National Green Tribunal
Jith Kumar vs State Of Kerala Represented By Its Chief ... on 10 November, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No. 4, 5 & 6:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No.442 of 2013 (SZ)
With
Original Application No.20 of 2017 (SZ)
With
Original Application No.276 of 2017 (SZ)
IN THE MATTER OF:
Jith Kumar ...Applicant(s)
Versus
The State of Kerala and others. ....Respondent(s)
With
Abdul Bhasheer . ...Applicant(s)
Versus
Kochi Municipal corporation &Ors. ....Respondent(s)
With
Lawyers Environmental
Awareness Forum ...Applicant(s)
Versus
State Level Environment Impact
Assessment Authority,
Trivandrum and others. ....Respondent(s)
1
O.A. No.442 of 2013:
For Applicant(s) : M/s. Varghese K. Paul.
For Respondent(s): M/s. E.K. Kumaresan for R1.
M/s. G.M. Syed Nurullah Sheriff for R2.
Mr. K.R. Harin for R3.
M/s. V.K. Rema smrithi for R4.
O.A. No.20 of 2017:
For Applicant(s) : M/s. Varghese K. Paul
For Respondent(s): Mr. K.R. Harin for R1.
Mr. E.K. Kumaresan for R6 & R9
M/s. Rema Smrithi for R2.
M/s. D. S. Ekambaram for R3.
Mrs. Vidyalakshmi Vipin for R4
M/s. ME. Saraswathy for R7.
O.A. No.276 of 2017:
For Applicant(s): M/s. Varghese K. Paul
For Respondent(s): Mrs. Vidhyalakshmivipin for R1
M/s. D. S. Ekambaram for R2.
Mr.E.K. Kumaresan for R3, R5 & R9
Mr. K.R. Harin for R4.
M/s. V.K Rema Smrithi for R6
M/s. M.R. Gokulkrishnan for R8.
Date of hearing: 10.11.2020.
2
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
ORDER
1. As per order dated 13.08.2020, this Tribunal had considered the report submitted by the various authorities till that date and directed the authorities to submit their progress report as directed by this Tribunal by order dated 20.03.2020 and posted the case to today for that purpose.
2. When the matter came up for hearing today through Video Conference, Sri. Varghese K. Paul represented the applicant in all cases. In Original Application No. 442 of 2013, M/s. E.K. Kumaresan represented R1, Sri. Syed NurruallahShreiff represented R2, Sri. K.A. Harin represented R3 and Smt. V.K. Rema Smrithi represented R4. Original Application No. 20 of 2017 Mr. K.R. Harin represented R1, Mr. E.K. Kumaresan represented R6 & R9, Smt. V.K. Rema Smrithi represented R2, Sri. D.S. Ekambaram represented 3rd respondent, Mrs. Vidyalakshmi Vipin represented R4, and M/s. ME. Saraswathy represented R7. In Original Application No.276 of 2017 Mrs. Vidyalakshmi Vipin represented R1, Sri. D.S. Ekambaram represented R2, M/s. E.K. 3 Kumaresan represented R3,R5 and R9, Sri. K.R. Harin represented R4, Smt. Rema Smrithi represented R6, and Mr. M.R. Gokul Krishnan represented respondents 8.
3. We have received a report submitted by the Kerala State Pollution Control Board which reads as follows:
"STATUS REPORT FILED BY THE CHIEF ENVIRONMENTAL ENGINEER, REGIONALOFFICE, ERNAKULAM FOR AND ON BEHALF OF THEKERALA STATE POLLUTION CONTROL BOARD IN CONTINUATION TO THE REPORT DATED 17.07.2020 I, M.A Baiju, 54 years, S/o M.K. Aravindakshan, am working the Chief Environmental Engineer, Regional Office, Kerala State Pollution Control Board, Ernakulam. I am competent and duly authorized to represent the Board. I know the facts and circumstances of the case. The factual submissions made hereunder are true and correct to the best of my knowledge, information and belief. In these circumstances, it is just and necessary that this Hon'ble Tribunal may be pleased to accept the accompanying report on file and it is so humbly prayed in the interests of justice in this case.
1. It is respectfully submitted that this petition was primarily filed by Sri. Jith Kumar in the Hon'ble High Court of Kerala (WP © No.9700/2012) and later the petition was transferred to the Hon'ble NGT (SZ) in 2013 as OA No.442 of 2013 in 2013. Meanwhile, two other cases also filed before the Hon'ble NGT in the same matter were numbered as OA No. 20/2017 (filed by Sri. Abdul Basheer) and O.A No. 276/2017 (filed by Lawyers Environmental Awareness Forum). From there onwards, the Hon'ble Tribunal considered these applications together. These Applications were further transferred to the Principal Bench of the Hon'ble NGT as OA. Nos.
533 of 2018, 534 of 2018 and535 of 2018respectively. Thereafter, these O.A.s were redirected to Southern Bench of the Hon'ble NGT as O.A. Nos. 442/2013, 20/2017 and O.A. No.276/2017. Based on the reports submitted by various parties, the Hon'ble NGT(SZ) through an order dated 31.05.2016 directed the Kerala State Pollution Control Board to prosecute the officers concerned for consistent violations. The Corporation filed Writ Petition before the Hon'ble High Court of Kerala vide(C) No.24380/2016(V) for staying the above order of the Hon'ble National Green Tribunal. The Hon'ble High Court stayed the same by an order dated12.08.2016 stating that the direction contained in the order 4 that Pollution Control Board shall take steps to prosecute the officers of the petitioner will stand stayed which is still in force.
2. It may kindly be noted that the Hon'ble NGT vide order dated 23.10.2018 in OA 533-535/2018 specifically ordered that timeline shall be strictly adhered to in case of following activities:
a). Establishment of the new integrated solid waste treatment processing plant shall be completed within a period of six months
b). Shall undertake treatment of the legacy waste at the present site i.e. Brahmapuram Yard, which shall commence forthwith and shall be carried out in accordance with the procedure laid down under the Solid Waste Management Rules, 2016.
c). For the inordinate delay caused in taking up the work, the Hon 'ble tribunal imposed a penalty Of Rs. 1 Crore upon the Kochi Municipal Corporation, 50% of which shall be deposited •with the Kerala SPCB and 50% with Central Pollution Control Board (CPCB).
d). Kochi Municipal Corporation shall deposit a Performance Guarantee of Rs. 3 Crores with the SPCB within a period of 15 days from the date of the order to ensure the timeline fixed. Failure to maintain this timeline prescribed shall entail forfeiture of the Performance Guarantee and additional penalty Of Rs. 2 lakh per day until completion of the project.
It is respectfully submitted that the Hon'ble High Court of Kerala vide order dated 09.11.2018 in WP(C) No.36204/2018 (A) allowed 2 months time on condition that the Corporation execute bank guarantee for Rs 50 Lakh each with CPCB and SPCB and exempted them from depositing Rs 3 Crore towards Performance Guarantee. Thereafter, the Hon'ble Court allowed time extension till further orders. Even after a lag of 2 years the Corporation has not taken any earnest action to establish the proposed Waste to Energy plant. Though the Government had entered concession agreement with M/S. G. J. NatureCare Consortium for the implementation of Waste to Energy plant at Brahmapuram, the same was cancelled as the financial closure was not achieved by the consortium. Government authorized Kerala State Industrial Development Corporation to take immediate steps to float an RFP for the selection of suitable concessionaire to set up Waste to Energy plant and for bio mining at Brahmapuram and action is being taken for its evaluation. The progress on the implementation Waste to Energy Plant is monitored at the Chief Secretary's level regularly. The last such review conducted on 5/ 11/2020.
3. The Chairman of the Board authorised this respondent under section 19 of the Environment (Protection) Act 1986 and Section 49 of the Water (Prevention & Control) of Pollution Act 1974, to initiate prosecution and make complaint in the respective Magistrate Court against Kochi Corporation for the violations of the provisions under the Solid Waste Management Rules 2016 and Section 24 of the Water (Prevention and Control of Pollution) Act, 1974 respectively. Accordingly this respondent is taking efforts to file petition before 5 the Magistrate Court to prosecute the responsible officials of the Corporation for their violations.
4. An amount of Rs. 1395.42 Lakh was assessed by the Board towards Environmental Compensation (EC) against violations of the Corporation. Notice under section 5 of the EP Act 1986 was issued by the Chairman on 15.10.2020 to show cause why the amount of Rs. 1395.42 Lakh assessed towards EC shall not be recovered from the Corporation. Copy of the notice issued to the Secretary, Kochi Corporation is produced herewith and marked as Annexure A. The nearby Municipalities (Aluva, Thripunithura, Angamaly, Thrikkakkara and Kalamassery), which bring the biodegradable fraction of solid waste to the windrow composting plant at Brahmapufall in the category of Class Il cities and below. Hence the Central Pollution Control Board was requested to issue guidelines for the estimation of Environmental Compensation for such cities. However, based on the latest reports submitted by these Municipalities, action is being taken to ascertain the extent of non- compliance by them by conducting field level inspections following Covid protocol. Based on the inspection reports, action will be taken to levy environmental compensation from these Municipalities.
5. It is also respectfully submitted that action will be taken by the Board to vacate the stay ordered by the Hon'ble High Court. The following actions will also be taken earnestly by the Board in compliance of Hon'ble NGT orders.
a. To file petition before the Magistrate Court to prosecute the responsible officials of the Corporation for their violations b. To quantify the legacy waste deposit as per the guidelines issued by the Central Pollution Control Board.
c. To recover Environmental Compensation amount from Kochi Corporation and other 5 Municipalities d. To assess the environmental damage due to the unscientific disposal of solid waste, untreated effluent discharges and the recurring fire hazard episodes.
Dated this the 4 th day of November 2020
4. Cochin Corporation filed their statement which reads as follows:
The compliance in implementation of the SWM Rules 2016 is as given below. Status of the bio-mining of legacy waste work is given under the Rule 22(11)
1. Rule 22(1): Identification of suitable sites for setting up solid waste processing facilities Kochi Corporation had identified, constructed, commissioned and is operating a 250 tonnes per day capacity Windrow compost plant at Brahmapuram for treating the biodegradable fraction of the waste since April 2008 (Whereby the Rule 22(1) is complied) Corporation had also entered into an agreement 6 for construction of a waste to energy plant in 2016 as part of upgrading the solid waste treatment and to treat the non-
biodegradable portion of the waste as well. This has been cancelled by the Government Vide G.O(Rt) No.805/2020/LSGD dated 30/4/2020 due to the delay from the side of concessionaire and failure in submitting the details regarding the funding. New tenders have been floated for the project by KSIDC on 24/06/2020 with last date of submission on 30/7/2020 and was extended upto 14/09/2020. The tenders received are being evaluated by KSIDC. It is expected that the tenders would be finalised by KSIDC in November 2020.
2. Rule 22(2) identification of suitable sites for setting up common regional sanitary landfill facilities for suitable clusters of local authorities under 0.5 million population and for setting up common regional sanitary landfill facilities or stand alone sanitary landfill facilities by all local authorities having a population of 0.5 million or more .
Corporation had identified land for solid waste processing facility way back in 2004 and had established a windrow composting plant in 2008 and had identified land for constructing landfill in the 110 acres of land. Vide letter No. PCB/RO-EKM/GEN-97/12 dated 22/08/2019 Chief Environmental Engineer, Regional Office Ernakulam had informed after inspection that the land identified by Corporation in Brahmapuram for construction of scientific landfill behind the security cabin is not suitable as per the guidelines of CPCB as 2m clearance to the ground water table from the bottom liner of the landfill cannot be ensured and to find some other place in the 110 acre land at Brahmapuram. In full compliance with the CPCB guidelines and the guidelines of the CPHEEO Solid waste management manual 2016 other land cannot be found in Brahmapuram as a minimum 100m clearance from water bodies is also mandated. A request has been placed with the Government vide letter No. MOE2/3760/18 dated 19/11/2019 to waive the conditions of siting landfill and to grant special permission. Vide G.O (Rt)No.1198/2020/LSGD dated 18/06/2020, Government have accorded sanction to Kerala Enviro Infrastructure Limited and Clean Kerala Company Limited for constructing regional sanitary landfill in the land purchased by KINFRA from FACT near Brahmapuram by utilizing 25 acres of land. (Whereby the intended spirit of the Rule is met)
3. Rule 22(3) Procurement of suitable sites for setting up solid waste processing facility and sanitary landfill facilities Suitable site was procured in 2004 and Solid waste treatment plant was established in 2008 itself. Status regarding the establishment of scientific landfill is as given in the above paragraph.
74. Rule 22(4) enforcing waste generators to practice segregation of bio-degradable, recyclable combustible, sanitary waste domestic hazardous and inert solid waste at source.
85% of Households in Kochi Corporation area store wastes in segregated form (Biodegradable waste and Non-biodegradable wastes separately). 5% of HHs where source segregation was not practiced belongs to the areas in and around Fort Kochi. To promote source segregation of wastes, under the Cochin Smart Mission (Smart City Project) 30,000 bins were distributed to the HHs in Fort Kochi area. About 59.8% of shops/commercial establishments store wastes in segregated form. Rest of the establishments are either small outlets or shops which do not generate much wastes other than food waste.
5. Rule 22(5) Ensure door to door collection of segregated waste and its transportation in covered vehicles to processing or disposal facilities.
There are about 1,67,935 households in Kochi Corporation. Wastes are directly collected from about 1,50,730 HHs (90%) (Door to door collection of wastes). In about 7,262(4.32%)HHs source level treatment of wastes are adopted. And in another 8204 HHs(4.88%) CREDAI a real estate builders association is taking care of the waste management. In total 99.2% of the total wastes are either collected by door to door collection or processed at source. Only the remaining 0.8% (1343) of the households needs to be brought on board for 100% collection and processing of waste. This will be ensured by end of November 2020. Wastes are transported to treatment facility in compactor trucks and covered tipper trucks.
6. Rule 22(6) Ensure separate storage, collection and transportation of construction and demolition waste.
In compliance with the construction and demolition waste management rules 2016, the C&D wastes are not collected nor mixed with the other wastes collected, transported and treated by Corporation. C&D wastes are reused for filling low lying areas and filling of basement areas and for construction of pavement tiles and kerb stones. Such wastes are processed and reused by the builders itself and has never been a menace to public. It may be interesting to share that one of the agency engaged by Kochi Corporation to quantify the C&D waste commented that they couldn't find any C&D waste in Kochi.
7. Rule 22(7) Setting up solid waste processing facilities by all local bodies having 100000 or more population Kochi Corporation had set up a 250 TPD capacity windrow composting plant (one of the technologies specified in CPHEEO 8 manual and SWM Rules 2016) for solid waste processing in 2008 itself.
8. Rule 22(8) Setting up solid waste processing facilities by local bodies and census towns below 100000 population.
Not applicable to Kochi Corporation as the population of Kochi Corporation is above 100000.
9. Rule 22(9) Setting up common or stand alone sanitary landfills or for all local bodies having 0.5 million or more population for the disposal of only such residual wastes from the processing facilities as well as untreated inert wastes as permitted under the Rules Status is same as furnished for Rule 22(2)
10. Setting up common or regional sanitary landfills by all local bodies and census towns under 0.5 million population for the disposal of permitted waste under the rules.
Not applicable to Kochi Municipal Corporation
11. Rule 22(11) Bio-remediation or capping of old and abandoned dump sites A large portion of the dump site was capped in 2011 itself, and on 21/02/2019 Expression of Interest was called for capping the wastes in the dumping yard with closing date on 07/03/2019, later as per the direction of the State Level Monitoring Committee of NGT in its meeting on 06/04/2019 to bio-mine the legacy waste instead of capping, the EOIs obtained for capping were cancelled and fresh tender for bio-mining the legacy wastes was floated on 14/08/2019 after vetting of the tender document by Pollution Control Board and with closing date on 04/09/2019.As nobody participated in the tender the closing date was extended to 20/09/2019. Even then nobody participated in the tender. The work was re-tendered on 26/10/2019 with closing date on 18/11/2019; and was extended till 26/11/2019. Only one bidder participated in the tender, and the council that met on 13/12/2019 approved the bid evaluation report. Financial bid was opened on 24/11/2019 was placed before the council meeting scheduled on 13/01/2020 for approval of the financial bid with quoted rate of Rs. 597/m3. The council deferred its decision. Later when the matter was placed before the special council for Brahampuram on 03/03/2020 the council again deferred its decision.
Government intervened in the matter and took over the work of bio-
mining the legacy waste at Brahmapuram from Kochi Municipal Corporation vide G.O (Ms)No.8/2020/DMD dated 9 Thiruvananthapuram 05/03/2020 and assigned KSIDC to float fresh tenders after cancelling the tender floated by Kochi Corporation. On 20/03/2020 KSIDC invited tenders for bio- mining of legacy waste. As only 1 bidder was technically qualified the work was re-tendered on 24/06/2020 with last date for submission on 27/08/2020. Technical bids were opened on 03/09/2020 and after evaluation the financial bid of the responsive tender was opened on 12/10/2020. The quoted rate and the quantity are being analysed. It is expected that the work could be started in November 2020. As per the tender floated the work shall be completed in 8 months time. Regarding the proposed waste to energy project/integrated solid waste treatment plant, as the concessionaire could not demonstrate and submit the financial closure or financial plan for funding the project even after 1400 days of signing the agreement, Government vide G.O (Rt)No.805/2020/LSGD Dated 30/04/2020 cancelled the approval granted to the concessionaire M/s GJ Ecopower Pvt Ltd and directed Kochi Corporation to terminate the concession agreement. KSIDC was directed to float fresh tenders for the waste to energy project. The concession agreement was terminated by Kochi Corporation accordingly. The concessionaire was also heard by the Government as directed by Hon'ble High Court and Vide G.O (Rt)No.1064/2020/LSGD dated 05/06/2020 Government affirmed that the concessionaire would not be able to implement the project even if more time is granted and directed the MD, KSIDC to float new tenders. KSIDC floated fresh tenders on 24/06/2020 with last date for submission of bids on 04/09/2020. Tenders are being evaluated by KSIDC. Action plan to ensure full compliance with the SWM Rules 2016 is annexed at the end of the report.
With reference to the observation under Sl.No 5 c it is submitted that:
The application for renewal of authorisation obtained in 2008 was submitted to Pollution Control Board on 01/07/2016 with the processing fee of Rs.30000 (DD.No.400893 dated 01/07/2016) vide letter no.MOE2/21941/16 dated 01/07/2016 and vide letter no. MOE2/21941/16 dated 28/10/2016 proposal for leachate treatment plant was also submitted to the Environmental Engineer of Ernakulam District Office -II. On 28/07/2018 the online application was returned by Pollution Control Board citing to submit the details of leachate treatment plant and present status of MSW plant and to remit the fees for the current year.
As the application was returned online and no alerts were received at this office we were unaware of the return of the application. The application will be resubmitted soon.10
No biodegradable wastes are deposited over the legacy waste ever. The legacy waste site is at least 100m away from the windrow compost plant facility.
Installation of 100TPD biomethanation plant at Brahmapuram is to be debated as an integrated solid waste treatment plant of 300TPD capacity is coming up in Brahmapuram. It would roughly incur an amount of more than 40 crores for installing a bio methanation plant of 100TPD capacity and could take almost the same time as the waste to energy plant construction. Corporation has initiated steps to rectify the structural deformities of the existing windrow compost plant shed.
With reference to the observation under Sl.No 4.6 it is submitted that:
Most of the SWM Rules are complied by Kochi Corporation. Only the bio-
mining of legacy waste is to be complied. The status regarding the bio mining of legacy wastes have already been furnished in the pre-paragraphs.
With reference to the observation under Sl.No 4.7 it is submitted that:
Construction of leachate collection tank of 100000litres has been completed.5 truck loads (5x5000litres) of leachate are taken to the septage treatment plant situated within the premises and treated there. Test result of raw leachate shows no excess heavy metals than the standard prescribed in the MSW Rules 2016 (Test result annexed) Though the work for preparation of DPR for leachate treatment plant was awarded after tendering process to the lowest bidder on 29/07/2019, GIZ a German collaboration agency who supports Corporation under the Sustainable Urban Development -Smart Cities project was also engaged to suggest suitable technology for the leachate treatment plant. As the technology proposed by GIZ that of Sequencing Batch Reactor was different from that proposed by Suchitwa Mission of Electrocoagulation, the council that met on 03/03/2020 referred the matter to the Health Standing Committee and the committee wanted to take a suggestion from Suchitwa Mission. Accordingly Suchitwa Mission was requested on 04/08/2020. The technical committee on liquid waste management constituted by Suchitwa Mission that met on 25/09/2020 in which Chief Environmental Engineer of Regional Office Pollution Control Board Thiruvananthapuram is also a member suggested to opt for treating the leachate in the septage treatment plant. The technical committee also assessed that presence of heavy metals will not tamper the treatment efficiency.
With reference to the observation under Sl.No.8 it is submitted that:
The action taken by Kochi Corporation in the implementation of each sub rule in the SWM Rules 2016 and status with regard to compliance has been given in detail in the starting paragraphs of 11 this report. The action taken with regard to the Brahmapuram solid waste treatment plant is given in the following table.
Schedule of works rks carried out at Brahmapuram since December 2018 Item Status Remarks Immediate Formation of windrows in 1 compost plant Clearing and cleaning of 2 drains Identification of collection points and fixing 3 tanks Installation of leachate leac treatment plant on 4 trial basis Channelizing leachate to drains and collection 5 tanks Short term (Expected completion before 31/03/19) 6 Proper segregation of waste Repair of waste sieving 7 trommels Setting up proper drainage drain 8 around compos plant Leachate is treated in Establishing semi the nearby permanent leachate septage 9 plant treatment plant Tendered by KSIDC for Govt. Tender Processing of legacy finalized. Work to 10 waste/Biomining be awarded Regional landfill has been sanctioned Construction on of scientific by Govt. near 11 landfill Brahmapuram 12 Proper segregation of waste Midterm (Expected completion before 15/06/19) 13 Proper segregation of waste Fully functional leachate 14 treatment plant Remediation of legacy Will get completed by 15 waste/Biomining 30/06/2021 Long term (Till commissioning of 12 waste to energy) Regional landfill has been sanctioned by Govt. Vide G.O (Rt)No.1198/202 Construction of scientific 0/LSGD dated 16 landfill 18/06/2020 Proper segregation of waste 17 in place Directions of SLMC Strengthening of plant 18 security Installation of surveillance 19 camera 20 Lighting of plant premises Transportation of waste in 21 covered trucks truck Issuing of vehicle pass for 22 waste transportation Banning of plastic carry 23 bags Supply of Personal Protective Equipments to 24 workers Making 6 selected roads 25 waste free Bulk waste generators to process waste on 26 their own Starting of Escrow A/c for 27 emergency expenses Work awarded Will be Construction of overhead completed in 28 tank February 2021 Laying of road inside legacy 29 waste dumping yard Work awarded to M/s Firefree Solutions. Held due to rain and Installation of fire hydrant water logging in 30 system the site Additional works taken up by Kochi Corporation Electric connection of On hold as leachate is 400kva for leachate treated In 31 plant septage 13 treatment plant Hiring of trucks for carrying leachate to septage 32 plant Construction of pond for fire 33 fighting Construction of JHI's office 34 building Tar patch work on main roads/Maintenance 35 of roads Installation of additional Work in progress high mast lights -2 36 nos Construction of roof & platform for power 37 supply board Construction of leachate 38 collection tank Construction of ramp to weigh bridge and 39 service station Rectification of damaged compound wall and 40 gate It may be e noted that the Regional Monitoring Committee vide its minutes dated 1/02/2019 had observed that Corporation has made considerable improvement over a period of time in the windrow composting plant.
plant. Repair of trommels and many other maintenance works were carried out in the plant in March 2019. On an average 250Tonnes of biodegradable wastes are processed in the plant daily and about 20 tonnes of finished 6mm sieved manure is produced which are sold to planters in idukki, Theni, Kambam and other parts of Tamil Tamil Nadu, Krishi Bhavans. It is also mixed with other fertilizer to increase the nutritional value. It is also to be noted that this dilapidated plant is taking care of the entire waste generated out of Kochi city. The Brahmapuram plant though not visually appealing, it may be noted that amid all the difficulties and collapsed structure, it is this plant that keeps the entire Kochi City and surrounding local bodies clean.
Construction of the waste to energy plant got delayed due to the unforeseen incidents and matters out of control of Kochi Corporation. As the concessionaire could not submit the financial closure details for the project Government cancelled the approval granted for the project vide G.O (Rt)No.805/2020/LSGD dated 30/04/2020 and assigned KSIDC KSIDC (Kerala State Industrial Development Corporation) 14 Secretary Kochi Corporation"
5. The State Government also filed a report which reads as follows:
"Report to be submitted before the Honble NGT Southern Zone, Chennai based on the order dated 13/08/2020 in O.A.No. 442/2013.
It is submitted that Government have made honest interventions for the scientific disposal of legacy waste at Brahmapuram. As per the direction of State Level Monitoring committee of NCT in its meeting held on 06-04.2020, Kochi Municipal Corporation floated tender for the bio mining the legacy waste Brahmapuram. As nobody participated in the tender, the Corporation has retendered the work on 26.10.2019 and received only one bid which was approved technically. In the circumstance that the Council of Kochi Municipal Corporation has not taken decision on the matter in a time bound manner and considering the urgent steps to be taken to manage the legacy waste scientifically, as per GO (Ms) No 08/2020/DMD dated 05/03/2020 Government, by invoking the provisions under sec 24(e) of the DM Act 2015, have entrusted Kerala State Industrial Development Corporation (KSIDC) to initiate tender procedure for identifying a suitable agency for carrying out the rehabilitation of Municipal Solid Waste (MSW) dumpsite at Brahmapuram in Ernakulam district after cancelling the tender floated by Kochi Municipal Corporation. Accordingly KSIDC had floated e-tender on 20th March 2020 for identifying a suitable agency for the rehabilitation of MSW dumpsite at Brahmapuram in Ernakulam district. 22nd April 2020 was the last date for the submission of bids and KSIDC received two bids in response to the tender. As per GO (Rt) No 985/2020/LSGD dated 26/05/2020 Government have constituted Technical Evaluation Committee chaired by Principal Secretary Local self Government (Urban) Department to evaluate the technical bids received for the project. The Committee evaluated the Technical Bids submitted by the two agencies and found that both the 15 bids received are not meeting the minimum eligibility criteria for technical and financial qualifications, Subsequently the Committee resolved to cancel the tender process and directed KSIDC to re tender the project.
In accordance with the decision taken at the Technical Evaluation Committee meeting, KSIDC re-tendered the project on 24th June 2020 in Government e-tender portal. The pre bid meeting åS part of the tender process was held on 16thJuly 2020. 30th July 2020 was the last date for the submission of bids, Considering the request by the prospective bidders the time for the submission of bids extended u to 27thAugust 2020.
The Technical Bids in e--tender portal were opened on 3rd September2020 and the following are three consortiums that had submitted bids for the project:
1. Consortium of M/S G J Naturecare and Energy Pvt Ltd, Kochi and M/S Equipo, Polland. (M/S G J Care & Energy Pvt Ltd is the lead member and M/S Equipo is the operator).
2. Consortium of M/S Tholani Clean Energy Pvt Ltd Kochi and M/S Geetanjali Envirotech Mumbai (M/S Tholani Clean Energy Pvt Ltd is the lead member and M/S Geetanjali Envirotech is the operator)
3. Consortium led by M/S Zonta Infratech Pvt Ltd, Bangalore and M/S Bauer GmbH , Germany (M/S Zonta Infratech Pvt Ltd is the lead member and operator of the Consortium and M/S Bauer GmbH is the supporting member ).
The second meeting of Technical Evaluation Committee chaired by Principal Secretary Local self-Government (Urban) Department held on 23/09/2020 evaluated the bids based its responsiveness and minimum eligibility criteria for technical and financial qualification. The Committee after detailed evaluation noted that the two bids submitted by the consortium led by M/S G J Ecopower Pvt Ltd and M/S 16 Tholani Clean Energy Pvt Ltd are non responsiveand does not meet the prescribed minimum eligibility criteria, After detailed discussion, the Committee resolved to declare the two bids submitted by the above consortiums as technically NOT qualified on multiple grounds of shortfalls and insufficiency.
The Committee further observed that the bid submitted by the Consortium led by M/S Zonta Infratech Pvt Ltd is responsive in terms of submission of all required formats and supporting documents. The Committee further observed that as per the documentary evidences attached along with the bid such as client certificate and annual reports the Consortium is meeting the technical and financial qualification as stipulated 'in the tender document. The Committee then awarded scores to M/S Zonta Infratech Pvt Ltd based on the technical scoring criteria detailed in the tender document. Based on the supporting documents attached along with the bid document the Consortium secured 90 marks as technical score. As per the RFP document 70 marks was the qualifying marks for Financial Bid Evaluation. Accordingly the Committee resolved that the Bid submitted by the Consortium led by M/S Zonta Infratech Pvt Ltd has secured more than the minimum prescribed score and is technically qualified to open the Financial bid submitted.
The Financial Bid submitted by the Consortium led by M/S Zonta Infratech Pvt Ltd opened on 12th October 2020 in e- tender portal. After completing the tender process, KSIDC has submitted the report to Government for taking further steps through Kochi Municipal Corporation and State Pollution Control Board (KSPCB) to examine the quantity of legacy waste assessed by the bidder and the rate quoted by the bidder to undertake the rehabilitation, before proceeding further with the project. Government have directed Secretary, Kochi Municipal Corporation, to take urgent necessary action to examine the quantity of legacy waste assessed and the rate quoted by Consortium led by M/S Zonta Infratech Pvt 17 Ltd, the bidder for the rehabilitation of municipal solid waste dump site at Brabmapuram, in consultation with KSPCB It is submitted that as GO (Ms)N0. 82/2018/LSGD dated11/06/2018 Government have accorded sanction for the development of Integrated Solid waste management project with waste to energy facility at identified locations in Thiruvananthapuram, Kollam, Truichur, Palakkad, Malappuram, Kozhikode and Kannur districts through Design Build Finance Operate and Transfer basis under Public Private Partnership mode. KSIDC is the nodal agency for coordinating the implementation of the projects in collaboration with concerned Local Self Government institutions. The Concessionaire for the development of the projects to be identified through a global tender process and as per GO (Ms) No 174/2018/LSGD dated 22/11/2018 Government accorded sanction to the tender conditions for identifying Concessionaires for the project.
As per G.O.(Ms.) 01/2016/LSGD dated 04.01.2016 Government had approved the project of M/s G.J.Nature Care Consortium submitted by KITCO for the implementation of a Waste-to-Energy project at Brahmapuram, Kochi and allied areas at a total cost of Rs 295 Crore. Accordingly Kochi Municipal Corporation (Authority) and M/S. G.J.Eco Power Pvt.Ltd (Concessionaire) executed a Concession Agreement for the implementation of the project on Design, Build, Finance, Operate and Transfer (DBFOT) basis, on 17th February. 2016.
In the circumstance that, Government had taken all possible support and measures for the implementation of the project and granted time to the Concessionaire from 17,02.2016 10 30.04.2020 to achieve the financial closure of the project, the concessionaire miserably failed to implement the project even 1400 days after the signing of the agreement, as per G.O. (Rt.)No.805/2020/LSGD Dated 30,04.2020 Government have cancelled the approval granted to the project of M/s,G.J.Nature Care Consortium for the implementation of a Waste to Energy 18 project at Brahmapuram, Kochi and the Secretary', Kochi Municipal Corporation has been directed to take immediate steps to terminate the Concession Agreement executed with M/S G.J.Eco Power Pvt.Ltd for the implementation of the project following the procedure laid down in Article 16 of the Agreement executed between Kochi Municipal Corporation and M/s. G.J.Eco Power Pvt,Ltd.
As per G.O.(Rt.) No. 1064/2020/LSGD Dated 05.06.2020 Government have rejected the request of the Chairman and Managing Director, M/S. G.J. Eco Power Pvt. Ltd., for reconsidering the decision taken in G.O. (Rt.)N0.805/2020/LSGD Dated 30.04.2020 and the Managing Director, KSIDC was also directed to take immediate steps to float RFP for the selection of a suitable concessionaire for setting up of a Centralized Waste Treatment Plant at Brahmapuram Kochi with the broad terms and conditions ordered in G.O.(Ms.) No. 82/2018/LSGD dated 11/06/2018 and G.O. (Ms) No. 174/2018/LSGD dated 22/11/2018.
Accordingly KSIDC floated e-tender for the project on 24th June 2020. The pre bid meeting as part of the tender process held on 16th July 2020 and representatives from more than 10 firms attended the meeting. 31st July was the last date for the submission of bids. Considering the request by prospective bidders attended the pre Pid meeting the time for submission of bids extended up to 30th August 2020 and further up to 14th September 2020. The technical bids received in e- tender portal opened on 16th September 2020 and the following two agencies submitted bids for the project.
Consortium led by M/S Tholani Clean Energy Pvt Ltd , Kochi Consortium led by M/S Zonta Infratech Pvt Ltd, Bangalore 19 It is submitted that the technical bids submitted by the two agencies are being evaluated by the Bid Evaluation Committee and based on the results of the technical bid evaluation financial, bids submitted by the agencies will be opened It is also submitted that as per G.O(Rt) No. 1198/2020/LSGD dated 18.06.2020, Government have accorded sanction to Kerala Enviro Infrastructure Limited (KEIL) for the construction of sanitary landfill in the 25 acres- of land under the possession of Kerala Industrial Infrastructure Development Corporation (KINFRA) near Brahmapuram.
6. It is seen from the report submitted by the Kerala State Pollution Control Board that since no action was taken by the Corporation they have already decided to initiate prosecution under the Environmental Protection Act, and they would be taking steps to file a complaint before this concerned court against the officials who are responsible for non-compliance of the provisions of the Solid Waste Management Act, 2016 and the disaster caused on account of the same.
7. They have also mentioned in the report that they had already assessed the environmental compensation, show cause notice had been issued as to why that much amount should not imposed as an environmental compensation against the Corporation and if some time is granted, they may be able to come with the further action taken report in this regard.
8. It is seen from the report submitted by the Corporation that they are taking some steps for construction of Leachate Management 20 and also setting up proper Solid Waste Management Facilities within the area. They have extracted the relevant rules, under the Solid Waste Management Rules, 2016 enumerating the procedures as to how these things will have to be handled. But quite unfortunately it is not what is the required from the Corporation, but how this is being implemented in their area in its letter and its spirit. The action taken from the side of the Government is also not encouraging. Though as per the earlier reports, they have taken over this task invoking the provisions of Disaster Management Act, 2005 but the action that is being taken for the purpose of meeting the situation does not appear to be in the swift manner in which it has to be done to meet the disaster that has been caused on account of non-disposal of the legacy waste in the dump yard, which is having an extent of more than 100 acres in a very covetable area of Ernakulam district. If it is properly disposed in a scientific manner as directed by this Tribunal by doing bio-mining and the segregation process in an effective manner, they can retrieve large extent of land which can be utilised for other profitable purposes by the Corporation. Further, on the basis of the report submitted by Justice A.V. Ramakrishna Pillai, former Judge of Kerala High Court and the Chairman of the State Level Monitoring Committee appointed by the Principal Bench in O.A. No. 606 of 2018. The Principal Bench has taken a Suo Motu case as 21 O.A. No. 514 of 2019 and as per order dated 16.09.2020 the following order has been passed:
"7. From the above, it is clear that there is no meaningful action taken, as required under the law. There is serious dereliction of duties of the State authorities under the 'Public Trust Doctrine' to provide pollution free environment. No meaningful coercive measures have been adopted as expected from the State PCB as a regulator. The local bodies as well as the Urban Development Department have failed to take effective steps in the matter. We record our disapproval for the lack of sincerity and sensitivity of the authorities to the health of the citizens on flimsy grounds. There is non compliance of orders of this Tribunal dated 28.2.2020, quoted earlier. Not even compensation has been recovered, as directed nor action taken against erring officers by way of entry in their ACRs. Under the NGT Act, 2010, violation of orders of this Tribunal is criminal offence, apart from an executable decree which can be enforced even by directing detention of violators in prison till compliance. This course of action may have to be considered even against highest erring officers, if the default continues. It is unfortunate that the State and its senior officers should not obey the law of the land. The Tribunal expects the State to enforce the law.
8. In view of above, we direct the Chief Secretary, Kerala to take the matter seriously and take remedial action by constituting a three member team of Secretary, Urban Development Department, Chairman, State PCB and concerned Municipal Commissioner. It should not be difficult, if there is willingness, to tackle the problem. Failure of the State Authorities in this regard is at the cost of public health of the citizens which a welfare State can ill afford. The Chief Secretary, Kerala may personally monitor the compliance of these directions atleast on monthly basis and record the proceedings. The Chief Secretary may further direct that if the targeted actions are not taken, the erring officers will not be entitled to draw their salaries from a specified date till compliance. The Chief Secretary, Kerala may file his personal affidavit giving information about commencement of work 22 relating to remediation of legacy waste site(s) and waste processing plant to handle day-to-day waste generation to avoid creation of legacy waste dump site before the next date by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.
List again on 21.01.2021.
A copy of this order be forwarded to the Chief Secretary, Kerala by e-mail for compliance."
9. The Principal Bench has also expressed its displeasure in manner in which the State Government is dealing with the issue and directed the Chief Secretary of Kerala to take the matter seriously and take remedial action while constituting a three member team comprising of the Secretary, Urban Development Department, the Chairman of Kerala State Pollution Control Board and concerned Municipal Commissioner and directed to take action against the remedial situation and remove the legacy waste that is already accumulated in that area. The Chief Secretary was also directed to monitor the progress of the work personally and submit the status report by himself by filing an affidavit and posted the case to 21.01.2021 for that purpose.
10. Since the Principal Bench has already taken cognisance of the matter and issued directions to the Chief Secretary to monitor the issue and take remedial measures in a war-footing and submit a report, we feel that that there is no necessity to issue further directions, but we need only see that the directions issued by the 23 Principal Bench is being implemented in its letter and spirit and monitor the progress of the work done by the committee appointed by the Principal Bench and also the respective regulating authorities namely, the Corporation and the Kerala State Pollution Control Board to see that the provisions of the Solid Waste Management Rules, 2016 are strictly implemented and legacy waste is now accrued in that area is being disposed in a scientific manner at the earliest.
11. Though we directed the District Collector to submit a report by the earlier orders as to what are the steps taken by him as District Magistrate under rule 12 of Solid Waste Management Rules, no such report has been filed by him in the matter. Further, though he was designated as the officer to implement the Disaster Management Act, 2005 to deal with the matter, in that capacity also no separate report has been filed by him as to what are the steps taken by him to abate the nuisance that is being caused on account of large scale accumulation of waste without proper disposal as has been envisaged under section 133 of the Code of Criminal Procedure as a District Magistrate apart from exercising his power strictly under the Disaster Management Act, 2005 whose provision has been invoked for the purpose of dealing the issue.
12. So, the District Collector, Ernakulam is directed to file a detailed report regarding the steps taken by him to resolve the 24 issue which is happening within his jurisdiction, since 2012 when the Writ Petition was filed before the Hon'ble High Court of Kerala and thereafter, it has been transferred to this Tribunal and pending before this Tribunal since 2013. If the District Collector does not file the report as directed, then he will have to face the consequences of the non -compliance of the directions given by this Tribunal under Section 25 of the National Green Tribunal Act 2010.
13. The Kerala State Pollution Control Board, the Cochin Corporation and the District Collector and the State Government are directed to file their independent reports to this Tribunal regarding the progress of the work that is being carried out in disposing the legacy waste already accumulated in Brahamapuram Solid Waste Management Facility.
14. We feel that it is better to post the case beyond the date posted by the Principal Bench, so that we will get a clear picture and also further directions to be given by the Principal Bench in this regard which this Bench can implement in an effective manner.
15. The State Level Monitoring Committee is also directed to submit a report to this Tribunal regarding the present status of the action taken by the authorities for disposal of the legacy waste that is being accumulated in that area apart from implementation of the Solid Waste Management Rules, 2016 in Ernakulam District.
2516. The above authorities are directed to submit the report to this Tribunal on or before 09.02.2021 by e-filing along with necessary hard copies to be produced as per rules.
17. The Registry is directed to communicate this order to the Chief Secretary, State of Kerala, Principal Secretary, Urban Development Department, the Chairman, Kerala Station Pollution Control Board and the Municipal Commissioner, Cochin Corporation, District Collector, Ernakulam District and to Justice A.V. Ramakrishna Pillai, former Judge of Kerala High Court and the Chairman of the State Level Monitoring committee appointed by the Principal Bench in O.A. 606 of 2018 by e-mail immediately so as to enable them to comply with the direction issued by this Tribunal.
18. For consideration of further reports, post on 09.02.2021.
..................................J.M. (Justice K. Ramakrishnan) ...............................E.M. (Shri. Saibal Dasgupta) O. A. No. 442/2013, 20/2017 & O.A. 276/2017 10thNovmber, 2020. (Sr.) 26