National Green Tribunal
Compliance Of Municipal Solid Waste ... vs . Union Of on 14 December, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 05 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 606/2018
Compliance of Municipal Solid Waste Management Rules, 2016 and
other environmental issues.
Date of hearing: 14.12.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Respondent: Mr. Raj Kumar, Advocate for CPCB
ORDER
1. The Tribunal has been considering the issue of non-compliance of Solid Waste Management Rules, 2016 and other important environmental issues for protection of public health and the environment in this matter. The issues of solid as well as liquid waste management are being monitored as per orders of the Hon'ble Supreme Court vide order dated 02.09.2014 in Writ Petition No. 888/1996, Almitra H. Patel vs. Union of India & Ors., (with regard to solid waste management) and order reported in (2017) 5 SCC 326, Paryavaran Suraksha vs. Union of India relating to liquid waste management. Other related issues include pollution of 351 river stretches, 122 non attainment cities in terms of air quality, 100 polluted industrial clusters, illegal sand mining etc.
2. After considering earlier orders and proceedings before this Tribunal, and in view of chronic non-compliances for a long period, on 16.01.2019, the Tribunal held that it will be necessary to require the personal presence of Chief Secretaries of all States and UTs in view of 1 continuing non-compliance of the solid and liquid waste management rules adversely affecting the environment and public health. Needless to say that such large scale non compliance of environmental law is resulting in deaths and diseases and irreversible damage to the environment without punishment and accountability for such non-compliance. Violation of the Rules as well as orders of this Tribunal being by itself criminal offence under the law of land, non compliance is to be viewed sternly to enforce rule of law. No State authority can be on the wrong side of law and still continue to hold public office.
3. Accordingly, the Chief Secretaries of all the States/UTs appeared on the scheduled dates till 18.07.2019 and the Tribunal, after reviewing the status of noncompliance on most of the issues, directed further effective steps to be taken for compliance of the Rules and the environmental norms. The directions include setting up of environmental cells directly under the Chief Secretaries, regular periodical monitoring by the Chief Secretaries at the State level and by the District Magistrates at the District level and making atleast some cities, towns and villages compliant in the first instance and thereafter making the entire State compliant. Direction is to take action for non-compliance by recovery of compensation or otherwise. The Tribunal also directed filing of quarterly reports by the Chief Secretaries. Based on such reports, CPCB was to file consolidated status reports. The Chief Secretaries were to appear after six months with updated status of compliance.
4. The matter was reviewed on 12.09.2019 in the light of reports of the CPCB dated 09.09.2019 showing wide gaps in compliance of solid waste, plastic waste, bio-medical waste management, rejuvenation of identified polluted river stretches, polluted industrial clusters and 2 non-attainment cities. A fresh schedule for appearance of the Chief Secretaries was issued. Accordingly, the Chief Secretaries of 18 States/UTs1 appeared and filed updated status reports and since there still existed huge gaps in compliance, further directions were issued by way of different orders. Last such order is of 28.2.2020. Other orders are on same pattern. The direction part of the said order is reproduced below:
"41. In view of above, consistent with the directions referred to in Para 29 issued on 10.01.2020 in the case of UP, Punjab and Chandigarh which have also been repeated for other States in matters already dealt with, we direct:
a. In view of the fact that most of the statutory timelines have expired and directions of the Hon'ble Supreme Court and this Tribunal to comply with Solid Waste Management Rules, 2016 remain unexecuted, interim compensation scale is hereby laid down for continued failure after 31.03.2020. The compliance of the Rules requires taking of several steps mentioned in Rule 22 from Serial No. 1 to 10 (mentioned in para 12 above). Any such continued failure will result in liability of every Local Body to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body from 01.04.2020 till compliance. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies.
Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this 1 States/UTs Appeared Next date on UP, Punjab & Chandigarh 10.01.2020 24.08.2020 West Bengal 17.01.2020 04.09.2020 Maharashtra 24.01.2020 11.09.2020 Rajasthan and Andaman & Nicobar 31.01.2020 18.09.2020 Telangana 14.02.2020 25.09.2020 Karnataka 20.02.2020 01.10.2020 J&K and Sikkim 24.02.2020 07.10.2020 Madhya Pradesh 25.02.2020 14.10.2020 Arunachal Pradesh, Nagaland, Manipur, Mizoram, Tripura and 28.02.2020 03.11.2020 Meghalaya 3 Tribunal. Final compensation may be assessed and recovered by the State PCBs/PCCs in the light of Para 33 above within six months from today. CPCB may prepare a template and issue an appropriate direction to the State PCBs/PCCs for undertaking such an assessment in the light thereof within one month.
b. Legacy waste remediation was to 'commence' from 01.11.2019 in terms of order of this Tribunal dated 17.07.2019 in O.A. No. 519/2019 para 282 even though statutory timeline for 'completing' the said step is till 07.04.2021 (as per serial no. 11 in Rule
22), which direction remains unexecuted at most of the places and delay in clearing legacy waste is causing huge damage to environment in monetary terms as noted in para 33 above, pending assessment and recovery of such damage by the concerned State PCB within four months from today, continued failure of every Local Body on the subject of commencing the work of legacy waste sites remediation from 01.04.2020 till compliance will result in liability to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this Tribunal. Final compensation may be assessed and recovered by the State PCBs/PCCs in the light of Para 33 above within six months from today.
c. Further, with regard to thematic areas listed above in para 20, steps be ensured by the Chief Secretaries in terms of directions of this Tribunal especially w.r.t. plastic waste, bio-medical waste, construction and demolition waste which are linked with solid waste treatment and disposal. Action may also be ensured by the Chief Secretaries of the States/UTs with respect to remaining thematic areas viz. hazardous waste, e- 2 The Chief Secretaries may ensure allocation of funds for processing of legacy waste and its disposal and in their respective next reports, give the progress relating to management of all the legacy waste dumpsites. Remediation work on all other dumpsites may commence from 01.11.2019 and completed preferably within six months and in no case beyond one year. Substantial progress be made within six months. We are conscious that the SWM Rules provide for a maximum period of upto five years for the purpose, however there is no reason why the same should not happen earlier, in view of serious implications on the environment and public health.
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waste, polluted industrial clusters, reuse of treated water, performance of CETPs/ETPs, groundwater extraction, groundwater recharge, restoration of water bodies, noise pollution and illegal sand mining. d. The compensation regime already laid down for failure of the Local Bodies and/or Department of Irrigation and Public Health/In-charge Department to take action for treatment of sewage in terms of observations in Para 36 above will result in liability to pay compensation as already noted above which are reproduced for ready reference:
i. Interim measures for phytoremediation/ bioremediation etc. in respect of 100% sewage to reduce the pollution load on recipient water bodies
- 31.03.2020. Compensation is payable for failure to do so at the rate of Rs. 5 lakh per month per drain by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2020.
ii. Commencement of setting up of STPs - 31.03.2020.
Compensation is payable for failure to do so at the rate of Rs. 5 lakh per month per STP by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2020.
iii. Commissioning of STPs - 31.03.2021.
Compensation is payable for failure to do so at the rate of Rs. 10 lakh per month per STP by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2021.
e. Compensation in above terms may be deposited with the CPCB for being spent on restoration of environment which may be ensured by the Chief Secretaries' of the States/UTs.
f. An 'Environment Monitoring Cell' may be set up in the office of Chief Secretaries of all the States/UTs within one month from today, if not already done for coordination and compliance of above directions which will be the responsibility of the Chief Secretaries of the States/UTs.
g. Compliance reports in respect of significant environmental issues may be furnished in terms of order dated 07.01.2020 quarterly with a copy to CPCB.
5. The matter was last considered on 02.07.2020 as follows: 5
"5. In view of the lockdown, further appearance of the Chief Secretaries could not take place and we accepted the prayer for deferring the presence of the Chief Secretaries. This applies to the present case also in respect of the letter of the Chief Secretary Kerala. The appearance of the Chief Secretaries of States/UTs who have not appeared in second round so far is now rescheduled as follows:-
S. NO. STATES/UTs REVISED DATES
1. Bihar 4.1.2021
2. Odisha 6.1.2021
3. Jharkhand 8.1.2021
4. Assam 11.1.2021
5. Delhi 14.1.2021
6. Haryana 18.1.2021
7. Ladakh 20.1.2021
8. Gujarat 22.1.2021
9. Goa 25.1.2021
10. Daman and Diu 27.1.2021
11. Dadar and Nagar Haveli 29.1.2021
12. Himachal Pradesh 1.2.2021
13. Uttarakhand 3.2.2021
14. Chhattisgarh 5.2.2021
15. Kerala 8.2.2021
16. Tamil Nadu 10.2.2021
17. Lakshadweep 12.2.2021
18. Puducherry 15.2.2021
19. Andhra Pradesh 17.2.2021
TIME: 2:00PM
The state appearing on the respective dates shall submit a quarterly report to NGT and CPCB, 15 days in advance to their appearance.
6. Appearance of the Chief Secretaries in third round is rescheduled as follows:
S. NO. STATES/UTs DATE OF HEARING
1. Punjab 1.7.2021
2. Chandigarh 5.7.2021
3. Uttar Pradesh 7.7.2021
4. West Bengal 9.7.2021
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5. Maharashtra 12.7.2021
6. Rajasthan 14.7.2021
7. Andaman & Nicobar 16.7.2021
8. Telangana 19.7.2021
9. Karnataka 21.7.2021
10. Jammu & Kashmir 23.7.2021
11. Sikkim 26.7.2021
12. Madhya Pradesh 28.7.2021
13. Arunachal Pradesh 30.7.2021
14. Nagaland 2.8.2021
15. Manipur 4.8.2021
16. Mizoram 6.8.2021
17. Tripura 9.8.2021
18. Meghalaya 11.8.2021
TIME: 2:00PM
The state appearing on the respective dates shall submit a quarterly report to NGT and CPCB, 15 days in advance to their appearance.
7. In case the physical presence of the Chief Secretaries is not found viable, they can seek to appear online by way of video conferencing but they may not delegate this responsibility to any other officer. All the State/UTs may take further steps for compliance of environmental norms in terms of directions already issued including taking coercive measures for non-compliance against the polluters as well as erring officers and recovering compensation. Quarterly report may continue to filed with a copy to CPCB. CPCB may fie consolidated reports quarterly. There may be a separate column showing compliance of direction for model compliant cities, towns and villages in every State. The Chief Secretaries may have this as one of the focus areas in their presentation also.
6. In terms of order dated 18.10.2019, the Tribunal requested Niti Ayog to standardize technologies and costs. Operative part of the said order is as follows:
"There is need to standardize necessary technologies with cost breakups for operation and maintenance, including procurement. Besides this, the service provides need to be identified and empaneled. This exercise may also require the concerned authority to explore business models". It had also stated in paragraph 2 that -"development of business models for privatization of (a) sewage collection, treatment and disposal, including utilization of treated water and sludge; (b) remediation of legacy waste dumpsites; and (c) other such activities relating to collection, treatment and processing and utilization of wastes and provision of services such as setting up of rainwater harvesting system may have to be considered."7
7. The Tribunal, vide order dated 02.07.2020, noted the report of Niti Ayog dated 25.06.2020 as follows:
"xxx xxx xxx The Committee held three meetings: on 19.11.2019, 20.11.2019 and 17.03.2020. Pursuant to the decisions taken during these meetings, NITI Aayog has formulated the Model Concession Agreements (MCAs) and Model Request for Proposals documents (RFPs) for Integrated Solid Waste Management (including Bio- Remediation of Legacy Waste) and Integrated Liquid Waste Management (including Faecal Sludge Management) on Hybrid Annuity Model (HAM) of Public-Private Partnership (PPP). MoHUA has provided Engineering Procurement Construction (EPC) Contract for Legacy Waste Dumpsite Remediation and several other documents relating to legacy waste dumpsite remediation and integrated solid waste management activities such as collection, transportation, processing and disposal of municipal solid waste.
NMCG has also provided documents for setting up of sewage treatment plants and other guiding documents for improved liquid waste management in the country.
Now the Urban Local Bodies (ULBs) have the following options for solid waste management and liquid waste management under PPP:
For Solid Waste Management:
(i) To undertake only legacy waste remediation: existing method of tendering EPC contract which is entirely financed by the government be taken up (it is a successful model as indicated by MoHUA).
(ii) To undertake only solid waste management system collection transportation processing & disposal) (Non-HAM): the existing method of tendering Design, Build, Finance, Operate & Transfer (DBFOT) contracts which is either not funded or only partly funded by the government be taken up. The drafts of such agreements, model RFP, list of necessary clauses of such agreements, and guidelines for drafting of concession agreements have been made available through Swachh Bharat Mission (Urban), MoHUA, and the World Bank.
(iii) To undertake both legacy waste remediation as well as solid waste management system: the MCA of NITI Aayog under HAM may be taken up.
(iv) To undertake only solid waste management system (collection, transportation, processing & disposal) only the parts of the NITI Aayog MCA pertaining to Bio-Remediation of Legacy Waste may accordingly be removed by the ULB and remaining agreement may be taken up.
For Liquid Waste Management:
(i) To undertake only sewage treatment (Non-HAM): existing method of tendering EPC contract or DBFOT contract for setting 8 up sewage treatment plants under state or central government funding schemes, may be taken up.
(ii) To undertake only sewage treatment (under HAM): model bidding documents prepared by NMCG may be taken up.
(iii) To undertake both sewage treatment as well as faecal sludge management system: the MCA of NIT1 Aayog under HAM may be taken up.
As per paragraph 5 of the NGT Order, the Tribunal was of the opinion that placing these documents on the GeM Portal would go a long way in tackling the situation by curtailing procedural delay.
In accordance with the requirement of the NGT Order, all the relevant documents were shared with the CEO, GeM Portal on 11.06.2020 to initiate the process of uploading of the documents.
I am sharing the documents with you for the kind information and reference of the Hon'ble Tribunal.
The following documents are attached herewith:
(A) Order of the Hon'ble National Green Tribunal dated 18.10.2019 in O.A. No. 606/2018 (Main) on `Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issues.
(B) Solid Waste Management (SWM)
(i) Model Concession Agreement including Schedules (prepared by NITI Aayog)
(ii) Model RFP for Solid Waste Management (prepared by NITI Aayog)
(iii) EPC Contract for Legacy Waste Dumpsite Remediation
(iv) DPR preparation Toolkit for Dumpsite remediation
(v) EPC Contractors & O&M Vendors for dumpsite remediation
(vi) Equipment & Suppliers for dumpsite remediation
(vii) Template for management of Dumpsites
(viii) Toolkit for DPRs preparation
(ix) List of SWM Empanelled Agencies
(x) Empanelled Institutes SWM
(xi) Empanelled Transaction Advisers - SWM
(xii) Checklist for scrutiny of DPR for SWM projects
(xiii) Checklist for scrutiny of PPR or PHI for SWM projects (C) Liquid Waste Management (LWM)
(i) Model Concession Agreement (prepared by NITI Aayog)
(ii) Schedules to Model Concession Agreement (15 Schedules) (prepared by NITI Aayog)
(iii) Model RFP for Liquid Waste Management (prepared by NITI Aayog)
(iv) DPR Guidelines - LWM
(v) Empanelled Institutes for evaluation of DPRs -
LWM 9
(vi) List of Transaction Advisers & Project Engineers -
LWM
(vii) Model Bidding Documents for NMCG projects - STP (D) Letter addressed to the CEO, GeM Portal through which the above-
mentioned documents were shared with GeM, requesting them to initiate the process of uploading.
The documents listed above have been approved by the competent authority at NITI Aayog. This submission is in compliance and fulfillment of the directions given by the Hon'ble National Green Tribunal to NITI Aayog in its Order dated 18.10.2019 in O.A. No. 606/2018 (Main)."
8. In view of the grave situation faced by the country in the form of pandemic, but at the same time having regard to the necessity of continuous monitoring of the scientific management of waste in the interest of protection of environment and public health, we defer the appearances of the Chief Secretaries till further orders subject to the condition that the monitoring at the level of Chief Secretaries may continue, as directed earlier and quarterly compliance reports may be filed with the CPCB and CPCB may file a consolidated report every six months before this Tribunal. First such report may be filed by 30.06.2021 which may be put up for consideration on 28.07.2021.
9. The compensation in terms of earlier order be recovered and credited to a separate account with the Environment Department of the States/UTs to be used for restoration of environment in the concerned States/UTs. The deposit, instead of being made with the CPCB, may now be made to the said account.
10. We also direct that while by order dated 16.01.2019 and further orders passed, the Chief Secretaries were directed to give a consolidated report on the subject of waste management as well as remedial action for rejuvenation of 351 polluted river stretches, 122 non-attainment cities, 100 polluted industrial clusters, sand mining, etc., henceforth the present 10 matter will primarily deal with the issues of solid waste management only, other issues being subject matter of separate proceedings.
11. We may note that in terms of the Solid Waste Management Rules, 2016, the statutory authorities for various actions have been specified. Under Rule 5, a Central Monitoring Committee (CMC) is to be constituted headed by the Secretary, MoEF&CC with representation from Ministries of Urban Development, Rural Development, Chemicals and Fertilizers, Agriculture, CPCB, State PCBs/PCCs, Urban and Rural Development Departments, Urban Local Bodies and Towns from the of the States, FICCI, CII and subject experts. The CMC is to meet once in a year.
The Ministry of Urban Development has to coordinate with the States/UTs under Rule 6 for periodic review and formulation of National Policy and strategies and taking other measures. Under Rule 7, the Department of Fertilizers, Ministry of Chemical and Fertilizers have to provide market development assistance for compost and promote marketing of such compost. Under Rule 8, Ministry of Agriculture has to evolve mechanism for utilization of compost. Under Rule 9, Ministry of Power has to decide compulsory purchase and tariff issues. Under Rule 10, Ministry of New and Renewable Energy Sources has to facilitate infrastructure creation and provide for subsidy. Under Rule 11, the concerned Secretaries of Urban Development have to prepare State Policy and Management strategies and the Town Planning Department has to ensure setting up waste processing and disposal facilities and take other enumerated actions. Under Rule 12, the District Magistrates have to identify suitable lands and review performance of local bodies. Under Rule 13, the Secretaries of Panchayats have also to perform similar duties. Under Rule 14, CPCB is to coordinate with State PCBs and formulate 11 standards of ground water, ambient air quality, noise, etc. Under rule 15, local authorities have to prepare solid waste management plans, collection of waste and coordination with the other stakeholders for enumerated steps. Under Rule 16, the SPCBs/PCCs have to enforce the rules and monitor compliances. Under Rule 17, there are duties of private bodies, including the manufacturers to be monitored by the State Bodies. The timelines are provided in Rule 22 for various steps. Last timeline of 5 years from the Rules expires on 7.4.2021. There is also provision for audit and submitting of annual report under Rule 24. Since there has been large scale non-compliances of the said rules, all the concerned authorities need to review the progress and perform their responsibility in accordance with law. The MoEF&CC has to finally monitor compliance, as already mentioned. We hope all the authorities will now take necessary steps for meaningful compliances for protection of environment and public health.
A copy of this order be forwarded to the Secretaries, MoEF&CC, Urban Development, Chemical and Fertilizers, Agriculture, Power, New and Renewable Energy Sources in the Central Govt., the Chief Secretaries of all the States/UTs, CPCB and State PCBs/PCCs by e-mail for compliance.
List for further consideration on 28.07.2021.
Adarsh Kumar Goel, CP S.K. Singh, JM Dr. S.S. Garbyal, EM Dr. Nagin Nanda, EM December 14, 2020 Original Application No. 606/2018 DV 12