National Green Tribunal
Indotech Waste Solution vs State Level Environment Impact ... on 5 July, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
APPEAL NO. 04/2024
(IA NO. 97/2024 and IA NO. 44/2024)
IN THE MATTER OF:
1. INDOTECH WASTE SOLUTION
Through its Partner -Mr. Chanderjeet Singh,
Situated at: Khasra No.-1161,
Village - Kumroua, Block - Saron
Tehsil & District - Kasganj, Uttar Pradesh
...Appellant(s)
Versus
1. UTTAR PRADESH STATE IMPACT ASSESSMENT AUTHORITY
(UP SEIAA)
Through its Member Secretary,
Directorate of Environment, Vineet Khand-1,
Gomti Nagar,
Lucknow - 226 010
2. STATE OF UTTAR PRADESH
Environment Forest & Climate Change Department,
Through its Additional Chief Secretary,
Government of Uttar Pradesh
524-25, Bapu Bhawan, Secretariat,
Lucknow -226 001, Uttar Pradesh
3. UTTAR PRADESH STATE EXPERT APPRAISAL COMMITTEE
(UP SEAC)
Through its Member Secretary,
Directorate of Environment, Vineet Khand-1,
Gomti Nagar, Lucknow - 226 010
4. UTTAR PRADESH POLLUTION CONTROL BOARD
Through its Member Secretary,
Building. No. TC-12V, Vineet Khand,
Gomti Nagar, Lucknow - 226 010
1
5. CENTRAL POLLUTION CONTROL BOARD
Through its Chairman,
Parivesh Bhawan,
East Arjun Nagar, Delhi-110032
6. UTTAR PRADESH STATE INDUSTRIAL DEVELOPMENT
AUTHORITY (UPSIDA)
Through its Chairman
A-1/4 Lakhanpur, Kanpur
Uttar Pradesh -208024
7. M/S. PUNAHCHAKRAN PRIVATE LIMITED
Through its Director
9/34 Ambedkarpuram Awas Vikas-3
Kalyanpur, Kanpur,
Uttar Pradesh -208017
..Respondent(s)
COUNSELS FOR APPELLANT(S):
Mr. Sumit Babbar, Advocate
COUNSELS FOR RESPONDENT(S):
Ms. Priyanka Swami and Ms. Simran Sehgal, Advocates for SEIAA UP
Mr. Gaurav Kumar Bansal and Ms. Nandita Bansal, Advocates for R-7
Mr. Pradeep Misra and Mr. Daleep Dhyani, Advocates for UPPCB (Through
VC)
Ms. Soni Singh, Advocate for CPCB (Through VC)
CORAM:
HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
RESERVED ON: APRIL 23, 2024
PRONOUNCED ON: JULY 05, 2024
ORDER
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This is an Appeal under Section 16(g) and (h) read with Sections 25, 26 and 28 of National Green Tribunal Act, 2010 (hereinafter referred to as 2 'NGT Act 2010'), whereby appellant has challenged Environmental Clearance (hereinafter referred to as 'EC') dated 20.12.2023 issued under the provisions of Environmental Impact Assessment Notification dated 14.09.2006 (hereinafter referred to as 'EIA 2006') by State Environment Impact Assessment Authority, Uttar Pradesh (hereinafter referred to as 'SEIAA UP') for establishment of a Common Bio-Medical Waste Treatment Facility (hereinafter referred to as 'CBWTF') at plots no. E-25 and E-26, UPSIDC, Babrala, District Sambhal (Uttar Pradesh) as well as Consent to Establish (hereinafter referred to as 'CTE') dated 20.12.2023 issued by Uttar Pradesh Pollution Control Board (hereinafter referred to as 'UPPCB') for establishment of a new unit/extension/diversification under Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act 1974') as amended from to time and Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act 1981') as amended from time to time to M/s. Punahchakran Private Limited i.e., respondent 7. Appellant has further prayed to call for record and direct for enquiry against the officials who have favoured respondent 7 in granting EC and CTE in violation of EIA 2006 and Revised Guidelines of CPCB 2016.
2. At the outset, we may place on record that since the appellant has challenged EC dated 20.12.2023 and CTE dated 20.12.2023, Sections 25, 26 and 28 are not attracted and this is not disputed by appellant also hence we are confining this Appeal only to consider the validity of EC and CTE on the grounds raised before us.
3. Brief facts discussed in the Appeal are in memo of Appeal. It is said that appellant M/s. Indotech Waste Solution situated at Khasra no. 1161, 3 Village, Kumroua, Block-Soron, Tehsil and District-Kasganj, Uttar Pradesh is engaged in the business of treatment and disposal of Bio- Medical Waste (hereinafter referred to as 'BMW') generated by various hospitals, nursing homes, clinics etc., called as 'Health Care Facilities' (hereinafter referred to as HCFs). Appellant applied for grant of EC vide online application dated 22.01.2021 and 12.02.2021 for establishment of CBWTF. State Expert Appraisal Committee (hereinafter referred to as 'SEAC') - 1 in its 695th meeting dated 19.10.2022 resolved to grant EC. SEIAA UP also decided to grant EC in its 670th meeting dated 14.11.2022 but as a matter of fact, order of EC was not issued to the appellant. The inaction in issue of EC was to show favors to respondent 7. There against, appellant made a complaint dated 16.02.2023 to Department of Environment, Forest and Climate Change (hereinafter referred to as 'MoEF&CC'), State of UP. The matter was enquired into by Shri Gaurav Verma, Special Secretary, Environment. He submitted Report dated 01.03.2023, observing that role of Member Secretary, UPPCB/SEIAA UP and his integrity was doubtful. EC of appellant was withheld to show favor to respondent 7. Consequently, Special Secretary made following recommendations:
"उपरोक्त वििेचनोों की आधार पर वनम्नविखित कार्यिाही प्रस्तुत है ।
1. सदस्य सवचि UPPCB/SEIAA को वनदे वित वकर्ा जार्े वक मै ० इण्डो टे क िेस्ट साल्यू िोंस का गैप एनाविवसस कर ई०सी० वनगयत करने की कार्यिाही करें ।
2. मै ० पुन: चक्रण के विए गैप एनाविवसस आख्या में मै ० इण्डो टे क िेस्ट साल्यू िोंस का नाम भी अोंवकत करें । समस्त उ०प्र० को नर्े वसरे से 75 वकमी० ि 10000 हॉखिटि बेड के आधार पर गैप एनाविवसस की विस्तृ त ि समग्र ररपोटय बनार्े ि स्थावपत करने हे तु उपर्ुक्त स्थिोों को दै वनक समाचार पत्ोों में प्रकावित करार्ें। इससे इच्छु क कम्पवनर्ाों अवधक से अवधक CBWTF स्थावपत करने हे तु उपर्ुक्त स्थिोों को दै वनक समाचार पत्ोों में प्रकावित करार्ें । इससे इच्छु क कम्पवनर्ाों 4 अवधक से अवधक CBWTF स्थावपत का सकेंगी ि बार्ो मे वडकि िेस्ट का वनस्तारण 48 घोंटोों में हो सकेगा।
3. मै ० पुन: चक्रण प्रा०वि० भूवम आिोंटन से पूिय ई०सी० हे तु आिेदन वकर्ा है । UPSIDA के भू आिोंटन पत्ोों मे सफेदा / कागज़ से fabrication of industrial equipments (ETP/STP/WTP/C) को छु पा कर ई०सी० हे तु ऑनिाइन आिेदन वदर्ा है । सदस्य सवचि, UPPCB/SEIAA को वनदे वित करने की सोंस्तुवत की जाती है वक मै ० पुन: चक्रण प्रा०वि० की ई०सी०/सी०टी०ई० वनरस्त की जार्े।
4. अजर् िमाय , सदस्य सवचि, UPPCB/SEIAA की सत्यवनष्ठा सोंवदग्ध होने के कारण इनके कार्ाय िर् की गहन जाों च करार्ी जार्े। कम्पवनर्ोों के साथ पक्षपात पूणय कार्यिाही करना, वनर्म विरुद्ध िाभ पहुँ चाना इनकी वनष्पक्ष कार्यप्रणािी पर प्रश्न वचन्ह उठाता है । इतने सोंिेदनिीि एिों महत्वपूणय पद पर बने रहने की समीक्षा करने की सोंस्तुवत की जाती है ।"
English Translation by Tribunal:
"Based on the above discussions, the following action is submitted:
1. Member Secretary UPPCB/SEIAA should be directed to conduct a gap analysis of M/s Indo Tech Waste Solutions and take action to issue EC.
2. The name of M/s Indo Tech Waste Solutions in the gap analysis report should also mention for M/s Punah Chakran Pvt. Ltd. Prepare a detailed and comprehensive report of gap analysis on the basis of 75 km and 10000 hospital beds for the Uttar Pradesh and publish the suitable sites for setting up in daily newspapers. Interested companies should publish suitable sites in daily newspapers to establish more and more CBWTFs. This will enable interested companies to establish more and more CBWTFs and biomedical waste can be disposed of within 48 hours.
3. M/s Punah Chakran Pvt. Ltd. has applied for EC before land allotment. Online application for EC has been given by hiding fabrication of industrial equipments (ETP/STP/WTP/C) in the land allotment letters of UPSIDA with this white paper. It is recommended to direct the Member Secretary, UPPCB/SEIAA to cancel the EC/CTE of M/s Punah chakran Pvt. Ltd.
4. Since the integrity of Ajay Sharma, Member Secretary, UPPCB/SEIAA is doubtful, a thorough investigation of his office should be conducted. Taking biased action against companies, giving benefits against the rules raises questions on his impartial working.
It is recommended to review his continuation on such a sensitive and important post."
5
4. In the meantime, CTE dated 26.04.2022 and EC dated 13.07.2022 were granted by UPPCB and SEIAA UP, respectively, in favour of respondent 7. EC and CTE were challenged in Original Application No. 622/2022, Aniruda Panwar vs. Ministry of Environment, Forest and Climate Change & Others by two applicants namely Aniruda Panwar and Rudro Chatterjee.
5. Vide judgment dated 31.07.2023, this Tribunal converted Original Application in Appeal and declared CTE dated 26.04.2022 and EC dated 13.07.2022 as illegal, null and void and to be of no effect. However, liberty was granted to respondent 7 to apply afresh for grant of EC and CTE for establishment of CBWTF after procuring additional land in Babrala Industrial area or seek relaxation of land requirement in accordance with law.
6. Tribunal made it very clear that any such application filed by respondent 7 shall be considered and disposed of by the concerned authorities strictly in accordance with Statutory provisions/environmental norms as also CPCB Guidelines.
7. Appellant has said that despite continuance of the deficiencies justifying non grant of EC and CTE to respondent 7, again in an illegal manner, CTE and EC, both have been granted simultaneously on the same date i.e., 20.12.2023 by SEIAA UP and UPPCB, respectively, to respondent
7.
8. It is pointed out by the appellant that in the fresh application dated 07.08.2023, respondent 7 mentioned availability of land at plot no. E-25, E-26 and E-27 though till that date, Plot no. E-27 was not procured by it. 6 The area of plots no. E-25 and E-26 is 3601 sq. meter i.e., less than one acre. The minimum land area required under Revised Guidelines for CBWTFs dated 21.12.2016 issued by CPCB (hereinafter referred to as 'Revised Guidelines of CPCB 2016') is one acre. Terms of Reference (hereinafter referred to as 'TOR') was granted by State of UP on 10.08.2023 without considering that the information supplied by respondent 7 was not correct. Respondent 7 also submitted Gap Analysis Report dated 03.06.2022 in which there was no mention of appellant in whose favour decision to grant EC for establishment for CBWTF was already taken. This was also a recommendation made by Enquiry Officer i.e., Special Secretary, Environment in its Report dated 01.03.2023. While granting TOR, this was also not considered by Member Secretary, SEIAA UP that plot no. 27 was wrongly mentioned hence there was incorrect disclosure of facts in the application since the said plot was not procured by respondent 7 on the date when application was submitted for grant of EC. In fact, the said plot was not allotted or given in possession of respondent 7 even on the date when TOR dated 10.08.2023 was granted by Member Secretary, SEIAA UP.
9. Further, relaxation in respect of area has been granted to respondent 7, ignoring the fact that under Revised Guidelines of CPCB 2016, such relaxation could not have been allowed since neither population of the Babrala city where respondent had proposed to establish CBWTF was more than 25 lakhs nor it is a rural area. As per currently available estimated population of Babrala Nagar Panchayat, in 2023, it is 24,900 only. Appellant had also filed a complaint dated 17.11.2023 anticipating illegal motive, favoritism etc. on the part of SEIAA UP and UPPCB in favour of respondent 7 but the said complaint has not been 7 looked into at all and impugned EC and CTE have been granted on 20.12.2023.
Tribunal' order dated 02.02.2024:
10. Appeal was considered by Tribunal on 02.02.2024. Notices were issued to the respondents. Respondent 3 i.e., SEAC UP was also directed to produce original record of the proceedings leading to issue of impugned EC and CTE.
Reply dated 15.03.2024 filed by CPCB:
11. On behalf of CPCB, reply dated 15.03.2024 has been filed. It is said that CPCB is a Statutory body constituted under Section 3 of Water Act 1974 to perform its functions under Water Act 1974, Air Act 1981 and Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act 1986'). Under the provisions of EIA 2006, Competent Authority to grant EC, in the present case, is SEIAA UP. Similarly, Competent Authority to grant CTE under Section 25 of Water Act 1974 and Section 21 of Air Act 1981 is UPPCB. With regard to availability of plot of less than one acre land to respondent 7 on which it had proposed to establish CBWTF, CPCB has stated in para 8(I) that as per Revised Guidelines of CPCB 2016, a CBWTF will be set up on a plot size of not less than one acre in all the areas. However, such facility can be developed in adjacent plots but cannot be set up in two or more different plots located in different areas. Separate plots can be permitted only for vehicle parking if located in the close vicinity of the proposed CBWTFs or the existing CBWTFs. As per Schedule-
III of Bio-Medical Waste Management Rules, 2016 (hereinafter referred to as 'BMWM Rules 2016'), it is the duty of Municipalities or Corporations, Urban Local Bodies and Gram Panchayats to provide or allocate suitable 8 land for development of CBWTF in their respective jurisdictions as per Revised Guidelines of CPCB 2016. Respondent 7 made representation before UPPCB to consider relaxation of minimum land criteria whereupon such relaxation was granted by UPPCB. With regard to procedure and manner in which EC and CTE have been granted by the concerned State Authorities, CPCB has said that they have to be replied by competent and concerned authorities. Prior to allowing establishment of new CBWTF, UPPCB was required to conduct gap analysis with respect of coverage area of the bio-medical waste generation and also projected over a period of next ten years, and adequacy of existing treatment capacity of CBWTF in each coverage area of radius 75 KM. In respect of the allegations of violation of Tribunal's order in OA 62/2022 (supra), it is said that reply must be given by concerned State Authorities.
12. With regard to relaxation of requirement of land area, it is said that Guidelines also provide that additional control measures such as zero liquid in stack height, stringent emission norms, odour control measures etc. shall be considered in consultation with CPCB. In this regard, CPCB has already issued a letter dated 17.11.2023 (annexure-II at page 267) and the relevant extract thereof reads as under:
"It is to inform that the criteria outlined under CPCB revised guidelines for development of new CBWTF is required to be followed to ensure effective compliance of BMWM Rules, 2016. However as requested by UPPCB the area criteria may be relaxed for the proposed plot from 1.0 Acre (4046 m²) to 0.89 Acre (3601 m²) by adopting the following additional measures:
a. UPPCB shall assess the increased stack height with stringent emission norms and take other measures to ensure that the operation of CBWTF shall have minimal impact on human health & environment around the proposed site;
b. Effluent generated shall be treated up to the standards as 9 prescribed under the BMWM Rules, 2016 and shall be utilized completely for vehicle floor washing, cooling tower make up, gardening etc. CBWTF shall maintain zero liquid discharge from the CBWTF.
c. Adequate measures shall be taken for odour control by the CBWTF.
d. OCEMS should be installed and connected with CPCB and UPPCB server for transmission of real time data for prescribed parameters of incinerator.
e. Initially the Operating capacity of incinerator of CBWTF may be restricted to 2.5 ton/day. UPPCB shall monitor the CBWTF for six months and based on its performance operational capacity may be increased accordingly with prior information to CPCB.
This is issued with the approval of Competent Authority, CPCB."
13. The complaints were received by CPCB in respect of appellant as well as respondent 7. Vide letter dated 22.12.2022 (annexure-III at page
268), the complaints were forwarded to Member Secretary, UPPCB to examine in the light of BMW Rules 2016 and take appropriate action. No Reply by Any Other Respondents:
14. No other respondent has filed any reply/response despite service of notice.
15. On behalf of respondent 7, on 18.03.2024, time was sought to file reply which was granted but it has also chosen not to file any reply whatsoever.
16. On behalf of respondent 3, original record leading to grant of EC and CTE has been produced for perusal of Tribunal. A photocopy of the entire record has also been submitted which has been taken on record. 10 Appearance of Advocates and Final Hearing:
17. On 23.04.2024, Mr. Sumit Babbar, Advocate appeared for the appellant, Ms. Priyanka Swami and Ms. Simran Sehgal, Advocates appeared for SEIAA UP, Mr. Pradeep Misra and Mr. Daleep Dhyani, Advocates appeared for UPPCB, Ms. Soni Singh, Advocate for CPCB and Mr. Gaurav Kumar Bansal and Ms. Nandita Bansal, Advocates appeared for respondent 7.
18. With the consent of Learned Counsels for the parties, Appeal was heard finally and order was reserved.
19. Learned Counsels appearing for the parties were also granted opportunity to file their written submissions, if any, within three working days but without enclosing any additional document which is not already part of record. Pursuant thereto, written submissions dated 25.04.2024 has been filed by appellant and dated 29.04.2024 has been filed by respondent 7.
ARGUMENTS:
20. Learned Counsel appearing for appellant contended that EC and CTE impugned in this Appeal have been illegally granted to respondent 7 in as much as admittedly respondent 7 does not meet the requirement of 'area' prescribed under Revised Guidelines of CPCB 2016 read with BMWM Rules 2016 and relaxation in the area could not have been granted in the case in hand, therefore, EC has been granted wholly illegally. Once EC has been granted illegally, even CTE cannot stand since respondent 7 did not fulfil the requirement of area, necessary for establishment of CBWTF, hence EC and CTE, both, are liable to be set aside. He argued that erstwhile Member Secretary has shown favouritism to respondent 7. He 11 referred to the report of Special Secretary, who has already observed in its enquiry Report that integrity of Member Secretary was doubtful and he was showing favour to respondent 7. In these circumstances, EC in question could/should not have been granted by the same officer and exercise of power on his part is vitiated on account of malice in law, hence, impugned orders are liable to be set aside.
21. Learned Counsel appearing for appellant has further contended that respondent 7 proposed to set up its CBWTF in UPSIDC industrial area Babrala, District Sambhal. Population of Babrala, as per 2011 census, is 18,108. District Sambhal was created as a separate district on 28.11.2011. As per 2011 census, population of entire district was 21,92,933. UP Government's present district information website shows that district Sambhal comprises three municipalities and 1022 villages and total population mentioned is 21,92,933. It is thus argued that as per Revised Guidelines of CPCB 2016, no relaxation could have been granted in respect to requirement of area for establishment of CBWTF. He further argued that even otherwise relaxation has been granted on irrelevant considerations and, therefore, it is gross abuse of the power exercised by the concerned authority and such illegal relaxation cannot validate the grant of EC which is not consistent with the requirement of Revised Guidelines of CPCB 2016, hence is liable to be set aside. He further argued, when a fresh application for grant of prior EC was submitted on 17.10.2023, earlier TOR and other material could not have been taken into consideration but entire fresh exercise was required to be undertaken which has not been done. Lastly, it is contended that gap analysis was not conducted as per the mandate of Revised Guidelines of CPCB 2016 hence EC granted to respondent 7 is patently illegal. 12
22. Per contra, Learned Counsel appearing for respondent 7 contended that Tribunal vide its earlier judgment dated 31.07.2023 permitted respondent 7, either to acquire additional land or to seek relaxation and pursuant thereto, it applied for grant of relaxation which has been allowed and, therefore, it cannot be said the EC granted to respondent 7 is not in accordance with the provisions of Revised Guidelines of CPCB 2016. He further contended that earlier TOR being in validity period could have been considered when fresh application for grant of prior EC was filed and there is nothing wrong on the part of SEIAA UP in considering earlier TOR. He further contended that gap analysis has been conducted as is clearly mentioned and evident from record and this argument is without any basis. It is also argued that there is no other CBWTF presently functional in the area in question and, therefore, it is in the interest of environmental protection that establishment of a CBWTF should be allowed which may manage treatment and disposal of bio-medical waste in the area, therefore, Appeal in question should be dismissed.
23. Learned Counsel appearing on behalf of SEIAA UP did not advance any oral submission but said that they have placed original record before Tribunal for its perusal. Tribunal may peruse the same, draw its conclusions and pass appropriate order in the facts and circumstances of the case. No other oral argument has been advanced by any learned counsel.
24. In the written submissions filed by appellant and respondent 7, they have reiterated what has been argued before us which we have already noticed and, therefore, we are not repeating the same. 13
25. We have heard Learned Counsel appearing for the parties and perused the record as also considered relevant Statutory provisions and judicial precedents applicable to the facts of this case.
26. ISSUE: The only question up for consideration is "whether EC and CTE dated 20.12.2023, impugned in this Appeal, have been validly granted by SEIAA UP and UPPCB to respondent 7 or not".
Consideration on Merits:
27. We, hereinafter, proceed to consider the issue formulated above on merits.
28. From the record, relevant facts as borne out may be summarised hereat.
29. MoEF&CC issued Environmental Impact Assessment Notification dated 14.09.2006 (EIA 2006) published in Gazette of India (Extraordinary), of the same date, making provisions for requirement of prior EC in respect of certain projects/activities/industries by exercising its powers under Section 3(1)(v) of EP Act 1986 read with Rule 5(3)(d) of EP Rules, 1986 and in supersession of earlier Notification dated 27.01.1994.
30. Initially, there was no provision, requiring prior EC for establishment of a CBWTF. However, vide Notification dated 17.04.2015 published in Gazette of India (Extraordinary), dated 30.04.2015, Schedule of EIA 2006 was amended by insertion of Entry 7(da) whereby "Bio- Medical Waste Treatment Facility" was inserted as one of the activity/projects for which prior EC was made applicable. 14
31. Respondent 7 i.e., Punahchakran Pvt. Ltd. Owned by Rajesh Kumar was incorporated on 15.10.2020.
32. Respondent 7 submitted two applications dated 06.07.2021 to Uttar Pradesh State Industrial Development Authority (hereinafter referred to as 'UPSIDA') for allotment of plots no. E-25, area 1801 m2 and E-26, area 1800.00 m2 situated at Babrala Industrial Area for establishment of a CBWTF.
33. Respondent 7 made a query vide letter dated 27.07.2021 from Regional Officer, UPPCB, Moradabad about need of CBWTF to establish in the jurisdiction of Regional Officer, Moradabad. The reply was given by Regional Officer, UPPCB, Moradabad vide letter dated 11.08.2021 stating that for establishment of CBWTF, it has to obtain EC and CTE from appropriate authorities. Regional Officer, UPPCB, Moradabad also stated that he had three districts Rampur, Morababad and Sambhal within his jurisdiction and number of health care facilities in the said districts was given as under:
Sl Name of Regional Name of Total No. of No. of Beds No. Office District Bedded HCFs 1 Moradabad 438 6699 2 Moradabad Rampur 186 2287 3 Sambhal 93 1034 Total 717 10020
34. Respondent 7 submitted an online application on 11.08.2021 for issue of Terms of Reference (hereinafter referred to as 'TOR') for establishment of CBWTF at plots no. E-25, and E-26, UPSIDC industrial area, Babrala, District Sambhal (UP). Copy of appendix -I (with reference to para 6) is available alongwith original record which shows that the land 15 description was mentioned as E-25 and E-26 but in column 1.1, the information required was given in affirmance and the following information was further added:
S. Information/Checklist Yes/No Details thereof (with No. confirmation approximate quantitates/rates, wherever possible) with source of information data 1.1 Permanent or temporary Yes 1.1 Permanent or change in land use, land cover temporary change in land or topography including use, land cover or increase in intensity of land topography including use (with respect to local land increase in intensity of use plan) land use (with respect to local land use plan) No Land is allotted by UPSIDC Industrial area Babrala, Sambhal.
35. UPSIDA i.e., respondent 6 rejected this application vide order dated 12.08.2021 on the ground that as per regulations of the authority, establishment of CBWTF which is a 'Red Category' industry was not permissible in the aforesaid industrial area.
36. Respondent 7 again submitted application dated 13.08.2021 to UPSIDA, seeking allotment of plots no. E-25 and E-26, UPSIDC industrial area, Babrala, District Sambhal, UP for establishment of industrial unit for "fabrication of industrial equipments". Standard TOR for conducting Environment Impact Assessment Study for Common Hazardous Waste Treatment, Storage and Disposal Facilities was prescribed by Government of India, Ministry of Environment, Forest and Climate Change. Member 16 Secretary, SEIAA on 17.08.2021 issued the standard TOR to respondent 7 pursuant to online application and information submitted by it without applying mind to the fact that no land was allotted to respondent 7 by UPSIDA.
37. UPSIDA i.e., respondent 6 vide order dated 15.09.2021 allotted the aforesaid plots to respondent 7 for the purpose, it had applied i.e., fabrication of industrial equipments. The allotment letter contains several conditions and condition no. 18 restrains the allottee from employing a kind of unit where smoke or fumes or use of chimney and fossil fuel is required. Condition 18 reads as under:
"You shall not employ in the unit any process generating smoke or fumes or involving use of chimney and any use of fossil fuel in the process which may cause atmospheric pollution and/or would not discharge liquid effluent which may be obnoxious by nature or cause pollution. Your unit should not involve any significant emission of particles and/or gracious substance in the air."
38. Condition no. 26 provides that no change in the project etc. shall be admissible without prior approval in writing of the corporation and any change without prior approval would result in automatic cancellation of the allotment. Condition 26 is reproduced as under:
"Any reconstitution/project change/ name change/mortgage without prior approval; in writing to this corporation shall result in automatic cancellation of the allotment."
39. Condition 28 says that any mis information or wrong information will render the allotment void and reads as under:
"If it is found that you have misrepresented or submitted wrong information for getting this allotment, the allotment shall be void and the entire amount deposited by you shall be forfeited."17
40. Two separate lease deeds were executed for both the plots between respondent 7 and Regional Manager, UPSIDA, Bareilly. The lease deeds also clearly mention that the plots were allotted for manufacturing/ fabrication of industrial equipments and the lease was granted for a period of 15 months commencing from 15.09.2021.
41. Respondent 7 applied for registration as Micro, Small and Medium Enterprise (hereinafter referred to as 'MSME') with Government of India, Ministry of Micro, Small and Medium Enterprises, giving its unit's detail at E-25, UPSIDC, Babrala, Sambhal and the unit was registered as 'Micro Enterprise' on 15.09.2021 and certificate was issued on 24.09.2021.
42. Respondent 7 submitted application dated 27.09.2021 to UPPCB for grant of CTE. In the aforesaid application, respondent 7 disclosed the details of the land as plot E-25 and 26, UPSIDC Industrial area, Babrala and category in the type of industry, it was shown as 'Red' and 'Common Bio-Medical Waste Treatment Facility'. The expected date of commissioning of plant was shown as October 2022. The source of supply of water was shown as borewell and quantity required was mentioned as 9.0. Respondent 7 nowhere stated that land in question was allotted by UPSIDA for the purpose of fabrication of industrial equipments.
43. Respondent 7 submitted online application on 18.02.2022 to SEIAA UP for grant of EC for establishment of CBWTF at plots no. E-25 and E- 26, UPSIDC, Babrala, District Sambhal. In the application form, respondent 7 along with EIA report submitted that it shall cater to the need to health care facilities in Districts Moradabaad, Sambhal, Badaun, Aligarh, Hathras, Kasganj and Etah. It also admitted that the project site comprising plots E-25 and 26 has an area of 3601 m2 i.e., 0.88 acres. Since 18 the land is located in industrial area, therefore land conversion is not required. The land escape plan submitted by respondent 7 stated that in the total plot area of 3601 it shall provide green area of 1188.33 m2.
44. Hard copy of application for grant of EC was submitted in the office of SEIAA UP on 28.03.2022.
45. SEAC UP discussed application of respondent 7 for grant of EC and recommended grant of EC for the project of CBWTF with general and specific conditions on 05.04.2022. In the brief summary prepared by respondent 7 to be placed before SEAC, it claimed that total covered area would be 2151 m2 and green area/open area would be 1450 i.e., 3601 m2. In the land use column, respondent 7 mentioned that land has been allotted by UPSIDC and located at Babrala industrial area but it was nowhere mentioned that the land was allotted by UPSIDC specifically for a different purpose and not for establishment of CBWTF.
46. SEIAA UP vide its decision taken in 590th meeting held on 22.04.2022 returned the matter to SEAC UP to re-consider since there was non-compliance of BMWM Rules 2016 and Revised Guidelines of CPCB 2016. However, SEIAA observed that requirement of public hearing under para 7(i)(III) stage (3)(i)(b) of EIA 2006 was exempted in view of MoEF&CC's OM dated 27.04.2018 since the site was located in UPSIDC industrial area. The minutes of the meeting also shows that respondent 7 submitted final EIA report on 18.02.2022.
47. UPPCB granted conditional CTE on 26.04.2022.
48. SEAC UP in its 653rd meeting dated 12.05.2022 discussed the matter and recommended that Member Secretary, UPPCB may be asked 19 to provide gap analysis in the light of Office Memorandum dated 01.04.2022 and also look into the complaint letter dated 07.05.2022 sent by one Himanshu Saxena, Advocate of Moradabad.
49. Member Secretary, UPPCB, Lucknow submitted factual/Gap Analysis Report vide letter dated 03.06.2022. The details of bio-medical waste generated in eight districts namely Muradabad, Sambhal, Badayu, Aligarh, Hathras, Etah, Kasganj and Bulandshehar and also the proposed and operating CBWTF in the area concerned were mentioned in the form of a chart as under:
क्र० जनपद बेडडे एच सी नॉन बेडडे एच बेड कि आच्छाददत फैसससिटी सं० एफ सी एफ संख्या 1 मुरादाबाद 481 707 6699 सुशीिा बॉयोमेडडिि (संचासित) भगवतसरन (प्रस्ताववत) 2 सम्भि 111 252 1034 मैं० पुन ं चक्रण प्रा० सि० (प्रस्ताववत) 3 बंदायू 147 30 1988 -
4 अिीगढ 474 387 9512 -
5 हाथरस 148 207 1822 -
6 एटा 122 128 1319 -
7 िासगंज 81 102 1043 -
8 बुिद
ं शहर 293 243 4482 -
कुल बेड 1857 2056 27899
जैव चिकत्सा अपशिष्ट कक मात्रा 102.8 6974.75 कुल - 7080.55 कक०ग्रा०
कक०ग्रा० कक०ग्रा०
कक०ग्रा० मैं
50. SEAC UP discussed the matter in 663rd meeting dated 16.06.2022 and recommended for grant of EC of respondent 7. Resolution of SEAC UP reads as under:
"the committee discussed the matter in the factual/analysis Report provided by Member Secretary, UPPCB and recommended to grant EC 20 for the proposal along with EC conditions as earlier stipulated in 641st SEAC meeting dated 05.04.2022."
51. SEIAA UP agreed with the recommendation of SEAC UP and decided to grant EC in its 625th meeting dated 05.07.2022. The resolution of SEIAA UP reads as under:
"SEIAA agreed with the recommendation of SEAC-II to grant EC to the above project."
52. EC was actually issued to respondent 7 by SEIAA UP on 13.07.2022 subject to general and specific conditions mentioned therein.
53. Respondent 7 submitted application dated 15.07.2022 which was received in the office of UPSIDA on 11.08.2022 for change in the project stating that it has already been granted EC for establishment of CBWTF on plots no. E-25 and E-26 and CTE has also been issued by UPPCB on 26.04.2022.
54. UPSIDA advised on 13.09.2022 to respondent 7 to submit online application.
55. Respondent 7 submitted online application on 15.09.2022 for change in the allotment letter from 'fabrication of industrial equipments' to 'CBWTF'.
56. UPSIDA allowed the change vide letter dated 19.09.2022.
57. CTE dated 26.04.2022 and EC dated 13.07.2022 granted to respondent 7 were challenged by Aniruda Panwar and Rudro Chatterjee in OA 622/2022 (supra). Tribunal vide judgment dated 31.07.2023 converted OA in Appeal, allowed it and declared CTE and EC both as 21 illegal, null and void and of no effect. However, it granted liberty to respondent 7 to apply again for grant of EC and CTE for establishment of CBWTF after procuring additional land or after seeking relaxation of land requirement in accordance with law.
58. Respondent 7 made a representation dated 08.08.2023 to UPPCB, seeking relaxation in land area requirement after imposition of additional control measures in consultation from CPCB.
59. UPPCB forwarded respondent 7's letter dated 08.08.2023 vide its letter dated 25.08.2023 to CPCB for providing relaxation in the requirement of land area for establishment of CBWTF. CPCB sent a letter dated 06.09.2023, directing UPPCB to submit a proposal for relaxation in land area.
60. In compliance of Tribunal's judgment dated 31.07.2023, SEIAA UP revoked EC dated 13.07.2022 vide letter dated 18.09.2023.
61. UPPCB vide letter dated 16.10.2023 forwarded proposal for relaxation of requirement of land area to CPCB.
62. Respondent 7 submitted a fresh application for grant of prior EC on Parivesh Portal on 17.10.2023.
63. CPCB vide letter dated 17.11.2023 granted relaxation in respect of requirement of land area, subject to imposition of certain additional control measures for establishment of CBWTF.
64. Applicant sent a complaint vide e-mail dated 17.11.2023 addressed to SEAC-I making a complaint against respondent 7 stating that it has falsely included plot no. E-27 alongwith its proposal for grant of EC though 22 the said plot has not been allotted to it by UPSIDC and plots no. E-25 and E-26 were allotted for establishment of green industry but thereafter, on false representation, the process has been change by UPSIDC which cannot entitle respondent 7 to legally claim establishment of CBWTF 'a Red Category industrial unit' to be established in industrial area of UPSIDC; no gap analysis for the entire State as mandated by Revised Guidelines of CPCB 2016 has been conducted and, therefore, the case of respondent 7 could not be considered for appraisal.
65. SEAC-I in its 810th meeting dated 20.11.2023 appraised the proposal of respondent 7 and recommended grant of EC for establishment of proposed CBWTF. It does not appear that issues raised by appellant in its complaint dated 17.11.2023 were considered at all by SEAC-I.
66. The said recommendation of SEAC-I was considered by SEIAA UP in its meeting held on 18.12.2023 and it decided to grant prior EC subject to specific and general conditions mentioned in EC dated 20.12.2023. Here also, there is nothing to show that objections raised by appellant were considered.
67. Before referring to the chronological events to show the extraordinary way adopted by SEIAA UP and UPPCB in granting CTE and EC to respondent 7 and also the manner in which respondent 7 has acted by not disclosing correct facts which in our view vitiate the entire exercise, we find it appropriate to straight way proceed to consider, whether in the light of the provisions of Revised Guidelines of CPCB 2016, relaxation in respect of area allowed to respondent 7 is valid. If we find that EC itself has been granted in impermissible manner, other issue may not be so important.
23
68. During the course of argument, there was a suggestion that Revised Guidelines of CPCB 2016 are not mandatory and in a given case, there may be deviation. We, therefore, have to first consider whether above guidelines are statutory and mandatory or mere for the guidance of the authorities and directive in nature.
69. Going through the legislative history of Rules relating to management of bio-medical waste, we find that vide notification dated 20.07.1998, published in the Gazette of India, dated 27.07.1998, BMWMH Rules, 1998 were framed in exercise of powers conferred by Sections 6, 8 and 25 of EP Act, 1986. They came into force from the date of publication in Gazette. The said Rules provided regulatory framework for management of bio-medical waste generated in the country. BMWMH Rules, 1998 were applicable to all persons who generate, collect, receive, store, transport, treat, dispose or handle bio-medical waste in any form. The terms 'Authorisation', 'Authorised Person', 'Bio-medical waste', 'Bio-medical waste treatment facility', 'Occupier' and 'Operator of a bio-medical waste facility' were defined in Rule 3(3), (4), (5), (7), (8) and (9) which read as under:
"(3) "Authorisation" means permission granted by the prescribed authority for the generation, collection, reception, storage, transportation, treatment, disposal and/or any other form of handling of bio-medical waste in accordance with these rules and any guidelines issued by the Central Government;
(4) "Authorised person" means an occupier or operator authorised by the prescribed authority to generate, collect, receive, store, transport, treat, dispose and/or handle bio-medical waste in accordance with these rules and any guidelines issued by the Central Government;
(5) "Bio-medical waste" means any waste, which is generated during the diagnosis, treatment or immunisation of human beings or 24 animals or in research activities pertaining thereto or in the production or testing of biologicals, and including categories mentioned in Schedule I;
(7) "Bio-medical waste treatment facility" means any facility wherein treatment, disposal of bio-medical waste or processes incidental to such treatment or disposal is carried out;
(8) "Occupier" in relation to any institution generating bio-medical waste, which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank, by whatever name called, means a person who has control over that institution and/or its premises;
(9) "Operator of a bio-medical waste facility" means a person who owns or controls or operates a facility for the collection, reception, storage, transport, treatment, disposal or any other form of handling of bio-medical waste;"
70. A perusal of Rule 3(7) of BMWMH Rules, 1998 shows that initially Common Bio-Medical Waste Treatment Facilities were not included within the definition of 'Bio-medical waste treatment facility'. The said inclusion of common facilities is by virtue of amendment made by notification dated 02.06.2000 which came into force from the said date.
71. The definition of 'Bio-medical waste' shows that besides the kind of bio-medical waste enumerated therein, it also included the categories of bio-medical waste mentioned in Schedule I. A perusal of Schedule I showed that it put bio-medical waste in ten categories and the type of waste was mentioned as under:
Sl. Waste Waste Category (Type) No. Category No.
1. Category No. 1 Human Anatomical Waste (Human tissues, organs, body parts)
2. Category No. 2 Animal Waste (Animal tissues, organs, body parts carcasses, bleeding parts, fluid, blood and experimental animals used in research, 25 waste generated by veterinary hospitals colleges, discharge from hospitals, animal houses)
3. Category No. 3 Microbiology & Biotechnology Waste (Wastes from laboratory cultures, stocks or specimens of micro-organisms live or attenuated vaccines, human and animal cell culture used in research and infectious agents from research and industrial laboratories, wastes from production of biologicals, toxins, dishes and devices used for transfer of cultures)
4. Category No. 4 Waste sharps (Needles, syringes, scalpels, blades, glass, etc. that may cause puncture and cuts. This includes both used and unused sharps)
5. Category No. 5 Discarded Medicines and Cytotoxic drugs (Wastes comprising outdated, contaminated and discarded medicines)
6. Category No. 6 Solid Waste (Items contaminated with blood, and body fluids including cotton, dressings, soiled plaster casts, lines, beddings, other material contaminated with blood)
7. Category No. 7 Solid Waste (Wastes generated from disposable items other than the waste sharps such as tubings, catheters, intravenous sets etc.)
8. Category No. 8 Liquid Waste (Waste generated from laboratory and washing, cleaning, house- keeping and disinfecting activities)
9. Category No. 9 Incineration Ash (Ash from incineration of any bio-medical waste)
10. Category No. 10 Chemical Waste (Chemicals used in production of biologicals, chemicals used in disinfection, as insecticides, etc.)
72. Rule 4 talked of 'Duty of occupier' i.e., the person concerned with an institution generating bio-medical waste and said that it shall take all 26 steps to ensure that bio-medical waste is handled without any adverse effect to human health and environment. It read as under:
"4. Duty of occupier. - It shall be the duty of every occupier of an institution generating bio-medical waste which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank by whatever name called to take all steps to ensure that such waste is handled without any adverse effect to human health and the environment.
73. Rule 5 said that bio-medical waste shall be treated and disposed of in accordance with Schedule I and in compliance with the standards prescribed in Schedule V.
74. In column 3 of Schedule I, treatment and disposal options were given and in Schedule V, standards for treatment and disposal of bio- medical wastes were mentioned in detail which included standards for incinerator, standards for waste autoclaving, standards for liquid waste, standards of microwaving and standards for deep burial.
75. Rule 6 made provision for segregation, packaging, transportation and storage of bio-medical waste. Sub-rule (1) said that bio-medical waste shall not be mixed with other wastes. Sub-rule (4) provided that notwithstanding anything contained in Motor Vehicles Act, 1988 or rules thereunder, untreated bio-medical waste shall be transported only in such vehicle as may be authorised for the purpose by the Competent Authority as specified by the Government.
76. Sub-rule (5) of rule 6 said that no untreated bio-medical waste shall be kept stored beyond a period of 48 hours. Proviso thereof said that if for any reason it becomes necessary to store the waste beyond such period, the authorised person must take permission of the prescribed authority 27 and take measures to ensure that waste does not adversely affect human health and environment.
77. Rule 7 talked of 'Prescribed Authority' and made SPCB and SPCCs to be the prescribed authority in States or Union Territories as the case may be. However, in respect of health care establishments of Armed Forces under Ministry of Defence, the Director General, Armed Forces Medical Services was made prescribed authority.
78. Rule 8 talked of 'Authorisation'. Sub-rule (1) said that every occupier of an institution generating, collecting, receiving, storing, transporting, treating, disposing and/or handling bio-medical waste in any other manner, except such occupiers of clinics, dispensaries, pathological laboratories, blood banks providing treatment/service to less than 1,000 patients per month, shall make an application in Form I to Prescribed Authority for grant of authorisation.
79. Sub-rule (2) dealt with 'Operator of a bio-medical waste facility' provided that every operator of a bio-medical waste facility shall apply for authorisation to the Prescribed Authority.
80. The distinction is clear that in case of occupier, exemption from authorisation is granted to those where treatment/service is made available to less than 1,000 patients per month and rest all were required to apply for authorisation but in case of operator of a bio-medical waste facility, every operator had to apply for grant of authorisation.
81. Under sub-rule (4) of Rule 8, it was provided that authorisation to facility shall be issued in Form IV, subject to conditions laid therein and 28 such other condition as the Prescribed Authority may consider it necessary.
82. BMWMH Rules, 1998 provided for maintenance of records with respect of the details of bio-medical waste and its disposal. Rule 10 said that every occupier/operator shall submit an annual report to prescribed authority in Form II by 31st January every year, giving information which would include about the categories and quantities of bio-medical wastes handled during the preceding year. Prescribed Authority in turn was required to forward the information in a compiled form to CPCB by 31st March every year.
83. Rule 11 required every authorised person to maintain record related to the generation, collection, reception, storage, transportation, treatment, disposal and/or any form of handling of bio-medical waste in accordance with BMWMH Rules, 1998 and Guidelines issued.
84. As contemplated under Rule 3(3) of BMWMH Rules, 1998, the Guidelines were issued under the title "CPCB Guidelines for Common BMW Treatment Facilities" in 2003 by CPCB (hereinafter referred to as 'BMWTF Guidelines of CPCB 2003').
85. BMWTF Guidelines of CPCB 2003 said that Common BMW Treatment Facility (hereinafter referred to as 'CBMWTF') is a set up where bio-medical waste, generated from a number of health care units, is imparted necessary treatment to reduce adverse effects that this waste may pose. Treated waste may finally be sent for disposal in a landfill or for recycling purposes.
29
86. BMWTF Guidelines of CPCB 2003 also said that installation of individual treatment facilities by small health care units would require comparatively high capital investment and also separate man power and infrastructure development for proper operation and maintenance of treatment systems. The concept of CBMWTF not only addresses such problems but also prevents proliferation of treatment equipment in a city. It would reduce monitoring pressure on regulatory agencies. Further, by running the treatment equipment at CBMWTF to its full capacity, cost of treatment of per kilogram would get significantly reduced. Therefore, establishment of CBMWTF has several advantages.
87. BMWMH Rules, 1998, while requiring health care facilities to set up their own bio-medical treatment equipments provided an option to get the waste treated at CBMWTF. The above Guidelines 2003 clearly said that in order to set up a CBMWTF to its maximum perfection, care shall be taken in choosing the right technology, development of CBMWTF area, proper designing of transportation system to achieve optimum results etc.
88. Para B made provisions for location and said that CBMWTF shall be located at a place reasonably far away from residential and sensitive area so that it has minimal impact on these areas. Further a CBMWTF shall be located as near to its area of operation as possible in order to minimize travel distance in waste collection, thus enhancing its operational flexibility. It is further said that location shall be decided in consultation with SPCB/SPCC.
89. Para D talked of coverage area of CBMWTF and said that one CBMWTF may be allowed to cater upto 10,000 beds but not to cater health 30 care units situated beyond the radius of 150 kms. The said provision read as under:
"D. COVERAGE AREA OF CBWTF In any area, only one CBWTF may be allowed to cater up to 10,000 beds at the approved rate by the Prescribed Authority. A CBWTF shall not be allowed to cater health care units situated beyond a radius of 150 km. However, in an area where 10,000 beds are not available within a radius of 150 km, another CBWTF may be allowed to cater the health care units situated outside the said 150 km."
90. Para E talked of treatment equipments and provided that a CBMWTF shall have following treatment facilities:
(i) Incineration
(ii) Autoclaving/Microwaving/Hydroclaving
(iii) Shredder
(iv) Sharp pit/Encapsulation
(v) Vehicle/Container Washing Facility
(vi) Effluent Treatment Plant (hereinafter referred to as 'ETP')
91. Para F made provision for infrastructure set up required for a CBMWTF and said that a CBMWTF shall have the following infrastructures:
(i) Treatment Equipment Room
(ii) Main Waste Storage Room
(iii) Treated Waste Storage Room
(iv) Administrative Room
(v) Generator Set
(vi) Site Security
(vii) Parking
(viii) Sign Board
(ix) Green Belt
31
(x) Washing Room.
92. Para G talked of record keeping details which we are omitting.
93. Para H made provision for collection and transportation of bio- medical waste. It is said that from generation of bio-medical waste till its treatment it shall be ensured that total time taken shall not exceed 48 hours. The relevant extract reads as under:
"...It shall be ensured that the total time taken from generation of bio- medical waste to its treatment, which also include collection and transportation time, shall not exceed 48 hours."
94. Para I made provision for disposal of treated bio-medical waste as under:
"DISPOSAL OF TREATED BIO-MEDICAL WASTE The treated bio-medical waste shall be disposed as per the following table:
Sl. Waste Category Disposal Method
No.
1. Plastic wastes after Recycling or municipal
disinfection and shredding landfill
2. Disinfected Sharps
(except syringes)
(i) If encapsulated Municipal landfill
(ii) If non-encapsulated Municipal
landfill/Possibility of
recycling shall be
explored.
3. Incineration ash Secured landfill
4. Other treated solid wastes Municipal landfill
5. Oil & grease Incineration
6. Treated waste water Sewer/drain or recycling
95. Para J of the BMWTF Guidelines of CPCB 2003 said that cost to be charged from health care units shall be so worked out that neither it becomes a monopoly of CBMWTF operator nor the interest of CBMWTF 32 operator is over-looked. The cost was to be worked out in consultation with SPCB/SPCC and local Medical Association.
96. Para K said that setting up and operating a CBMWTF required compliance with a number of regulatory requirements/provisions and the same are detailed therein.
97. However, BMWMH Rules, 1998 were found lacking on certain aspects and did not prove to be much effective in management and handling of bio-medical waste. Government of India, therefore, reviewed BMWMH Rules, 1998 with a view to implement the Rules more effectively and to improve collection, segregation, processing, treatment and disposal of bio-medical waste in an environmentally sound management and thereby, reducing bio-medical waste generation and its impact on environment, published a new set of Draft Rules in the Gazette vide Notification dated 03.06.2015, inviting objections or suggestions from public within 60 days from the date on which copies of the Gazette containing the said Notification were made available to the public. The copies of Gazette were made available to public on 03.06.2015. After considering objections and comments received against the Draft Rules, Government of India considered the matter of finalisation of Rules and in supersession of BMWMH Rules 1998, a new set of Rules was published vide Notification dated 28.03.2016 called as BMWM Rules, 2016.
98. Rule 1(2) of BMWM Rules, 2016 provides that the said Rules shall come into force on the date of their publication in the Official Gazette.
Rules have been published in the Gazette of India (Extraordinary) Part II-
Section 3-Sub-section (i) dated 28.03.2016 and hence came into force on the said date.33
99. Rule 2 talks of application and sub-rule (i) says that BMWM Rules, 2016 shall apply to all persons who generate, collect, receive, store, transport, treat, dispose, or handle bio-medical waste in any form including hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, Ayush hospitals, clinical establishments, research or educational institutions, health camps, medical or surgical camps, vaccination camps, blood donation camps, First-Aid rooms of schools, forensic laboratories and research labs.
100. The above description shows that all kinds of entities handling bio-
medical waste in the broadest possible manner have been included to attract BMWM Rules, 2016 and even this description is inclusive and not exhaustive. However, certain categories are excluded from the application of BMWM Rules, 2016 which are specifically stated in Rule 2(2) and the same are as under:
"2. Application. -
(2). These rules shall not apply to, -
(a) radioactive wastes as covered under the provisions of the Atomic Energy Act, 1962(33 of 1962) and the rules made there under;
(b) hazardous chemicals covered under the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 made under the Act;
(c) solid wastes covered under the Municipal Solid Waste (Management and Handling) Rules, 2000 made under the Act;
(d) the lead acid batteries covered under the Batteries (Management and Handling) Rules, 2001 made under the Act;34
(e) hazardous wastes covered under the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 made under the Act;
(f) waste covered under the e-Waste (Management and Handling) Rules, 2011 made under the Act; and
(g) hazardous micro organisms, genetically engineered micro organisms and cells covered under the Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms, Genetically Engineered Micro organisms or Cells Rules, 1989 made under the Act."
101. Rule 3 is a definition clause and defines various terms used in BMWM Rules, 2016. For our purposes, the definition of 'authorisation', 'authorised person', 'bio-medical waste', 'bio-medical waste treatment and disposal facility', 'handling', 'health care facility', 'occupier', and 'operator of a common bio-medical waste treatment facility' are relevant and reproduced as under:
(c) "authorisation" means permission granted by the prescribed authority for the generation, collection, reception, storage, transportation, treatment, processing, disposal or any other form of handling of bio-medical waste in accordance with these rules and guidelines issued by the Central Government or Central Pollution Control Board as the case may be;
(d) "authorised person" means an occupier or operator authorised by the prescribed authority to generate, collect, receive, store, transport, treat, process, dispose or handle bio-medical waste in accordance with these rules and the guidelines issued by the Central Government or the Central Pollution Control Board, as the case may be;
(f) "bio-medical waste" means any waste, which is generated during the diagnosis, treatment or immunisation of human beings or animals or research activities pertaining thereto or in the production or testing of biological or in health camps, including the categories mentioned in Schedule I appended to these rules;35
(g) "bio-medical waste treatment and disposal facility" means any facility wherein treatment, disposal of bio-medical waste or processes incidental to such treatment and disposal is carried out, and includes common bio-medical waste treatment facilities;
(i) "handling" in relation to bio-medical waste includes the generation, sorting, segregation, collection, use, storage, packaging, loading, transportation, unloading, processing, treatment, destruction, conversion, or offering for sale, transfer, disposal of such waste;
(j) "health care facility" means a place where diagnosis, treatment or immunisation of human beings or animals is provided irrespective of type and size of health treatment system, and research activity pertaining thereto;
(m) "occupier" means a person having administrative control over the institution and the premises generating biomedical waste, which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank, health care facility and clinical establishment, irrespective of their system of medicine and by whatever name they are called;
(n) "operator of a common bio-medical waste treatment facility"
means a person who owns or controls a Common Bio-medical Waste Treatment Facility (CBMWTF) for the collection, reception, storage, transport, treatment, disposal or any other form of handling of bio-medical waste;"
102. Rule 4 talks of duties of occupier i.e., the person having administrative control over the institution and premises generating bio- medical waste.
103. Rule 5 gives in details, duty of operator of a CBWTF and since the same are relevant for the present case, we find it appropriate to reproduce as under:
"5. Duties of the operator of a common bio-medical waste treatment and disposal facility. - It shall be the duty of every operator to -
(a) take all necessary steps to ensure that the bio-medical waste collected from the occupier is transported, 36 handled, stored, treated and disposed of, without any adverse effect to the human health and the environment, in accordance with these rules and guidelines issued by the Central Government or, as the case may be, the central pollution control board from time to time;
(b) ensure timely collection of bio-medical waste from the occupier as prescribed under these rules;
(c) establish bar coding and global positioning system for handling of bio- medical waste within one year;
(d) inform the prescribed authority immediately regarding the occupiers which are not handing over the segregated bio-medical waste in accordance with these rules;
(e) provide training for all its workers involved in handling of bio-
medical waste at the time of induction and at least once a year thereafter;
(f) assist the occupier in training conducted by them for bio-
medical waste management;
(g) undertake appropriate medical examination at the time of induction and at least once in a year and immunise all its workers involved in handling of bio-medical waste for protection against diseases, including Hepatitis B and Tetanus, that are likely to be transmitted while handling bio-medical waste and maintain the records for the same;
(h) ensure occupational safety of all its workers involved in handling of bio-medical waste by providing appropriate and adequate personal protective equipment;
(i) report major accidents including accidents caused by fire hazards, blasts during handling of bio-medical waste and the remedial action taken and the records relevant thereto, (including nil report) in Form I to the prescribed authority and also along with the annual report;
(j) maintain a log book for each of its treatment equipment according to weight of batch; categories of waste treated; time, date and duration of treatment cycle and total hours of operation;
37
(k) allow occupier, who are giving waste for treatment to the operator, to see whether the treatment is carried out as per the rules;
(l) shall display details of authorisation, treatment, annual report etc on its web-site;
(m) after ensuring treatment by autoclaving or microwaving followed by mutilation or shredding, whichever is applicable, the recyclables from the treated bio-medical wastes such as plastics and glass, shall be given to recyclers having valid consent or authorisation or registration from the respective State Pollution Control Board or Pollution Control Committee;
(n) supply non-chlorinated plastic-coloured bags to the occupier on chargeable basis, if required;
(o) common bio-medical waste treatment facility shall ensure collection of biomedical waste on holidays also;
(p) maintain all record for operation of incineration, hydroor autoclaving for a period of five years; and
(q) upgrade existing incinerators to achieve the standards for retention time in secondary chamber and Dioxin and Furans within two years from the date of this notification."
104. Rule 6 deals with the duties of the authorities and says that the Authority specified in column (2) of Schedule-III shall perform duties as specified in column (3) thereof, in accordance with the provisions of the Rules.
105. Rule 7 talks of treatment and disposal of bio-medical waste. It says that bio-medical waste shall be treated and disposed of in accordance with Schedule I and in compliance with the standards provided in Schedule-II, by the Health Care Facilities and CBWTF. The said Rule lays down various provisions for treatment and disposal of bio-medical waste to be observed by Health Care Facility as also CBWTF and we find it appropriate to reproduce the same as under:
38
7. Treatment and disposal. - (1) Bio-medical waste shall be treated and disposed of in accordance with Schedule I, and in compliance with the standards provided in Schedule-II by the health care facilities and common bio-medical waste treatment facility.
(2) Occupier shall hand over segregated waste as per the Schedule-I to common bio-medical waste treatment facility for treatment, processing and final disposal: Provided that the lab and highly infectious bio-medical waste generated shall be pre-treated by equipment like autoclave or microwave.
(3) No occupier shall establish on-site treatment and disposal facility, if a service of common bio-medical waste treatment facility is available at a distance of seventy-five kilometer.
(4) In cases where service of the common bio-medical waste treatment facility is not available, the Occupiers shall set up requisite biomedical waste treatment equipment like incinerator, autoclave or microwave, shredder prior to commencement of its operation, as per the authorisation given by the prescribed authority.
(5) Any person including an occupier or operator of a common bio medical waste treatment facility, intending to use new technologies for treatment of bio medical waste other than those listed in Schedule I shall request the Central Government for laying down the standards or operating parameters.
(6) On receipt of a request referred to in sub-rule (5), the Central Government may determine the standards and operating parameters for new technology which may be published in Gazette by the Central Government.
(7) Every operator of common bio-medical waste treatment facility shall set up requisite biomedical waste treatment equipments like incinerator, autoclave or microwave, shredder and effluent treatment plant as a part of treatment, prior to commencement of its operation.
(8) Every occupier shall phase out use of non-chlorinated plastic bags within two years from the date of publication of these rules and after two years from such publication of these rules, the chlorinated plastic bags shall not be used for storing and transporting of bio-medical waste and the occupier or operator of a common bio- medical waste treatment facility shall not dispose of such plastics by 39 incineration and the bags used for storing and transporting biomedical waste shall be in compliance with the Bureau of Indian Standards. Till the Standards are published, the carry bags shall be as per the Plastic Waste Management Rules, 2011.
(9) After ensuring treatment by autoclaving or microwaving followed by mutilation or shredding, whichever is applicable, the recyclables from the treated bio-medical wastes such as plastics and glass shall be given to such recyclers having valid authorisation or registration from the respective prescribed authority.
(10) The Occupier or Operator of a common bio-medical waste treatment facility shall maintain a record of recyclable wastes referred to in sub-rule (9) which are auctioned or sold and the same shall be submitted to the prescribed authority as part of its annual report. The record shall be open for inspection by the prescribed authorities.
(11) The handling and disposal of all the mercury waste and lead waste shall be in accordance with the respective rules and regulations."
106. Rule 8 made provision for segregation, packaging, transportation and storage of bio-medical waste. Rule 9 deals with 'prescribed authority' for implementation of provisions of BMWM Rules, 2016. The Regulator i.e., the 'Prescribed Authority' under Rule 9 for implementation of BMWM Rules, 2016 are SPCBs in respect of States and SPCCs in respect of Union Territories. However, in respect of health care establishments to which the Rules apply, belong to Armed Forces under Ministry of Defence, the Prescribed Authority is Director General, Armed Forces Medical Services who is required to function under the supervision and control of the Ministry of Defence. Rule 9(3) says that the prescribed authorities shall comply with the responsibilities as stipulated in Schedule III of these Rules.
40
107. Rule 10 lays down the procedure for authorization and different provisions are made for authorization to be issued for bedded Health Care Facility and non-bedded Occupiers.
108. Rule 10(1) provides that the authorization for non-bedded occupiers shall be one time and if after receipt of completed application along with all necessary documents, no objection is raised by the prescribed agency within a period of 90 days, the authorization in such cases for non-bedded occupiers shall be deemed to have been granted.
109. However, in respect of bedded Health Care Facility and operator of a CBWTF, Prescribed Authority shall grant provisional authorization in Form III and validity of such authorisation shall be synchronized between bedded Health Care Facility and operator of a common facility with the validity of consent. In case of any change in bio-medical waste generation, handling, treatment and disposal for which authorisation was earlier granted, the occupier or operator is required to intimate to the Prescribed Authority about the change or variation and has to submit a fresh application in Form II for modification of the conditions of authorisation vide Rule 10(4).
110. Rule 11 talks of an Advisory Committee, constitution whereof is prescribed. Sub-rule (3) says that the Advisory Committee shall meet at least once in six months and review all matters related to implementation of the provisions of BMWM Rules, 2016 in the State and Armed Forces Health Care Facilities, as the case may be.
111. Rule 12 talks of monitoring of implementation of the rules in Health Care Facilities. MoEF&CC is authorized for review of the implementation 41 of the Rules in the country once in a year. CPCB, however, is required to monitor implementation of the Rules in respect of all Armed Forces health care establishments under Ministry of Defence.
112. State Government or Union territory Administration are required to constitute District Level Monitoring Committee in the districts under the Chairmanship of District Collector or District Magistrate or Deputy Commissioner or Additional District Magistrate to monitor compliance of the Rules in the health care facilities generating bio-medical waste and in CBWTF where bio-medical waste is treated and disposed. District Level Monitoring Committee is required to submit its report once in six months to State Advisory Committee with a copy to SPCB or SPCC concerned for taking necessary action.
113. Rule 13 talks of 'Annual Report' to be submitted by every Occupier or Operator of CBWTF and the same is required to be submitted on or before 30th June of every year.
114. Rule 14 talks of maintenance of records for a period of 5 years in accordance with the Rules and Guidelines issues by Central Government or CPCB or the prescribed authority, as the case may be.
115. Rule 15 says that in case of any major accident at any institution or facility or any other site while handling bio-medical waste, the authorised person shall intimate immediately to the Prescribed Authority about such accident and forward a report within 24 hours in writing regarding remedial steps taken in Form I. 42
116. Rule 16 provides right of appeal against order made by the Prescribed Authority, if any person is aggrieved by such an order, and the limitation of filing Appeal.
117. Rule 17 makes provision for making a site available for CBWTF and says that the department in the business allocation of land assignment shall be responsible for providing suitable site for setting up of CBWTF. The selection of the site shall be made in consultation with the Prescribed Authority, other stakeholders and in accordance with Guidelines published by MoEF&CC or CPCB.
118. Rule 18 lays an obligation/liability on the occupier and operator of a facility and reads as under:
"18. Liability of the occupier, operator of a facility. - (1) The occupier or an operator of a common bio-medical waste treatment facility shall be liable for all the damages caused to the environment or the public due to improper handling of bio- medical wastes.
(2) The occupier or operator of common bio-medical waste treatment facility shall be liable for action under section 5 and section 15 of the Act, in case of any violation."
119. After promulgation of BMWM Rules, 2016, Guidelines 2003 had to be re-considered and require a new set of Guidelines consistent with BMWM Rules, 2016. Consequently, CPCB issued new set of Guidelines with reference of BMWM Rules, 2016 and titled the same as "Revised Guidelines for CBWTF" vide circular dated 21.12.2016 i.e., 'RG 2016'.
120. RG 2016 reiterates that an occupier is restricted for establishment of on-site or captive bio-medical waste treatment and disposal facility, if a service of common bio-medical waste treatment and disposal facility is available within a distance of 75 kms since installation of individual 43 treatment facility by health care facility requires comparatively high capital investment. In addition, it requires separate dedicated and trained skilled manpower and infrastructure development for proper operation and maintenance of treatment systems. The said restriction on occupiers also takes care of running of a CBWTF treatment equipment at full capacity which will result in reducing cost of treatment per kg of bio-medical waste and will be advantageous to all health care facilities and other establishments which are generating bio-medical waste. The running of common bio-medical waste treatment and disposal facility by an occupier also may have caused health hazards to patients undergoing treatment due to operation of the captive treatment equipments within health care facilities and by providing a separate treatment and disposal facility in the form of CBWTF even this apprehensive adverse effect could be avoided. The occupier however is permitted to install its own independent or individual treatment and disposal equipments if within distance of 75 km, no CBWTF is located.
121. RG 2016 also say that if any aspect is not covered by the said Guidelines and needs attention, in such a case, Prescribed Authority may take suitable action in the interest of protection of environment in consultation with MoEF&CC/CPCB. However, to the extent, Guidelines occupy the field, the same are mandatory having been issued under BMWM Rules, 2016. The relevant content of the Guidelines in this regard reads as under:
"However, any other aspects which are not been covered under these guidelines and needs attention, in such a case, the prescribed authority may take suitable action in the interest of protection of the environment in consultation with MoEF & CC/CPCB. Also, it is pertinent to mention here that these guidelines are 44 mandatory henceforth under the Bio-medical Waste Management Rules, 2016."
122. Para 2 of the RG 2016 lays down criteria or steps which are to be followed for development of new CBWTF for a locality or region and reads as under:
2) Criteria for development of a new Common Bio-medical Waste Treatment and Disposal Facility for a locality or region.
Prior to allowing any new CBWTF, following criteria or steps may be followed:
a) Prescribed authority under the BMWM Rules, 2016 [i.e., State Pollution Control Board (SPCB) in the respective State or Pollution Control Committee (PCC) in the respective Union Territory Administration] is required to prepare an inventory or review with regard to the bio-medical waste generation at least once in five years in the coverage areas of the existing bio-medical waste treatment and disposal facility. The prescribed authority is also required to extrapolate the coverage-area wise bio-medical waste generation for the next ten years.
b) SPCB/PCC is required to conduct gap analysis w.r.to coverage area of the bio-medical waste generation and also projected over a period of next ten years, adequacy of existing treatment capacity of the CBWTF in each coverage area of radius 75 KM, as given in Annexure-I. All the SPCBs and PCCs shall conduct the gap analysis and based on the gap analysis, action plan for development of new CBWTFs is required to be prepared and submitted to MoEF & CC & CPCB within six months' time. In case of States/UTs, where no CBWTF is available, in such a case, SPCB/PCC being prescribed authority under the BMWM Rules is required to submit the detailed proposal to MoEF & CC/MoH & FW through the respective State Government or UT Administration. Also, the option of forming association by the group of heath care facilities (HCFs) to develop their own CBWTF also be encouraged following these guidelines. In case, any coverage area requires additional treatment capacity, in such a case, action may be initiated by the prescribed authority for allowing a new CBWTF in that locality without interfering the coverage area of the existing 45 CBWTF and beds covered by the existing CBWTF.
c) SPCB/PCC shall identify the coverage area, which require additional treatment facility and bring it to the notice of the concerned department in the business allocation of land assignment in the respective State Government or UT Administration. The department in the business allocation of land assignment shall be responsible for providing suitable site in the identified coverage area for setting up of a CBWTF, in consultation with the prescribed authority (i.e., SPCB/PCC), other stakeholders and in accordance with these guidelines issued by CPCB from time to time.
d) Alternately, a CBWTF may also be allowed to be established on a land procured by an entrepreneur in accordance with the location criteria suggested under these guidelines.
e) The SPCB/PCC or concerned department in the business allocation of land assignment in the respective State Government or UT Administration may seek expression of interest from the proponents for development of new CBWTF (s) in the identified coverage area. Upon allocation of site to the proponent, the proponent is required to take necessary approvals as required under the Environment (Protection) Act, 1986 for development of the new CBWTF in accordance with these guidelines.
f) In the absence of expression of interest by any proponent, then SPCB/PCC shall insist health care facilities to form association and to develope its own CBWTF in line with these guidelines or to have captive treatment facilities for ensuring treatment and disposal of generated bio-medical waste as stipulated under the BMWM Rules, 2016.
g) In case of any regulatory action including closure of any existing CBWTF is inevitable, the respective SPCB/PCC may take action under the BMWM Rules including for making alternate arrangement to ensure safe disposal of the bio-medical waste generated from the member health care facilities of such default CBWTF through CBWTF located nearby.
h) In case of hilly areas considering the geography, only one CBWTF with adequate treatment capacity may be developed covering atleast two districts to cater treatment services to the HCFs located in the respective Districts. The selection and allocation of site etc., should be 46 done as per the criteria suggested under these guidelines. The treatment charges to be prescribed by the respective SPCB/PCC in consultation with the State Advisory Committee."
123. Para 5 deals with applicability of environmental laws for commissioning or operation of a CBWTF and provides that consents under Water Act, 1974 and Air Act, 1981 as well as Authorization under BMWM Rules, 2016 shall be obtained from respective Regulators before commencement of CBWTF. Para 5.3 says that EIA 2006 was amended by Notification dated 17.04.2015 and bio-medical waste treatment facility was placed at item 7 (da) in the schedule, hence, EC is required from concerned respective competent Authority before any construction work, or preparation of land commences.
124. Para 6 of RG 2016 deals with the location criteria of a CBWTF and reads as under:
"6) Location criteria In the context of these guidelines, buffer zone represents a separation distance between the source of pollution in CBWTF and the receptor - following the principle that the degree of impact reduces with increased distance. The following parameters may be considered for ascertaining buffer distance on case-to-case basis:
(i) potential for spread of infection from wastes stored in the premises.
(ii) applicable standards for pollution control and the relative efficiency of the existing incinerators and emission control systems,
(iii) potential of fugitive dust emission from incinerators,
(iv) potential for discharge of wastewater
(v) the potential for odour production, 47
(vi) the potential for noise pollution,
(vii) the risk posed to human health and safety due to exposure to emissions from incinerator,
(viii) the risk of fire and
(ix) Significance of the residual impacts such as bottom ash and fly ash.
As far as possible, the CBWTF shall be located near to its area of operation in order to minimize the transportation distance in waste collection, thus enhancing its operational flexibility as well as for ensuring compliance to the time limit for treatment and disposal of bio- medical waste as stipulated under the BMWM Rules (i.e., within 48 hours). Also, the location of the CBWTF should be in conformity to the CRZ Norms and other provisions notified under the Environment (Protection) Act, 1986. The location shall be decided in consultation with the State Pollution Control Board (SPCB)/ Pollution Control Committee (PCC). The location criteria for development of a CBWTF are as follows:
(a) A CBWTF shall preferably be developed in a notified industrial area without any requirement of buffer zone (or)
(b) A CBWTF can be located at a place reasonably far away from notified residential and sensitive areas and should have a buffer distance of preferably 500 m so that it shall have minimal impact on these areas. In case of non-availability of such a land, the buffer zone distance from the notified residential area may be reduced to less than 500 m by SPCB/PCC without referring the matter to CPCB by prescribing additional control measures such as (i) adoption of best available technologies (BAT) by the proponent of CBWTF;
(ii) prescribing stringent standards for operation of the CBWTF by the SPCB/PCC; (iii) adoption of zero liquid discharge by the CBWTF and (iv) in case of any complaints from the public, then CBWTF should prove that the facility is not causing any adverse impact on environment and habitation in the vicinity.
If SPCB/PCC is not in a position to resolve the issue relating to buffer zone while selecting the site for CBWTFs, in such a case, SPCBs/PCCs may refer the matter to CPCB.
(c) The CBWTF can also be developed as an integral part of the 48 Hazardous Waste Treatment Storage and Disposal Facility (TSDF) subject to obtaining of necessary approvals from the authorities concerned including 'environmental clearance' as per Environmental Impact Assessment 2006 and further amendments notified under the Environment (Protection) Act, 1986, provided there is no CBWTF exist within 150 KM distance from the existing TSDF."
125. Para 7 talks of land requirement and says that sufficient land shall be allotted for establishment of CBWTF. Preferably, a CBWTF shall be set up on a plot size of not less than one acre in all the areas. A CBWTF can be developed in adjacent plots but cannot be set up in two or more different plots located in different areas. Separate plots can be permitted only for vehicle parking if located in the close vicinity of the proposed or the existing CBWTFs. In the Municipal limits, population of more than 25 lakhs or in rural areas, the land area requirement may be relaxed for a new or upcoming CBWTF by ensuring additional control measures such as Zero Liquid Discharge, increase in stack height, stringent emission norms, odour control measures or any other measures felt necessary by the prescribed authority on case-to-case basis, only in consultation with CPCB.
126. Para 8 talks of coverage area of CBWTF and reads as under:
"8) Coverage area of CBWTF Suggested coverage area for development of a CBWTF is as follows:
a) A CBWTF located within the respective State/UT shall be allowed to cater healthcare units situated at a radial distance of 75 KM. However, in a coverage area where 10,000 beds are not available within a radial distance of 75 KM, existing CBWTF in the locality (located within the respective State/UT) may be allowed to cater the healthcare units situated upto 150 KM radius w.r.to its location provided the bio-medical waste generated is 49 collected, treated and disposed of within 48 hours as stipulated under the BMWM Rules.
b) In case, number of beds is exceeding >10,000 beds in a locality (i.e., coverage area of the CBWTF under reference) and the existing treatment capacity is not adequate, in such a case, a new CBWTF may be allowed in such a locality in compliance to various provisions notified under the Environment (Protection) Act, 1986, to cater services only to such additional bed strength of the HCFs located.
c) In case of hilly areas, considering the geography, only one CBWTF with adequate treatment capacity may be developed covering atleast two districts to cater treatment services to the HCFs located in the respective Districts. The selection and allocation of site etc. should be done as per the criteria suggested under these guidelines. The treatment charges to be prescribed by the respective SPCB/PCC in consultation with the State Advisory Committee to be constituted under the BMWM Rules by the respective State Government or UT Administration."
127. CBWTF should have certain treatment facilities which are detailed in para 9 which talks of treatment equipments and prescribes for the following:
(a) Incineration/Plasma Pyrolysis
(b) Autoclaving/Hydroclaving
(c) Microwaving
(d) Chemical disinfection
(e) Dry heat sterilization
(f) Shredder
(g) Sharp pit/ Encapsulation
(h) Deep burial
(i) Non-burn technology
(j) Vehicle/Containers washing facility
(k) Effluent Treatment Plant
50
128. Para 10 says about infrastructure set up and provides that a CBWTF must have following infrastructure:
(a) Treatment Equipment Room
(b) Main waste storage space
(c) Treated waste storage room
(d) Administrative Room
(e) Generator set
(f) Continuous emission monitoring system (CEMS)
(g) Vehicle Parking
(h) Display and sign board
(i) Washing Room
(j) Site Security
(k) Fire safety
(l) First Aid Box
(m) Green Belt
(n) Website
129. Para 11 deals with record keeping and says that record should include all information relating to each activity at CBWTF site as per BMWM Rules, 2016. The minimum requirement is outlined as below:
(a) Record to waste movements
(i) Waste accepted
(ii) Treated waste to be disposed
(b) Logbook for the treatment equipment
(c) Monitoring and reporting of operations in the CBWTF 51
(i) Monitoring of operating parameters of the incinerator/plasma pyrolysis
(ii) Monitoring of operating parameters of the Autoclave
(iii) Frequency of monitoring
(d) Site records- which shall include the following:
(i) All the approvals obtained from other concerned departments other than the prescribed authority;
(ii) Details of construction or engineering works;
(iii) Maintenance schedule, breakdowns/trouble shootings and remedial actions;
(iv) Emergencies;
(v) Incidents of unacceptable waste received and the
action taken; and
(vi) Details of site inspections by the officials of the
regulatory authorities, purpose of visits with date and necessary actions initiated on the observations.
130. Para 12 of the RG 2016 talks of collection and transportation of bio- medical waste. It says that collection and transportation of bio-medical waste shall be carried out in a manner so as to prevent any possible hazard to human health and environment. All care shall be taken to ensure that the segregated bio-medical waste handed over by health care units reach CBWTF without any damage, spillage or unauthorized access by public, animals etc. No private transport vehicles should not be authorised by SPCBs/PCCs for transportation of bio-medical waste. A responsible 52 person from operator of CBWTF shall always accompany the vehicle to supervise for collection and transportation of bio-medical waste and CBWTF operator shall be made responsible for collection and transportation of bio-medical waste. The person responsible for collection of bio-medical wastes shall also carry a register with him to maintain the records such as name of the healthcare unit, the type and quantity of waste received, time at which waste collected from the member health care facility, signature of the authorised person from the healthcare unit etc. During transportation, the containers should be covered in order to prevent exposure of public to odours and contamination. It is also provided that all the vehicles used by CBWTF operator shall be owned by it and registered for the said purpose under Motor Vehicle Act by concerned authorities of Transport Department. Such vehicle shall not be sub-letted or contract vehicles.
131. Para 12 also says that CBWTF operator shall ensure that total time taken from generation of bio-medical waste to its treatment, which also includes collection and transportation time, shall not exceed 48 hours. The relevant extract of para 12 reads as under:
"It shall be ensured that the total time taken from generation of bio-medical waste to its treatment, which also includes collection and transportation time, shall not exceed 48 hours."
132. Para 13 says about disposal option of solid waste generated from CBWTF and it is said that the same may be disposed as per the options suggested in the Table 2 which reads as under:
"Table 2: Suggested Disposal option of solid waste generated from the CBWTF Sl. Treated Suggested Treatment and Disposal 53 No. Waste Options Category
1. Plastic wastes Plastic waste should not be sent to landfill after sites. Treated plastic waste to be disinfection and shredding (i) sent to registered or authorized recyclers (or)
(ii) for energy recovery (or)
(iii) for diesel or fuel oil recovery (or)
(iv) for road making, whichever is possible.
2. Disinfected Encapsulation in metal container or cements Sharps concrete; (or) sent for final disposal to iron (including foundries (having consent to operate from the needles and SPCBs/PCCs (or) sanitary landfill or syringes) (i.e., designated concrete waste sharp pit.
Treatment by Autoclaving or Dry Heat Sterilization followed by shredding or mutilation combination of shredding cum autoclaving)
3. Incineration Incineration ash (ash from incineration of any ash bio-medical waste) shall be disposed through hazardous waste treatment, storage and disposal facility (TSDF), if toxic or hazardous constituents are present beyond the prescribed limits as given in Schedule -II of the Hazardous and Other Waste Management & Transboundary Movement Rules or as revised from time to time.
4. Other treated Disinfection (by soaking the washed glass solid wastes waste after cleaning with detergent and like Glass Sodium Hypochlorite treatment) or through waste autoclaving or microwaving or hydroplaning and then sent for recycling.
5. Oil & Grease By Incineration
6. ETP Sludge After drying in sludge drying beds or removal 54 of moisture content using 'Filter Press' and such ETP sludge shall be given to CBWTF for incineration or to the hazardous waste treatment, storage and disposal facility (HWTSDF) for disposal in Secured Landfill
7. Hazardous Disposal through a TSDF located nearby Waste following the manifest as per the Hazardous and Other Waste (Management & Transboundary Movement) Rules, 2016
133. Para 14 is an important provision which talks of cost, to be charged by CBWTF for health care facilities and it reads as under:
"14) Cost to be charged by the CBWTF Operator for the Health Care Facilities Cost to be charged from the healthcare facilities plays an important role in financial viability and sustainable operation of a CBWTF project, for providing the best treatment services to the Health Care Units and for ensuring compliance to the BMWM Rules. The cost shall be so worked out that neither it becomes a monopoly of the CBWTF operator nor the interest of the CBWTF operator is overlooked. It is recommended that cost to be charged from the healthcare units, depending on the size, no, of beds and the distance from the location of the CBWTF and same shall be worked out in consultation with the concerned SPCB/PCC and the local Medical Association, keeping in view the following options:
(a) In case of non-bedded health care units, fixed charges depending on the average quantity of waste generation per day, in case of the nursing homes/clinics/sample collection Centres /Dental Centres, dispensary, pathological laboratory, blood banks, and other non-bedded hospitals irrespective of their system of medicine including ayush hospitals.
(b) In case of bedded hospitals, fixed charges per bed per day basis and based on the no. of beds for which consents under the Water Act, 1974/Air Act, 1981 and authorization granted under the BMWM Rules, by the prescribed authority Note:55
(i) Rates are required to be revised once in a year based on the Wholesale Price Index (WPI Index) or Consumer Price Index (CPI Index) (considering the prevailing market price especially in respect of the labour expenses, diesel prices, electricity, operating cost etc.), by the State Advisory Committee in consultation with the concerned SPCB/PCC, local Medical Association and the representatives of the CBWTF Association.
(ii) The Health Care Facilities are required to ensure timely payments to the CBWTFs for ensuring timely treatment services in compliance to the BMWM Rules as well as agreement made with the concerned CBWTF Operator."
134. In para 15, a check list for development of CBWTF has been provided as annexure - IV and para 16 talks of periodical inspection/monitoring or performance evaluation of CBWTF. It says that all State PCBs/PCCs shall inspect CBWTFs at least once in six months and a copy of inspection report shall be submitted to CPCB and MoEF&CC with a copy of the action taken for ensuring compliance to BMWM Rules, 2016 and CPCB Guidelines issued from time to time. CPCB is also required to carry out random inspection of CBWTF, once in a quarter and if violation is observed, further action shall be initiated by CPCB if required under EP Act, 1986.
135. The above provisions clearly show that the same cover the very wide area of operation for the purpose of establishment and functioning of CBWTF and also makes provisions with regard to functioning of health care facilities and various other institutions; bedded or non-bedded which are generating bio-medical waste with regard to their functioning. It is also evident that Guidelines have been framed in exercise of statutory power and also statutory in nature.
136. In Appeal 05 of 23(CZ), JK Medical Waste Management System vs. SEIAA MP & Others Tribunal has rejected a similar argument 56 advanced on behalf of SEIAA MP and SEAC MP that Guidelines are not statutory and hence not enforceable. Rejecting the same, it has been held in para 148 that Guidelines are statutory, enforceable and binding. Para 148 is reproduced as under:
"148. Guidelines, being statutory, are enforceable and binding. The stand of SEIAA MP and SEAC MP that the said Guidelines are not mandatory and cannot be enforced, having not being published in Official Gazette, we find ourselves unable to accept. The purpose of publication in the Gazette is communication to the public. It is not in dispute that the Guidelines have been circulated to all SPCBs and PCCs, therefore, they cannot take any stand that Guidelines have not been published, hence not enforceable. We find it strange that Statutory Regulators like SEIAA MP and SEAC MP i.e., respondents 1 and 2 have challenged authority of CPCB and taken a stand that Guidelines neither mandatory nor enforceable having not being published in the Gazette. This stand is misconceived and deserve to be rejected."
137. This Tribunal however has also held that RG 2016 are statutory but would stand sub-ordinate to BMWM Rules 2016 and wherever there is any inconsistency, it goes without saying that BMWM Rules 2016 shall prevail.
138. In the light of the above discussion, we have to examine whether EC granted to respondent 7, in the present case, is in conformity with the RG 2016.
139. As we have already said, para 7 of RG 2016 talks of land requirement. Para 7 may be reproduced as under:
"7) Land requirement Sufficient land shall be allocated to the CBWTF to provide all requisite systems which include dedicated space for storage of waste (both treated and untreated), waste treatment equipment, vehicle washing bay, vehicle parking space, ETP, incineration ash storage provision, administrative room, space for DG Set etc.,.57
(a) Preferably, a CBWTF shall be set up on a plot size of not less than one acre in all the areas. However, a CBWTF can be developed in adjacent plots but cannot be set up in two or more different plots located in different areas. Separate plots can be permitted only for vehicle parking if located in the close vicinity of the proposed CBWTFs or the existing CBWTFs.
(b) In case of upcoming or new CBWTFs (both in municipal limits with population more than 25 lakhs or in rural areas), the land area requirement may be relaxed (but in any case, not less than 0.5 acre) by the SPCB/PCC, with additional control measures such as zero liquid discharge, increase in stack height, stringent emission norms, odour control measures or any other measures felt necessary by the prescribed authority on case-to-case basis, only in consultation with CPCB."
140. A perusal of para 7(a) shows that it requires setting up of CBWTF preferably on a plot size of not less than one acre in all the areas. However, CBWTF can be developed in adjacent plots to cover up requirement of the area but cannot be set up in two or more different plots located in different areas.
141. Para 7(b) contemplates a deviation from the requirement of not less than one acre land and says that if there is a new CBWTF to be established in a municipal limit with population of more than 25 lakhs or rural areas, the land area requirement may be relaxed but not in any case less than 0.5 acres by SPCB/SPCC with additional control measures such as zero liquid discharge, increase in stack height, stringent emission norms, odour control measures or any other measures felt necessary by the prescribed authority on case to case basis, only in consultation with CPCB.
142. One of the conditions for relaxation or deviation in the requirement of not less than one acre of land is that the municipal limit wherein a new 58 CBWTF is proposed, should have a population of more than 25 lakhs or CBWTF is proposed to be established in a rural area. It is not disputed before us that Babrala is a Nagar Panchayat. It is thus, not a rural area.
143. A Nagar Panchayat is an urban local body i.e. Municipality. In order to make local bodies, including Municipalities more effective, responsible and accountable, provisions were made in the Constitution by inserting Part IXA by Constitution (Seventy-fourth Amendment) Act, 1992 which came into force on 01.06.1993.
144. In Part IXA, provisions were made to deal with Municipalities.
145. Article 243Q refers to three kinds of municipalities i.e., (a) Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area; (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area.
146. Powers, authorities and responsibilities of Municipalities were provided in Article 243W which reads as under:
"243W. Powers, authority and responsibilities of Municipalities, etc. -
Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow -
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-
government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to--
(i) the preparation of plans for economic development and social justice;
59
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule."
147. The population of Babrala Nagar Panchayat whether taking as per 2011 census or as per any subsequent estimation is not even one lakh, what to say of more than 25 lakhs. Para 7(b) of RG 2016, therefore, was out rightly inapplicable for exercising the power of relaxation in respect of the proposed CBWTF of respondent 7. It is really surprising and very astonishing that neither SEIAA UP nor CPCB have looked into this aspect of the matter at all and acted in a very mechanical and unmindful manner.
148. Suggestions has been made that since there was a direction by this Tribunal in Aniruda Panwar vs. Ministry of Environment, Forest and Climate Change & Others (supra) that application for grant of EC may be considered by exercising the power of relaxation in respect of requirement of area but authorities have totally misled themselves by ignoring that Tribunal clearly said that such consideration shall be in accordance with law and not in an arbitrary and illegal manner.
149. We also notice that the then Member Secretary, UPPCB by seeking clarification from CPCB regarding relaxation in land requirement for CBWTF vide letter dated 16.10.2023 has only stressed upon the fact that proponent has made investment of 132 lakhs which include cost of land, building, plant and machinery; as per Gap Analysis, there was requirement of CBWTF to be established and that respondent 7 was 60 already granted CTE and EC but due to gap in certain procedure and formalities, earlier CTE and EC became null and void and not illegal. This is clear misreading and appears to be a deliberate attempt on the part of the then Member Secretary, UPPCB to suggest that earlier CTE and EC was only null and void and not illegal though judgment of Tribunal in Aniruda Panwar vs. Ministry of Environment, Forest and Climate Change & Others (supra) clearly declares that CTE and EC, not in conformity with the RG 2016 in respect of requirement of area is null, void and illegal and nullity for all purposes. In para 78 in Aniruda Panwar vs. Ministry of Environment, Forest and Climate Change & Others (supra), when Tribunal declared CTE and EC illegal, null and void and to be of no effect and reads as under:
"78. In view of the above the application converted to appeal is allowed and CTE and EC being violative of CBWTF Guidelines 2016 are held to be illegal, null and void and to be of no effect."
150. When something is null and void, it means that it did not exist in law and it is per se illegal. The officer concerned has clearly and may be for reasons other than bonafide has made such observations in para (iii) of its letter dated 16.10.2023 which is nothing but a clear misreading of judgment of this Tribunal. It did not look into the question whether population of the area is upto requirement so as to attract para 7(b) of RG 2016 and instead said that since proponent i.e., respondent 7 has proposed to implead additional measures and stringent norms, therefore, a recommendation is made to CPCB to grant relaxation.
151. We further find that CPCB in its letter dated 17.11.2023, instead of applying mind on this aspect directing SEIAA UP to look into the question whether any relaxation is admissible or permissible in accordance with 61 provisions of RG 2016 in the case in hand, has simply observed that the area criteria may be relaxed from one acre to 0.89 acres by adopting certain measures which relates to additional conditions necessary for prevention of pollution of air. There is no reference to the question as to whether the area where CBWTF is proposed qualify the requirement of population for the purpose of attracting the provisions of para 7(b) or not.
152. In the ultimate order granting relaxation, again the same considerations, as are mentioned in the letter dated 16.10.2023, have been reiterated which in our view, were irrelevant since it is not investment made by respondent 7 which was relevant but the operational effectiveness of the plant in a smaller area ought to have been considered. There is no application of mind on this aspect. There is no consideration whether sufficient space for storage of BMW generated by health care facilities collected by CBWTF for processing and also for storage of inert/residual matter etc. and for other operational purposes was available.
153. Further, chronological events discussed above clearly show that even before allotment of land in question, respondent 7 applied for grant of CTE and grant of TOR without declaring that the land is still not in its possession. Subsequently, it also concealed the information that the land was allocated for different purposes of fabrication of industrial equipments and not establishment of CBWTF. It is only when it could succeed/managed in obtaining earlier EC/CTE from SEIAA UP/UPPCB, applied to UPSIDA for amendment in the allotment letter from fabrication of industrial equipments to CBWTF on the ground that it has already granted CTE/EC which apparently it had obtained by concealment of 62 material facts/furnishing wrong facts/misrepresentation or fraud played upon the authorities concerned.
154. We also do not find any hesitation in observing that the officer concerned who has issued EC and CTE to respondent 7 after judgment of Tribunal in Aniruda Panwar vs. Ministry of Environment, Forest and Climate Change & Others (supra) has acted for reasons other than bonafide and clearly it is malicious in law. There was/is no extraordinary urgency in proceeding to grant the requisite clearance to respondent 7 instead of considering the matter in the light of relevant provisions and by application of mind to the relevant factors. The entire exercise is clearly malicious in law. It is well settled that even if there is no malice in fact but if there is something malicious in law, it is vitiated in law.
155. The malice in law is quite a distinct factor to malice of fact. The power which is said to have been exercised on account of mala fide may be vitiated on account of either malice in fact or malice in law.
156. In Shearer vs. Shields, (1914) AC 808 at Page 813 Viscount Haldane described "malice in law" as under:
"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
157. Again in Pilling vs. Abergele Urban District Council, ( 1950) 1 KB 636 Lord Goddard, CJ said that where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account or that they have 63 failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.
158. Lord Esher M.R. in The Queen on the Prosecution of Richard Westbrook vs. The Vestry of St. Pancras, (1890) 24 QBD 371 at page 375 said:
"If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion."
159. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.
160. Supreme Court has summarised "malice in law" in (Smt.) S.R. Venkatraman vs. Union of India and another, AIR 1979 SC 49 as under :
"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)
161. Court further in para 9 of the judgment in S.R. Venkatraman (supra) observed:
"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a 64 contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."
162. In Mukesh Kumar Agrawal vs. State of U.P. and others, JT 2009 (13) SC 643, Supreme Court said:
"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."
163. In HMT Ltd. and another vs. Mudappa and others, JT 2007(3) SC 112, Court in paras 18 and 19 define malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:
"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite". It is a deliberate act in disregard of the rights of others."
"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."
164. In brief the malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is 65 supposed to be exercised. (See Manager Govt. Branch Press and another vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar vs. State of Andhra Pradesh and others JT (2009) 12 SC 198.
165. Member Secretary, UPPCB in the letter dated 16.10.2023 sent to CPCB has observed that there is requirement of CBWTF in the area in question but either has deliberately withheld or for any other reason failed to disclose that there is already a CBWTF proposed by appellant in respect whereof the recommendation to grant EC was already made by Competent Authority but actual order of EC was not issued and why it was withheld and why it was not taken into consideration while considering the case of respondent 7, is a matter of guess particularly in the light of the report of Special Secretary as also the observations made by Tribunal in earlier judgment in Aniruda Panwar vs. Ministry of Environment, Forest and Climate Change & Others (supra) and all these facts in our view do also fortify our conclusion that the entire exercise is vitiated on account of malice in law on the part of the concerned authorities.
166. In view of the above discussion, we have no hesitation but to hold that EC and CTE granted in the case in hand, cannot be sustained. They are contrary to law, illegal and are liable to be set aside. 66
167. The Appeal is accordingly allowed. Impugned EC dated 20.12.2023 and CTE dated 20.12.2023 are hereby set aside.
PRAKASH SHRIVASTAVA, CHAIRPERSON SUDHIR AGARWAL, JUDICIAL MEMBER DR. A. SENTHIL VEL, EXPERT MEMBER July 05, 2024 Appeal No. 04/2024 R 67