Andhra Pradesh High Court - Amravati
M/S. Safenviron Unitii vs State Of Andhra Pradesh on 7 August, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.11250 OF 2018
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) This writ petition is filed under Article 226 of the Constitution of India, questioning the Letter No.1/APPCB/HO/UH-IV/BMW/In- Principle/2018-571 dated 07.02.2018 whereby the 2nd respondent has issued "In-Principle" Permission for establishment of second Common Bio Medical Waste Treatment Facility (for short 'CBMWTF') in favour of the 4th respondent at G. Konduru Mandal, Krishna District, as illegal, contrary to the Bio Medical Waste Management Rules, 2016 and the guidelines framed by the 3rd respondent dated 21.12.2016 for establishment of Common Bio- Medical Waste Treatment & Disposal Facilities and to set aside the same and to issue a consequential direction to the 2nd respondent to act in accordance with law in relation to establishment of CBMWTFs in Krishna District.
The petitioner herein is engaged in rendering the service of disposal of biomedical waste in accordance with the Rules made by the Government of India. It is submitted that the Government of India has notified Bio- Medical Waste (Management & Handling) Rules, 1998 and thereafter has notified new set of Rules on 28.03.2016 in supersession of originally notified Rules. The said notification was done in exercise of the powers conferred under Sections 6, 8 and 25 of the Environment (Protection) Act, 1986. The said Rules 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 2 HACJ & MSM,J WP_11250_ 2018 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. The Occupier of the premises generating bio-medical waste has to take all necessary steps to ensure that the COS waste is handled without any adverse effect to human health and the environment and in accordance with the Rules. Under the Rules, an 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, storage, treatment, disposal or any other form of handling of bio-medical waste.
As per Rule 5, it is the duty of every Operator to take all necessary steps to ensure that the bio-medical waste collected from the Occupier is transported, treated and disposed of without any adverse effect to the human health and environment. Various other duties of the Operator are also provided under the said Rule. The mode of treatment and disposal of the bio-medical waste is provided under Rule 7. Occupier shall handover segregated waste as per Schedule - I to common bio-medical waste treatment facility for treatment, processing and final disposal. Rule 8 provides for segregation, packaging, transportation and storage of the bio- medical waste. Under Rule 9, the prescribed authority for implementation of the provisions of these Rules shall be the State Pollution Control Boards in respect of the States. The procedure for authorizing an Occupier or Operator handling bio-medical waste is provided under Rule 10. An Operator has to make an application in Form - II to the State Pollution Control Board for grant of authorization and the prescribed authority shall grant the provisional authorization in Form - III and the validity of such 3 HACJ & MSM,J WP_11250_ 2018 authorization for bedded health care facility and Operator of a common facility shall be synchronized with the validity of the consents.
The 3rd respondent/Central Pollution Control Board has issued revised guidelines for common biomedical waste treatment and disposal facilities, in furtherance to the Rules above mentioned. The criteria for development of a new CBWTDF for a locality or region are provided for in the said guidelines. The State Pollution Control Board is required to prepare an inventory or review with regard to the biomedical waste generation atleast once in five years in the coverage areas of the existing biomedical waste treatment and disposal facility. As per the Para 2(b) of the guidelines, the Pollution Control Board is required to conduct gap analysis with reference to coverage area of the biomedical waste generation and also projected over a period of next 10 years, adequacy of existing treatment capacity of the CBWTF in each coverage area of radius 75 kms as given in Annexure - I. The guidelines further lay down at Para 8 as under:
" (a) A CBWTF, located within the respective State / UT shall be allowed to cater health care 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 health care units situated upto 150 KM radius with reference to its location provided the biomedical generated is collected, treated and disposed of within 48 hrs as stipulated under the BMWM Rules.
(b) In case, number of beds is exceeding 10000 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."
As per the guidelines, a CBWTF is allowed to cater healthcare units situated at a radial distance of 75 KM. In case the number of beds in a locality is exceeding 10000 and the existing treatment capacity is not 4 HACJ & MSM,J WP_11250_ 2018 adequate, then only a new CBWTF may be allowed in such a locality that too only to cater to such additional bed strength of the HCFs in that locality. Such restrictions are necessary in order to ensure the economic feasibility and viability operation with minimal impact on human health and environment as the CBWTFs are required to set-up, based on the need for ensuring environmentally sound management of biomedical waste.
The petitioner, being an Operator under the Rules, has applied to the 2nd respondent on 15.11.2006, for Consent for Establishment of a Common Bio Medical Waste Treatment Facility (CBWTF), at Jaggaiahpeta Mandal, Krishna District in an area of 1.8 acres of land with installed capacity of incinerator - 270 kg / hr at a total cost of Rs.45 lakhs. The officials of the 2nd respondent have inspected the site and after careful scrutiny of the application, has issued Consent Order for Establishment in Order No.619/APPCB/BMWM/CWTF/2006-314, dated 07.05.2007. The petitioner has established the CBWTF as per the above mentioned Consent given by the 2nd respondent/A.P. Pollution Control Board and sought for the Consent for Operation of the 2nd respondent/ A.P. Pollution Control Board. The same was given by the 2nd respondent in Order No.619/APPCB/CBMWTF/VJY/CFO/2010-77 dated 08.04.2010 subject to the terms and conditions mentioned therein. The said Consent was valid upto 28.02.2011. It was subsequently renewed from time to time and the same is presently valid upto 28.02.2022. The petitioner has been operating the CBWTF successfully and it is having a capacity to handle the bio- medical waste generated from more than 20000 beds. The existing HCFs in Krishna District are 852 and their enrolled bed strength is 11754 at present. Thus the petitioner is having more than required capacity to handle the biomedical waste generated from the existing beds in the entire 5 HACJ & MSM,J WP_11250_ 2018 Krishna District and there is no requirement to authorize to any other CBWTF.
The 4th respondent has applied for Consent for Establishment of a CBWTF at Loya Village, G.Konduru Mandal, Krishna District to the 2nd respondent. On coming to know about the same, the deponent herein has submitted a representation to the 2nd respondent on 14.02.2018 bringing to its notice about the existing capacity of the petitioner vis-à-vis the total number of beds in the existing HCFs of Krishna District and questioned maintainability of the application of the 4th respondent under the guidelines issued by the 3rd respondent. It was also contended that there is every requirement to conduct gap analysis considering the factors such as coverage area of the BMW generation, projected BMW for the next 10 years and also the adequacy of the existing treatment facility and submit the report to the CPCB before granting permission to a new CBWTF in the same locality. It was also pointed out that the petitioner is having capacity to handle biomedical waste of more than 20000 beds and the same is evident from the letter of the APPCB dated 20.12.2017 when the petitioner was required to handle the biomedical waste pertaining to the East Godavari District due to the existing CBWTF was non-functional due to modernization. The petitioner has handled the biomedical waste generated from more than 12000 beds of East Godavari District in addition to the biomedical waste generated from more than 11000 beds of Krishna District simultaneously.
Despite the objections filed by the petitioner opposing the application of the 4th respondent for grant of CFE, the 2nd respondent has issued letter dated 07.02.2018 describing it as In-Principle Permission in favour of the 4th respondent for establishing CBMWTF at G. Konduru 6 HACJ & MSM,J WP_11250_ 2018 Mandal, Krishna District. This appears to be based on a report of the District Medical & Health Officer that there are 617 private hospitals with a bed strength of 16,376 (excluding Government hospitals) in Krishna District. It further states that the existing CBMWTF in Krishna District is covering 752 HCFs with 12848 bed strength and there are about 3888 bed strength uncovered by the existing CBMWTF. Further there are number of veterinary hospitals, dispensaries, dental hospitals, ayurvedic and homeopathic hospitals which need to be covered under the BMWM Rules. Basing on such report, the 2nd respondent has issued the In-Principle Permission in favour of the 4th respondent for establishing a second CBMWTF at Krishna District.
It is the specific contention of the petitioner that the 2nd respondent has quoted facts and figures wrongly in the above mentioned letter dated 07.02.2018, issued in favour of the 4th respondent, while making out a case for permitting a second CBMWTF in Krishna District. The same is clear from the report of the Environmental Engineer of the 2nd respondent in Letter No.BMW/PCB/RO-VJA/2017-268 dated 24.06.2017. In the said report it is clearly brought out that the distance between the existing CBMWTF of the petitioner and the proposed CBMWTF of the 4th respondent are within a radial distance of about 48 KMs. It is also pointed out that out of the 617 private hospitals with total bed strength of 16376 (excluding Government hospitals) on verification it is found that 58 HCFs with bed strength of 4438 are repeated/closed. Therefore the actual number of HCFs in the list of the DMHO is 559 only and their bed strength is 11938. When the petitioner is operating such CMBTF covering more than 12,000 bed strength within Krishna District, there is no need to establish another CMBWTF and that too, without conducting any gap analysis as per the revised rules applicable as on date. Thus, the 7 HACJ & MSM,J WP_11250_ 2018 "in-principle" permission granted in favour of the 4th respondent is contrary to the rules and guidelines and the rules does not permit grant of any such in-principle permission, except granting consent for establishment in favour of the application of CBMWTF, but inventing different concept of in-principle permission, the second respondent is engaging the 4th respondent to establish CBMWTF, contrary to the guidelines and therefore, requested to declare Letter No.1/APPCB/HO/UH- IV/BMW/In-Principle/2018-571 dated 07.02.2018 issued by the 2nd respondent as illegal and prayed to set-aside the same.
Respondent No.2 filed detailed counter affidavit, denying material allegations, while admitting two grounds of in-principle consent and admitting operation of CBWTF of this petitioner. The second respondent also admitted about issue of revised guidelines and procedural aspects for Common Bio-medical Waste Treatment and Disposal Facilities, for all upcoming or new CBMWTFs and for existing CBMWTFs to expand or enhance the existing treatment capacity or modernize the existing treatment equipment with new equipment with enhancement in the existing treatment capacity.
The 2nd respondent also admitted that, prior to allowing new CBMWTF the Board 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 area of the existing bio-medical waste treatment and disposal facility and that the Board is also required to extrapolate the coverage-area wise bio-medical waste generation for the next ten years. That Board is obligated to conduct gap analysis with respect to coverage area of the bio- medical waste generation also project over a period of next ten years, adequacy of existing treatment capacity of CBMWTF in each coverage area 8 HACJ & MSM,J WP_11250_ 2018 of radius i.e. 75 KM and the Board will fulfil all its obligations under the CPCB Guidelines and Rules, including conduction of gap analysis. As per the CPCB Guidelines:
A. Ministry of Environment, Forest & Climate Change (MoEF & CC), notified amendment to the EIA Notification 2006 and published vide MoEF & CC Notification of S.O. 1142 (E) dated April 17, 2015. According to this notification, the "bio-medical waste treatment facility' is categorized under the Item 7 (da) in the schedule, requiring environmental clearance from the State Environment Impact Assessment Authority (SEIAA). Therefore, the CBMWTF operator is also required to obtain 'Environmental Clearance (EC)' from the respective SEIAA or Ministry of - Environment, Forest& Climate Change (MoEF& CC), as the case may be, before any construction work, or preparation of land by the projects management, which include the following:
a) All new projects or activities pertaining to the bio-medical waste treatment facility; and
b) Expansion and modernization with additional treatment capacity of existing bio-medical waste treatment facility (excluding augmentation of incineration facility for compliance to the residence time as well as Dioxins and Furans without enhancing the existing treatment capacity).
c) Any expansion or modification in the treatment capacity or relocation of the existing CBMWTF (requires compliance to the relevant provisions notified under the Environment (Protection) Act, 1986 by the MoEF & CC".
B. As far as possible, the CBMWTF 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 CBMWTF 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 CBMWTF are as follows:
(a) A CBMWTF shall preferably be developed in a notified industrial area without any requirement of buffer zone (or)
(b)A CBMWTF 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 CBMWTF; (ii) prescribing stringent standards for operation of the CBMWTF by the SPCB/PCC; (iii) adoption of zero liquid discharge by the CBMWTF and (iv) in case of any complaints from the public, then CBMWTF 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 CBMWTFs, in such a case, SPCBs/PCCs may refer the matter to CPCB.
9 HACJ & MSM,J WP_11250_ 2018
(c) The CBMWTF can also be developed as an integral part of the 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 CBMWTF exist within 150 KM distance from the existing TSDF. C. Sufficient land shall be allocated to the CBMWTF 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.,. Preferably, a CBMWTF shall be set up on a plot size of not less than one acre in all the areas. However, a CBMWTF 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 CBMW IFs or the existing CBMWTFS.
D. A CBMWTF 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 CBMWTF 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 collected, treated and disposed of within 48 hours as stipulated under the BMWM Rules.
E. In case, number of beds is exceeding >10,000 beds in a locality (i.e. coverage area of the CBMWTF under reference) and the existing treatment capacity is not adequate, in such a case, a new CBMWTF 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.
Further, it is contended that, the Board is maintaining inventory of Health Care Facilities (HCFs) along with bed strength for Krishna district. As part of gap studies that needs to be done before taking a decision on a new CBMWTF, the Board obtained report from the DM&HO Office. The DM&HO report says that there are 617 nos. of private hospitals with bed strength of 16,376 excluding Government hospitals in Krishna District, which is much more beyond 10,000 beds for which a second CBMWTF should be allowed. In addition to the above there are veterinary hospitals, dispensaries, ayurvedic and homeopathic hospitals which also generate bio medical waste and that are not registered with APPCB and not tied up with CBMWTF for treatment and disposal of their waste. That as per the 10 HACJ & MSM,J WP_11250_ 2018 Guidelines issued by CPCB for establishment of new CBMWTF, if the number of beds is exceeding 10,000 beds in a locality (i.e. coverage area of in a locality lie coverage area of the CBMWTF under reference) and the existing treatment capacity is not adequate, in such a case, a new CBMWTF 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. As per the above information the existing CBMWTF is treating and disposing the bio medical waste generated from the bed strength exceeding by 6376 nos. over 10,000 no. of beds from HCFs in Krishna District at present. The capital of residual Andhra Pradesh came in this area, the number of prospective hospitals and their bed strength would be more for future consideration and in addition to that there are veterinary hospitals, dispensaries, ayurvedic and homeopathic hospitals which are also generates bio medical waste and that are not tied up with existing CBMWTF.
The 2nd respondent admitted that on 22-03-2017, the Board has extended the validity of Consent for Operation (CFO), Hazardous Waste Authorization and Bio-Medical Waste Authorization Order to the petitioner for a further period of 5 (five) years i.e. upto 28-02-2022, under Section 25/26 of the Water (Prevention & Control of Pollution) Act, 1974 (herein after called "Water Act") and under Section 21 of the Air (Prevention & Control of Pollution) Act, 1981 (herein after called "Air Act") and Authorization under Rule-6 of the Hazardous & Other Wastes (Management & Transboundary, Movement) Rules, 2016 and BMW Authorization under Rule 10 of the Bio Medical Waste Management Rules, 2016. It is not correct that the petitioner has been operating the CBMWTF 11 HACJ & MSM,J WP_11250_ 2018 successfully. The Board officials inspected the petitioner's CBMWTF on 21.04.2016 and observed the following violations:
a. The facility is loading discarded medicines into incinerator manually. b. No storage/treatment of BMW from HCFs is observed during the inspection in the facility. The facility is obtaining discarded medicines in white bags and handling manually. These bags are stored openly in the premises. c. The venturi scrubber attached to incinerator is not in operation. No water circulation in the scrubber.
d. Two Burners attached to the incinerator are not in operation. e. No log book of Incinerator /Autoclave/Shredder, diesel consumption, log books of vehicles, Manifest copies, Daily register of BMW collected from HCFs and route wise collection are maintained/available at the facility. f. No records are maintained regarding treated plastic waste disposed to authorized recyclers.
g. The facility is yet to dispose incineration ash to TSDF. Ash stored in the concrete pits is observed to be mixed with Scanned glass, syringes etc., The above mentioned violations are reviewed in the External advisor committee (Task Force) meeting of A.P. Pollution Control Board on 25.06.2016 and the Board vide order dated 23.07.2016 issued the following directions to the Petitioner:
a. The facility shall maintain/autoclave/shredder, daily diesel consumption, log book of vehicles, manifest copies, daily register of BMW collected from HCFS (HCF wise) and route wise collection and these records shall be available in factory premises.
b. The facility shall not collect un-segregated Bio Medical Waste from the HCFs.
c. The facility shall furnish the list of HCFs that are not segregating bio medical waste to EE, RO, Vijayawada within 1 month. d. The CBMWTF shall submit action plan with specific time frames for compliance of all conditions of CFO and BMW rules and incase of non compliance of BMW Rules, prosecution shall be launched against CBMWTF.
It is submitted that, till now, no compliance report on these directions have been submitted by the operator. Further, the Board officials inspected the petitioner's CBMWTF on 27.05.2017 and observed the following violations:
a. The connection between the incinerator stack and the ID fan is dislocated with opening in the stack.
12 HACJ & MSM,J WP_11250_ 2018 b. The industry was storing out dated /discarded medicines in the store rooms. It was informed that they were incinerating the same in the incinerator.
c. The facility is yet to dispose incineration ash to the TSDF. The ash is stored in the concrete pits is observed to be mixed with glass, syringes etc.. The above mentioned violations are reviewed in the External advisory committee (Task Force) meeting of A.P. Pollution Control Board on 24.07.2017 and the Board vide order dt: 24.08.2017 issued the following directions:
a. The industry shall maintain records on source of Expired/discarded medicines, quantity for stream-wise and details of disposal. The consolidated details shall be reported to RO, Vijayawada for every 3 months.
b. The industry shall ensure incinerator is operated at >1200°C while disposing the Expired / discarded medicines as per the BMW Rules, 2016. The compliance shall be reported to RO, Vijayawada as and when the Expired/discarded medicines are disposed at the existing incinerator. c. The industry shall furnish performance evaluation of adequacy of the existing air pollution control equipment for disposal of Expired/discarded medicines in the existing incinerator within 3 months. d. The industry shall industry shall immediately stop further disposal mode of Incinerator ash at onsite landfill and they shall immediately dispose the accumulated incinerator ash to TSDF, Visakhapatnam and shall report compliance to RO, Vijayawada along with manifest copies. e. The industry shall ensure continuous compliance of the conditions stipulated in the CFO & HWA order.
f. The GPS system to the vehicles and Barcode system to the BMW collecting bags shall be followed immediately.
Again, the facility operator has failed to submit the compliance report on the directions issued by the Board, which clearly reflect the failure on the part of the CBMWTF to effectively operate the facility complying to the BMWM Rules, 2016.
The specific contention of the 2nd respondent in the counter is that, since the petitioner is unable to operate the CBMWTF plant to cater the needs of more than 16,000 bed strength within radius of 75 kms.
Therefore, the 2nd respondent issued In-Principle Permission for establishment of second CBMWTF in favour of the 4th respondent at G. Konduru Mandal, Krishna District vide Letter No.1/APPCB/HO/UH-
IV/BMW/In-Principle/2018-571 dated 07.02.2018, to meet the present 13 HACJ & MSM,J WP_11250_ 2018 needs by HCFs in Krishna District and such order of in-principle permission would not confer any right on the 4th respondent to establish, since no consent for establishment was issued by the 2nd respondent and therefore, the petitioner having violated several directions issued by the 3rd respondent/A.P. Pollution Control Board, approached this Court with unclean hands and prayed for dismissal of the writ petition.
The 4th respondent/M/s. Hygiene Biomed Services, who obtained in- principle permission to establish CBWTF admitted about the grant of in- principle permission, while contending that the bed capacity in Krishna District is more than 10,000 and the treatment capacity of the petitioner CBWTF is not adequate and in those circumstances, to cater the needs of HCFs, and to treat bio medical wastage, another CBWTF is required to be established for collection and treatment of such waste to reduce adverse effects within 48 hours, since the waste may pose a threat to human health and environment, as such the petitioner is not entitled to claim any relief in this petition due to his incapacity to treat bio medical waste for more than 10,000 beds.
The 4th respondent/ M/s. Hygiene Biomed Services admitted about obtaining Consent for Establishment of CBWTF by the petitioner, while highlighting that the petitioner violated several guidelines to treat bio medical waste for more than 10,000 beds within the radius of 75 kms. The 4th respondent denied that the present alleged bed strength is 11,938, while contending that there are 617 numbers of private hospitals with a bed strength of 16,376 excluding government hospitals and that there are about 3888 number of beds uncovered by the existing CBMWTF and there are number of veterinary hospitals, dispensaries, dental hospitals, 14 HACJ & MSM,J WP_11250_ 2018 ayurvedic and homeopathic hospitals which needed to be covered under BMWM Rules, 2016.
It is contended that, establishment of new biomedical disposal facility will be based on the guidelines only and it is specifically stated that SPCB/PCC has to conduct gap analysis, with reference to coverage area of the biomedical waste generation and also projected bio medical waste generated over a period of 10 years, adequacy of existing treatment capacity of CBWTF in each coverage area of radius of 75 kms and obtaining such in-principle permission. It is also stated that, as per revised guidelines for Common Biomedical Waste Treatment Facilities, 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. Therefore, the "in-principle" permission was granted to cater to the needs of the HUFs i.e. bed strength of 16,376 and therefore, the in-principle permission cannot be said to be illegal and contrary to any provisions of law and prayed to dismiss the writ petition.
During hearing, learned counsel for the petitioner Sri Venkaiah Naidu vehemently contended that, in-principle permission was not contemplated under any of the provisions of the Bio-Medical Waste Treatment Rules or the Pollution Control Act. Even to grant permission to new establishment of CBMWTF, certain gap analysis is required to be conducted for technical and economic viability to cater the needs of the existing bed strength. But, in the present case, the alleged in-principle 15 HACJ & MSM,J WP_11250_ 2018 permission to establish CBMWTF was issued without complying the statutory requirements i.e. guidelines issued under the provisions of the Pollution Control Act and therefore, such in-principle permission is illegal and prayed to cancel the same.
Whereas, learned Standing Counsel appearing for Respondent Nos. 2 & 4 admitted the requirement to conduct gap analysis and issue of in- principle permission in favour of the 4th respondent to establish CBMWTF at Loya Village, G.Konduru Mandal, Krishna District and also assured that they will conduct gap analysis and other requirements before issuing Consent for Establishment and Consent for Operation in favour of the 4th respondent, strictly adhering to the rules and guidelines issued by the authorities concerned.
Whereas, learned counsel for the 4th respondent opposed the petition on the ground that the petitioner violated several directions issued by A.P. Pollution Control Board and unable to cater to the needs of 16,376 bed strength, within the radius of 75 kms i.e. operational area of the petitioner. Taking into account of the contingency to meet the immediate necessity to dispose of bio medical waste as per rules, the 2nd respondent issued in- principle permission to establish CBMWTF at Loya Village, G.Konduru Mandal, Krishna District and that there is no illegality in granting such permission and placed reliance on the judgment of Division Bench of High Court of Judicature at Hyderabad in M/s. MCV Eco Systems v. State of Andhra Pradesh1 and requested to dismiss the writ petition. 1 W.P.No.5720 of 2018 dated 07.03.2018
16 HACJ & MSM,J WP_11250_ 2018 Considering rival contentions, perusing the material available on record, the sole point that arises for consideration is:
"Whether in-principle permission is contemplated under any of the provisions of Pollution Control Act or Bio Medical Waste Management Rules, 2016. If so, whether such in-principle permission is in strict adherence to the revised guidelines issued by the authorities. If not, the order issued granting in-principle permission in favour of the 4th respondent is liable to be set-aside?"
P O I N T:
It is not in dispute that the 2nd respondent issued in-principle permission to the 4th respondent for the proposed establishment of CBMWTF at Loya Village, G.Konduru Mandal, Krishna District. The "in-principle" permission issued by the 2nd respondent on 07.02.2018 disclosed that a report from District Medical & Health Officer (DM & HO) was called for by the authority and according to the report, there are 617 private hospitals with bed strength of 16,376 excluding government hospitals and the existing common bio medical facility in Krishna District is covering 752 HCFs with 12848 bed strength and there are about 3888 bed strength uncovered by the existing CBMWTF, besides, veterinary hospitals, dispensaries, dental hospitals, ayurvedic and homeopathic hospitals which need to be covered under the BMWM Rules. The very basis for issue of in-principle permission is the report of DM & HO. The paragraphs in the in-principle permission are totally inconsistent to one another and the in-principle permission is extracted hereunder:
"The District Medical & Health Officer (DM & HO) - there are 617 Nos of Private Hospitals with a Bed strength of 16376 Nos. (excluding Government Hospitals)"
17 HACJ & MSM,J WP_11250_ 2018 At the same time, in the third paragraph of the permission letter dated 07.02.2018, it is specifically mentioned that the existing Common Bio Medical Waste Treatment Facility (CBMWTF) in Krishna District is covering 752 nos of Health Care Facilities (HCFs) with 12,848 bed strength (as per the BMW annual report 2016 submitted to CPCB) and there are about 3888 numbers of beds uncovered by the existing CBMWTF.
When the existing CBMWTF is being run by this petitioner is covering 752 numbers of Health Care Facilities, irrespective of the bed strength, the question of finding 16,376 in 617 Helath Care Facilities is totally inconsistent.
Even according to the letter addressed by the Environmental Engineer, Andhra Pradesh Pollution Control Board, Regional Office, Vijayawada to the Member Secretary, A.P. Pollution Control Board, Hyderabad dated 24.06.2017, the present existing unit being run by the 4th respondent by name M/s Hygiene Biomed Services is located at Dharmavarapadu Thanda Village, Jaggaiahpet Mandal, Krishna District to cater the needs of treatment and disposal of Bio medical Waste generated from Health Care Establishments and it is located at a radial distance of about 48 kms from the proposed site. It is also communicated in the letter that, as per the information available with the office, 752 nos of HCEs (Govt. - 25 nos. & Private - 727 nos) are existing in Krishna District and the total bed strength of HCEs is 12848 numbers (Private - 10772 nos & Govt. - 2076 nos). Further, as per the list of HCEs furnished by District Medical Health Officer (DMHO), submitted along with the application, there are 617 nos of private hospitals with total bed strength of 16376 (excluding Government Hospitals) and the list is verified and observed that 58 nos of HCEs with bed strength of 4438 are repeated/closed and 18 HACJ & MSM,J WP_11250_ 2018 therefore, the actual numbers of HCEs in the DMHO list is 559 and their bed strength is 11938. Further, as per the guidelines issued by Ministry of Environment, Forest and Climate Change for the establishment of new CBMWTF, if the 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 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. Even according to the office records of the Environmental Engineer in Krishna District, the total bed strength of Health care establishments is 12848 numbers which is exceeded only by 2848 numbers over 10,000 numbers of beds and the viability for establishment of new/another is to be examined.
When the Environmental Engineer himself certified that the report of DMHO is not based on the correct information and 50 HCFs were repeated/closed as per the list submitted by him, the real HCFs and bed strength is to be examined in detail and at the same time, the other establishments like veterinary hospitals and other hospitals are to be covered by BMW Rules is also to be examined and decide the total bed strength of HCFs for treatment by the existing CBMWTF, afresh, in view of the inconsistency in the reports by various departments.
As per the revised guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities issued by Central Pollution Control Board dated 21.12.2016, the meaning of "bio-medical waste treatment and disposal facility" is 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 and 19 HACJ & MSM,J WP_11250_ 2018 "operator of a common bio-medical waste treatment facility" means a person who owns or controls a Common Bio-Medical Waste Treatment and Disposal Facility (CBWTF) for the collection, reception, storage, transport, treatment, disposal or any other form of handling of bio-medical waste.
The Bio-medical Waste Management Rules, 2016 (hereafter referred as BMWM Rules) restricts occupier 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 seventy-five kilometer, as installation of individual treatment facility by health care facility (HCF) 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 concept of CBWTF is not only addresses such problems but also prevents proliferation of treatment technologies in a particular town or city. In turn, it reduces the monitoring pressure on regulatory agencies. By running the treatment equipment at CBWTF to its full capacity, the cost of treatment of per kilogram bio- medical waste gets significantly reduced. Its considerable advantages have made CBWTF popular and proven concept in most part of the world. The CBWTF are also required to set-up, based on the need for ensuring environmentally sound management of bio-medical waste keeping in view the techno-economic feasibility and viable operation of the facility with minimal impact on human health and environment. Thus, the reason for establishment of CBWTF is only to reduce pollution impact on human life. Therefore, the authorities are bound by the guidelines issued by the Central Pollution Control Board and with a view to issue complete guidelines, earlier guidelines were revised.
20 HACJ & MSM,J WP_11250_ 2018 Guideline No.2 of the revised guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities issued by Central Pollution Control Board dated 21.12.2016 deals with Criteria for development of a new Common Bio-Medical Waste Treatment and Disposal Facility for a locality or region. The following are the criteria or steps that should be followed prior to allowing any new CBWTF.
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.rito 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 guideline. 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 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.
21 HACJ & MSM,J WP_11250_ 2018 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 develop 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 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. In view of the guidelines extracted above, and as admitted by Respondent Nos. 2 & 4, as to the requirement to conduct gap analysis and based on economic feasibility and viable operational facility and issue of Consent for Establishment by the authorities of A.P. Pollution Control Board and later, issue of Consent for Establishment after its establishment, strictly adhering to the revised guidelines issued by the Central Pollution Control Board.
Turning to the present facts of the case, except calling for report from the District Medical & Health Officer, no gap analysis as contemplated under revised guidelines are extracted above was not undertaken by the 2nd respondent and there is any amount of discrepancy with regard to bed strength in HCFs in Krishna District i.e. operational area of the petitioner. The conflict between the report of Environmental Engineer who is a competent authority and report of DM & HO, Krishna District was not resolved by the 2nd respondent. Moreover, as per the 22 HACJ & MSM,J WP_11250_ 2018 report of Environmental Engineer, there is repetition of 50 HCFs in the DM & HOs report, but whereas as per the record available in the office of Andhra Pradesh Pollution Control Board, the total bed strength is different. Therefore, firstly the authorities have to examine the total bed strength in the operational area of 4th respondent, HCFs to be included i.e. veterinary hospitals, dispensaries, dental hospitals, ayurvedic and homeopathic hospitals under Bio-Medical Waste Management Rules and thereafter, examine techno-economic feasibility and viable operation of the facility with minimal impact on human health and environment. If, the existing CBWTF is sufficient to treat the bio-medical waste collected from HCFs in the operational area or whether any additional facility is required to be provided for the same operational area, subject to exceeding 10,000 bed strength, the 2nd respondent may grant Consent for Establishment as per rules. But, the authorities issued in-principle permission, which is not contemplated under any of the Rules of Bio Medical Waste Management Rules, 2016.
A similar issue came up for consideration before Division Bench of High Court of Judicature at Hyderabad in M/s. MCV Eco Systems v. State of Andhra Pradesh (referred supra), wherein, it was observed as follows:
"The National Green Tribunal, Southern Bench, in its order dated 26.05.2017 had directed the State Environment Impact Assessment Authority to pass appropriate orders in respect of grant of environmental clearance. The 5th respondent had, in turn, directed the petitioner to obtain "in principle" approval of the State Pollution Control Board. The only provision which requires the State Pollution Control Board to be consulted at this stage is Rule 17(2) of the 2016 Rules which relates to the location of the site for the facility. As Rule 17(2) requires the State Pollution Control Board to be consulted with regards location of the site, and for the Board to act as per the guidelines framed either by the Ministry of Environment, Forest and Climate Change or Central Pollution Control Board, Sri Vedula Venkata Ramana, learned Senior Counsel appearing on behalf of the petitioner, would submit that, though the petitioner had earlier made an application, seeking consent of the State
23 HACJ & MSM,J WP_11250_ 2018 Pollution Control Board on 25.05.2015, they would, in order to avoid further delay, make an application afresh within one week from today."
Finally, the Division Bench concluded that, the views expressed by the board would relate only to the site, where the unit is sought to be located, in terms of Rule 17(2) of the 2016 Rules, and shall not be construed either as grant of, or refusal to grant, consent for establishment of the unit as it is only if, and after, the State Level Impact Assessment Authority gives its approval for prior environmental clearance. Therefore, it is difficult to accept the contention of the learned counsel for the respondent No.4 that the "in-principle" permission is acceptance of the proposed site for setting up such facility of CBMWTF. Therefore, the report was not based on revised guidelines issued by Central Pollution Control Board in 2016. Even according to the judgment, it is only for identification of site, but not exact approval and it can neither be treated as an approval permitting the 4th respondent to establish CBMWTF at a particular place or Consent for Establishment. Even according to Guideline No.6 of revised guidelines, several factors have to be taken into consideration and they are as follows:
"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,
(vi) the potential for noise pollution,
24 HACJ & MSM,J WP_11250_ 2018
(vii) the risk posed to human health and safety due to exposure to emissions from incinerator,
(viii) the risk of first aid
(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 Hazardous Waste Treatment Storage and Disposal Facility (TSDF) subject to obtaining of necessary approvals from the auchorities concerned including 'environmental clearance' as per Environmental Impact Assessment 2006 and further amendments notified under the Environment (Protection) Act, 1985, provided there is no CBWTF exist within 150 KM distance from the existing TSDF."
According to Guideline No. 6(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 25 HACJ & MSM,J WP_11250_ 2018 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.
Therefore, even to grant permission under Rule 17, the 2nd respondent has to take into account all the requirements laid down in Guideline No.6 of the guidelines issued by Central Pollution Control Board. But, in the present case, even to treat this order, i.e. "in-principle"
permission, the 2nd respondent did not take into consideration of Guideline No.6 of the guidelines issued by the Central Pollution Control Board, but, it is based on the report of DM & HO, Krishna District, which is erroneous, even according to the report of Environmental Engineer of A.P. State Pollution Control Board. Therefore, the "in-principle" permission is neither in compliance of Guideline No.6 of the revised guidelines framed by the Central Pollution Control Boar, nor contemplated under any of the rules.
Therefore, the "in-principle" sanction is not in accordance with Bio Medical Waste Management Rules, 2016 or as per the provisions of Environmental Protection Act, 1986. Hence, it is held that the "in-principle" permission is not a permission to establish CBWTF. Therefore, the Andhra Pradesh Pollution Control Board is directed to examine the feasibility for establishment of CBWTF strictly adhering to the guidelines issued by Central Pollution Control Board in 2016 and take up application of the 4th
26 HACJ & MSM,J WP_11250_ 2018 respondent. Till then, the 4th respondent is not entitled to establish CBWTF. Accordingly, the point is answered.
With the above direction, writ petition is disposed of. Consequently, miscellaneous applications pending if any, shall stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:07.08.2019 SP