Panch Rachit Yah Adham Sareera". These five words signify five elements of life:-
Bha = Bhumi Ga = Gagan Wa = Vau Aa = Agni Na = Neer
4. When natural cycle of all five is disturbed due to mixing of poisonous or harmful material, it is nature of pollution. We are living in the age of technology where people use latest machines and other technological products to get our work done. We move from one place to another using modern transport system based on bikes, cars, buses, jeeps and trucks.
We use air conditioners in our homes, offices and vehicles to maintain their temperature to desired level. Pollution is a situation when something is added to the natural environment which is not naturally there; natural environment is comprised of air, land and water. So any contamination in any of the element of environment will be regarded as pollution; however, nature of contamination is quite different in each component and may take many forms, land pollution, air pollution and water pollution.
5. Water pollution is a relatively new phenomenon, and one can safely utter that it is solely the result of industrial waste and sewage waste which is thrown into the rivers and oceans. However, there is significant contribution of our poor sewerage system to it. It has stuffed up marine life. Admittedly, it doesn't affect us in the short run but it does affect in the long run. We have seen societies suffering from water diseases because 3 they have consumed filthy water. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship. This indicates that while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand.
6. Freedom of profession, trade and business as guaranteed under the Constitution of India is to be read with Article 21 of the Constitution of India which provides that no one shall be deprived of life and liberty except according to the procedure established by the law. Right of fresh air and unpolluted air and unpolluted water is also part of the life and any activity by anyone polluting the air and water directly or indirectly endangering the health of human being is violation of life is in violation of provision as contained in the Constitution of India. If the right to fresh air and water is not enforced, this will be contrary to the mandate of the Constitution and the environmental laws. It is tragic that the Paysuni and Saryu River, which have since time immemorial purified the people is being polluted by man to such extent that these river now become rivulet and become dry after the month of December. The pollution of the river Paysuni and Saryu is badly affecting the life health and ecology of the people of Chitrakoot and millions of Pilgrim. That the colour and quality of water of River 4 Paysuni and Saryu at Ramghat before Mixing with River Mandakini, have deteriorated and the colour has become black and Brown, which clearly suggests that the quality of the water has deteriorated due to unabated pollution of River Water. Paysuni and Saryu water is continuously being polluted and the quality is going bad to worse. The main reason of Paysuni and Saryu Pollution was the discharge of the sewage of the urban areas of the chitrakoot directly into the water of Paysuni and Saryu, through drains or through the Nalas, the sewage of whole Nagar Panchayat was mixed with the water of Paysuni and Saryu without any treatment near Ramghat. Most of the untreated sewage was mixed into the Paysuni and Saryu river through the nalas and which in last mixed with the water of River Mandakini. Discharge of Untreated sewage has been causing considerable damage to the life of the people who use the water of the Holy River Paysuni and Saryu and also to the living creatures of life the River.
7. Due to increase in population, enormous, unregulated and unplanned construction have been done on both sides of River and on the land of River Paysuni and Saryu, which is continuous and increasing rapidly.
Illegal construction was done on huge scale on banks of river. In some places illegal colonies were developed by the local land mafia encroaching the bank of river causing enormous pollution and disturbing the natural steams of the river. In some places the illegal construction was created in the name of Math or temple, hotels, lodges and the whole wastage of these Math and hotels was directly discharged into the river without any hindrance. Encroachment was carried out on the Suryu River (Now named as Suryu nala) at Khasara Number 629,630,631 and 632. It is pertinent to mention here that not only the encroachment was carried out in the river land but the encroachers diverted the flow of the river for their commercial benefit without permission from competent authorities and without sanction of maps in accordance with law. The destructive activities like making illegal constructions, solid waste and other effluents from the 5 illegal farm House/ Hermitages (religious retreads)/ Houses Restaurants and other slums are reaching in to the stream of river therefore causing water pollution and danger for water bodies and environment of the River Paysuni and Suryu.
8. Section 3 of this The Environment (Protection) Act, 1986 Confers power on the Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. 'Environment' includes water, air and land and the inter-
relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property. (Vide section 2(a) of the Environment (Protection) Act, 1986).
9. Section 2 of Water (Prevention and Control of Pollution) Act, l974 defines the word -
(j) "stream" which includes-
i. River;
ii. Water course (whether flowing or for the time being dry);
iii. Inland water (whether natural or artificial) iv. sub-terranean waters;
v. sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;
(e) "Pollution " means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms but the state Government as well as State pollution control board and state Forest department have not taken any action to check Pollution, while they are statutory obliged to do so.
610. It is argued by the learned counsel for the applicant that Hon'ble Supreme Court of India in the case "Friends Colony Development Committee vs. State of Orissa and Other [(2004) 8 SSC 7331] observed as follows :-
―(In all developed and developing countries there is emphasis on planned development of cities which sought to, be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed there under. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety morals or general welfare and ecological considerations; though unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.)‖
11. It is further submitted that illegal constructions/encroachments upon riverbeds/banks, hills in the form causing harm to the environment of the river polluting natural water and danger for water bodies, defacing the beauty of the Paysuni and Suryu River and damage to the environment of the River, hills and the heritage sites of is irreversible and permanent. For that constructions of concrete buildings, cutting of trees near river sites and blowing up of the hills for vested interests will be a great loss to nature and environment. It is further argued that the water is the most essential requirement to sustain the human life and, therefore, there is need to preserve and protect it. The sources from which water is available 7 is well known. Each source carries along with it special characteristics and bio-diversity which sustains the source. The courts are under obligation to see the protection and preservation of these water resources and Prevention of its contamination.
12. Learned counsel has further argued that directions be issued to the respondents to declare the Paysuni and Saryu riverbed ecologically sensitive area and hence to be protected and preserved and to ensure complete, permanent and absolute ban on the construction activity within 100 meters from the bank of river Paysuni and Suryu of the Chritrakoot in District Satna, and further to direct to the respondent to remove all the encroachments from the land and the river of Paysuni and Saryu of the Chritrakoot, Satna after doing the demarcation of land of river by using topographical survey method to ensure accurate demarcation of river.
13. In the reply submitted by Respondent No. 4 Centre Pollution Control Board, has submitted that decision has been taken in the high level meeting that State Pollution Control Board shall make mandatory for local/urban bodies to set up a sewage system for sewage collection, underground conveyance, treatment and its disposal to cover the entire local/urban area to bridge the widening treatment gap along the enforcement of consent management in line with the standard of sewage treatment. It has further been taken decision that existing STPs which are being operated before issuance is directions shall meet the standards within two years from the date of issuance of these directions and all the local bodies shall seek consent under the Water (Prevention and Control of Pollution) Act, 1974 from State Pollution Control Board/Committee within a period of 60 days. That the secondary treated sewage should be mandatorily sold for use for non-portable purposes such as industrial process, railways, bus cleaning, flushing of toilets, dual piping, horticulture, irrigation. No portable water to be allowed for such activities.
8They will also digest methane for captive power generation to further improve viability of STPs.
14. The CPCB has suggested following remedial measures:-
i. Dual piping system should be enforced in new housing constructions for use of treated sewage for flushing purpose.
ii. Each municipal authority and the concerned authority shall submit a time bound action plan for setting up sewerage system covering proper collection, treatment and disposal of sewage generated in the local/urban area and such plan shall be submitted by the municipal authority to the State Board within a period of 90-120 days.
iii. In case of disposal of effluents on land or river or any water body including coastal water/creek or a drain, the treated effluents shall meet the suggested standards annexed to these direction.
iv. The new sewage treatment plants which will come in existence after the issuance of these directions shall be designed to treat and achieve standards as per the suggested standards.
15. In its reply the Respondent No. 7 Chief Municipal Officer, Nagar Panchayat, Chritrakoot has submitted that the passage of water which is said to be a river is actually a nala which is a dry hole year along only at the rainy season some amount of water is there, which also dries in a day or two. The Saryu nala is on Madhya Pradesh, Uttar Pradesh border and it is a type of divider between the two States and there is no water in both of these nalas. In the reply it has been stated that :-
―2. To ensure that pollution extracts do not enter into the river in Chitrakoot under the National River Water Conservation Scheme a 9 construction of 4.7 M.L.D capacity Sewerage Treatment Plant have been approved by the Chief Engineer Public Health and Engineering Department.
3. There has been no solid waste abstract passing into the river in the area of Chitrakoot. Infact the Collector Satna vide his order dated 31.05.2006 passed in case no 504-59/05-06 has already allotted 2.43 hectares of land to the answering Respondent at gram Nayagaon situated at Khasra No 904/1 and also at gram Rajola at Khasra no 293/1A for the management of solid waste abstract. The work of dumping of waste is already started in the said area and efforts are being made to start a full treatment plant segregating the plastic waste and recycling.
4. The answering Respondent is already carrying out cleaning of the rivers situated at Chirakoot under National River Water Conservation Scheme and the answering respondent is already working for cleaning and preservation of the rivers in the area.
5. Adequate action is being taken against all the persons who are responsible for throwing the garbage into the water or are polluting any water body in any ways.‖
16. MoEF&CC has filed the reply as follows:-
―2.Water is a state subject and tackling the various sources of pollution in rivers, i.e. sewage, industrial pollution, solid waste, open defecation, agricultural run-off, dumping of dead bodies etc falls under the civic, health and sanitation responsibilities of the State Governments, including Madhya Pradesh. The respective states / Municipalities/ urban Local Bodies, therefore, having the primary responsibility in tackling the sources of pollution in their respective jurisdiction out of their budget and internal revenue generation. The central Assistance can only supplement the efforts of the States in fulfilling their responsibilities in providing basic civic facilities (like sewage treatment and safe disposal systems, solid waste management, sanitation facilities etc.) and development of civic infrastructure.10
3. Preparation of Master plan, solid waste management and removal of encroachments along the river banks is the responsibilities of the state) government local bodies.
4. The State Pollution Control Boards /pollution Control Committees are constituted and empowered to perform their various functions under the provisions of the Water (prevention and Control of pollution) Act, 1974 for the prevention of water pollution and the maintaining or restoring of wholesomeness of water. It is the responsibilities of the concern state Boards to control and monitor the discharge of industrial effluents and ensure that untreated industrial effluents do not fall into the rivers, thereby polluting them. The state Board is empowered to take all preventive and curative measures for prevention and control of water pollution in the river and other water bodies, such as power to take sample, prohibition, restrictions on outlets or existing outlets, grant or refusal of consent, issue directions. It is also the responsibility of the State Pollution Control Boards/local bodies to ensure that no polluting substances such as animal carcasses, human dead bodies, slaughter house waste etc. are thrown into the rivers.
5. It is the collective responsibilities of state Governments and local bodies of various towns to set up proper facilities for collection and treatment of sewage being generated and ensure that untreated sewage does not fall into the rivers, thereby polluting them. The central Government is only supplementing the efforts of the State Governments/local bodies in this regard.
6. The Ministry is presently supplementing the efforts of the state Governments/ local bodies by providing central assistance for taking up pollution abatement works in towns along identified stretches of certain rivers, excluding Ganga and its tributaries, in the country under National River Conservation Plan (NRCP).
7. It is pertinent to mention here as per cabinet secretariat, Govt.
of India Notification dated 31.07.2014, amending the Government of India (Allocation of Business) Rules, 1961, Ministry of Water Resources, River Development & Ganga Rejuvenation (MowR, RD&GR) has been vested with a [the works related to conservation, development, management and abatement of pollution in River Ganga and its tributaries, which also includes Mandakini, pasuni and saryu rivers.
1110. The state Government can also access financial assistance for creation of sewerage infrastructure, including setting up of sewage treatment plants as well as other infrastructure projects, in various towns under other central sector Scheme of Ministry of Urban Development.‖
17. The Executive Engineer, Satna has submitted the reply in the following terms :-
"2. That, the Nagar palika, Chitrakoot had applied for 125kVA high pressure connection for Sewage Treatment plant Main pumping Station, regarding which the competent authority, Superintending Engineer, MPPKWCL Satna had provided approval vide approval No' (053-95-o213907) dated 29/12/16.
3.The details regarding the approval No. 3907 dated 29.12.2016 is as under:-
a. Rs 352750 (Security Fund & Affording Charge) on 30/1/15 b. Rs 562742 on 23.01.2017 have been deposited.
4. The copy of consent agreement for the installment of the 125KVA high pressure connection dated 02.02.2017.
5. In furtherance to the consent agreement, the accepted estimate No. (78-000-40/80/17-39158) dated 19.12.2016 and the work order serial No. 0005 dated 03.02.2017.
6. The reason behind the delay to execute the work order is the transfer of money in the DPC account, however the said work is required to be completed on or before 15.02.2017.
7. The Nagar Palika, Chitrakoot, applied for another new high pressure connection (80KVA) for the intermediate stage of the Sewage Treatment plant process, which has been given power connection vide sanction no. (053-95-02-3906) dated 29.12.16.
8. Regarding the sanction of amount of Rs 1,67,000/- as Security Bond + Rs 60,000/- as affording charge and Rs 5,37,162.59/- in reference of accepted estimates No. (78-000-40-
18101-17-39158) has not been paid by the Nagar Palika, Satna, as a result of which the work is over delayed.‖ 12
18. The Environmental Planning & Coordination Organization (EPCO) on behalf of the State has submitted the compliance report as follows :-
―2. That the chief Engineer, PHED Jabalpur circle Jabalpur vide its letter dated 15/02 /2016 has informed the Executive Director, EPCO that the construction of STP under scheme"
conservation of pollution abetment of river Mandakini at Chitrakoot town in Madhya Pradesh, the construction of the sewage treatment work is under progress, at present the proposed civil work is completed and almost 90% work in the entire scheme has been completed, but in absence of the allotment of funds; the work of Electro Mechanical implementation of testing is delayed in case the remaining funds are provided and released up to March 2016. The rest of the work shall be completed upto July 2016, therefore after receiving the status report from the Chief Engineer PHED, the EPCO in turn has written to the Director, National Mission for Clean Ganga, Ministry of Water Resources and River Development and Ganga Rejuvenation for extension of time limit for completion of project and further requested to release the balance amount of Central Government share i.e. 3.44 crores. The copy of letter dated 15/02/2016 written by the Chief Engineer PED and the communication sent by the EPCO to the Ministry of Water Resources Department, Government of India.
3. The Dy. Secretary, Ministry of Water Resources, River Development & Ganga Rejuvenation, Government of India vide letter dated 09.03.2016 has informed that the extension of time up to 31/07/2016 has been approved for the implementation of the scheme without any change in the scope of works and strictly as per administrative approval and expenditure sanction of the scheme and it is further conveyed that the fund release has been approved and the fund release is under process.‖
19. The matter was taken up by this Tribunal on various dates and certain directions were issued to the State Authorities for the compliance of the order and to ensure that no untreated water should be discharged into the river body or water body and that rules with regard to the Solid Waste Management and disposal must be complied with. The relevant portions are quoted below :-
13i. Order dated 11.03.2016 ―Mr. Sachin K.Verma Learned Government Advocate has filed a progress report on the construction of STP plant at Chitrakoot as directed by us vide our order dated 17.02.2016. Ms. Anjum Feroz, Learned Advocate submits that reply on behalf of the Chief Municipal Commissioner, Nagar Panchayat, has already been filed. Shri Jitendra Singh Parihar, Chief Municipal Officer Nagar Panchayat is also present in person. Let the progress report submitted by Shri Sachin K.Verma be taken on record.
This Application was preferred by the Applicant alleging pollution of rivers Paisuni and Sarayu caused by discharge of sewage from Chitrakoot and surrounding areas. It is alleged that no effort has been made for treating the sewage before being discharged into two rivers. Allegations of illegal and unregulated constructions have also been made. Based on the pleadings it is prayed inter-alia for declaring the rivers Paisuni and Sarayu as ecologically sensitive area requiring protection and preservation by removing all encroachments and to direct the Respondents to take appropriate action for preventing the two rivers from pollution. During the course of the proceedings of this case we were of the view that the principal source of anxiety was the disposal of municipal solid waste, flow of untreated sewage into the river Mandakini and maintenance, cleanliness and hygiene on the path of Parikrama falling within the jurisdiction of both the States of M.P. and U.P. A detailed observation have been recorded by us in our order dated 08.10.2015. In the said order it had also been noted that the area of concern was the nallah, stagnant water, etc. and the consequential breeding of mosquitoes and the necessity to permit only treated water to flow into the river. We had noted that sufficient number of toilets were being constructed and in the event of the septic tanks for collection of the bio- mass getting filled up, adequate measures out to be put in place for cleaning and emptying such tanks so as to ensure regular cleaning and sanitization to maintain hygiene. Necessity of deploying sufficient number of staff and use of disinfectants were also suggested. Other direction that we had issued was the need to create awareness amongst all pilgrims and vendors of the necessity of maintaining cleanliness and preventing pollution in the river Mandakini and to keep the Ghats clean.
It is submitted by Mr. Sachin K. Verma, Learned Government 14 Counsel, that this case is linked with O.A. No. 02/2013 in the matter of Nityanand Mishra Vs. State of M.P. We were inclined to dispose of this matter on the basis of the replies filed on behalf of the State but to avoid conflict of decisions we have felt it essential to list this matter on 26.04.2016 along with O.A. No. 02/2013.
O.A. No. 02/2013, which has erroneously been listed on 15.04.2016 which falls on a holiday, be also listed on 26.04.2016.
Let this matter be listed on 26th April, 2016.‖ ii. Order dated 20.10.2016 ―M.A. No. 962/2016 (in O.A No. 02/2013) and M.A. No. 963/2016 (in O.A.No. 34/2015) has been filed by the applicant along with the photographs depicting the state of affairs with reference to the river Mandakini, Pasuni & Saryu at Chitrakoot. He further submits that on Diwali on 29th & 30th October, 2016 large number of devotees are going to visit for taking the holy dip and the present condition of water is for from satisfactory. It is further submitted that it is primarily on account of delay in completion of works for which directions have already been issued by this Tribunal and for which the Zonal Municipal Authorities had given undertaken to complete the work.
We would direct the responsible officer from the Municipal Board i.e. the Municipal Officer along with the Chairman of the Board shall remain personally present to explain the situation and the steps taken by them to improve the position from what is depicted in the photographs which were taken by/ on behalf of the applicant on 16.10.2016 which is annexed with both the applications. We would also direct that the Additional District Magistrate Satna and the Sub- divisional Officer, Chitrakoot District Satna shall also remain personally present for explaining the steps taken by them for improving the water quality and also for completion of the projects and the arrangements in the light of the influx of devotees during the Mela during Diwali time at Chitrakoot. The SDM shall also file the response with regard to the directions contained in the order dated 09.08.2016 as also with regard to the detailed directions which had been given in the very initial stage vide orders dtd. 29.10.2013 & 21.11.2013.
In the meanwhile, the PCB is directed to test the water sample from the Ramghat, Janaki kund and Sati Ansusuia where the 15 piligrims normally take bath etc. during the festival. The report be submitted on 25.10.2016.
Let both these matters be listed on 25th October, 2016.‖ Order dated 25.10.2016:-
―We are constrained to observe that despite directions having been given long time ago compliance in full has not been made through it is submitted by the Leaned Counsel appearing for the State that the construction of the STP got delayed as a result of heavy rainfall during monsoon in 2016. While that may be true we find that issue should have been dealt with before the melas and the requirement for toilets etc. for the Yatries coming in large number could have been examined from the point of view of Swacch Bharat Abhiyan which is also aimed at not merely construction of toilets in the homes but of achieving zero open defecation under the ODF programme. It is submitted that the municipality and the local administration being bereft of funds could not by itself construct toilets and facilities for huge number of piligrims attending the mela durng Amavasya and Diwali in particular at Chitrakoot. It has further been stated that matter has been brought to the notice of the authorities at the level of the Government but so far as no funds have been made available. This is something that the Principal Secretary, Environment & Urban Development department needs to examine so that necessary infrastructure can be created.
Shri Sachin K.Verma appearing for the State further submits that due to delays in the construction of the STP alternate steps at present are being taken by making temporary arrangements for creating of stop dam during mela period. Learned Cournsel appearing for the PCB on the other hand submitted before us the water analysis report of the Mandakini river on various points where piligrims take bath and perform other rituals. To say the least the water quality at present at these points is far from satisfactory and the District Administration and the local authorities should consider whether the piligrims need to be warned against doing Aachman etc. since the water quality may not be conducive for the same. This order along with the report of the PCB be brought to the notice of P.S.Environment as also the District Collector and the Member Secretary, PCB to collectively take a decision with regard to the necessary steps that may be required for taking preventive action.16
It is submitted by the Learned Counsel for the State the STP would now likely to be completed by the end of December, 2016.
Let this matter be listed on 10th January, 2017.‖ iii. Order dated 10.01.2017 ―It is submitted that the STPs are ready, however, for it to become operational electricity has so far not been provided.
Issue Notice to the concerned Executive Engineer of the Electricity Department. Notices be issued Dasti to the Learned Counsel Shri Sachin K.Verma for service upon the Executive Engineer to comply by issuing the electricity connection as we have been informed that all necessary formalities as required have been completed as stated by Learned Counsel Shri Deepesh Joshi appearing on behalf of Municipal Council.
In case by the next date of hearing the electricity connection is not provided the Executive Engineer in-charge shall remain personally present during the course of hearing before this Tribunal.
Let this matter be listed on 15th February, 2017.‖ iv. Order dated 12.09.2017 ―Matter was discussed in detail and some of the issues highlighted are as follows :
1. Laying of sewage pipe lines.
2. Starting Gowshala by removing the stray cattle from the ghats and town and more particularly the Parikrama Marg.
3. Demarcation of the no construction zone, on the ground and removal of unauthorised constructions.
4. Compliance by the Ashram and Dharamshala so that there is no discharge from their premises towards the rivers.
5. Zero tolerance towards any flow of untreated waste water and sewage into the river Mandakini.
6. Development of the other religious places such as Sati Ansuia, Hanuman Dhara & Gupta Godawari etc. while ensuring that there is proper management of solid waste.
7. Ban on the use of polythene and plastic.
8. Setting up toilets with proper continuous and 17 adequate supply of water and prohibition of open defecation.
9. Issue of the utilisation of the compost by the Agriculture and Horticulture Department.
The ADM, Satna would be the nodal officer in-charge for overseeing the entire work. We direct that within a week the Collector Satna hold and preside over a meeting of all officer of the Departments including PHE which is the responsible for laying of the sewage line for which we have been informed that tenders etc. have been finalised and the work is due to commence. The STP should be given due priority. The Collector Satna shall contact his counterpart in UP for ensuring the presence of the officials responsible for proper administration in the part of Chitrakoot town which falls in UP as also ensuring the presence of the authority of the PCB from the UP since the Pasuni nallah falls within the jurisdiction of the UP which ultimately joins the river Mandakini. This must be given due importance as Mandakini in our opinion being a major tributary is an important part of the Ganga Action Plan. We direct that this meeting by the Collector should be held within a week and short and long terms measures identified would be completed before the coming ‗Amavasya Mela' and other midterm measures would be completed before ‗Diwali Mela'.‖ Let the matter be listed on 5th October, 2017.‖ v. Order dated 05.10.2017 ―We direct that the Learned Counsels for the parties i.e. Learned Counsel Shri Deepesh Joshi appearing for the Municipal Board, Ms. Parul Bhadoria appearing for the PCB and Shri Sachin K.Verma appearing for the State shall carry out an inspection and submit the report before this Tribunal on the next date. The CMO as well as the Additional District Magistrate Satna along with other staff deputed for Diwali Mela at Chitrakoot shall remain present and shall accompany the Commissioners of this Court during their visit. Any suggestions made shall be noted and steps that may be required to be taken in accordance with those suggestions be carried out by the District Administration as far as possible. As prayed, let this matter be listed on 16th October, 2017.‖
20. Madhya Pradesh Pollution Control Board has further submitted compliance report that during the inspection it was observed that the STP work was 18 complete but the same is not in operation due to the pendency in the construction of an 82 meter long retaining wall and connectivity of sewage pipeline approximately 50 meters near Sarayu-Paysuni and Nagar Panchayat Nala as on the date of inspection and it requires 10-15 days for completion of the work. So far as the laying of the sewage pipeline is concerned, the first phase encompassing approximately 200 meters lon, 600mm diameter DI pipe has been completed only small parts admeasuring approx. 50 meter is pending.
21. It has further been submitted that the Municipal Corporation shall ensure zero discharge of any untreated waste water into river Mandakini and the arrangement has been made that the untreated water, be treated through STP. Flow of untreated waste water and sewage into the river Mandakini at Ram Ghat is minimized but zero discharge as of date has still not been achieved for which the State and the Municipal Corporation is trying their best to minimize the pollution. The Nagar Palika Chitrakoot has also issued an order to the Executive Engineer, M.P. State Tourism Department to maximize and organize the management of solid waste in Sati Anusuiya, hanuman Dhara, Gupta Godavari places. With regard to the ploythene and plastic, the Nagar Palika has been conducting regular inspection at market and other public places. Further, an awareness meeting was organised with the shopkeepers who were advised to use cloth bags instead of plastic bags.
22. For the purposes of setting of toilets with proper, continuous and adequate supply of water and to prohibit open defecation, the Nagar Palika Chitrakoot has been declared as Free Open toilet area. That safai karamcharis have been vigilant in this regard. An order has been issued to the contractor for development of toilets near the parikrama road and the opposite side.
Moreover, during the Deepawali Mela, 200 trench toilets were developed in the area.
1923. The matter relating to the water bodies and river, contamination of water, discharge of untreated water and pollution, taking remedial measures with imposition of environmental compensation has been taken into Execution Application No. 01 of 2021 on 16.07.2021 where it was observed as follows :-
―3. Non-stop sand mining, development project near rivers, de-forestation in the catchment areas and unplanned dams are killing the major rivers of Madhya Pradesh. The State is now facing an acute deficit of water. Tapti and Shipra have almost died while the Narmada River is also facing dry spells. The International Water Management Institute points out that the scarcity of water is due to the increasing dependency on the Narmada basin. In February, 2021, a report released by the Madhya Pradesh Water Resources Department said over 28 percent of dams built on the Narmada Tapti river have almost dried up with less than 10 percent of water against its holding capacity. Only 14 reservoirs out of 53 have over 90 percent of water. However, the two important dams on the Narmada- Bargi in Jabalpur and Indira Sagar Dam in Khandwa- are filled with 97 percent of its full tank level capacity.
4. The overall situation of water is also not good in the State as 71 reservoirs out of 241 have less than 10 percent of water (as per report released by the State Water Resource Department). Only 42 reservoirs have over 90 percent of water against its full capacity. The forest cover of Madhya Pradesh has been decreasing year by year. As per the latest report released by the Forest Survey of India, in 2017 the total forest cover of Madhya Pradesh was 77,414 sq km against 77,462 sq km in 2015, 77,700 sq km in 2011, and 1,35,785 sq km in 1991.
5. Big challenge for the Narmada is the dumping of untreated industrial waste and civic sewage. A study conducted by the Central Pollution Control Board (CPCB) says that the 160-km-
long flow of the river from Mandla to Bhedaghat and 80-km- long flow from Sethani Ghat to Nemawar are highly polluted. The CPCB has declared the entire stretch of the river flowing in Madhya Pradesh's Jabalpur district as polluted in its latest 20 report. The paper prepared by Vichar Madhya Pradesh on Narmada River has highlighted that, there are 24 cities that discharge their polluted water without any treatment in the Narmada.
6. A total of 102 nallahs have been discharging polluted water since years. The report also pointed out the use of chemical fertilizers in farmlands near the Narmada. Illegal sand miners are active in 28 districts of Madhya Pradesh. They use boats and pipeline to excavate sands from water, which is highly objectionable and an unscientific practice. The sand absorbs water and then recharges groundwater too. This practice is destroying the natural process of the river.
7. In a study available on public domain reveals that after the lockdown, the reduced flow of industrial effluents and domestic sewage in the river has made a positive impact on the quality of the water in the river which travels 900 plus Kms. through 14 districts of Madhya Pradesh before flowing into Gujarat. A study of river water samples collected from five ghats of Hosangabad district, Collectorate, Circuit House, Post Office Sethani and Gwarighat, during lockdown the water quality was found to be improved.
8. The matter is follow up of judgment of the Hon'ble Supreme Court which mandates establishment and functioning of requisite ETPs/CETPs/STPs by 31.3.2018 and in default, to take coercive measures. The judgement also laid down rigid timelines, enforcement mechanism and sources of funding. Even in absence of the said judgement, doing so is the mandate of the Water (Prevention and Control of Pollution) Act, 1974. The said Act established Central and State Pollution Board for prevention, abatement and control of rivers and streams and to restore wholesomeness of watercourses and controlling discharge of domestic and industrial wastes. Penalties are provided for contravention of the provisions of the Act. The Constitution of India under Article 243 W read with 12th Schedule entrusts responsibility of ―public health, sanitation conservancy and solid waste management‖ to Municipalities. The Hon'ble Supreme Court held that the States will provide necessary support to such local bodies. This is to be monitored by the PCBs and the Secretaries, 21 Environment in States and thereafter by the NGT. This Tribunal has been accordingly monitoring compliance in the last four years but regretfully with little progress as will be shown by the statistics.
9. As earlier mentioned this matter is follow up of the judgement of the Hon'ble Supreme Court in Paryavaran Suraksha Samiti Vs. Union of India, (2017) (5) SCC Page 326 supra, directions in the judgment are quoted below:
"7. Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50%, that of the State Government concerned (including the Union Territory concerned) is 25%. The balance 25%, is to be arranged by way of loans from banks. The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced).
The reason for the above prolonged period, for setting up ―common effluent treatment plants‖, according to the learned counsel, is not only financial, but also, the requirement of land acquisition, for the same.
x..................x........................x......
10. Given the responsibility vested in municipalities under Article 243-W of the Constitution, as also, in Item 6 of Schedule XII, wherein the aforesaid obligation, pointedly extends to ―public health, sanitation conservancy and solid waste management‖, we are of the view that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies). Given the aforesaid responsibility, the municipalities (and/or local bodies) concerned, cannot be permitted to shy away from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243-X and 243-Y of the Constitution. It will be open to the municipalities (and/or local bodies) concerned, to evolve norms to recover funds, for the purpose of generating finances to install and run all the ―common effluent treatment plants‖, within the purview of the provisions referred to hereinabove. Needless to mention that such norms as may be evolved for generating financial resources, may include all or any of the commercial, industrial and domestic 22 beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the State Government (Union Territory) concerned, through the Secretaries, Urban Development and Local Bodies, respectively (depending on the location of the respective common effluent treatment plant). The norms for generating funds for setting up and/or operating the ―common effluent treatment plant‖ shall be finalised, on or before 31-3- 2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the State Governments (or the Union Territories) concerned, shall cater to the financial requirements, of running the ―common effluent treatment plants‖, which are presently dysfunctional, from their own financial resources.
11. Just in the manner suggested hereinabove, for the purpose of setting up of ―common effluent treatment plants‖, the State Governments concerned (including, the Union Territories concerned) will priorities such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.
12. We are of the view that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We, therefore, hereby direct that ―sewage treatment plants‖ shall also be set up and made functional, within the timelines and the format, expressed hereinabove.
13. We are of the view that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We, therefore, hereby provide that the directions pertaining to continuation of industrial activity only when there is in place a functional ―primary effluent treatment plants‖, and the setting up of functional ―common effluent treatment plants‖ within the timelines, expressed above, shall be of the Member Secretaries of the Pollution Control Boards concerned.
The Secretary of the Department of Environment, of the State Government
concerned (and the Union Territory concerned), shall be answerable in case of default. The Secretaries to the Government concerned shall be responsible for monitoring the progress and issuing necessary directions to the Pollution Control Board concerned, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data and shall furnish the same to the Bench of the jurisdictional National Green Tribunal.23
14. To supervise complaints of non-implementation of the instant directions, the Benches concerned of the National Green Tribunal, will maintain running and numbered case files, by dividing the jurisdictional area into units. The abovementioned case files will be listed periodically. The Pollution Control Board concerned is also hereby directed to initiate such civil or criminal action, as may be permissible in law, against all or any of the defaulters.
x........................x........................x
16. It however needs to be clarified, that the instant directions and time lines, shall not in any way dilute any time lines and directions issued by Courts or Benches of the National Green Tribunal, hitherto before, wherein the postulated time lines would expire before the ones expressed through the directions recorded above. It is clarified, that the time lines, expressed hereinabove will be relevant, only in situations where there are no prevalent time line(s), and also, where a longer period, has been provided for.‖ (emphasis supplied)
10. By order of 28.08.2019 in OA 593/2017, the Tribunal set up a compensation regime for default. The Tribunal considered the CPCB reports dated 30.05.2019, 19.07.2019 and 14.08.2019 with compiled status of setting up of ETPs/ CETPs/STPs and methodology for assessment of environmental compensation. The compensation regime discussed in the said order is quoted below:
―14. A report has also been prepared on the scale of environmental compensation to be recovered from individual/authorities for causing pollution or failure for preventing causing pollution, apart from illegal extraction of ground water, failure to implement Solid waste Management Rules, damage to environment by mining and steps taken to explore preparation of an annual environmental plan for the country. Extracts from the report which are considered significant for this order are:
―I. Environment Compensation to be
levied on Industrial Units
Recommendations
The Committee made following recommendations:24
To begin with, Environmental Compensation may be levied by CPCB only when CPCB has issued the directions under the Environment (Protection) Act, 1986. In case of a, band c, Environmental Compensation may be calculated based on the formula "EC= Pl x N x Rx S x LF", wherein, Pl may be taken as 80, 50 and 30 for red, orange and green category of industries, respectively, and R may be taken as 250. Sand LF may be taken as prescribed in the preceding paragraphs.
In case of d, e and f, the Environmental Compensation may be levied based on the detailed investigations by Expert Institutions/Organizations.
The Hon'ble Supreme Court in its order dated 22.02.2017 in the matter of Paryavaran Suraksha Samiti and another v/s Union of India and others {Writ Petition {Civil) No. 375 of 2012), directed that all running industrial units which require "consent to operate" from concerned State Pollution Control Board, have a primary effluent treatment plant in place. Therefore, no industry requiring ETP, shall be allowed to operate without ETP.
EC is not a substitute for taking actions under EP Act, Water Act or Air Act. In fact, units found polluting should be closed/prosecuted as per the Acts and Rules.
II. Environmental Compensation to be levied on all violations of Graded Response Action Plan (GRAP) in NCR. Table No. 2.1: Environmental Compensation to be levied on all
violations of Graded Response Action Plan (GRAP) in Delhi-NCR.
Activity State Of Air Quality Environmental
Compensation ()
Industrial Severe +/Emergency Rs 1.0 Crore
Emissions Severe Rs 50 Lakh
Very Poor Rs 25 Lakh
Moderate to Poor Rs 10 Lakh
Vapour Recovery System (VRS) at Outlets of Oil Companies i. Not installed Target Date Rs 1.0 Crore ii. Non functional Very poor to Severe + Rs 50.0 Lakh Moderate to Poor Rs 25.0 Lakh Construction sites Severe +/Emergency Rs 1.0 Crore (Offending plot Severe Rs 50 Lakh more than 20,000 Very Poor Rs 25 Lakh Sq.m.) Moderate to Poor Rs 10 Lakh 25 Solid waste/ Very poor to Severe + Rs 25.0 Lakh garbage dumping in Industrial Moderate to Poor Rs 10.0 Lakh Estates Failure to water sprinkling on unpaved roads
a) Hot-spots Very poor to Severe + Rs 25.0 Lakh
b) Other than Hot-
Very poor to Severe + Rs 10.0 Lakh
spots
II. Environmental Compensation to be levied in case of failure of preventing the pollutants being discharged in water bodies and failure to implement waste management rules:
Table No. 3.3: Minimum and Maximum EC to be levied for untreated/partially treated sewage discharge Class of the Mega-City Million- Class-I City/Town plus City/Town City and others Minimum and Min. 2000 Min. 1000 Min. 100 Maximum values of Max. Max. Max. 1000 EC (Total Capital 20000 10000 Cost Component) recommended by the Committee (Lacs Rs.) Minimum and Min. 2 Min. 1 Min. 0.5 Maximum values of Max. 20 Max. 10 Max. 5 EC (O&M Cost Component) recommended by the Committee (Lacs Rs./day) Table No. 3.4: Minimum and Maximum EC to be levied for improper municipal solid waste management Class of the City/Town Mega-City Million- Class-I plus City City/To wn and others Minimum and Min. 1000 Min. 500 Min.
Maximum values of Max. Max. 5000 100
EC (Capital Cost 10000 Max.
Component) 1000
recommended by the
Committee (Lacs
Rs.)
Minimum and Min. 1.0 Min. 0.5 Min.
Maximum values of Max. Max. 5.0 0.1
EC (O&M 10.0 Max.
Cost Component) 1.0
recommended by the
Committee (Lacs
Rs./day)
26
Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual/ Authority:
BIS 15-1172:1993 suggests that for communities with population above 100,000, minimum of 150 to 200 lpcd of
water demand is to be supplied. Further, 85% of return rate (CPHEEO Manual on Sewerage and Sewage Treatment Systems, 2013}, may be considered for calculation of total sewage generation in a city. CPCB Report on "Performance evaluation of sewage treatment plants under NRCD, 2013", describes that the capital cost for 1 MLD STP ranges from 0.63 Cr. to 3 Cr. and O&M cost is around Rs. 30,000 per month. After detail deliberations, the Committee suggested to assume capital cost for STPs as Rs. 1.75 Cr/MLD (marginal average cost). Further, expected cost for conveyance system is assumed as Rs. 5.55 Cr./MLD (marginal average cost) and annual O&M cost as 10% of the combined capital cost.
Population of the city may be taken as per the latest Census of India. Based on these assumptions, Environmental Compensation to be levied on concerned ULB may be calculated with the following formula:
EC= Capital Cost Factor x [Marginal Average Capital Cost for Treatment Facility x (Total Generation-
InstalledCapacity) + Marginal Average Capital Cost for Conveyance Facility x (Total Generation - Operational Capacity)]+ O&M Cost Factor x Marginal Average O&M Cost
x (Total Generation- Operational Capacity) x No. of Days for which facility was not available + Environmental Externality x No. of Days for which facility was not available Alternatively;
EC (Lacs Rs.)= [17.S{Total Sewage Generation - Installed Treatment Capacity)+ 55.S{Total Sewage Generation-
Operational Capacity)] + 0.2(Sewage Generation-Operational Capacity) x N + Marginal Cost of Environmental Externality x (Total Sewage Generation-Operational Capacity) X N
Where; N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority 27 Quantity of Sewage is in MLD xxx ............... xxx ..............xxx Environment Compensation to be Levied on Concerned Individual/Authority for Improper Solid Waste Management:
Environmental Compensation to be levied on concerned ULB may be calculated with the following formula:
EC = Capital Cost Factor x Marginal Average Cost for Waste Management x (Per day waste generation-Per day waste disposed as per the Rules) + O&M Cost Factor x Marginal Average O&M Cost x (Per day waste generation- Per day waste disposed as per the Rules) x Number of days violation took place + Environmental Externality x N Wh e r e ;
Waste Quantity in tons per day (TPD) N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority Simplifying;
EC (Lacs Rs.) = 2.4(Waste Generation -
Waste Disposed as per the Rules) +0.02 (Waste Generation Waste Disposed as per the Rules) x N + Marginal Cost of Environmental Externality x (Waste Generation - Waste Disposed as per the Rules) x N
11. The Tribunal noted that deficit in capacity of liquid waste treatment was 62 percent which was the major source of polluting rivers and water bodies. In the said order, the following directions were issued:-
―21. We may now sum up our directions:
(i) The Environmental compensation regime fixed for industrial units, GRAP, solid waste, sewage and ground water in the report dated 30.05.2019 is accepted and the same may be acted upon as an interim measure.28
(ii) SPCBs/PCCs may ensure remedial action against non- compliant CETPs or individual industries in terms of not having ETPs/fully compliant ETPs or operating without consent or in violation of consent conditions. This may be overseen by the CPCB. CPCB may continue to compile information on this subject and furnish quarterly reports to this Tribunal which may also be uploaded on its website.
(iii) All the Local Bodies and or the
concerned departments of the State
Government have to ensure 100%
treatment of the generated sewage and in default to pay compensation which is to be recovered by the States/UTs, with effect from 01.04.2020. In default of such collection, the States/UTs are liable to pay such compensation. The CPCB is to collect the same and utilize for restoration of the environment.
(iv) The CPCB needs to collate the available data base with regard to ETPs, CETPs, STPs, MSW facilities, Legacy Waste sites and prepare a river basin-wise macro picture in terms of gaps and needed interventions.
(v) The Chief Secretaries of all the States/UTs may furnish their respective compliance reports on this subject also in O.A. No. 606/2018.
List for further consideration on 21.05.2020, unless required earlier. A copy of this order be placed on the file of O.A. No. 606/2018 relating to all States/UTs and be sent to Chief Secretaries of all States/UTs, Secretary MoEF&CC, Secretary Jal Shakti and Secretary, MoHUA.‖ (emphasis supplied)
12. The Hon'ble Supreme Court noticed the level of degradation of rivers in India and apathy of the authorities as follows:
―58. Rivers in India are drying up, groundwater is being rapidly depleted, and canals are polluted. Yamuna in Delhi looks like a black drain. Several perennial rivers like Ganga and Brahmaputra are rapidly becoming seasonal. Rivers are dying or declining, and aquifers are getting over pumped. Industries, hotels, etc. 29 are pumping out groundwater at an alarming rate, causing sharp decline in the groundwater levels. Farmers are having a hard time finding groundwater for their crops e.g. in Punjab. In many places there are serpentine queues of exhausted housewives waiting for hours to fill their buckets of water. In this connection John Briscoe has authored a detailed World Bank Report, in which he has mentioned that despite this alarming situation there is widespread complacency on the part of the authorities in India.
―4. We see Yamuna river virtually turned into a sullage. We take judicial notice of this situation. Similar is the position with Ganges. As it proceeds, industrial effluents are being poured in rivers. Sewage is also being directly put in rivers contributing to the river water pollution. We direct the Pollution Control Boards of the various States as well as the Central Pollution Control Board and various Governments to place before us the data and material with respect to various rivers in the concerned States, and what steps they are taking to curb the pollution in such rivers and to management as to industrial effluents, sewage, garbage, waste and air pollution, including the water management. We club the ending case of water management with this matter.
xxx ............xxx.......................xxx
11. In spite of above, in flagrant violation of law of the land, polluted water in the form of sewage, industrial effluents or otherwise has continued to be discharged in the water bodies including the rivers or the canals meeting the rivers. Violation of law is not only by private citizens but also statutory bodies including the local bodies and also failure of the regulatory authorities in taking adequate steps. There is no corresponding coercive action posing 30 danger to rule of law when large scale violation of law is not being remedied.
This leads to lawlessness.
12. It will be appropriate to note the crisis situation in the country on the subject of availability of potable water. The matter has been considered in the report of Niti Aayog on Composite Water Management Index (CWMI). Following further information also needs to be noted:
(i) India is suffering from the worst water crisis in its history and millions of lives and livelihoods are under threat. Currently, 600 million Indians face high to extreme water stress and about two lakh people die every year due to inadequate access to safe water7. The crisis is only going to get worse. By 2030, the country's water demand is projected to be twice the available supply, implying severe water scarcity for hundreds of millions of people and an eventual ~6% loss in the country's GDP8. As per the report of National Commission for Integrated Water Resource Development of MoWR, the water requirement by2050 in high use scenario is likely to be a milder 1,180 BCM, whereas the present-day availability is 695BCM. The total availability of water possible in country is still lower than this projected demand, at 1,137BCM. Thus, there is an imminent need to deepen our understanding of our water resources and usage and put in place interventions that make our water use efficient and sustainable.
(ii) India is undergoing the worst water crisis in its history. Already, more than 600 million people9 are facing acute water shortages. Critical groundwater resources - which account for 40% of our water supply - are being depleted at unsustainable rates.10
(iii) Most states have achieved less than 50% of the total score in the augmentation of groundwater resources, highlighting the growing national crisis--54% of India's groundwater wells are declining, and 21 major cities are expected to run out of groundwater as soon as 2020, affecting ~100 million people.
(iv) With nearly 70% of water being contaminated, India is placed at 120th amongst 122 countries in the water quality index.31
13. As per statistics mentioned before the Lok Sabha on April 6, 2018, waterborne diseases such as cholera, acute diarrhoeal diseases, typhoid and viral hepatitis continue to be prevalent in India and have caused 10,738 deaths, over the last five years since 2017. Of this, acute diarrhoeal diseases caused maximum deaths followed by viral hepatitis, typhoid and cholera.
14. As per ‗National Health Profile' published by Central Bureau of Health Investigation, Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, a total of 1535 Deaths due to Acute Diarrhoeal Diseases was reported during the year 2013.
Main Causes of Pollution of Rivers
15. As already noted, well known causes of pollution of rivers are dumping of untreated sewage and industrial waste, garbage, plastic waste, e-waste, bio-medical waste, municipal solid waste, diversion of river waters for various purposes affecting e-flow, encroachment of catchment areas and floodplains, over drawl of groundwater, river bank erosion on account of illegal sand mining. Inspite of directions to install Effluent Treatment Plants (ETPs), Common Effluent Treatment Plants (CETPs), Sewage Treatment Plants (STPs), and adopting other anti- pollution measures, satisfactory situation has not been chieved. As per CPCB's report 201614, it has been estimated that 61,948 million liters per day (mld) sewage is generated from the urban areas of which treatment capacity of 23,277 mld is currently existent in India. Thereby the deficit in capacity of waste treatment is of 62%. There is no data available with regard to generation of sewage in the rural areas.
xxx ...........................xxx .................................. xxx 32
18. Procedures for remedial action have to be shortened so that there is no delay to check pollution wherever found. The Tribunal vide Order dated 18.10.2019 in Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issues- O.A. No. 606/2018 while dealing with the issue of procedures of DPRs and tendering process, observed:
―8. Expeditious compliance of directions for clearance of legacy waste sites as well as stopping of discharge of untreated sewage and directions on associated subjects require immediate implementation for protection of environment and public health by curtailing undue delay. As suggested, necessary technologies need to be standardized with cost breakups for operation and maintenance, including procurement. Besides this, the service providers need to be identified and empaneled. This exercise may also require the concerned authorities to explore business models.‖ The Tribunal has constituted a Committee headed by Niti Ayog on the subject to give a report within two months.
xxx ...........................xxx ........................... xxx
21. In view of above, this Tribunal found it necessary to take up the matter and direct preparation and execution of river action plans to control pollution and restore water quality of the river as per norms within reasonable time. Accordingly, vide order dated 20.09.2018 proceedings were initiated as already mentioned para 3 above. It may be noted that there have been successful river cleaning programmes in other countries such as relating to river Thames (England), Rhine (Germany) and Danube (France). There being no reason as to why our polluted river stretches also cannot be restored, the Tribunal 33 issued following directions:
― i) All States and Union Territories are directed to prepare action plans within two months for bringing all the polluted river stretches to be fit at least for bathing purposes (i.e BOD ˂ 3 mg/L and FC ˂ 500 MPN/100 ml) within six months from the date of finalisation of the action plans.
ii) The action plans may be prepared by four-member Committee comprising, Director, Environment, Director, Urban Development., Director, Industries., Member Secretary, State Pollution Control Board of concerned State. This Committee will also be the Monitoring Committee for execution of the action plan. The Committee may be called ‗'River Rejuvenation Committee'' (RRC). The RRC will function under the overall supervision and coordination of Principal Secretary, Environment of the concerned State/Union Territory.
iii) The action plan will include components like identification of polluting sources including functioning/status of STPs/ETPs/CETP and solid waste management and processing facilities, quantification and characterisation of solid waste, trade and sewage generated in the catchment area of polluted river stretch. The action plan will address issues relating to; ground water extraction, adopting good irrigation practices, protection and management of Flood Plain Zones (FPZ), rain water harvesting, ground water charging, maintaining minimum environmental flow of river and plantation on both sides of the river. Setting up of biodiversity parks on flood plains by removing encroachment shall also be considered as an important component for river rejuvenation.
The action plan should focus on proper interception and diversion of sewage carrying drains to the Sewage Treatment Plant (STP) and emphasis should be on utilization of treated sewage so as to 34 minimize extraction of ground or surface water. The action plan should have speedy, definite or specific timelines for execution of steps. Provision may be made to pool the resources, utilizing funds from State budgets, local bodies, State Pollution Control Board/ Committee and out of Central Schemes.
iv) The Action Plans may be subjected to a random scrutiny by a task team of the CPCB.
v) The Chief Secretaries of the State and Administrators/ Advisors to Administrators of the Union Territories will be personally accountable for failure to formulate action plan, as directed.
vi) All States and Union Territories are required to send a copy of Action Plan to CPCB especially w.r.t Priority I & Priority II stretches for approval.
vii) The States and the Union Territories concern are directed to set up Special Environment Surveillance Task Force, comprising nominees of District Magistrate, Superintendent of Police, Regional Officer of State Pollution Control Board and one person to be nominated by District Judge in his capacity as Chairman of Legal Services Authority on the pattern of direction of this Tribunal dated 07.08.2018, in Original Application No. 138/2016 (TNHRC), ―Stench Grips Mansa's Sacred Ghaggar River (Suo-Motu Case).
ix) The Task Force will also ensure that no illegal mining takes place in river beds of such polluted stretches.
x) The RRC will have a website inviting public participation from educational institutions, religious institutions and commercial establishments.
Achievement and failure may also be published on such website. The Committee may consider suitably rewarding those contributing significantly to the success of the project.‖ xxx ...........................xxx ................xxx 35
23. Table showing location and categories have been reproduced in the said order and reference to the same will also be made in the later part of this order. The action plans were directed to cover the following:-
A) Source Control Source control includes industrial pollution control and treatment and disposal of domestic sewage as detailed below:-
(a) Industrial pollution control
(i) Inventorisation of industries
(ii) Categories of industry and effluent quality
(iii) Treatment of effluents, compliance with standards and mode of disposal of effluents
(iv) Regulatory regime.
(b) Channelization, treatment, utilization and disposal of treated domestic sewage.
(i) Identification of towns in the catchment of river and estimation of quantity of sewage generated and existing sewage treatment capacities to arrive at the gap between the sewage generation and treatment capacities;
(ii) Storm water drains now carrying sewage and sullage joining river and interception and diversion of sewage to STPs,
(iii) Treatment and disposal of septage and controlling open defecation,
(iv) Identification of towns for installing sewerage system and sewage treatment plants.
(B) River catchment/Basin Management-Controlled ground water extraction and periodic quality assessment
(i) Periodic assessment of groundwater resources and regulation of ground water extraction by industries particularly in over exploited and critical zones/blocks.
(ii) Ground water re-charging /rain
water harvesting
(iii) Periodic ground water quality
assessment and remedial actions in
case of contaminated groundwater
tube wells/bore wells or hand
pumps.
(iv) Assessment of the need for
regulating use of ground water for
irrigation purposes.
(C) Flood Plain Zone.
(i) Regulating activities in flood plain zone.
(ii) Management of Municipal, Plastic, 36 Hazardous, Bio-medical and Electrical and Electronic wastes.
(iii) Greenery development- Plantation plan. (D) Ecological/Environmental Flow (E-Flow)
(a) Issues relating to E-Flow
(b) Irrigation practices (E) Such other issues which may be found relevant for restoring water quality to the prescribed standards.
Order dated 19.12.2018 reviewing the progress of execution of order dated 20.09.2018:
24. On review of the matter on
19.12.2018 to consider status of compliance of order dated 20.09.2018, we found that 16 States/UTs had prepared action plans, but the same were are not complete. Base line data was not been given. Preparation of action plans was assigned to third parties. Details of STPs etc. were not given. Timelines given were too long.
Status of e- flow was not been given.
Action plans were not proposed to be placed on websites to involve educational and other institutions and the public at large. The said States/ UTs were directed to give revised reports on or before 31.01.2019 to CPCB after complying with the deficiencies. The CPCB was to examine the action plans and, if they met the scientific and technical yardstick, to approve the same and convey it to the respective States/UTs. The States/ UTs, after approval were to place/host these action plans on the respective websites giving clear timelines for execution indicating the agencies responsible for execution along with the matching budgetary provisions.
By way of last opportunity, we extended the time for preparation of action plans till 31.01.2019 with the stipulation that for delay thereafter, compensation for damage to the environment would be payable by each of the States/ UTs at the rate of Rs. One Crore per month for each of the Priority- I and Priority- II stretches, Rs. 50 lacs per month for stretches in Priority-
III and Rs. 25 lacs per month each for Priority- IV and Priority- V stretches. The payment was to be the responsibility of the Chief Secretaries of the States/Administrators of the UTs and the amount could be recovered 37 from the erring officers. The CPCB was to prominently place the names of the defaulting States and UTs and a notice to this effect on its website.
25. The SPCBs and Pollution Control Committees of UTs were to display the quality of the water of polluted river stretches on their respective websites within one month alongwith action taken, if any, which was to be revised every three months. The CPCB was also to display the water quality of the river stretches and action/inaction by such States on its websites. It was made clear that BOD will not be the sole criteria to determine whether a particular river stretch is a polluted river stretch but would also include Faecal Coliform (FC) bacteria as one of the criteria for such classification or otherwise.
CPCB was to devise within two weeks a mechanism for classification wherein two criteria pollutants, that is BOD and FC, shall henceforth be basis of classification in Priority Classes besides pH, D.O. and COD. Further direction in the order dated 19.12.2018 was that any incomplete action plan would be treated as non-compliance. It was made necessary to furnish Performance Guarantees to ensure implementation of action plans within the above stipulated time to the satisfaction of Central Pollution Control Board in the sum of:
(i) Rs. 15 crore for each of Priority I & II stretches
(ii) Rs. 10 crore for each of Priority III stretches
(iii) Rs. 5 crore for each of Priority IV & V stretches.
Order dated 16.01.2019 in O.A. No. 606/2018 requiring Chief Secretaries of all the States/UTs to appear before this Tribunal after fully acquainting themselves on the subject of Polluted River Stretches, apart from other significant environmental issues and subsequent directions:
26. While noticing large scale violation of environmental norms particularly with regard to waste and sewage management in the country, this 38 Tribunal directed the Chief Secretaries of all the States/UTs to appear before this Tribunal in person after acquainting themselves with the status of compliance of environmental laws on such issues and action plans for remedying the situation. Accordingly, all the Chief Secretaries appeared on various dates and this Tribunal directed further remedial action including with regard to the restoration of polluted river stretches in terms of the action plans of the States/UTs within six months. The said period of six months is complete in respect of most of the States and Chief Secretaries are required to be present on the dates already fixed. Thus, all the States/UTs have had sufficient notice of their respective failures to comply with the statutory obligations and any further failure has to be viewed seriously and visited with requirement to pay compensation already stipulated.
xxx ...........................xxx ...................................xxx We may note the observations of the Hon'ble Supreme Court:
―26. Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law.
Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the law-abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality 39 of life that Parliament enacted the anti- pollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations.15 ―45....... The Government could not pass such orders of exemption having dangerous potential, unmindful of the fate of lakhs of citizens of the twin cities to whom drinking water is supplied from these lakes. Such an order of exemption carelessly passed, ignoring the ―precautionary principle‖, could be catastrophic.‖ ―61. ..... If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large-scale cannot take place without connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens.‖17 ―15. .... Time has come to require the State Governments to explain why they should not be asked to compensate the persons who are being affected by bad air quality. Obviously, the State is 40 run by the administration, why liability should not be imposed for such a tort on the concerned machinery also of the various States which are failing to discharge their basic duties. This Court in Municipal Council, Ratlam Vs. Vardhichand & Ors., reported in (1980) 4 SCC 162 has held they have to take proper and positive action in this direction. It is their bounden duty to provide civic amenities, and also to see that self-created bankruptcy does not come in the discharge of the statutory obligation which are necessary for existence of human life. We have seen during the course of the arguments that one State is passing the burden upon the Centre and then it is stated on behalf of the Central Government that they have framed scheme and it for the State Governments to implement it.
We expect not only the ‗policy making' but also its ‗implementation'. Let the States of Punjab, Haryana, Uttar Pradesh and the Government of NCT of Delhi respond, due to the air pollution, why the concerned Government and its concerned machinery, from top to bottom, should not be asked to compensate the citizens of Delhi and adjoining areas for various diseases which are being caused and sufferings and troubles which are being faced and the report indicates the life span is being shortened. Let show cause notice be issued to the various State Governments, and to the Chief Secretaries, to submit reply within six weeks. Let the matter be listed for consideration on 17.01.2020. The Chief Secretaries to the States of Punjab, Haryana, Uttar Pradesh and Government of NCT of Delhi be personally present on that date.‖ 18 xxx .....................xxx .................xxx
35. Vide order dated 22.08.2019 in Original Application 200/2014, dealing with the pollution of river Ganga, the Tribunal issued directions and laid down coercive measures to be taken for discharge of untreated sewage in river Ganga:-
―16.......As already observed by this Tribunal including in the order dated 14.05.2019 that River Ganga being National River with distinct significance 41 for the country, even a drop of pollution therein is a matter of concern. All the authorities have to be stringent and depict zero tolerance to the pollution of River Ganga. Wherever STPs are not operating, immediate bioremediation and/or phyto-
remediation may be undertaken if feasible. To avoid procedural delay of tender processes, etc. specifications and norms for undertaking such activities may be specified in consultation with the CPCB as was earlier directed in our order dated 29.11.2018. Performance guarantees may be required to be furnished for ensuring timely performance. It needs to be ensured that setting up of STPs and sewerage network to be completed and carried out so as to avoid any idle capacities being created. Performance guarantees may be taken for preventing such defaults.
17. Wherever the work has not commenced, it is necessary that no untreated sewage is discharged into the River Ganga. Bioremediation and/or phytoremediation or any other remediation measures may start as an interim measure positively from 01.11.2019, failing which the State may be liable to pay compensation of Rs. 5 Lakhs per month per drain to be deposited with the CPCB. This however, is not to be taken as an excuse to delay the installation of STPs. For delay of the work, the Chief Secretary must identify the officers responsible and assign specific responsibilities. Wherever there are violations, adverse entries in the ACRs must be made in respect of such identified officers. For delay in setting up of STPs and sewerage network beyond prescribed timelines, State may be liable to pay Rs. 10 Lakhs per month per STP and its network. It will be open to the State to recover the said amount from the erring officers/contractors.
18. With regard to works under construction, after 01.07.2020, direction for payment of environmental compensation of Rs.
10 lakhs per month to CPCB for discharging untreated sewage in any drain connected to river Ganga or its tributaries and Rs. 10 lakhs per month to CPCB per incomplete STP and its sewerage network will apply. Further with 42 regard to the sectors where STP and sewerage network works have not yet started, the State has to pay an Environmental Compensation of Rs. 10 lakhs per month after 31.12.2020. The NMCG will also be equally liable for its failure to the extent of 50% of the amount to be paid. Till such compliance, bioremediation or any other appropriate interim measure may start from 01.11.2019.‖ Order dated 28.08.2019 in O.A. No. 593/2017, Paryavaran Suraksha Samiti Vs. Union of India, in pursuance of Hon'ble Supreme Court judgment in (2017) 5 SCC 326, for 100% treatment of sewage:
36. Vide order dated 28.08.2019, the Tribunal held:- ―
15. It is clear from the order of the Hon'ble Supreme Court19 that the responsibility of operating STPs under Article 243W and item 6 of Schedule XII to the Constitution is of local bodies who have to evolve norms to recover funds for the purpose which is to be supervised by the States/UTs. The norms were to be finalized upto 31.03.2017 to be implemented from the next year, i.e 01.04.2018. In absence thereof, the States/UTs have to cater to the financial requirement from its own resources. The States/UTs are to prioritize the cities, towns, villages discharging effluents/sewage directly into the water bodies. Industrial activity without proper treatment plants (ETPs and CETPs) is not to be allowed by the State PCBs and the Secretaries, Environment of the States/UTs are to be answerable.
Thus, the source for financial
resources for the STPs, stands
finalized under the binding judgment of the Hon'ble Supreme Court.
Authorities and persons accountable are identified. Rigid implementation has been laid down. This Tribunal has been required to monitor compliance of the directions and timelines.
13. Vide the order dated 11.09.2019, in Original Application No. 06/2012, dealing with river Yamuna, the Tribunal observed as follows:
―12. One of the major concerns of this Tribunal is that repeated directions remain un- 43 complied and inspite of largescale failures, no accountability is fixed. There is huge loss to public exchequer for which no action is taken. Timelines are conveniently and unilaterally changed. Officers indulge in blame game in shifting responsibility from one to another. There is failure at higher levels in monitoring and taking actions. If this continues, it is difficult to expect any positive change for long. This requires paradigm shift in approach adopted so far. The approach to be adopted is to have clear time- bound plan with flexibility and due to accountability for failure by way of departmental action and monetary compensation. The rescheduled timelines have to be compressed so as to complete every action by December, 2020 except where shorter timelines are specified in this order or are otherwise possible. If any contract permits longer timeline, it is clearly in violation of binding orders of the Tribunal which has attained finality. Violation thereof is per se criminal offence. Such longer timeline has to be consistent with orders of the Tribunal and compressed within 31.12. 2020. Failing to do so may invite criminal prosecution NMCG may also monitor the compliance. The Chief Secretaries of Delhi, Haryana and U.P. have to personally see the compliance and have to set up Monitoring Cell directly under them. Vice Chairman, DDA can also monitor and coordinate with Chief Secretary, Delhi. All other departments can monitor subject to overall directions of the Chief Secretaries. This can avoid shifting of responsibilities once ownership is with highest authorities in the State. Monthly review reports may be shared with the Monitoring Committee and also placed on websites of concerned States. Failure and successes of the individual involved may be specifically recorded and reflected in service record of the concerned officer. Stock taking may be done by the Chief Secretaries of the failure and successes so far and appropriate actions be initiated against those who have been responsible for the failure. Nodal Officers may be identified in respect of different projects clearly defining the responsibilities. Wherever there is misappropriation of funds, criminal case has to be registered. Posting of Officers entrusted with the responsibility may be reviewed from time to time depending on their responsibility. Procedure for giving of contracts may be shortened and standardized at State level and if possible at National level by NMCG and CPCB. Giving of contracts should be based on successful credentials instead of mere lowest rates. Pollution load at entry and exist point of each concerned State may or at entry points of each drains need to be recorded periodically. The Chief Secretaries of Delhi, Haryana and U.P. may furnish action taken reports in this regard at the time of their personal appearance before this Tribunal in O.A. 606/2018.
14. The report submitted by the Madhya Pradesh with 44 regard to the total number of identified polluted rivers, the report of CPCB which was filed in Original Application No. 673 of 2018 as on 07.11.2019 reveals that 22 rivers have been identified as Polluter Rivers, out of which action plan has been prepared and sent to CPCB for approval. As per report submitted on 07th November, 2019, the State of Madhya Pradesh identified four rivers in priority category and action plan has been submitted for rivers and those rivers are (i) Chambal, (ii) Khaan (iii) Kshipra, and (iv) Betwa.
15. On 10th September, 2020 the State had submitted action plan for eight rivers and that has been approved by the CPCB. If we see the existing Sewage Infrastructure, we found in Madhya Pradesh that:
(i) Sewage Generation = 2183.65 MLD
(ii) Existing STP Capacity = 690.76 MLD
(iii) Capacity utilization = 524.24 MLD
(iv) Gap in treatment at present = 1492.89 MLD (above 70 % gap in treatment).
16. It was reported that about fifteen (15) STP's are to be completed up to March, 2021 but the progress report has yet not been available and it is for the State and Pollution Control Board to submit a report as to whether the projects which are required to be completed upto March, 2021 are complete or not.
17. If we examine the polluting industries, there are 1186 number of industries and the effluent discharge is 25100 MLD. Out of those industries, 1186 industries are reported to have ETP's. Khaan River was reported to be a model river as identified by the State of Madhya Pradesh but no progress has been reported till date.
18. Acknowledging the importance of safe reuse of treated waste water (SRTW) in India as well as prioritizing the same in planning and 45 management due to rapid urbanisation and increased wastewater generation and also with an aim towards increased water security, the action plan for Reuse of Treated Waste Water has been undertaken at national level in Ministry of Jal Shakti. The introduction of the concept of SRTW into water resource strategies and policies could provide additional resources for multiple uses and water security for fast growing cities, industry, agriculture and the environment. So far, India has no national policy regarding SRTW, except for a few State policies viz., Gujarat, Maharashtra, Tamil Nadu and Haryana. Accordingly, National Mission for Clean Ganga Ministry of Jal Shakti in collaboration with the Indo-German „Support to Ganga Rejuvenation‟ project (GIZ-SGR) and the India-EU Water Partnership (IEWP) has initiated formulation of National Policy on Safe Reuse of Treated Water (SRTW). The policy development is based on a comprehensive consultation process by engaging relevant stakeholders under a dedicated steering group. The stakeholders involved included MoEF&CC, MoHUA, industries, ULBs and representations from pioneering States (Maharashtra, Gujarat, Haryana, UP). The policy development process is supported by European and national experts bringing in best international practice. Based on extensive consultations during various Consultation meetings, 1st Draft Working document has been prepared. Further consultation for finalisation of National Policy is underway.
19. It is reported that 84.96 MLD of treated water is being used for irrigation/bordering purpose in Bhopal City under Amrut Yojna, but nothing has been reported about rest of the city with regard to the re-utilization of treated water. It is further reported that a large number of STP's remained 46 non-compliance to STP's outlet norms. The Environment Department and State Pollution Control Board must ensure optimum utilization of the existing treatment infrastructure and also ensure compliance of the plants with regard to the environment norms.
20. The Principal Bench of this Tribunal in O.A No. 593 of 2017 observed as follows:
―We have given careful consideration to the data furnished by way of above reports and found that the progress achieved is insubstantial. We note discrepancy in the data in the current report compared to the data in the last report dated 15.09.2020. In the last report, the data of sewage generation was mentioned to be 53,396.84 MLD while in the current report it is mentioned as 48,000 MLD. Explanation in the report is that the earlier information was incomplete and the current report gives the correct figure. It is seen that huge gap in generation and treatment of sewage continues.
Capacity is said to be only 62% but the entire capacity is not utilised. Utilised capacity is only 44% as per data furnished by the CPCB in OA 95/2018, Aryavart Foundation v. M/s Vapi Green Enviro Ltd. & Ors, to be referred later. As per last report, 1831 industries were working without any ETP in violation of law. 1123 ETPs were non functional. 62 CETPs and 530 STPs were non- compliant. Several projects are still at tender/DPR stage with no interim remediation arrangement. This statistic relates to the urban areas of the entire country, including the towns on the banks of rivers in question. No statistics have been given about the gap in generation and treatment of the sewage in rural areas. While the report mentions that the National FSSM Policy has been introduced in 2017 and some States have also issued their State Level Policies, the FSTPs operational are said to be only about 30 47 and in the offing about 400 which are hardly sufficient to address the huge gap. Credible database needs to be compiled in this regard and comprehensive action plan prepared to ensure that there is no gap in the waste generation and treatment. Execution of the action plan has to be planned having in mind the requirements of the urban and rural areas separately. The policy must include utilization of biosolids for using as composting need to be duly ensured. The observations and recommendations in the report on issues not expressly dealt with need to be duly followed.
To address the huge gap in generation and treatment of waste, requisite number of treatment plants need to be in place at the earliest, including modular STPs wherever necessary. The plants already set up need to be functional and compliant. The ongoing projects have to be completed within the stipulated timelines. Pending such treatment interim measures for phyto/bio-remediation needs to be taken to ensure compliance of the provisions of the Water Act prohibiting discharge of any contaminant in water bodies.‖
21. The matter was taken up by this Tribunal in OA. No. 593 of 2017 and vide order dated 22.02.2021, it was observed as follows:
****-------------------------------***--------------------------------*** ―Thus, huge water pollution is taking place as per official data with no effective adverse action against polluters, though it is crime under the law of land in the same way as homicide and assault. Pollution is resulting in deaths and diseases but with no punishment and no protection to the victims posing serious threat to rule of law requiring protection of innocent and punishment of guilty by the State. Emergent and stringent measures are necessary for discharge of Constitutional duties by the States concerned otherwise it is tolerating and ignoring lawlessness. Repeated directions to shorten 48 tendering/DPR procedures have remained uncomplied as also fixing accountability of officers responsible for the situation.
Thus, further action is required in mission- mode at all levels to discharge constitutional obligation of providing pollution free environment and also to protect public health. Scarce sources of drinking water and irrigation are required to be maintained free from contamination. This is basic constitutional obligation of the authorities under the Constitution being linked to ‗Right to Life'. Without this being done in a meaningful manner, there can be no sustainable development. There is need for stringent enforcement by way of adverse measures, including recovery of compensation for continuing violation and adverse entries in the record of defaulting officers. Accountability for those who are entrusted the responsibility to comply with these directions must be fixed on the principle of good governance to enforce rule of law to protect rights of citizens.
We find that the river water quality has been analyzed without taking into account one of the major components of river pollution i.e. fecal coliform. The river water quality is declared ‗fit for bathing' only with reference to BOD, without concern of the fecal coliform, which does not represent true picture and such course is thus against the law. This may be duly remedied. There is need for compiling an annual progress report in terms of improvement of water quality by reducing pollution load. The progress should be evaluated depending on extent of reduction of pollution load, in comparison to the earlier period. Such annual progress report must be put in public domain and appropriate action taken for inadequate progress after finding out the persons responsible for such failure and other causes, if any. Adequate number of monitoring stations need to be installed in a time bound manner for the purpose of monitoring water quality.
One major step for monitoring is compiling data in transparent manner. The Tribunal has already directed, vide order dated 05.02.2021 in OA 95/2018, Aryavart Foundation v. M/s Vapi Enviro Ltd. & Ors., that National/State/District Environment Data Grids be established which will go a great way in compiling data and monitoring compliance.49
There is also need to take further steps for enhancing the utilization of treated waste water. The gap in generation of treated water and its utilization needs to be addressed expeditiously and monitored in terms of quantity and quality.
There is further need to re-engineer the administrative processes adopted and giving of the contracts, as earlier mentioned. The time consuming DPRs and approval processes in the administration needs to be avoided and speedy action taken based on model DPRs and laid down standards. It is a matter of regret that, as per official statistics, 56% of total generated sewage remains untreated and finds its way into the water bodies which is a crime under the law of the land for the last 47 years. This remains a constant threat to contamination of potable water. Similar is the position with regard to the water pollution from other sources, including industries and dumping of solid and other waste.
22. While dealing with the issue of control of pollution and rejuvenation of river Ganga, vide order dated 08.02.2021 in O.A. No. 200/2014, M.C. Mehta v.
Union of India & Ors., the Tribunal issued following direction on the subject of recovery of compensation after specified date for failure to take steps within the prescribed timelines:-
―14. At the cost of repetition, it may be mentioned that inspite of the fact that Water (Prevention and Control of Pollution) Act, 1974 was enacted 47 years back, to give effect to the decision in Stockholm Conference in the year 1972, the water pollution remains rampant. Though water pollution is a serious criminal offence under the law of the land, the authorities have failed to take stringent action against the violators. In a way the major violators remain State-authorities, who are constitutionally under obligation to ensure treatment of sewage before the same is discharged into the rivers and drains connected thereto which is not fully happening. The effect of water pollution on health and food safety is 50 well known. Water is scarce and large population remains deprived of access to drinking water but still steps to prevent pollution of sources of drinking water are inadequate. The Hon'ble Supreme Court in its judgment in Paryavaran Suraksha vs. Union of India & Ors., (2017) 5 SCC 326 discussed the problem in detail and fixed a firm deadline of 31.03.2018 by which all necessary CETPs/STPs/ETPs should be in place failing which coercive action, including prosecution of State authorities was mandated. The States continue to violate the directions of the Hon'ble Supreme Court and give their own convenient deadlines which are thereafter further relaxed at will. This can hardly be held to be conducive to the environmental rule of law. The sewage treatment is less than 50% (the sewage generation from the urban population of the country is reported to be about 70000 MLD and treatment capacity about 27000 MLD)24 which is a matter of serious concern. The Tribunal has issued repeated directions. Till it is remedied, the goal of sustainable development is far cry.
15. The environmental law principles, which this Tribunal is mandated to apply under sections 20 and 15 of the NGT Act, 2010, are -
‗sustainable development', ‗precautionary' and ‗polluter pays'. These principles, accepted in Stockhome conference, have 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. In Hanuman Laxman, (2019) 15 SCC 401, (paras 142-156), significance of environmental rule of law has been highlighted to achieve sustainable development goals for prosperity, health and well being. This requires filling of gap between law and enforcement. In 51 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.‖ xxx ............................xxx ........................ xxx
19. In view of above, control of pollution of river Ganga needs to be taken seriously at all levels in Uttarakhand, UP, Bihar, Jharkhand and West Bengal. In absence thereof, the desired result of rejuvenation of river Ganga which is dream of every Indian will remain unfulfilled. As observed earlier, the Hon'ble Supreme Court 52 has monitored the subject for 34 years (1985- 2014) and finally transferred the matter to this Tribunal in the year 2014. Though certain steps have been taken, the tables and compliance summary filed by NMCG quoted above show that with respect to various projects, the matter is still at the tender/DPRs stage and progress in completing the ongoing projects in a timely manner remains a challenge, inspite of availability of funds, supported by the Government of India initiatives.
20. xxx ....................xxx....................xxx................
21. While removing already raised constructions from the floodplain zones may be dealt with separately, there is need to atleast identify and take protective measures. All remedial measures have already been outlined in the earlier orders of this Tribunal and need not be repeated. As earlier observed, the desirable situation is that not a drop of pollution is discharged into the river Ganga, but in any case, every next report must show decreasing trend of pollution load which needs to be quantified by the NMCG in a tabular form giving the extent of pollution load on a particular date and reduction achieved in terms of gap after steps for treatment. Stopping pollution is as much necessary as stopping any other heinous crimes of homicides and assaults as pollution is acknowledged cause of deaths and diseases and deprivation of access to drinking water.
22. xxx ....................xxx.................xxx..........
23. With regard to the recovery of laid down compensation, it is made clear that the compensation must be faithfully paid by the concerned States by way of deposit to the 53 CPCB which can thereafter be spent for restoration in the same State, as per action plan prepared for the purpose by the State and approved by the NMCG, after due evaluation on the pattern of orders earlier passed by this Tribunal25. NMCG may monitor compliance. Control of pollution of river Ganga will be incomplete without controlling pollution of all the tributaries and drains connected thereto.
xxx .......................xxx.................xxx................
27. Further progress reports may be furnished by the concerned five States to the NMCG on or before 30.06.2021 showing status as on 15.6.2021. NMCG may give its consolidated progress report with its recommendations to this Tribunal by 15.07.2021 by e-mail at judicial-
[email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF, with liberty to the States to file their response to such report. The NMCG report may inter alia specify reduction in pollution load, if any achieved during the interregnum, and if not, suggest further measures to achieve such reduction.‖
23. The Tribunal, vide order dated 05.02.2021 in O.A. No. 95/2018, Aryavart Foundation v. M/s Vapi Green Enviro Ltd. & Ors. dealt with pollution of River Daman Ganga in Gujrat on account of inadequately functional CETP at Vapi. While considering the said issue, the Tribunal obtained an audit-report on functioning of monitoring mechanism by State PCBs and found that the State PCBs were not as effective as required under the law. They lacked manpower as well as the equipment. Till revamping of the State PCBs takes place, it is difficult to expect effective monitoring from them to comply with the direction of the Hon'ble Supreme Court in 54 Paryavaran Suraksha, supra for effective measures against polluters. The Tribunal also directed considering setting up of environment data grids. Relevant observations from the said order are:-
―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 Stockholm 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', ‗precautionary' and ‗polluter pays'. In Hanuman Laxman, (2019) 15 SCC 401, (paras 142-156), significance of 55 environmental rule of law has been highlighted to achieve sustainable development goals for 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.
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 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) 56 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 Committees26 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 there under needs to be reviewed and made effective in the interest of protection of 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.
xxx ..........................xxx..........................xxx.........
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 57 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.
xxx ..........................xxx..........................xxx.........
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 District wise. 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 58 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.
22. xxx .......................xxx.......................xxx.........
(i) to (vii). xxx .......................xxx... ......... xxx
(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.‖
24. Accordingly, the matter with regard to the functioning of STPs preventing discharge of industrial and domestic waste into the river or drains, maintenance of STPs and maintenance of parameter of water quality which are to be treated by the STPs are to be governed by the order passed by the Principal Bench of this Tribunal in Paryavaran Suraksha Samiti & Anr. Vs. Union of India Original Application No. 593 of 2017. Next issue which has been raised by the learned counsel for the applicant is non-
compliance of Solid Waste Management Rules, 2016. The 59 matter with regard to the compliance of Solid Waste Management Rules, 2016 was taken by the Principal Bench of this Tribunal in O.A. No. 606 of 2018 vide order dated 14.12.2020 it was observed as follows :-
1. The Tribunal has been considering the issue of non-
compliance of Solid Waste Management Rules, 2016 and other important environmental issues for protection of public health and the environment in this matter. The issues of solid as well as liquid waste management are being monitored as per orders of the Hon'ble Supreme Court vide order dated 02.09.2014 in Writ Petition No. 888/1996, Almitra H. Patel vs. Union of India & Ors., (with regard to solid waste management) and order reported in (2017) 5 SCC 326, Paryavaran Suraksha vs. Union of India relating to liquid waste management. Other related issues include pollution of 351 river stretches, 122 non attainment cities in terms of air quality, 100 polluted industrial clusters, illegal sand mining etc. ―2. After considering earlier orders and proceedings before this Tribunal, and in view of chronic non- compliances for a long period, on 16.01.2019, the Tribunal held that it will be necessary to require the personal presence of Chief Secretaries of all States and UTs in view of continuing non-compliance of the solid and liquid waste management rules adversely affecting the environment and public health. Needless to say that such large scale non compliance of environmental law is resulting in deaths and diseases and irreversible damage to the environment without punishment and accountability for such non-compliance. Violation of the Rules as well as orders of this Tribunal being by itself criminal offence under the law of land, non compliance is to be viewed sternly to enforce rule of law. No State authority can be on the wrong side of law and still continue to hold public office.
3. Accordingly, the Chief Secretaries of all the States/UTs appeared on the scheduled dates till 18.07.2019 and the Tribunal, after reviewing the status of noncompliance on most of the issues, directed further effective steps to be 60 taken for compliance of the Rules and the environmental norms. The directions include setting up of environmental cells directly under the Chief Secretaries, regular periodical monitoring by the Chief Secretaries at the State level and by the District Magistrates at the District level and making atleast some cities, towns and villages compliant in the first instance and thereafter making the entire State compliant. Direction is to take action for non- compliance by recovery of compensation or otherwise. The Tribunal also directed filing of quarterly reports by the Chief Secretaries. Based on such reports, CPCB was to file consolidated status reports. The Chief Secretaries were to appear after six months with updated status of compliance.
4. The matter was reviewed on 12.09.2019 in the light of reports of the CPCB dated 09.09.2019 showing wide gaps in compliance of solid waste, plastic waste, bio-medical waste management, rejuvenation of identified polluted river stretches, polluted industrial clusters and non-attainment cities........
The direction part of the said order is reproduced below:
―41. In view of above, consistent with the directions referred to in Para 29 issued on 10.01.2020 in the case of UP, Punjab and Chandigarh which have also been repeated for other States in matters already dealt with, we direct:
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, interim 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, 61 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. Final compensation may be assessed and recovered by the State PCBs/PCCs in the light of Para 33 above within six months from today. CPCB may prepare a template and issue an appropriate direction to the State PCBs/PCCs for undertaking such an assessment in the light thereof within one month.
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 281 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 and delay in clearing legacy waste is causing huge damage to environment in monetary terms as noted in para 33 above, pending assessment and recovery of such damage by the concerned State PCB within four months from today, 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. Final compensation may be assessed and recovered by the State PCBs/PCCs in the light of Para 33 above within six months from today.
c. Further, with regard to thematic areas listed above in para 20, steps be ensured by the Chief Secretaries in terms of directions of this Tribunal especially w.r.t. plastic waste, bio-medical waste, construction and demolition waste which are linked with solid waste treatment and disposal. Action may also be ensured by the Chief Secretaries of the States/UTs with respect to remaining thematic areas viz. hazardous waste, e- waste, polluted industrial clusters, reuse of treated water, performance of CETPs/ETPs, groundwater extraction, groundwater recharge, restoration of water bodies, noise pollution and illegal sand mining.
1The Chief Secretaries may ensure allocation of funds for processing of legacy waste and its disposal and in their respective next reports, give the progress relating to management of all the legacy waste dumpsites. Remediation work on all other dumpsites may commence from 01.11.2019 and completed preferably within six months and in no case beyond one year. Substantial progress be made within six months. We are conscious that the SWM Rules provide for a maximum period of upto five years for the purpose, however there is no reason why the same should not happen earlier, in view of serious implications on the environment and public health.
62d. The compensation regime already laid down for failure of the Local Bodies and/or Department of Irrigation and Public Health/In-charge Department to take action for treatment of sewage in terms of observations in Para 36 above will result in liability to pay compensation as already noted above which are reproduced for ready reference:
i. Interim measures for phytoremediation/ bioremediation etc. in respect of 100% sewage to reduce the pollution load on recipient water bodies - 31.03.2020. Compensation is payable for failure to do so at the rate of Rs. 5 lakh per month per drain by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2020.
ii. Commencement of setting up of STPs - 31.03.2020. Compensation is payable for failure to do so at the rate of Rs. 5 lakh per month per STP by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2020.
iii. Commissioning of STPs - 31.03.2021.
Compensation is payable for failure to do so at the rate of Rs. 10 lakh per month per STP by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2021.
e. Compensation in above terms may be deposited with the CPCB for being spent on restoration of environment which may be ensured by the Chief Secretaries' of the States/UTs.
f. An ‗Environment Monitoring Cell' may be set up in the office of Chief Secretaries of all the States/UTs within one month from today, if not already done for coordination and compliance of above directions which will be the responsibility of the Chief Secretaries of the States/UTs.
g. Compliance reports in respect of significant environmental issues may be furnished in terms of order dated 07.01.2020 quarterly with a copy to CPCB.
6. In terms of order dated 18.10.2019, the Tribunal requested Niti Ayog to standardize technologies and costs. Operative part of the said order is as follows:
―There is need to standardize necessary technologies with cost breakups for operation and maintenance, including procurement. Besides this, the service provides need to be identified and empaneled. This exercise may also require the concerned authority to explore business models". It had also stated in paragraph 2 that -
"development of business models for privatization 63 of (a) sewage collection, treatment and disposal, including utilization of treated water and sludge;
(b) remediation of legacy waste dumpsites; and (c) other such activities relating to collection, treatment and processing and utilization of wastes and provision of services such as setting up of rainwater harvesting system may have to be considered.‖
7. The Tribunal, vide order dated 02.07.2020, noted the report of Niti Ayog dated 25.06.2020 as follows:
―xxx xxx xxx The Committee held three meetings: on 19.11.2019, 20.11.2019 and 17.03.2020. Pursuant to the decisions taken during these meetings, NITI Aayog has formulated the Model Concession Agreements (MCAs) and Model Request for Proposals documents (RFPs) for Integrated Solid Waste Management (including Bio- Remediation of Legacy Waste) and Integrated Liquid Waste Management (including Faecal Sludge Management) on Hybrid Annuity Model (HAM) of Public- Private Partnership (PPP).
MoHUA has provided Engineering Procurement Construction (EPC) Contract for Legacy Waste Dumpsite Remediation and several other documents relating to legacy waste dumpsite remediation and integrated solid waste management activities such as collection, transportation, processing and disposal of municipal solid waste.
NMCG has also provided documents for setting up of sewage treatment plants and other guiding documents for improved liquid waste management in the country.
Now the Urban Local Bodies (ULBs) have the following options for solid waste management and liquid waste management under PPP:
For Solid Waste Management:
(i) To undertake only legacy waste remediation: existing method of tendering EPC contract which is entirely financed by the government be taken up (it is a successful model as indicated by MoHUA).
(ii) To undertake only solid waste management system collection transportation processing & disposal) (Non-HAM):
the existing method of tendering Design, Build, Finance, Operate & Transfer (DBFOT) contracts which is either not funded or only partly funded by the government be taken up. The drafts of such agreements, model RFP, list of necessary clauses of such agreements, and guidelines for drafting of concession agreements have been made available through Swachh Bharat Mission (Urban), MoHUA, and the World Bank.
(iii) To undertake both legacy waste remediation as well as solid waste management system: the MCA of NITI Aayog under HAM may be taken up.
(iv) To undertake only solid waste management system (collection, transportation, processing & disposal) only the parts of the NITI Aayog MCA pertaining to Bio-Remediation of Legacy Waste may accordingly be removed by the ULB 64 and remaining agreement may be taken up.
For Liquid Waste Management:
(i) To undertake only sewage treatment (Non-HAM): existing method of tendering EPC contract or DBFOT contract for setting up sewage treatment plants under state or central government funding schemes, may be taken up.
(ii) To undertake only sewage treatment (under HAM): model bidding documents prepared by NMCG may be taken up.
(iii) To undertake both sewage treatment as well as faecal sludge management system: the MCA of NIT1 Aayog under HAM may be taken up.
xx xx xx
8. We may note that in terms of the Solid Waste Management Rules, 2016, the statutory authorities for various actions have been specified. Under Rule 5, a Central Monitoring Committee (CMC) is to be constituted headed by the Secretary, MoEF&CC with representation from Ministries of Urban Development, Rural Development, Chemicals and Fertilizers, Agriculture, CPCB, State PCBs/PCCs, Urban and Rural Development Departments, Urban Local Bodies and Towns from the of the States, FICCI, CII and subject experts. The CMC is to meet once in a year.
The Ministry of Urban Development has to coordinate with the States/UTs under Rule 6 for periodic review and formulation of National Policy and strategies and taking other measures. Under Rule 7, the Department of Fertilizers, Ministry of Chemical and Fertilizers have to provide market development assistance for compost and promote marketing of such compost. Under Rule 8, Ministry of Agriculture has to evolve mechanism for utilization of compost. Under Rule 9, Ministry of Power has to decide compulsory purchase and tariff issues. Under Rule 10, Ministry of New and Renewable Energy Sources has to facilitate infrastructure creation and provide for subsidy. Under Rule 11, the concerned Secretaries of Urban Development have to prepare State Policy and Management strategies and the Town Planning Department has to ensure setting up waste processing and disposal facilities and take other enumerated actions. Under Rule 12, the District Magistrates have to identify suitable lands and review performance of local bodies. Under Rule 13, the Secretaries of Panchayats have also to perform similar duties. Under Rule 14, CPCB is to coordinate with State PCBs and formulate standards of ground water, ambient air quality, noise, etc. Under rule 15, local authorities have to prepare solid waste management plans, collection of waste and coordination with the other stakeholders for enumerated steps.
65Under Rule 16, the SPCBs/PCCs have to enforce the rules and monitor compliances. Under Rule 17, there are duties of private bodies, including the manufacturers to be monitored by the State Bodies. The timelines are provided in Rule 22 for various steps. Last timeline of 5 years from the Rules expires on 7.4.2021. There is also provision for audit and submitting of annual report under Rule
24. Since there has been large scale non-compliances of the said rules, all the concerned authorities need to review the progress and perform their responsibility in accordance with law. The MoEF&CC has to finally monitor compliance, as already mentioned. We hope all the authorities will now take necessary steps for meaningful compliances for protection of environment and public health.
xx xx
25. Accordingly, the matter of Solid Waste Management will be taken up in accordance with the order passed by this Principal Bench of this Tribunal in Original Application No. 606 of 2018 and the local administration is directed to submit the compliance report in the above original application accordingly.
26. Next issue which has been raised by the learned counsel is with regard to the encroachment on the river bodies/water bodies and the demarcation of the flood line The Wetlands (Conservation and Management) Rules, 2017 prohibit any permanent constructions within 50 meters of the Wetlands, from the mean high flood level in the past 10 years from the commencement of the rules. There are also similar restrictions in certain Master Plans like the Revised Master Plan of Bangalore referred to in Mantri Techzone Pvt. Ltd. vs. Forward Foundation & Ors. (2019) SCC Online SC 322.restricting constructions in catchment area of the lakes.
Nothing has been placed before us about the legislative and administrative measures in the State on the subject of regulating and prohibiting activities in the floodplain zones of the rivers in the State, but such an exercise appears to be necessary to give effect to the precautionary principle of environmental law, required to be enforced by 66 this Tribunal under section 20 of the NGT Act, 2010. While considering the issue of rejuvenation of identified polluted river stretches, (including Mahanadi, which is one of such polluted river stretches) the Tribunal directed that each State must constitute a River Rejuvenation Committee (RRC) to prepare appropriate action plan and execute the same. The action plan needs to include a plan for protection of floodplains2.
27. There are also articles in the media dealing with the subject. We may only refer to some as follows:
i. Article titled "why floodplains need to be protected"
dated 12.10.2018 3 stating as follows: "Damage to floodplains harms the riverine ecosystem, lessens groundwater recharge capacity and poses threats of flash floods. Enforcement of floodplain zoning regulation is a must to avert floods.
The Kerala flood of 2018....
xxx xxx xxx The lack of regulation and enforcement of land use in the floodplains added to the severity of the damage.
xxx xxx xxx Floodplains provide the space for rivers to spread their waters. When this space is missing due to encroachments, the river surges up and creates destruction.
―The lack of protection of river floodplains from damaging impacts like encroachment and diversion 2 See order dated 21.09.2020 in OA No. 673/2018, In Re: News item published in "The Hindu" authored by Shir Jacob Koshy, titled "More river stretches are now critically polluted: CPCB".3
Author: Amita Bhaduri : https://www.indiawaterportal.org/articles/sad-state- floodplains#:~:text=Damage%20to%20floodplains%20harms%20the,poses%20threats% 20of %20flash%20floods.&text=The%20lack%20of%20regulation%20and,the%20severity%2 0of% 20the%20damage .
67for ‗developmental projects' is a tragedy that affects both the river as well as those who encroach it adversely. The river suffers as it is unable to occupy and transport flood waters downstream during high rainfall events (monsoon in particular). It is unable to recharge aquifers, wet the lands along its banks or provide life-sustaining conditions to plant and animal habitats along the river margins and banks. .....
Damage to floodplains harms the riverine ecosystem, lessens groundwater recharge capacity and poses threats of flash floods. ―People too suffer an immense loss of life and property, including loss of public infrastructure like bridges, roads, schools etc., during high floods.‖ ii. Article from Wikipedia under the heading ―Floodplain‖4, it is stated:
―xxx xxx xxx Floodplains can support particularly rich ecosystems, both in quantity and diversity.
xxx xxx xxx A floodplain can contain 100 or even 1,000 times as many species as a river. Wetting of the floodplain soil releases an immediate surge of nutrients: those left over from the last flood, and those that result from the rapid decomposition of organic matter that has accumulated since then. Microscopic organisms thrive and larger species enter a rapid breeding cycle. Opportunistic feeders (particularly birds) move in to take advantage. The production of nutrients peaks and falls away quickly; however, the surge of new growth endures for some time. This makes floodplains particularly valuable for agriculture.‖
28. The Hon'ble Supreme Court, vide judgment dated 30.07.2009 in D.D.A. vs. Rajendra Singh, 2009 4 https://en.wikipedia.org/wiki/Floodplain 68 (8) SCC 582, referred to the definition of floodplain in the dictionary as follows:
― xxx xxx xxx
24. Though there is no statutory definition for "riverbed" and "floodplain" from the statute, the dictionary meaning of the same is as under:
"Riverbed" has been defined as the area over which the river flows. In the Thames Conservators Case [1897] 2 QB 335 at 337 it was held that the word riverbed denotes that portion of the river which in the ordinary or regular course of nature is covered by the waters of the river.
The "bed of the river" was defined as the area covered by the river and is the space sub-adjacent to the river over which it flows between the banks. It is the space between the banks occupied by the river at its fullest flow.
The Black's Law Dictionary, 6th Edition (Pg 154) describes a river bed as the hollow channel of a water course; the depression between the banks worn by the regular and usual flow of water; The land which is covered by the water in its ordinary low stage; The area extending between the opposing banks measured from the foot of the bank from the top of the water at its ordinary stage. P. Ramanatha Aiyer's Advanced Law Lexicon, Volume 4, 2005 Edition (Pg. 4157-4158) has described the bed of a river as the space contained between the banks; river bank in turn has been defined in the same law lexicon as the boundaries of a river throughout its width when the water flows to its maximum quantity.
"Floodplain'" - Land adjacent to rivers, which, because of its level topography, floods when river overflows. [Black's Law dictionary, 6th Edn., p.641].
It is also been defined as 'a low, flat area in either side of a river that can accommodate large amounts of water during a flood, lessening flood 69 damage further downstream' [Fredd Michaels, 'Dictionary of Environment Studies']
29. The Tribunal while considering restoration measures for Yamuna and Ganga rivers dealt with the issue of floodplains. Vide judgement dated 13.01.2015 in OA No. 6/2012 and OA No. 300/2013, Manoj Misra vs. Union of India & Ors. reported in 2015 ALL (I) NGT REPORTER (1) (DELHI) 139 in the context of river Yamuna, it was observed:
―81. Floodplain zoning has been accepted as an important nonstructural strategy for flood management. The basic concept of floodplain zoning is to regulate land use of floodplains to restrict damage caused due to floods. The floodplain zoning, therefore, aims at determination of locations so that flood damages are reduced to minimum. A very restrictive activity can be allowed in that area. It is not only to protect the areas from damage resulting from floods and failure of water protective measures, but is also useful in reducing the damage caused due to drainage congestion, particularly in urban areas. The Commission claims to have prepared a model bill relating to f loodplain zoning. This model bill provides for different categories based of priorities in f floodplain.
82. xxx xxx xxx
83. The floodplain must be demarcated, kept free from any permanent developments and wherever it is possible, it should be restored to its original position.
84. Keeping in view the fact that various developments have taken on the floodplain of river Yamuna and to a larger extent they have adversely affected the river flow, its ecology and bio-diversity, we would direct that floodplain zoning should be taken with reference to the flood of once in 25 years, as against other suggested figure of more years. It is important to demarcate the floodplain on this basis immediately, to protect it from any encroachments or development activities, which has already discussed and requested by the High Powered Committee, would adversely affect the ecology and environment.70
85. Thus, it is necessary to call upon the authorities to demarcate the floodplain for the flood of once in 25 years and to prohibit any kind of development activity in the area in question. Furthermore, the Committee should consider restoration of the area and wherever necessary, even demolish the properties, which are likely to be dangerously exposed to the flood and are even affecting the ecology and bio-diversity and flow of the river.
xxx xxx xxx
89. Subject to any law coming into force, we have already stated that flood of once in 25 years would be considered for defining and demarcating the flood plain. No development/construction activity, except that is stated herein, would be permitted in the Flood Plain of River Yamuna. No authority or person before us has even taken up the plea that why development/construction activity cannot be carried on in other parts of NCR, Delhi. As of now, sufficient land is available, may it is expensive, but that cannot be a ground for destroying the ecology, environment and biodiversity of River Yamuna of Delhi. The result of indiscriminate, unregulated and uncontrolled development activity are widely visible and felt by each and every one in Delhi. It would not only be unwise, but may prove fatal, if such approach is continued any further.‖ xxx xxx xxx During the course of proceedings before the Tribunal, the stakeholders also deliberated in favour of demarcation of floodplain of river Ganga, for ensuring protection and maintenance of the health of the river. The above stated precedent of the Tribunal also has its definite reference in the Notification dated 7th October, 2016 issued by the MoWR. In sub-clause (ix) of clause 4(v) of the Notification which relates to Principles to be followed for rejuvenation, protection and management of river Ganga, states that the bank of river Ganga and its floodplains shall be a construction free zone to reduce sources of pollution, pressure on floodplains and to maintain its natural groundwater recharging properties. This clearly demonstrates that fixation of the floodplain and its demarcation is one of the principal projects for cleaning and rejuvenation of river Ganga, amongst all the stakeholders. As already stated, 71 the project at priority is to clean river Ganga and not to diversify financial resources to the subsidiary function of cleaning innumerable drains in the city. There are innumerable factors consequential to pollution of floodplains of the river.
Indiscriminate and unplanned constructions or developments, carrying on of unauthorized and impermissible activities, dumping of municipal solid waste, bio- medical waste and E- waste in and around the floodplains, are some of the main contributors of pollution in river Ganga.
xxx xxx xxx
182. ... The constitutional duty upon the citizens is to protect and improve the nature, environment including forests, rivers, wildlife and to have compassion for living creatures. No industry much less the State or its instrumentality can be permitted to indulge in pollution of natural resources particularly the river for economic benefits. It is a settled principle of law that the Polluter Pays Principle and Precautionary Principle have to be read into the Principle of Sustainable Development. Normally, they are applied collectively. Restrictions imposed are inbuilt fact of sustainable developments and that itself serves the cause of Intergenerational Equity. To protect and improve the environment has a direct nexus to the quality of human life, thus, all environmental principles must come to the aid of the Courts and Tribunals for furthering the cause of Sustainable Development. In the case of ‗Vellore Citizens Welfare Forum vs. Union of India' 1996 5 SCC 647 held with approval:
―The concept of development to say that the traditional concept that development and ecology are opposed to each other is no longer acceptable. Sustainable Development is the answer i.e., development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. It is intended to improve the quality of human life, while living within the carrying capacity of the supporting ecosystems. The 'Precautionary' Principle and 'Polluter Pays' Principles were, therefore, said to be the essential features of the Principle of Sustainable Development.‖ 72 xxx xxx xxx xxx xxx xxx
7. Till the demarcation of the floodplains and identification of permissible and non-permissible activities by the State Government of this judgement, we direct that 100 meters from the edge of the river would be treated as no development/construction zone in Segment-B of Phase-I (Haridwar to Unnao, Kanpur).‖
30. In view of averments made by the applicant that the river beds is proposed to be affected by setting up of the Medical College or other permanent constructions in the floodplain of the river, there is need to prevent irreversible damage to the riverine ecology by enforcing the applicable rules, if any. If there are no rules, appropriate norms need to be laid down considering such norms in other similar situations in consultation with the experts.
31. Vide judgment dated 13.07.2017 in OA No. 200/2014, M.C. Mehta vs. Union of India & Ors.
reported in 2017 NGTR (3) PB 1 in the context of river Ganga, it was observed:
―xxx xxx xxx
142. Being an integral part of the river, floodplain of the river requires protection. Floodplains play significant role in maintaining the bio-diversity and aquatic life of the river. It's significance cannot be overlooked, in terms of environment and ecology. There are numerous dimensions involved while identifying the floodplains. It is required to categorize it into different zones, namely, No Development Zone, Regulated Zone and a Free Zone for development. The principle of Sustainable Development itself justifies the classification of floodplains into such zones for protecting the river. This Tribunal in the case of Manoj Misra (supra) had the occasion to deal with the concept of floodplain, its zoning and management.‖
28. Accordingly, the authorities are directed to follow the guidelines issued in the above original application. Next issue which has been raised by the learned counsel for the applicant is use of plastic and throwing it into the 73 river bodies. The matter of plastic waste was taken up by the Western Bench of this Tribunal in OA no. 02 of 2016 vide order dated 31.07.2020, uploaded on 07.08.2020, it was observed as follows :-
―4. Bio-accumulation of plastic inside animals is another dangerous effect of plastic pollution. Plastic pollution has the potential to poison animals, which can then adversely affect human food supplies. Similar to humans, animals exposed to plasticizers can experience developmental defects also. The accumulated plastic releases harmful chemicals, and also breaks down into small pieces, causing extreme discomfort to the animals. About 1,00,000 animals such as turtles, whales, are dying every year due to use of plastic bags by human beings. Many animals ingest plastic bags, mistaking them for food and therefore die. And the worst part is the ingested plastic remains intact even after their death and decomposition of the animal and the plastic fragments may remain as a threat to the other animals. Death of animals due to suffocation, stomach and intestine related diseases is a common feature mostly in developing economies due to improper disposal of plastic food bags that are eaten by these animals.
6. It is actually individual's responsibility also that no one shall knowingly or otherwise throw or cause to be thrown in any drain, ventilation shafts, pipe and fittings, connected with private or public drainage works, natural or man-made lakes, wetlands, any non-biodegradable garbage or construction debris or biodegradable garbage by placing in a non-biodegradable bags or container likely to injure the drainage or sewage system, interfere with the free flow or affect the treatment and disposal of drain and sewage contents which will be dangerous or cause a nuisance to the public health, etc.
7. In essence, poly bags are a nuisance since they are not collected. Poly bags remain an unattractive economic proposition for the waste pickers. In towns, cities and tourist centers, plastic bags have become a plague, and attempts to prevent this have come forth from the State, Central Government and NGOs.74
8. It is argued that the plastic is the most important and preferred material in industries. However, this is posing threats to the environment as well as consumer's health.
The dangers or threats to environment and therefore to health may be in many direct or indirect ways. When plastic bags are not disposed properly, they find way in drainage systems resulting into chocking of drains, creating unhygienic environment and causing water born diseases. The plastic bags containing left over food gets mixed with the garbage resulting in harmful diseases. The plastic bag is non-biodegradable in nature, therefore it contaminates the soil. The chemicals used to make plastic bags are xylene, ethylene oxide and benzene. These are toxic chemicals that are sources of various diseases as well as disorders in humans. They do not only provide negative effects on the health of people and animals but also to the air. These chemicals can pollute the air too which again harm the living organisms. They will not only affect humans and animals but also plants, water and air.
9. In the landmark case of Karuna Society for Animals and Nature v.Union of India The Hon'ble Supreme court suggested that either the use of plastic be banned or the manufacturers should pick up the used plastic and re- cycle it. The bench said, ―All our urban areas are getting choked with plastics. Until we examine the total ban on plastic and ensure the collection and disposal of all plastic, the next generation will be faced with a ticking atom bomb‖. At present, colored plastic bags are posing a major health hazard. These bags are harmful to human beings as well as animals. In addition to contributing to litter, poly bags, particularly recycled poly bags pose a major health hazard. The main hazards are associated with the chemicals used to color plastic bags. Small amounts of lead and cadmium are added during the manufacture, and these could permeate into food products stored in the bags. The recycler may sell poly bags for use only as a carry bag, but the vendors are unaware, of the risks of packing food products in colored plastics.
7510. Plastic Waste Management Rules, 2016 provides as follows:
4. Conditions.- (1) The manufacture, importer stocking, distribution, sale and use of carry bags, plastic sheets or like, or cover made of plastic sheet and multilayered packaging, shall be subject to the following conditions, namely:-
a) carry bags and plastic packaging shall either be in natural shade which is without any added pigments or made using only those pigments and colourants which are in conformity with Indian Standard : IS 9833:1981 titled as ―List of pigments and colourants for use in plastics in contact with foodstuffs, pharmaceuticals and drinking water‖, as amended from time to time;
b) Carry bags made of recycled plastic or products made of recycled plastic shall not be used for storing, carrying, dispensing or packaging ready to eat or drink food stuff';
c) carry bag made of virgin or recycled plastic, shall not be less than fifty microns in thickness;
d) plastic sheet or like, which is not an integral part of multilayered packaging and cover made of plastic sheet used for packaging, wrapping the commodity shall not be less than fifty microns in thickness except where the thickness of such plastic sheets impair the functionality of the product;
e) the manufacturer shall not sell or provide or arrange plastic to be used as raw material to a producer, not having valid registration from the concerned State Pollution Control Boards or Pollution Control Committee;
f) sachets using plastic material shall not be used for storing, packing or selling gutkha, tobacco and pan masala;
g) recycling of plastic waste shall conform to the Indian Standard: IS 14534:1998 titled as Guidelines for Recycling of Plastics, as amended from time to time;
h) The provision of thickness shall not be applicable to carry bags made up of compostable plastic. Carry bags 76 made from compostable plastics shall conform to the Indian Standard: IS 17088:2008 titled as Specifications for Compostable Plastics, as amended from time to time. The manufacturers or seller of compostable plastic carry bags shall obtain a certificate from the Central Pollution Control Board before marketing or selling; and
i) plastic material, in any form including Vinyl Acetate - Maleic Acid
- Vinyl Chloride Copolymer, shall not be used in any package for packaging gutkha, pan masala and tobacco in all forms.
5. Plastic waste management.- (1) The plastic waste management by the urban local bodies in their respective jurisdiction shall be as under:-
(a) plastic waste, which can be recycled, shall be channelized to registered plastic waste recycler and recycling of plastic shall conform to the Indian Standard:
IS 14534:1998 titled as Guidelines for Recycling of Plastics, as amended from time to time.
(b) local bodies shall encourage the use of plastic waste (preferably the plastic waste which cannot be further recycled) for road construction as per Indian Road Congress guidelines or energy recovery or waste to oil etc. The standards and pollution control norms specified by the prescribed authority for these technologies shall be complied with.
(c) Thermo set plastic waste shall be processed and disposed off as per the guidelines issued from time to time by the Central Pollution Control Board.
(d) The inert from recycling or processing facilities of plastic waste shall be disposed of in compliance with the Solid Waste Management Rules, 2000 or as amended from time to time.
6. Responsibility of local body.- (1) Every local body shall be responsible for development and setting up of infrastructure for segregation, collection, storage, transportation, processing and disposal of the plastic waste either on its own or by engaging agencies or producers. (2) The local body shall be responsible for setting up, operationalisation and coordination of the waste management system and for performing the associated functions, namely:-
(a) Ensuring segregation, collection, storage, 77 transportation, processing and disposal of plastic waste;
(b) ensuring that no damage is caused to the environment during this process;
(c) ensuring channelization of recyclable plastic waste fraction to recyclers;
(d) ensuring processing and disposal on non-recyclable fraction of plastic waste in accordance with the guidelines issued by the Central Pollution Control Board;
(e) creating awareness among all stakeholders about their responsibilities;
(f) engaging civil societies or groups working with waste pickers; and
(g) ensuring that open burning of plastic waste does not take place.
(3) The local body for setting up of system for plastic waste management shall seek assistance of producers and such system shall be set up within one year from the date of final publication of these rules in the Official Gazette of India.
(4) The local body to frame bye-laws incorporating the provisions of these rules.
7. Responsibility of Gram Panchayat.- (1) Every gram panchayat either on its own or by engaging an agency shall set up, operationalise and co-ordinate for waste management in the rural area under their control and for performing the associated functions, namely,-
(a) ensuring segregation, collection, storage, transportation, plastic waste and channelization of recyclable plastic waste fraction to recyclers having valid registration; ensuring that no damage is caused to the environment during this process;
(b) creating awareness among all stakeholders about their responsibilities; and
(c) ensuring that open burning of plastic waste does not take place
8. Responsibility of waste generator.- (1) The waste generator shall.-
(a) take steps to minimize generation of plastic waste and segregate plastic waste at source in accordance with the Solid Waste Management Rules, 2000 or as amended from time to time.
(b) not litter the plastic waste and ensure segregated storage of waste at source and handover segregated waste to urban local body or gram panchayat or agencies 78 appointed by them or registered waste pickers', registered recyclers or waste collection agencies;
(2) All institutional generators of plastic waste, shall segregate and store the waste generated by them in accordance with the Municipal Solid Waste (Management and Handling) Rules, 2000 notified vide S.O 908(E) dated the 25th September, 2000 under the Act or amendment from time to time and handover segregated wastes to authorized waste processing or disposal facilities or deposition centers either on its own or through the authorized waste collection agency.
(3) All waste generators shall pay such user fee or charge as may be specified in the byelaws of the local bodies for plastic waste management such as waste collection or operation of the facility thereof, etc.; (4) Every person responsible for organising an event in open space, which involves service of food stuff in plastic or multilayered packaging shall segregate and manage the waste generated during such events in accordance with the Municipal Solid Waste (Management and Handling) Rules, 2000 notified vide S.O 908(E) dated the 25th September, 2000 under the Act or amendment from time to time.
9. Responsibility of producers, Importers and Brand Owners.- (1) The producers, within a period of six months from the date of publication of these rules, shall work out modalities for waste collection system based on Extended Producers Responsibility and involving State Urban Development Departments, either individually or collectively, through their own distribution channel or through the local body concerned.
(2) Primary responsibility for collection of used multi- layered plastic sachet or pouches or packaging is of Producers, Importers and Brand Owners who introduce the products in the market. They need to establish a system for collecting back the plastic waste generated due to their products. This plan of collection to be submitted to the State Pollution Control Boards while applying for Consent to Establish or Operate or Renewal. The Brand Owners whose consent has been renewed before the notification of these rules shall submit such plan within one year from the date of notification of these rules and implement with two years thereafter. manufacture and use of non- recyclable multilayered plastic if any should be phased out 79 in Two years time.
(3) The producer, within a period of three months from the date of final publication of these rules in the Official Gazette shall apply to the Pollution Control Board or the Pollution Control Committee, as the case may be, of the States or the Union Territories administration concerned, for grant of registration.
(4) No producer shall on and after the expiry of a period of Six Months from the date of final publication of these rules in the Official Gazette manufacture or use any plastic or multilayered packaging for packaging of commodities without registration from the concerned State Pollution Control Board or the Pollution Control Committees. (5) Every producer shall maintain a record of details of the person engaged in supply of plastic used as raw material to manufacture carry bags or plastic sheet or like or cover made of plastic sheet or multilayered packaging.
12. Prescribed authority.- (1) The State Pollution Control Board and Pollution Control Committee in respect of a Union territory shall be the authority for enforcement of the provisions of these rules relating to registration, manufacture of plastic products and multilayered packaging, processing and disposal of plastic wastes.
(2) The concerned Secretary-in-charge of Urban Development of the State or a Union Territory shall be the authority for enforcement of the provisions of these rules relating to waste management by waste generator, use of plastic carry bags, plastic sheets or like, covers made of plastic sheets and multilayered packaging.
(3) The concerned Gram Panchayat shall be the authority for enforcement of the provisions of these rules relating to waste management by the waste generator, use of plastic carry bags, plastic sheets or like, covers made of plastic sheets and multilayered packaging in the rural area of the State or a Union Territory.
(4) The authorities referred to in sub-rules (1) to (3) shall take the assistance of the District Magistrate or the Deputy Commissioner within the territorial limits of the jurisdiction of the concerned district in the enforcement of the provisions of these rules.
14. Responsibility of retailers and street vendors- (1) Retailers or street vendors shall not sell or provide commodities to consumer in carry bags or plastic sheet or 80 multilayered packaging, which are not manufactured and labelled or marked, as per prescribed under these rules.
(2) Every retailers or street vendors selling or providing commodities in, plastic carry bags or multilayered packaging or plastic sheets or like or covers made of plastic sheets which are not manufactured or labelled or marked in accordance with these rules shall be liable to pay such fines as specified under the bye- laws of the local bodies.
16. State Level Monitoring Committee.- (1) The State government or the union Territory shall, for the purpose of effective monitoring of implementation of these rules, constitute a State Level Advisory Committee consisting of the following persons, namely;-
(a) the Secretary, Department of Urban Development - Chairman
(b) Director from State Department of Environment - Member
(c) Member Secretary from State Pollution Control Board or Pollution Control Committee - Member
(d) Municipal Commissioner - Member
(e) one expert from Local Body - Member
(f) one expert from Non-Governmental involved in Waste Management - Member
(g) Commissioner, Value Added Tax or his nominee, - Member
(h) Sales Tax Commissioner or Officer - Member
(i) representative of Plastic Association, Drug Manufacturers Association, Chemical Manufacturers Association - Member
(j) one expert from the field of Industry - Member and
(k) one expert from the field of academic institution - Member
(l) Director, Municipal Administration- Convener The State Level Advisory Body shall meet at least once in Six Month and may invite experts, if it considers necessary.
15. India consumes an estimated 16.5 million tonnes about 1.6 million trucks full of plastic annually of which 25-30% 81 remains uncollected. The plastic processing industries is estimated to grow to 22 million tonnes per year by 2020, as per the expert study. The said part is that the current situation of disposing plastic is not easy to stain. One cannot be disposed off plastic like other forms of garbage. Plastic is strong, flexible and durable, making it extremely useful and hard to break. As useful as it might be, it does create harm to the environment by entering the oceans everyday and staying there forever, becoming toxic food for marine life.
16. The consumption of plastic has been increasing by 10% year to year but the disposal method of plastic have not evolved and that make the situation murky for us. Multiple factors add to the problem-for instance there is no segregation of the waste source, many amounts us still us use one being on all kinds of waste. Lack of awareness about segregation leads to a bigger problem. Plastic makes up about 8% of total solid waste of India, according to Government and this plastic comes for single use of plastic such as bag, cutlery and etc. alone. It is estimated that 80% of marine litter comes from land and this hotpotch in landfills. The concept of reduce, reuse, recycle and educate should be adopted.
17. The matter of plastic management was taken up by Principal Bench of this Tribunal in O.A. No. 851/2018 and vide order dated 04.12.2019 the Principal Bench of this Tribunal had observed as follows:
2. ―Vide order dated 30.04.2019, this Tribunal considered the response of the CPCB dated 01.04.2019 suggesting restrictions on import of plastic waste and proper management of hazardous waste. It was further suggested that local bodies should use plastic waste for road construction and energy recovery.
Producers should follow the Extended Producer Responsibility (EPR). CPCB had evolved guidelines on the subject.
3. The Tribunal directed CPCB to take further action for implementation of its recommendations on the issues of plastic waste management as well as restrictions on import of plastic waste and furnish a further action taken report.
824. The matter was further considered on 06.09.2019 with reference to the report dated 28.06.2019 as follows:
―Report dated 28.06.2019 acknowledges that there is no proper mechanism for plastic waste management which was being dumped in open or burnt in brick kilns resulting in pollution. Action taken by the CPCB is the issuance of directions.
MoEF&CC is to deal with the issue of
transboundary movement (import/export)
hazardous and other wastes.
The report cannot be taken as adequate action. Apart from issuance of direction, compliance of direction is required to be overseen. Even with regard to illegal import, CPCB as a statutory regulator can take up the matter with the concerned authorities. This Tribunal vide order 26.08.2019 in O.A. No. 804/2017, Rajiv Narayan v. UOI has already issued direction for restricting import of hazardous waste and vide order dated 22.07.2019 in E.A. No. 13/2018, CPCB v. State of Andaman & Nicobar & Ors. directions have been issued with regard to management of plastic waste. These directions need execution.
Let further steps be taken in the matter accordingly and report filed before the next date by e-mail at judicial- [email protected].‖
18. In O.A. No. 15/2014 vide order dated 31.05.2019 and 14.10.2019, it was further observed as follows:
―3. On 07.01.2019, the Tribunal directed the parties to file written notes. The applicant in a written note filed on 17.01.2019 pointed out that the regulations on the subject are inadequate for the following reasons:
―a. There is no specific Testing protocol for Specific Migration Testing (Antimony & Phthalates-DEHP) b. The Plastic Waste Rules are limited for restrictions of plastic "Bags" only. It doesn't cover 83 the plastic packaging especially PET Bottles.
c. In light of the inadequate standards, this Hon'ble Tribunal, vide order dated 10.10.2018, categorically stated that the Plastic Waste (Management and Handling Rules), 2016 need further amendments so as to eradicate the menace of use of plastics in general.‖
4. The applicant sought enforcement of notification being G.S.R. no. 701 (e) dated 29.09.2014 issued by the Ministry of Health and Family Welfare for prohibiting plastic/ PET containers for oral pharmaceutical activities and fresh label registration with the direction that ―no pet/ plastic container and /or multilayered packaging be used for packaging of liquor and carbonated beverage.‖
5. The applicant further submitted that the Notification dated 24.12.2018, issued by the Ministry of Health and Family Welfare under Section 92 of Food Safety and Standards Act, 2006 deals with the issue of packaging mode of food but it ignores Antimony and DEHP in specific migration limits provided for plastic packaging. Two sets of regulations were separately laid down being the Food Safety and Standards (Packaging) Regulations, 2018 and the Food Safety and Standards (Labelling and Display) Regulations, 2018 replacing the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. The said regulations also give a list of suggested packaging material to be used for different food items.
6. On 22.01.2019, the Tribunal noted the steps taken by various States, the regulations prescribed by the Bureau of Indian Standards (BIS) in relation to packaging material and the regulations framed by FSSAI in respect of food safety standards. The Tribunal directed the MoEF&CC to look into the said regulations and file its response. The MoEF&CC in its response filed on 19.01.2019, apart from indicating the features of the Plastic Waste Management Rules, 2016, including the provision for phasing out multi-84
layered plastic (MLP), submitted that the same may not be immediately feasible without alternates which are technically comparable. The same was proposed to be phased out in two years. It was further stated that the mechanism for registration of manufactures was to be improved. Rule 13 was required to be amended and Rule 15 was required to be withdrawn. The Ministry also organized Ministers conference and adopted resolutions on the effective capacity building programme, promoting innovative technologies, meetings with Chief Secretaries to monitor the implementation of the Rules, efforts to reduce the use of plastic, adopting Green Good Deeds for better waste management and to develop mechanism to document success. Thereafter, on 15.02.2019, the matter was directed to be listed within O.A. No. 606/2018 dealing with the compliance of waste management Rules.‖ ―3. Accordingly, a report dated 30.08.2019 has been filed by the Expert Committee. The Committee noted following key areas of concern:
―1) Continued use of multi polymer plastic (MPP) or multi layered plastic (MLP) with associated difficulties in its recycling.
2) Increasing use of small packages such as bottles used for beverages, sachets, pouches which are not viable to collect and recycle.
3) High capital cost involved in the presently available techniques in recycling plastics.
4) Inadequate reach of Extended Producer Responsibility (EPR).
5) Non availability of economically viable substitutes to the plastics.
6) Lack of consumer awareness for proper disposal of plastics and litter management.
7) Absence of joint regulatory mechanism with respect to plastic waste management.‖ It proposed a systematic action plan with 12 specific points as follows:
―(A) Manufacturer / User Industries of Plastic Packaging 85 Materials.
(1) Institute concept of ‗plastic footprint': What gets measured is managed. Therefore, in order to encourage businesses to reduce use of plastics through innovation and redesigning of their packaging, a system of quantifying the use of plastics per unit of final product (say kg of plastic used in 1000 kg/kiloliter of final product) may be put in place. A deflator or inflator may be used for use of recyclable plastics, biodegradable/compostable plastics or multilayered plastic as the case may be. A system of periodic assessments of plastic footprint for each product category may be done.
In food and beverages, these categories could include confectionery and bakery products (biscuits, ice-creams, bakery products and chewing gum), namkeens (chips, namkeen, nuts/peanuts), instant noodles and cereals, beverages (cold drinks, juices, energy drinks and hot drinks) and dairy products (milk, paneer, yoghurt and flavoured milk). Plastic footprint for each category may be benchmarked with the market average of use of plastic. This would encourage companies to adopt packaging reduction strategies that may include reducing weight of packaging, eliminating unnecessary packaging, using lightweight packaging materials, optimizing packaging size and use of recyclable (compostable) and reusable packaging material. Through a system of recognition, rewards and perhaps eventually penalties, it is hoped that the companies would work towards continuous reduction of plastics, product by product and enable businesses to demonstrate their commitment to safer environment. (2) Discourage small pack sizes: Lighter, portable, and cost- effective nature of single serve sachets/pouches/bottles continues to make them an attractive proposition for the low-income consumers as well as young and active 86 millennials. Smaller pack sizes/single serve packaging also have brought better quality and premium products affordable to all the sections of the society. But on the other hand it constitutes to the major plastic waste and litter, as their collection is economically non-viable. Hence, in consultation with Legal Metrology Dept. the small pack sizes such as small water bottles, pouches, cups which constitute a considerable amount of plastic waste may not be allowed.
(3) Reducing plastic content in multi-layered plastic (MLP): Ideal packaging materials had been tailored by combining different material with customized functionality to sufficiently protect sensitive food products and thus obtain extended shelf life. Latest feasible techniques and technologies may be employed to cut down the use of multiple polymers/plastics. More research in this area is required to be done by scientific institutions. Use of Single polymer/layer recyclable packaging materials shall be encouraged in this case.
(4) Encourage alternatives to plastics: Bio- plastics and biodegradable plastics like Poly Lactic Acid (PLA) made from fermented plant starch etc. can be a sustainable alternative to conventional plastics. However there are limitations with the availability of resources for such material. More research in the area to reduce the cost of PLA is required to be done. There is also need to create awareness on biodegradable, compostable or bio-based plastics since their degradation requires conditions like appropriate temperature, light, hydration and/or microbial presence. Hence these have to be separately marked and disaggregated. In case, the biodegradable &compostable or bio-based plastics remain unsegregated and go in landfills just like that, it is unlikely to meet these 87 conditions and serves no purpose. Existing packaging systems of paper based cartons with minimal plastics as coatings, composite and reusable containers made up of glass, tin, metal and paper maybe promoted as replacements. A list of alternatives to plastic packaging materials as suggested by Centre for Science and Environment (CSE) is at Annexure-2.
(5) Effective Extended Producer's Responsibility (EPR) framework: The current Plastic Waste Management Rules mandate the ―producer of packaging products and branded consumer goods to dispose plastic packaging waste generated due to their business activities‖. Even though the policy framed under these rules is fairly good but it has been confined to selected few big businesses. It is understood that National Framework on EPR for plastic waste management is being finalized. The framework may consider a system of monitoring as well as penalty provision for its non-compliance may be explored. The companies may be encouraged to use their downstream supply chain of distribution and retail for collection and aggregation of plastics for recycling.
This may be quite easy in direct selling entities that use multi-layered marketing, distribution networks.
(B) Final consumers/Users of plastic packaged articles and food stuff.
Establishments, agencies, institutions, organizations including government/nongovernment, food/non-food
operators such as roadways, railways, airlines, schools, colleges and university campuses, E- commerce groups, corporate campuses, hotels, marriage, banquet and community halls under this head shall take-up responsibilities on the following;
88(6) Eliminate/Ban single use plastics: should eliminate and prohibit the usage of single serve/use plastics within their ecosystems. Recent ban by the Parliament and Indian railways are worth emulating.
(7) Alternatives to plastics: They shall encourage the use of reusable and recyclable environment friendly alternatives such as jute and cloth bags, bamboo and wooden cutlery, leaf based plates, glass and metal containers etc. (8) Improved Litter Management: They should take up the responsibility of collecting all the waste in their campuses, sorting out dry and wet waste. They could also encourage their staff, teachers and students to bring such plastic waste from homes and help in collection and aggregation of such waste by tying up with businesses in plastic recycling. Dry waste can be segregated into recyclable and non-recyclable and accordingly processed. Wet waste may be sent to composting, which can be done in-house. This activity could be made a part of the social responsibility system.
(9) Better Plastic Disposal: Initiatives are to be taken up, to dispose plastic waste by forming groups/clusters to set up/identify energy recovering systems such as incineration and pyrolysis. Getting adequate quantities of suitable plastics waste is seen as most important factor in success of such units. More organized efforts and encouragement is required for this proper disposal.
(C) Municipal bodies/other organizations promoting circular economy.
(10) All municipal bodies must be made responsible for development and setting up of infrastructure for segregation, collection, storage, transportation, processing and disposal of the plastic waste either on its own or by engaging agencies or producers as mentioned in the Plastic 89 Waste Management Rules.
(D) Citizens and consumers.
(11) Citizens, especially the socially engaged ones living in urban areas with wide access to information, have (12) adopted more environmentally conscious consumption habits oriented toward recycling, reusing and composting the waste that derives from their domestic consumption. This segment of socially discerned consumers, appreciate brands that demonstrate a commitment to environmental sustainability. A more intensive public campaign, however, is needed to mainstream this kind of behavioral change to a wider public segment.Further approach of incentivizing the customers can also be explored to encourage them for plastic waste management.
(E) Science and Research Institution.
(13) Science and research institutions must be encouraged for working in the direction of developing environmental friendly packaging materials and plastic waste management systems which can be used on commercial basis. Start-ups may also be encouraged to work in this area. For the food and beverages sector, FSSAI may create a group of institutions and experts to coordinate new work in this area with leading institutions like the Indian Institute of Packaging, CIPET, IIT Delhi, IIT Guwahati, Indian Institute of Toxicological Research (IITR), National Chemical Laboratory, Pune and others.‖
4. The Committee further noted that these are not only environmental issues but also public health issues. In that view of the matter, FSSAI has taken steps to reduce the use of plastic in packaging of foods and beverages as follows:
―(1) FSSAI has decided to permit use of liquid nitrogen dosing in PET bottles during the packaging of 90 drinking water. This would help in strengthening the bottle thereby facilitating the manufacture with the use of bottles with lower wall thickness. (2) FSSAI has initiated the process of removing the restriction on the use of returnable bottles for packaging of artificially sweetened beverages. (3) FSSAI is promoting the use of bamboo as an alternative to plastics such as straws, plates, bowls, cutlery etc. (4) Allow and enable hotels to keep in-house packed glass bottles in place of plastic bottles in hotel rooms.‖
5. The FSSAI has also established a separate ‗Scientific Panel on Packaging and Food Contact Materials'. The Committee thereafter made following specific recommendations on regulatory aspects:
―(1) Food Safety and Standards (Packaging) Regulations, 2018: To review the limits of heavy metals in PET and fix the limits of specific migration limits of Antimony and DEHP (Diethylhexyl-phthalate). In addition to this also explore the possibility of setting limits for Cadmium and chromium.
(2) Food Safety and Standards (Packaging) Regulations, 2018 and IS 14543 (Packaged Drinking water): To remove the restriction on the use non-transparent bottle for drinking water to enable businesses to explore the possibilities of use of alternatives other than the PET currently in use.
(3) Food Safety and Standards (Packaging) Regulations, 2018; IS 14534 (Guidelines for Recycling of Plastics); and Plastic Waste Management Rules, 2016: The European Food Safety Authority (EFSA) permits the use of recycled PET in food packaging under certain set protocols. EC recommends to explore the possibilities for removal of ban on use of recycled plastic in food packaging after a scientifically validated method of pre- cleaning of plastic waste 91 is developed to ensure that the final product using recycled material does not pose any health risk.
(4) Legal Metrology (Packaged Commodities) Rules 2011: To explore the possibilities of restricting small packs of commodities such as water, shampoo, sauce, pickle etc.‖
5. CPCB made following recommendations:-
―Recommendations:
1. SPCBs/PCCs shall ensure that Annual Report on implementation of PWM Rules, 2016, as amended, 2018 is complete in all respect as per Form-VI and submitted timely to CPCB i.e. on 31st July each year along with Action plan.
2. SPCBs/PCCs should direct to UDDs to ensure setting- up of collection, source segregation& disposal system for plastic waste.
3. SPCBs/PCCs shall provide the details such as quantification, characterization & disposal methods of plastic waste. The details of disposed plastic waste should be provided to CPCB.
4. SPCBs/PCCs should also ensure that no unregistered plastic manufacturing/recycling units is in operation & no unit is running m nonconforming/ residential areas. Besides, it is also to be ensured that plastic carry bags /films.
5. SPCBs/PCCs, UDDs shall ensure to promote compostable carry bags certified by CPCB.
6. SPCBs/PCCs and Municipalities should constitute squad to check illegal manufacturing, stocking, sale of <50 microns thickness plastic carry bags and uncertified compostable carry bags/products in the market.
7. SPCBs/PCCs and UDDs to ensure prohibit litter of plastic waste at historical, religious, public 92 places and dumping of plastic waste on drains, river, banks & sea beaches is prohibited.
8. SPCBs/PCCs and UDDs to prohibit ensure open burning of plastic waste ..........
5. Recommendations:
1. States/UTs should frame a time targeted action plan covering the action points related to plastic waste segregation, collection and recycling/reuse of plastic waste. The current status, desirable level of compliance in terms of statutes, gap between the current status & desired level and proposal of attending the gap with timeline as per the enclosed format (Annexure- IV) be provided to CPCB.
2. Quarterly report of the implementation status of the Action Plan should be submitted by States/UT.
3. SPCBs/PCCs should direct to UDDs to ensure setting-up of collection, source-segregation & disposal system for plastic waste.
4. SPCBs/PCCs should also ensure that no unregistered plastic manufacturing/recycling units is in operation & no unit is running in nonconforming/residential areas. Besides, it is also to be ensured that plastic carry bags/films <50 microns thickness should not be manufactured, stocked, sold and used in cities/towns.
5. SPCBs/PCCs, UDDs shall ensure to promote compostable carry bags certified by CPCB.
6. SPCBs/PCCs and Municipalities should constitute squad to check illegal manufacturing, stocking, sale of <50 microns thickness plastic carry bags and uncertified compostable carry bags/products in the market.
7. SPCBs/PCCs and UDDs to prohibit litter and open burning of plastic waste at historical, religious, public places and dumping of plastic waste on drains, river, 93 banks and seas beaches is prohibited.‖ ..................
8. The above gap analysis appears to be in terms of the information available and information required. The recommendations are for framing of time targeted action plans and giving of information in the prescribed format to CPCB apart from giving implementation status quarterly. Further recommendations are for setting up collection, source segregation and disposal system and checking unregistered plastic manufacturing, recycling, prohibiting handling of plastic less than 50 microns thickness, promoting compostable carry bags and prohibiting litter and open burning of plastic waste. These recommendations are already part of Rules of which strict compliance need to be ensured.
9. We may also deal with the issue of implementation of Extended Producers Responsibility (EPR) under the PWM Rules in the light of the order dated 17.09.2019 in O.A. No. 376/2018, Jitender Yadav v. Union India & Ors. wherein it was observed:-
―1 to 6 xxx xxx xxx
7. On 12.09.2018, this Tribunal directed the Ministry of Environment, Forest & Climate Change (MoEF&CC) to take steps to implement the Extended Producer's Responsibility (EPR) in accordance with Plastic Waste Management Rules, 2016, (PWM Rules) as amended in 2018.
8. On 16.05.2019, noticing the failure on the part of the MoEF&CC in furnishing any information about compliance of the said direction, the Tribunal sought an explanation and directed that on the default, the concerned Joint Secretary, MoEF&CC may remain present in person.
9. On this aspect, written submissions have been filed by the MoEF&CC to the effect that a Committee has been constituted on the subject which held several meetings. Last such meeting 94 was held on 31.05.2019. The Ministry was in the process of preparing final draft guideline document on National Framework on EPR to be placed in public domain for receiving further comments. The minutes of the meeting do not indicate any tangible action beyond recording suggestions. The minutes of the meeting also show that except a Joint Secretary, all other participants representing Government are of junior level.
10. The PWM Rules elaborately lay down the norms and the responsibilities. Rule 9 requires the producers to workout the modalities for the waste collection system based on EPR and also by involving State Urban Development Departments.
Primary responsibility is of the producers who introduce such products in the market. The minutes of the meeting merely shows shifting of responsibility instead of adhering to the mandate of the PWM Rules. The PWM Rules have a provision for State Level Monitoring Committees for effective monitoring of the implementation of the PWM Rules.
10. Hazardous impact of unscientific handling of plastic waste is well acknowledged.5 The minutes of the 5 ―Fact Sheet on Plastic Waste in India, 2018‖, TERI- Plastic contributes to 8% of the total solid waste, with Delhi producing the maximum quantity followed by Kolkata and Ahmedabad. Significant amount of toxic heavy metals like copper, zinc, lead and cadmium recovered from plastic wastes from sea shores have an adverse effect on the coastal ecosystems. Lead and Cadmium pigments, commonly used in most of the plastics as additives are hazardous in nature and are known to leach out. ―Impacts of Marine Debris: Entanglement of Marine Life in Marine Debris Including a Comprehensive List of Species with Entanglement and Ingestion Records‖, David W. Laist - Plastic debris affects at least 267 species worldwide, including 86% of all sea turtle species, 44% of all seabird species, and 43% of all marine mammal species. https://www.indiaspend.com/india-is-generating-much- more-plastic-waste-than-it- reports-hereswhy/- CPCB data on plastic waste generation from a 2015 study showed that, in 2010-12, India generated 25,940 tonnes plastic per day. This would amount to 9.5 million tonnes per year. In 2016-17 too, CPCB received figures from only 95 meeting and the submissions filed on behalf of the MoEF&CC are not consistent with the mandate of the PWM Rules which require immediate enforcement of liability by effective mechanism instead of deferring the subject. One of the means to implement EPR is to require stamping of non-degradable product with the information as to how after use such product is to be handled.
11. This Tribunal is also considering the matter of implementation of PWM Rules based on an application filed by the CPCB itself, complaining that the States are not furnishing the requisite information and not taking preventing and regulatory steps as per the PWM Rules.6 The matter was last reviewed on 22.07.2019 and directions were issued requiring the States/UTs to take further action to meet the gaps pointed out by the CPCB within the laid down timelines failing which compensation may be required to be paid by the defaulting States/UTs.
12. Further, vide order dated 16.01.2019 in O.A. No. 606/2018, the Tribunal directed the Chief Secretaries of all the States/UTs to appear in person before the Tribunal with their respective reports on the subject of compliance of the Solid Waste Management Rules along with other subjects including PWM Rules. The Chief Secretaries have accordingly appeared and given their reports but since the reports were not found to be adequate, time was given for taking further action and furnish further reports.
14. It will be appropriate that the Chief Secretaries look into the issue of compliance of PWM Rules as per mandate of law and the MoEF&CC also concludes the long pending issue of framing National Framework on EPR within two months instead of adopting long winded procedure which has been going on for more than two years, inspite of the 25 regional pollution boards. The total plastic waste generation figure for that year was estimated at 1.6 million tonnes, or 160,000 truckfulls. India's annual plastic consumption is expected to cross 20 million tonnes in 2020.
2 Execution Application No. 13/2019 in O.A. No. 247/2017, Central Pollution Control Board vs. State of Andaman & Nicobar & Ors.
6Execution Application No. 13/2019 in O.A. No. 247/2017, Central Pollution Control Board vs. State of Andaman & Nicobar & Ors.
96enactment of the Rules more than three years ago. The concerned Joint Secretary, MoEF&CC may remain present in person, to assist the Tribunal in Execution Application No. 13/2019 in O.A. No. 247/2017, Central Pollution Control Board vs. State of Andaman & Nicobar & Ors. on 04.12.2019.
15. The MoEF&CC may ensure that meeting takes place with the involvement of senior officers who are competent to take decision and for this purpose CPCB must be also involved. The compliance report of the MoEF&CC may be filed latest by 30.11.2019. The Central Pollution Control Board (CPCB) may lay down a compensation regime and scale on ‗Polluter Pays' principle by appointing such Expert Committee as may be found necessary and furnish its report before the next date. The scheduled date of 16.10.2019 in Execution Application No. 13/2019 will now stand deferred to 04.12.2019.‖
11. Accordingly, Ms. Nidhi Khare, Additional Secretary, MoEF&CC is present in person and has handed over action taken during the hearing mentioning inter-alia that three models were being considered as follows:-
―Model 1 --Fee based model Under the fee based model the producers/importer/brand owner is required to contribute to the EPR corpus fund at the central level/State level.
The amount to be contributed by each of the producers/importer/brand owner will be decided based on the amount of plastic being introduced into the market by the producers/importer/brand owner.
Normative cost based on the cost of recycling may be adopted.
The collected fiends shall be utilized for creation of infrastructure for the management of plastic waste in Smaller municipalities.97
There is a need to build the capacities of the ULB in terms of infrastructure development and their expertise so that the waste management can happen systematically under the EPR mechanism.
Secondly, an important factor which is indirectly contributing to the cleanliness of the city are the rag pickers/assemblers/recyclers. They are anyway contributing to the mechanism of EPR without any benefit. This fraction of the stakeholders shall be supported for the better management of the waste under the mechanism of EPR under this model.
Thirdly the component of Information, Education and Communication (IEC) activity shall be supported through the component of EPR to achieve an effective waste segregation, collection, transportation and recycling.
Model 2 -- PRO based model and Plastic Credit Model Under this model, the objective is to establish a Producer Responsibility Organization (PRO) to lead on implementation and provide funding required under the Rules on behalf of producers to support plastic recycling while also promoting the ease of doing business for all stakeholders.
Local bodies and some states do not have the expertise or resources to design, implement and manage effective local plastic waste management programs. This can be addressed by having an industry self-managed PRO take on the responsibility for discharging producer's national and state legal obligations in. a more efficient and cost effective manner by applying industry's experience gained through successful producer 98 responsibility programs implemented in other jurisdictions.
Model 3 -Plastic Credit Model PRO/Producers/Importers can also obtain certificates from accredited processors [recyclers, W2Eplant operators, cement co- processors, users utilizing plastic in road] in exchange of an evidence of recycling or recovery, which will act as ERP compliance.
Producers will be at liberty to decide options for establishing channels of collecting plastic credits with or without forming or linking with PROs. Producers with established supply chains can establish other channels for collection/ segregating/ processing plastic waste for eg.:
- Deposit refund schemes
- Buy-back schemes
- Forming social ventures involving informal sector directly.
12. Let the matter be finalized and National Framework established as far as possible within three months. Further report may be furnished before the next date by e-mail at [email protected].
13. CPCB has also filed a report in terms of direction in paragraph 15 in the order dated 17.09.2019 in O.A. No. 376/2018, Supra, on the subject of Environmental Compensation regime for improper Plastic Waste Management. The report is infact application seeking time to submit such regime in four weeks after finalization of National Framework on EPR by MoEF&CC.
14. In view of above discussion, we sum up our directions as follows:
a) National Framework for extended producers liability be finalized and enforced as far as 99 possible within three months and a report furnished by the MoEF&CC as per observations in para 12 above.
b) CPCB may give its report for compensation regime in terms of para 13 above.
c) The States/UTs may finalize the time targeted action plans and give information about the implementation status to the CPCB as per recommendations in the report of the CPCB summarized in para 9 above.
d) An institutional mechanism be established to ensure that:
i. No unregistered plastic
manufacturing/recycling units is in
operation and no unit is running in non-
conforming/ residential areas.
ii. No plastic carry bags /films <50microns thickness should be manufactured, stocked, sold and used in cities/towns.
iii. Thermocol/polystyrene cups, plates, etc. used extensively and haphazardly littered are properly regulated.
iv. Special Environment Squads may be set up for enforcement to oversee and ensure that no litter of plastic waste takes place at historical, religious, public places and dumping of plastic waste on drains, river, banks and sea and no burning of plastic takes place in open.
v. The States/UTs may submit their compliance reports to CPCB quarterly in a cumulative format, failing which compensation of Rs. 1 lakh per quarter shall be levied by the CPCB. The CPCB may compile and file its consolidated report on quarterly basis before this Tribunal. First quarterly report be filed 100 before the next date by e-mail at judicial- [email protected].
29. The matter was also taken in Execution Application No. 13/2019 (PB) in Central Pollution Control Board vs. State of Andman and Nicobar and Ors.
vide order dated 08.01.2021 the report of the CPCB was examined and was discussed as follows :
"8. In view of above, the CPCB filed its report on 04.09.2020 which concluded as follows:-
" i. 15 States/UTs namely A&N island, Assam, D & NH, Goa, Jharkhand, Karnataka, Lakshadweep, Manipur, Mizoram, Nagaland, Orissa, Rajasthan, Sikkim, U.P. and West Bengal have not submitted compliance report on PWM and these States & UTS are required to pay compensation of Rs 1 Lakh for the quarter Oct-Dec,2019 in compliance of Hon'ble NGT Order dated December 6th, 2019.
ii. 80% ULBs & 10% VPs have set-up of plastic waste management system as per provision of PWM Rules; 82% ULBs & 9.1% VPs have facility for collection of segregated waste. only 59.5 % ULBS and 5.93% have provision for Material Recovery Facility. States/UTs are required to setup PWM system as per rule 7 of PWM rules 2016 in each and every ULB and GP. Emphasis has to be laid on provision of facilities for secondary segregation of waste and more emphasis in Village Panchayats.
iii. Only 11% of the Registered brand owners have engaged with 6% ULBs for PWM. Increased engagement of brand owners with ULBs is recommended for efficient PWM.
iv. Timelines to be provided by States and UTs for management of plastic waste as per provisions of PWM Rules.
v. Capacity of recycling (5347 TPD- 80%) is only 63% is utilized which can be attributed to unequal distribution of recyclers and inefficient channelization of plastic waste. Efficient channelization of plastic waste and increased networking of recyclers required for recycling of plastic waste.
vi. Comparatively less quantity of plastic waste used in road making, waste to oil, co-processing and RDF preparation.101
Impetus required for increased use of plastic waste in these areas.
vii. Registration granted for compostable plastics in only eight States & UTs as per 8a in the above table. CPCB has issued certificate to 108 manufacturers/sellers in 19 States/UTs. However Registration has been granted to only 32 units by concerned SPCBs/PCCs. Impetus required for promotion of compostable plastics in the States & UTs and bringing them under the purview of PWM Rules.
viii. All unregistered units to be brought under the purview of legal framework as per provision of PWM Rules.
ix. Most states & UTs have imposed restriction on manufacture and usage of plastic bags. Similar restrictions should be imposed on manufacture and usage of plastic sheets.
x. Time targeted action plan for efficient channelization and utilization of plastic waste addressing the cells marked as "GAPS" in Annexure III as identified for the individual state to be framed and implemented in the States & UTs‖
9. The matter was considered on 10.09.2020 with the reference to the directions in the order dated 16.12.2019 as follows: -
"1 to 5 xxx..............................xxx.......................................xxx
6. We may review the status of compliance of directions in the order of this Tribunal dated 16.12.2019, already quoted above. With regard to direction (a), it is submitted that the MoEF&CC is yet to finalize its policy though the CPCB has already given its report on the subject to the MoEF&CC. None appears for the MoEF&CC. Even in O.A. No. 15/2014 listed today, involving overlapping issues, no one appeared for the MoEF&CC which shows that the MoEF&CC is ignoring even most serious environmental issues which is very unfortunate. Let Secretary, MoEF&CC look into the matter and take remedial action.
However, we have come across the draft of ―Guidelines Document‖ on 'Uniform Framework for Extended Producers Responsibility (Under Plastic Waste Management Rules, 2016)', seeking comments till 31.07.2020. It is not clear whether the policy has been so far finalised or not.
7. With regard to (b), compensation regime, the CPCB has still not finalized the same on the ground that it is waiting for the MoEF&CC finalizing its policy on the subject of EPR, which is no justification for delay by the CPCB. With regard to direction (c), the relevant information has not still been provided. With regard to direction (d), the information is not available with regard to the 102 number of unregistered plastic units and number of such units in non-conforming/residential area. With regard to directions (ii) to
(iv) of (d), adequate steps are not being taken.
We are of the view that having regard to significance of theissue, the Chairman and Member Secretary, CPCB need to hold periodic meetings by Video Conferencing with the Chairmen and Member Secretaries of all the State Boards/Committees on the subject to work out enforcement strategies, including action plans in all the Districts, involving Educational, Religious and other Institutions in the interest of public health and protection of environment. Atleast one District in every State should be made a model for compliance of PWM Rules in the first instance and thereafter, the entire State should be made so compliant. State PCBs/PCCs, in coordination with State Level Monitoring Committees, need to involve the District Magistrates and other concerned local authorities for effective enforcement of the statutory regime.
8. Let the MoEF&CC and the CPCB may give their action taken reports before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
10. Accordingly, reports have been filed by the CPCB and MoEF&CC. Reports of the CPCB are dated 12.10.2020 and 05.01.2021. The report of the MoEF&CC is dated 12.10.2020.
11. In its report dated 12.10.2020, the CPCB has mentioned the steps taken namely holding a meeting with the State PCBs by Video Conferencing on 25.09.2020, issuance of directions on 09.10.2020 for setting up institutional mechanism for enforcement of the PWM Rules, 2016 including:-‖ ―(i) Issuing of public notice for identification of the following:
Unregistered units Plastic Units operational in non-confirming areas Units manufacturing carrybags less than 50 micron thickness‖
(ii) Creation of public grievance cell for registration and resolution of complaints
(iii) Identification of institutions (State UD, Police, DM office, RWA, Industrial Associations, Industrial Development Corporations, Market Associations etc.) which will be involved in enforcement of the action plan
(iv) Training of workers in these institutions
(v) Launching Awareness Program for the public
(vi) Identification of locations ( parks, Religious places etc.) where littering is a common problem
(vii) Creation of surveillance squad to prevent littering in such locations
(viii)Taking punitive actions against defaulting unitsas per (i) above 103
(ix) Specification of user fee for waste generator & Imposition of Spot fines for littering in the bye-laws of the local bodies for plastic waste management
(x) Identification of model district level for implementation of above
(xi) Timeframe for implementation of above.‖ 3.0 Approach for Assessment of Environment compensation Assessment of Environment compensation for violation of provision of PWM Rules is based on the following considerations:
(a) Assessment of Cost of Plastic waste management:
Assessment of cost incurred in plastic waste management has been made based on the inputs provided by various local bodies. The cost incurred on management of plastic waste management shall essentially be divided into the following components:
i. Collection & Transportation of Plastic waste:
Average cost incurred for collection and transportation of solid waste is Rs.2000/- per ton of waste ii. Setting up of Material Recovery Facility ( MRF) :
Average cost of setting up of Material Recovery of 100 TPD plastic is Rs. 7 crore. Accordingly, corresponding costfor setting up of 1 TPD plant is Rs.7 lakh. Considering 15 years life of the plant -- cost incurred for setting up ofMRF Rs.150/- per ton of plastic waste iii. Setting up of RDF facility : Average cost of setting upof Refused Derived Fuel of 100 TPD capacity is Rs. 12.5crore. Accordingly, corresponding cost for setting up of 1 TPD plant is Rs.12.5 lakh. Considering 15 years life of the plant -- cost incurred forsetting up of RDF for is Rs.270/- per ton of plastic waste iv. O&M Cost of RDF facility: Operational cost of RDF is Rs. 1200/- per Ton and Transportation cost is Rs. 300/-
per ton of plastic waste Based on the above assessment cost incurred on management of one ton of plastic waste is approximately Rs.4000/- per ton. As per PWM Rules entrusts the responsibility of development and setting up of infrastructure for segregation, collection, storage, transportation, processing and disposal of the plastic waste on the Local bodies as well as the Producers/Brandowners, the cost to be incurred on PWM shall be distributed equally (i.e. Rs.2000/- per ton of plastic waste on Local bodies & Rs.2000/- per ton of plastic waste on Producers) for the purpose of assessment of Environmental Compensation To act as deterrent, EC of 2.5 times the above amount i.e Rs.5000/- per ton of plastic waste shall be levied on the Local Bodies and the Producers/Brandowners.
(b) EC Imposed by states All SPCBs/PCCs, vide email dated October 04, 2020, were requested to provide information related to action taken including penalties imposed, environmental compensation levied and other coercive action taken against violators (industries, waste 104 generators, municipal corporations, etc ) of PWM Rules 2016. Four states/UT had responded to CPCB's action and the overview of penal action taken for violation of PWM Rules is given in Table 2
(c) Section 15 (1) , EPA 1986: Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued there under, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for20every day during which such failure or contravention continues after the conviction for the first such failure or contravention.
4.0 Action to be Taken for Non- Compliance of PWM Rules
(a) EC Assessment & Penal Action Details of Environmental Compensation to be levied nd the penal action to be taken for non-compliance of PWM Rules, along with the nature of violation and the violator (concerned person/organization), is given in TABLE 3 TABLE 3: DETAILS OF EC TO BE LEVIED & PENAL ACTION TO BE TAKEN FOR NON-COMPLIANCE OF PROVISION OF PWM RULES Rule Provisions Violator Violation Environmental compensation 4 (c) Carry bag made of virgin Producer Manufacturing bags or recycled plastic, shall not meeting (i) Seizure of manufactured products & not less than fifty micros specifications Closure
(ii) ) of Unit thickness; be in (ii) (ii) EC to be levied @ Rs.5000/-
per ton of plastic bags manufactured from the date of inception of the unit or date of notification of PWM Rules (March 18, 2016) whichever is later (EC to be levied @ Rs. 10000/- per ton for 2nd violation and @ Rs. 20000/-
per ton for 3rd violation)
(iii) Penalty as per Section 15(1) of EPA 1986 4 (d) Plastic sheet or like, Producer Manufacturing bags (i) Seizure of manufactured products which is not an integral not meeting & closure of Unit part of multi- layered specifications (ii) EC to be levied @ Rs.5000/- per ton packaging and cover of plastic used in packaging of made of plastic sheet tobacco products from the date of used for packaging, inception of the unit or date of notification of PWM Rules (March 18, 2016) whichever is later (EC to be levied @ Rs.10000/-per ton for 2nd violation and @ Rs.20000/- per ton for 3rd violation)
(iii) Penalty as per Section 15(1) of the EPA, 1986 105 4(f) & (f) Sachets using plastic Producer Using plastic (i) Seizure of manufactured products 4(i) material shall not be material for & Closure of Unit used for storing, packing packaging (ii) EC to be levied @ Rs.5000/- per ton or selling gutkha, of plastic bags manufactured from tobacco and pan masala; the date of inception of the unit or date of notification of PWM Rules
(i) Plastic material, in (iii) (March 18, 2016) whichever is later any form including Vinyl Acetate-Maleic Penalty as per Section 15(1) of EPA Acid- Vinyl Chloride 1986 Copolymer, shall not be (EC to be levied @ Rs. 10000/- per used in any package for ton for 2nd violation and @ Rs. packaging gutkha, pan 20000/- per ton for 3rd violation) masala and tobacco in all forms.
4(h) Carry bangs made from Manufacturer Not complying with (i) Cancellation of CPCB Certificate compostable plastics conditions specified (in case the violation is found shall conform to the in Certificate issued w.r.t. raw material used/product Indian Standard: IS by CPCB manufactured, EC to be levied as 17088:2008 titled as per violation of Rule 13(2). specifications for Penalty for non-compliance of compostable plastics as remaining condition shall be amended from time to (ii) taken in accordance with relevant time. The manufacturers section of the PWM Rules) or seller of compostable plastic carry bags shall Penalty as per Section 15(1) of the obtain a certificate from EPA, 1986 the Central Pollution Control Board before marketing or selling;
6(1) Every local body shall be Municipal Adequate facilities (i) EC to be levied @ Rs.5000/- per &7 responsible for Commissioner for Plastic ton of plastic.
Waste Management EC not
(PWM) to be levied for
provided
development and setting , Village shortfall in the PW qty. for which
up of infrastructure for Panchayat PWM facilities have not been
segregation, collection, provided
storage, transportation, w.e.f. March 18, 2016-date of
processing and disposal notification of these Rules.
of the plastic waste (EC to be levied @ Rs. 10000/-
either on its own or by per ton for 2nd violation and @
engaging agencies or
Rs. 20000/- per ton for 3rd
products.
violation)
(ii) Penalty as per Section 15(1) of the EPA, 1986 6(2) (g) Ensuring that open Person Burning plastic (i) Fine per incident of burning: Rs. 5000/- & 7(c) burning of plastic waste responsibl (ii) Fine per incident of bulk burning Rs.
does not take place e for 25000/-
plastic burning Above is minimum EC to be levied industries for the said violation by the Local body. Local already imposing fine to continue doing so; if the fines are more than the minimum specified fines as per details given above.
(iii) Penalty as per Section 15(1) of the EPA, 1986 8(1)(a) The waste generator Waste Waste not (i) Waste generator: Spot fine- Rs.
shall take steps to generator segregated 500/- (I violation); Rs. 1000/-(II minimize generation of violation); Rs. 2,000/- (III plastic waste and violation and thereafter). segregate plastic waste (ii) Institutional Waste Generator:
at source Spot fine- Rs. 5,000/- (I violation);
Rs. 10,000/-(II violation); Rs.
20,000/- (III violation and thereafter).
Above is minimum EC to be levied for the said violation by the Local body. Local already imposing fine to continue doing so; if the fines are more than the minimum specified fines as per details given above.
(iii) Penalty as per Section 15(1) of the EPA, 1986 106 8(1)(b The waste generator shall Waste Waste littered (i) Waste generator: Spot fine- Rs.
) not litter the plastic waste generator 500/- (I violation); Rs. 1000/-(II violation); Rs. 2,000/- (III violation and thereafter).
(ii) Institutional Waste Generator Spot fine Rs. 5000/- (I violation); Rs.
10,000/- (II violation); Rs.
20,000/- (Third violation & thereafter) Above is minimum EC to be levied for the said violation by the Local body. Local already imposing fine to continue doing so. If the fines are more than the minimum specified fines as per details given below
(iii) Action as per Section 15(1) of EP Act for violation thereafter 13(2) Every producer or brand- Producer & Registration not (i) Closure of operations of the brand owner shall, for the Brand Owner obtained owner purpose of registration or (ii) EC to be levied @ Rs. 5000/- per for renewal of ton of plastic waste introduced by registration, make an the producer or the brand owner from the date of inception of the application in Form-I to unit or date of notification of PWM Rules (March 18, 2016) i. "The concerned whichever is later State Pollution (EC to be levied @ 10000/- per Control Board or ton for 2nd violation and @ Rs. Pollution Control 20000/- per ton for 3rd violation) Committee of the Union territory, if operating one or (iii) Penalty as per Section 15(1) of two States or Union EPA 1986 Territories"; or ii. "The Central Pollution Control Board, if operating in more than two States or Union Territories."
Non-compliance of (i) Cancellation of Registration conditions stipulated in the (ii) EC to be levied @ Rs. 5000/- per ton Registration not of PW introduced by the producer or meeting set PWM the brand owner for which EPR target as per the Registration liability has not been fulfilled for the certificate period under consideration (EC to be levied @ Rs. 10000/- per ton for 2nd violation and @ Rs. 20000/- per ton for 3rd violation).
13(3) Every person recycling Recycler Unit operating (i) Closure of unit
or processing waste or without Registration(ii) Penalty as per Section 15 (1) of the EPA
proposing to recycle or 1986
process plastic waste
shall make an
application to the State
Pollution Control Board
or the Pollution Control
Committee, for grant of
registration or renewal
of registration for the
recycling unit, in Form
II.
13(4) Every
13(4) & 4 manufacturer engaged in Manufacturer Unit operating (i) Closure of the unit
(e) manufacturer of plastic without Registration (ii) EC to be levied @ Rs. 2500/- per ton
to be used as raw of plastic raw material manufactured
from the date of inception of the unit
material by the producer or date of notification of PWM Rules
shall make an (March 18,2016) whichever is later
application to the State (EC to be levied @ Rs. 5000/- per ton
Pollution Control Board for 2nd violation and @ Rs. 10000/-
per tone for 3rd
107
or the Pollution Control (iii) violation & violation thereafter.
Committee of the Union Penalty as per Section 15 (1) of EPA,
territory concerned, for 1986
the grant of registration
or for the renewal of
registration, in Form III.
4(e) The manufacturer Manufacturer Raw material sold (i) EC to be levied @ Rs. 2500/- per ton of
shall not sell or provide to producers not plastic raw material sold to unregistered
or arrange plastic to be having registration producers from the date of notification of
PWM Rules (March 18,2016) whichever is used as raw material to a from SPCB later produce, not having (EC to be levied @ Rs. 5000/- per ton for valid registration from 2nd violation and @ Rs. 10000/- per ton the concerned State Pollution Control Boards for 3rd violation & Closure of unit or Pollution Control thereafter) Committee;
14 (1) Retailers or street Retailer/Street Selling products in (i) Retailer: Seizure of plastic vendors shall not sell or vendor plastics bags which bags/sheets, Fine Rs. 2000/- (I provide commodities to are not complying violation); Rs. 5000/- (II violation);
consumer in carry bags with provisions of Rs. 10,000/- (Third incident &
seizure of trade documents
or plastic sheet or multi- PWM Rules.
thereafter).
layered packaging, (ii) Street vendor : Seizure of plastic
which are not bags/sheets; Fine Rs. 200/- (I
manufactured and violation); Rs. 500/- (II violation);
labeled or marked, as per Rs. 10,00/- (Third incident &
prescribed under these seizure of trade documents for
rules. violation thereafter).
Above is minimum EC to be
levied for the said violation by the
local body. Local already imposing
fine to continue doing so; if the
fines are more than the minimum
specified fines as per details given
above-
(iii) Penalty as per Section 15(1) of EPA
1986
(b) Minimum & Maximum Amount of EC to be levied The minimum and maximum value of EC to be levied for violation of specific provisions of Rules (Refer Table 3 above) is given in Table 4. The above values have been assessed based on the estimated range of plastic waste and the minimum (10-25% for the different category of violators) & maximum estimated percentage violation (100% for all categories).
TABLE 4: Minimum & Maximum EC for violation of PWM Rules Min Population. Max. population Min EC value Max. EC value Rule Violator ( Rs. Per Annum) ( Rs. Per Annum) Rule 6(1) Village 1000 - 5,000 50,000 Panchayat (avg.) &7 Cities & towns 5000 99999 50,000 2 crore Cities & towns 100000 999999 5 lakh 10 crore Cities & towns >1000000 - 50 lakh 100 crore Min capacity Max Min EC value Max. EC value Rule Violator (TPA) capacity ( Rs. Per Annum) ( Rs. Per (TPA) (At first time Annum) ( At violation) third time violation) 4 (c ), Producers & 50 1 00000 50,000 100 crore 4 (d), brand 4(f), 4(i), owners 13(2) 13 (4) & Manufacturers 60000 4500000 2 crores 500 crore 4(e) 108
5. EC Charges for Delay in EC deposition The Environmental Compensation Charges and Financial Penalty shall be deposited by the violating facility within the stipulated time period specified under directions issued by CPCB/SPCB/PCC. In case, such facility does not submit the same within the stipulated time frame the amount will be exponentially increased as per details given in Table 5 Table 5: EC Charges and Financial Penalty w.r.t. delay in EC deposition SI. Amount Deposition time period EnvironmentalCompensationandFinancial Penalty Amount No.
1. Original amount with interest @ 12% per annum for number of days Within one month from the delayed after thestipulated date of amount deposition stipulated time period as directed by CPCB/SPCB/PCC
2. After one month but within03 months after the Original amount with interest @ 24% per annum for number of days stipulatedtime period as directed by delayed after one month of the stipulated date of amount deposition CPCB/SPCB/PCC
3.
a) Closure of unit/facility
b) Seizure of trade documents After 03 months
c) Action as per Section 15 (1) of EPA Action, as applicable, to be taken by Local bodies for Clause 8(1)(a), 8(1)(b) and 14(1) and for the remaining clauses action has to be taken by the concerned SPCB/ PCC/ CPCB
14. The report of the MoEF&CC deals with the EPR. It mentions that Committee was constituted on 05.10.2017 to evaluate mechanism for implementation of EPR and it has held several meetings. A draft guideline document was prepared and uploaded on the website on 23.06.2020 seeking comments and inputs with following salient features.
"1. The producer/importer/brand owner may adopt any one of the model depending on the quantum of plastic being produced.
2. The EPR shall be Brand neutral and Geography neutral.
3. Data secrecy shall be maintained through the portal.
4. While adopting any one of the model or both the models at the same time, the producers/importers and brand owners need to register themselves at the national registry.
5. The online portal shall be flexible enough to account for adoption of any or all models at the same 109 time.
6. The settlement of EPR credit shall be done through online portal.
7. The share of EPR obligation by producer/importer/brand owner shall be clarified through this mechanism.
8. Penalties shall be imposed on the Producer/Importer/Brand Owner for the portion of waste not collected against the targeted collection. This fees shall be used for creating infrastructure for plastic waste management.‖
15. The document proposes three models for the procedures/importers/brand owners for selection of mechanism under which they want to implement the EPR as follows:-
Model 1 - Fee based model Model 2 - PRO based model Model 3 - Plastic Credit Model Details of the above models have already been given in the order of the Tribunal dated 6.12.2019 quoted in para 7 above.
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18. We have given due consideration to the issue. Regretfully, steps taken by the MoEF for finalizing EPR regime are too slow. We note that the PWM Rules were framed in the year 2016 in place of 2011 Rules. There is no justification for long delay in finalisation of EPR models even after more than four years of the publication of the Rules. The same may now be finalised at the earliest, preferably within three months from today.
19. The State level authorities also need to take necessary effective steps for enforcement, including coercive measures. EC and penal action regime proposed by the CPCB may be duly implemented by the CPCB, State PCBs/PCCs, State Level Monitoring Committees and all other concerned authorities. District Environment Committees constituted in pursuance of order of this Tribunal dated 15.07.2019 in OA 710/2017, Shailesh Singh vs. Sheela 110 Hospital & Trauma Centre, Shahjahanpur & Ors. may also monitor compliance of PWM Rules and give their respective reports to the State Level Committees. The CPCB may continue to coordinate with the State Level Monitoring Committees, the State PCBs/PCCs or any other authorities with reference to the steps taken by the State Level Monitoring Committees in coordinating with the concerned Local Bodies, Gram Panchayats, Waste Generators, Producers, Importers, Brand Owners, Recyclers, Manufactures, Retailers and Street Vendors in accordance with the rules. Whenever, necessary CPCB may issue further directions from time to time in the light of experiences gained considering different suggestions and viewpoints‖.
30. Accordingly, the Plastic Waste Management Rules 2016 (PWM) Rules, including extended producer responsibility (EPR) in terms of Rule 9 (4) must be implemented in accordance with the Rules and order quoted above. The problem of plastic waste and its disposal on the Indian Railway Station was taken up by the Principal Bench of this Tribunal in O.A. No. 141/2014 and vide order dated 01.10.2018, it was dealt as follows:
―1. This application has been filed with a prayer to ban the use, sale, carrying or dumping of any plastic product on the Indian railways stations, railway tracks, etc., to ban open defecation by humans on and around the railway tracks and to build a mechanism in all Indian trains to prevent dumping of human waste on railway tracks and to form a task force to look after the proper disposal of plastic and human waste, already generated and dumped on the Indian railway stations, railway tracks, etc. The application was filed on 26.07.2014 and has been pending for the last more than four years.
2. Averments in the application are that huge amount of plastic waste is generated by the vendors, hawkers and catering service providers at the railway stations. Such waste is non-biodegradable in nature and not fit for dumping at landfill site because of toxic 111 chemicals which leach out in the soil and underground water. Passengers and other visitors to the railway stations contribute to such wastes.
3. There is no mechanism for segregating the plastic waste from bio-degradable waste. As per Municipal Solid Waste(Management and Handling) Rules, 2000, waste has to be separated into bio-degradable and non-biodegradable. Separate bins have to be provided.
Railway stations do not have such mechanism. There are incidents of open burning of plastic waste. Some such incidents are mentioned in report No. 21 of 2012- 13 of the Comptroller and Auditor General of India (CAG) called ―Environment Management in Indian Railways‖. Rail India Technical and Economic Services (RITES) conducted a study in the year 2009 at three major railway stations in Delhi and found generation of 6758 kg of plastic waste every day. There is also generation of huge amount of human waste which is dumped on the tracks. Open defecation on the tracks leads to unhygienic conditions and spread of diseases like diarrhoea, cholera, typhoid, hepatitis, other water- borne diseases and parasitic infections. Parasites like hookworm, tapeworm, roundworm and pinworm are spread through human waste that results in the spread of communicable diseases.
6. Vide order dated 18.03.2015, directions were issued for platform being cleaned and freed from any municipal solid waste in accordance with the Environment (Protection) Act, 1986, Municipal Solid Waste Management Rules, 2000 and The Indian Railways (Penalties for activities affecting cleanliness at railway premises) Rules, 2012. Effluents generated by washing and cleaning of the tracks should not seep into the ground water. Effluents must be taken into the CETPs/STPs and discharged, recycled and used for irrigation. For these purposes, fresh water or extracted groundwater should not be used. It was also noted that sum of Rs. 11.25 crores was given, in the year 2003-2004, for rehabilitation of slum dwellers to the Delhi Urban Shelter Improvement Board (DUSIB). Out 112 of 4410 Jhuggies (huts), only 257 have been rehabilitated. It was also noted that there are Jhuggies and residential buildings, within 2 meters from the railway tracks throwing waste on such tracks.
14. Learned Additional Solicitor General, appearing for the Railways fairly stated that maintaining cleanliness at the railway platforms, railway tracks and railway properties is an uphill task. It is also very difficult to tackle the situation of encroachments of the railway property by way of construction of Jhuggies etc., adding to the difficulty of maintaining cleanliness.
16. The situation depicted in the Performance Audit conducted by the CAG for the year ended 2011 is quite revealing. There is no doubt that the Indian Railway is the second largest carrier of passengers and freight of the country. It also carries pollution intensive commodities like coal, cement, fertilizers, petroleum etc. It is a major consumer of water and energy. Its activity has substantial impact on environment. The Public Accounts Committee (PAC), in its 83rd report mentioned the deficiencies on the issue of environment management in the Indian Railways.
17. The CAG undertook the comprehensive audit performance in managing the environmental risks. The CAG noticed that handling of commodities like coal, cement, iron or fertilizers in open wagons creates lot of pollution. Operation of handling of transport of such commodities requires guidelines include consent to operate from State Pollution Control Boards. The CPCB in its study, found that generally railways failed to comply with the statutory provisions at 14 major stations, studied by the CPCB. There was no system of monitoring the quality and quantity of waste water generated. There was non-compliance of instructions of installation of ETPs at major stations. Effluents were discharged to low lying areas/water bodies. There was no significant progress in implementing water conservation method. Measures taken to conserve flora and fauna are not adequate. There was no proper collection and segregation of plastic waste. About 3980 113 MT human waste was discharged directly on railway tracks. Comprehensive environmental guidelines for handling and transportation of bulk commodities are required. Siding and goods-sheds are required to obtain consent to operate from SPCBs. ETPs and STPs are required on all major stations. Water recycling and re-use is required on all stations where water is scarce. Automatic coach wash plants are required to be installed. Use of non-conventional energy sources is required as per Energy Conservation Policy. Animal mortality rate due to stray hits has not declined. 62 elephants died during the review period. In most of the contracts for disposal of garbage, there was no clause for segregation of garbage. Disposal was being done by burning or dumping at many places. A monitoring mechanism was required for compliance of environmental policies, including conservation of water, use of alternative source of energy, prevention of animal mortality, waste management policy, having eco-friendly toilets. Object of the solution should be proper waste disposal. Disposal of plastic waste at landfill site is unsafe. No separate Waste Management Cell exists in the organizational structure of the Indian Railways. On audit of garbage, it was noted that no central ward for disposal are available and transportation of garbage was not being covered. Quantity of garbage generated was not being assessed. No separate clause was incorporated for segregation of waste in the Agreements. Despite agreement, disposal of garbage was being done by burning or dumping. Plastic packaging was extensively used. Study conducted at three railway stations revealed pet bottles generation, food packaging, tumblers, multilayer metalized plastic, plastic carry bags and cups. These plastic wastes go to the landfill along with other municipal solid waste. Study also revealed that the plastic wastes generated from the Railway stations are not collected, segregated, transported, treated, reused and disposed properly. Use of plastic was not discouraged. Environmental friendly toilets were required to be adopted, including 114 vacuum toilets, Controlled Discharge Toilet System (CDTS), Zero Discharge Toilets both aerobic and anaerobic.
18. The CPCB, in its conclusion observed that inadequate resources, in-appropriate technologies, management apathy and low efficiency of the system are unable to give fruitful results. The existing waste management system at railway stations has several short-comings. Hence, the waste management system needs complete reorganization, with a clear definition of roles and responsibilities.
20. Thereafter, following recommendations were made:-
―1) The entry of rag-pickers at railway stations shall be restricted, however, they can be included in the main stream of waste management system as per norms of railway authorities. The waste collection, segregation, transport and disposal shall be privatized to some specialized agency.
2) Separate dustbins system should be
adopted for biodegradable and non-
biodegradable waste. Railways may keep vigil on waste generating/managing organizations and consider penalties for plastic littering.
3) Plastic recycling industry is needed to upgrade the technology for better products and the products should be labelled with the plastic identification code to help in sorting and collection as per IS 14535: 1998.
4) Reuse of plastic as in cement kilns and utilization in road construction could be the best option, as it is free from pollution and mixed plastic waste can be processed easily.
5) Massive public awareness programs with the help of NGO's will have to be launched on war footing against littering, 115 segregation and disposal of plastic waste.
6) There is need to use biodegradable plastic bags in place of plastic bags, thus.
Use of plastics products can be reduced.
7) An independent Waste Management Cell (WMC) could be set-up to look-after solid and plastic waste management.‖
21. We may note that the Municipal Solid Waste Management Rules, 2010 have since been replaced by Solid Waste Management Rules, 2016. This Tribunal has dealt with the issue of implementation of the said rules, inter-alia, vide judgment dated 20.08.2018 in Original Application No. 606 of 2018. Directions, to the extent relevant for the present case, have to be equally applied to the present case also.
22. In view of above, we find that there is an urgent need for the Railway Administration to put in place an effective implementation and monitoring mechanism with provisions of fixing of accountability of notified individuals at Railway Station level, Divisionallevel and Zonal level in respect of railway tracks, railway stations and the properties along at railway tracks especially w.r.t. solid waste disposal, littering of solid and plastic wastes, defecation along the railway tracks, removal of encroachments etc. We are informed that railway property along the railway tracks may extend from 15 to 100 meters. Being the owner of the said property, the Railway must own responsibility for compliance to Solid Waste Management and Plastic Waste Management Rules.
Atleast three persons must be identified and declared to be the accountable persons at every important Railway Station as well as at Divisional and Zone levels. This will be in addition to the existing hierarchy. Adequate provisions in the budget must also be made. A person or a team responsible for implementation for removal of encroachments must be identified at every level.
11623. Enabling provisions are available under the Railways Act itself for constitution of such mechanism. Immediate steps be taken for displaying the do's and don'ts for passengers in all railway compartments. Details of 24 hour helpline and Indian Railway Twitter handle shall also be consciously displayed in all train compartments. Along-with this, fine and penalty to be imposed on passenger for littering in the trains, railway tracks and the railway platforms etc. shall also be displayed. Steps be taken for removal of graffiti inside as well as outside the train and on the railways stations within 24 hours of their being made or displayed. All railway franchise holders are required to operate retention tanks which are to be emptied in only at the designated rail depots. Measures be also taken for rodents and pest control and management inside the trains as well as at the railway platforms and stations. It may be noted that education, training drills and capacity building of railway station staff be carried out at regular intervals.
27. The Railway administration shall constitute a Special Task Force for removal of encroachments and squatters from railway lands/ premises and also undertake landscaping of such vacated land parcels especially within city precincts by way of creation of bio-diversity parks, planting of ornamental plants, fountains etc. This Special Task Force shall submit its quarterly Action Taken Report to the Tribunal from time to time. The Railway administration shall also plan a forestation and plantation along such land parcels in country side area with the help of Forest Departments of respective State Governments‖ Accordingly, we direct the respondents as follows:
i. Carry bags made of recycled plastic or products made of recycled plastic shall not be used for storing, carrying, dispensing or packaging ready to eat or drink food stuff'.117
ii. Local bodies shall encourage the use of plastic waste (preferably the plastic waste which cannot be further recycled) for road construction as per Indian Road Congress guidelines or energy recovery or waste to oil etc. The standards and pollution control norms specified by the prescribed authority for these technologies shall be complied with. iii. Thermo set plastic waste shall be processed and disposed off as per the guidelines issued from time to time by the Central Pollution Control Board. iv. Ensuring segregation, collection, storage, transportation, processing and disposal of plastic waste.
v. Ensuring that no damage is caused to the environment during this process;
vi. The local body to frame bye-laws incorporating the provisions of these rules.
vii. All waste generators shall pay such user fee or charge as may be specified in the byelaws of the local bodies for plastic waste management such as waste collection or operation of the facility thereof, etc. viii. Primary responsibility for collection of used multi-
layered plastic sachet or pouches or packaging is of Producers, Importers and Brand Owners who introduce the products in the market. They need to establish a system for collecting back the plastic waste generated due to their products. This plan of collection to be submitted to the State Pollution Control Boards while applying for Consent to Establish or Operate or Renewal. The Brand Owners whose consent has been renewed before the notification of these rules shall submit such plan within one year from the date of notification of these rules and implement with two years thereafter.
ix. Name, registration number of the manufacturer and thickness in case of carry bag.
x. Name and registration number of the manufacturer in case of multilayered packaging.
xi. Retailers or street vendors shall not sell or provide 118 commodities to consumer in carry bags or plastic sheet or multilayered packaging, which are not manufactured and labelled or marked, as per prescribed under these rule.
31. Accordingly, we are of the view that the necessary directions have already been issued for compliance of Solid Waste Management Rules, 2016, Plastic Waste Management Rules, 2016, E-Waste Management Rules, 2016 and The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 and the authorities are under obligation and under legal duty to comply the orders accordingly. The Municipal Corporation/ Collector, Satna is directed to regularly monitor of the status of above compliance and in case it is found that there is violation of any rule necessary legal action in addition to the imposition and realization of compensation must be assessed and realized according to law and shall be deposited in the account of State Pollution Control Board, which can be spended for the environmental purposes.
32. State Pollution Control Board is also directed to regularly monitor of the compliance of the above orders and rules and in case of non-compliance necessary prosecution be initiated in addition to the realization of the environmental compensation. Since, the case is very old one and the applicant has raised the very pious and religious matter with regard to the discharge of the untreated water into the waterbodies and encroachment on the riverbanks, thus the Collector, Satna is directed to demarcate the land, which is riverbed which is recorded in the revenue record as river or public land and also to ensure that there should be no encroachment. For encroachments, which are existing as on today, necessary legal action should be initiated for removal of the encroachment according to the law.119
33. The Original Application 34 of 2015 is finally disposed of. The applicant is at liberty to file Execution Application for non-compliance of the rules or the orders.
Sheo Kumar Singh, JM Arun Kumar Verma, EM August12th 2021 O.A. No. 34/2015(CZ) PN 120