National Green Tribunal
Paldan Phunchog vs State Of Himachal Pradesh on 29 May, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
MISCELLANEOUS APPLICATION NO.79/2023
IN
ORIGINAL APPLICATION NO.758/2022
IN THE MATTER OF:
PALDAN PHUNCHOG
Secretary,
Gram Panchayat Shallen,
City Development Block
Post Office- Kalath, Tehsil - Manali
District - Kullu
State of Himachal Pradesh
...Applicant(s)
Versus
1. STATE OF HIMACHAL PRADESH
Through Chief Secretary,
E-201B, E-Ellerslie Building,
Himachal Pradesh Government Secretariat,
Shimla - 171002
2. HIMACHAL PRADESH STATE POLLUTION CONTROL BOARD
Through its Member Secretary,
Him Parivesh, Phase-III,
New Shimla-171009
3. DISTRICT MAGISTRATE,
Kullu, Himachal Pradesh,
Office of Deputy Commissioner, Kullu,
Himachal Pradesh-175101
4. EXECUTIVE OFFICER
Municipal Council, Manali,
Dhalpur, Kullu,
Himachal Pradesh-175101
1
5. PRINCIPAL SECRETARY,
Urban Development, Shimla, Himachal Pradesh
...Respondent(s)
COUNSELS FOR RESPONDENT(S):
Mr. Divyanshu Kumar Srivastava, Advocate for R-1 and 3 (Through VC)
Ms. Navya Nanda, Advocate for R-2 (Through VC)
Mr. Anant Kumar Vatsya and Mr. Karan Thakur, Advocates for R-4
CORAM:
HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
RESERVED ON: APRIL 05, 2024
PRONOUNCED ON: MAY 29, 2024
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Original Application (hereinafter referred to as 'OA') has been registered under Sections 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act 2010') on a letter petition dated 25.05.2022 sent by Paldan Phunchog, Pradhan, Gram Panchayat Shallen, City Development Block, Post Office - Kalath, Tehsil - Manali, District - Kullu, State of Himachal Pradesh. He had made a complaint of illegal dumping of solid waste in Gram Panchayat area causing health hazards to the local residents. The complainant has said that the local residents of Gram Panchayat, Shallen are facing lot of problems due to foul smell and scattered waste lying in an area of two kilometers from the Waste Management Unit which has made lives of people, hell, and also causing health hazards for them. Within 15 to 100 meters of the Waste Management Unit, there are educational institutions like Saraswati Vidya 2 Mandir, DAV School and Bodh Shiksha Sansthan where students and teachers, both are facing several problems due to illegal dumping of solid waste. On account of eating of decomposed garbage thrown on open land, cattle in the area are dying and about 40 cattle have already died. It is also said that the waste thrown in open land is ultimately reaching water of River Beas, causing contamination of water.
Tribunal's Order dated 04.01.2023:
2. OA was considered by Tribunal on 04.01.2023. Tribunal observed that the complaint at the first instance can be looked into at the District Authority's level, therefore, it constituted a Joint Committee comprising Himachal Pradesh State Pollution Control Board (hereinafter referred to as 'HPSPCB') and District Magistrate, Kullu to find out whether there is any violation of environmental laws and norms and if so, to take appropriate remedial action in accordance with law, expeditiously, in any case, within two months. They were also directed to submit a Report to Registrar General of this Tribunal with a further direction to Registrar General that if any further direction is required, the Report shall be placed before Tribunal. Joint Committee was also required to ensure that waste processing plant is duly authorized and complying with Solid Waste Management Rules, 2016 (hereinafter referred to as 'SWM Rules 2016').
With the above directions, OA was disposed of.
Joint Committee Report dated 12.05.2023 (M.A. No. 79/2023):
3. Pursuant to the order dated 04.01.2023, Joint Committee submitted its Report dated 12.05.2023 which was registered as M.A. 79/2023 and placed before Tribunal for further directions.3
4. Joint Committee Report shows that spot inspection was conducted at the waste processing plant, functioning at Rangree, Tehsil Manali, on 27.01.2023. During the course of spot inspection, the complainant Paldan Phunchog, representatives of nearby schools, local residents, Executive Officer, Municipal Council, Manali and Prem Sharma, Manager, M/s.
Nextgen Chemicals Pvt. Ltd. which is the agency employed by Municipal Council Manali to operate waste processing plant at Rangree, Tehsil Manali, were present. The complainant, representatives of schools and local residents explained their grievances to the Joint Committee as under:
"1. There is regular foul smell from the plant spreading in nearby area.
2. The solid waste is being littered outside the boundary of the plant.
3. There is unhygienic conditions and lots of flies and mosquitoes originating from the waste site may lead to spread diseases in vicinity.
4. There is a lot of waste dumped/legacy waste is present at site due to which the unhygienic conditions may lead to major health hazards.
5. There are a lot of stray animals/dogs in area which are destroying crops of nearby fields.
6. There is impact on admissions and in general on health of students in the nearby three schools due to foul smell being arisen from the plant and hostel of one school has also been closed."
5. In the backdrop of the above grievances, Joint Committee made its inspection and found that i. Solid waste processing plant was not in operation at the time of inspection;
ii. Composite pits provided at the plant were empty; 4 iii. Foul smell was observed in the vicinity;
iv. Mixed solid waste was found at the site;
v. Heap of organic waste mixed with plastic contents was found
stored without any further treatment;
vi. No separate compartments provided for collection of e-waste,
domestic hazardous waste etc.;
vii. Untreated leachate was flowing towards River Beas;
viii. Work for construction of leachate collection pits was in
progress;
ix. Installed Effluent Treatment Plant (hereinafter referred to as
'ETP') and compactor were not functional;
x. Legacy waste was spilled over the retaining wall towards the
bank of River Beas;
xi. Processing of legacy waste lying at the site has not started;
6. Joint Committee Report also said that after noticing the above violations, Executive Officer, Municipal Council, Manali who was also present at the time of inspection, informed the Joint Committee that Municipal Council, Manali has awarded tender to process legacy waste to M/s. Rekart Innovation Pvt. Ltd. and work of approach road has been completed by Municipal Council. It was also pointed out by Executive Officer, Municipal Council, Manali that the operating agency i.e., Rekart Innovation Pvt. Ltd., now, will install their machines i.e., trommel, shredder, JCB etc. at the site and work for removal of legacy waste will start in February 2023. Joint Committee Report also stated that Executive Officer, Municipal Council, Manali further informed that fresh solid waste is processed by M/s. Nextgen Chemicals Pvt. Ltd.; part of solid waste converted into Refused Derived Fuel (hereinafter referred to as 'RDF') was 5 being sent to cement plants for co-processing; M/s. Nextgen Chemicals Pvt. Ltd. was operating solid waste processing plant at Rangree, Tehsil Manali; mixed waste is being received at the site; company is spraying Hydrogen Peroxide in the plant on daily basis to control smell and has maintained log book for the same.
7. Regional Officer, HPSPCB, Kullu who was Member of Joint Committee apprised that solid waste processing plant at Rangree, Tehsil Manali was granted Consent to Operate (hereinafter referred to as 'CTO'), valid upto 31.03.2023 for processing municipal solid waste and converting into RDF. In past, for earlier violations, various notices were issued from time to time and environmental compensation of Rs. 5 lakhs was imposed on Municipal Council, Manali for violation of environmental laws.
8. In this backdrop, Joint Committee issued following directions to Executive Officer, Municipal Council, Manali and representative of M/s. Nextgen Chemicals Pvt. Ltd. and required them to ensure compliance in a time bound manner:
"1. The Executive Officer, Municipal Council, Manali shall start massive IEC campaign for door to door segregation of waste and he shall make efforts to ensure that no mix waste is sent/received at the Plant and also ensure that the plant shall function strictly as per MSW Rules, 2016 and take all necessary remedial measures in this regards.
2. The Municipal Council, Manali shall immediately stop the flow of leachate towards the river Beas and provide adequate collection tank and treatment plant to treat the leachate in scientific manner to meet the prescribed norms.
3. The Municipal Council, Manali shall immediately start the processing of legacy waste and submit report on legacy waste processed and sent to cement plant.
4. The Municipal Council, Manali shall take necessary steps to 6 increase the height of the wall towards the road side along the NH- 03 and complete it up to edge of legacy waste approach road.
5. The Municipal Council, Manali shall take necessary steps to increase the height of the retaining wall towards the river Beas and adjacent Nallah and lift the legacy waste overflown towards the bank of river Beas.
6. The Municipal Council, Manali shall provide Material Recovery Facility for sorting of recyclables with separate compartments for e-waste, domestic hazardous waste etc & Nextgen Chemicals Pvt Limited shall ensure sorting of recyclable from waste by providing separate bins for storage of bio-degradable waste painted as green, Recyclables bins painted as white and black painted bins for other inert waste.
7. The Nextgen Chemicals Pvt limited shall make the existing composting facility i.e. compost pits functional to treat the wet waste through these pits regularly and convert it to the compost.
8. The Nextgen Chemical Pvt Limited shall immediately provide at least 3 nos CCTV cameras along the boundary of plant towards NH-03 to keep vigil on vehicles throwing solid waste outside the plant and submit regular reports to the authorities.
9. The Nextgen Chemicals Pvt Limited shall operate the plant regularly to ensure that that the fresh waste is processed on daily basis and carryout chemical spray regularly chemicals as per CPCB guidelines to control the foul odour and maintain the hygienic conditions in the plant and carryout spray of suitable insecticide for control of flies and mosquitoes in and around the plant.
10. The Nextgen Chemical Pvt Limited shall carryout plantation of suitable species/trees aromatic flowers in and around the plant.
11. The Municipal Council, Manali & Nextgen Chemicals Pvt. limited shall lake necessary steps to provide the Bio- Composting Bio-methenation plant of adequate capacity and treat the bio-degradable waste in a scientific manner."
9. Joint Committee has also filed a copy of Compliance Report dated 01.05.2023 submitted by Municipal Council, Manali, District Kullu in 7 reference to the directions given by Joint Committee during the spot inspection as annexure-4 which says as under:
"1. The IEC activities with respect to DTD segregation of solid waste has been started by engaging a NGO named Healing Himalaya. The Segregation work has been started in the city and the people are advised to segregate the MSW and hand over the segregated waste (i.e., Wet and Dry) to the garbage contractor. Fines have also been imposed on habitual offenders for non-segregation of waste, and signboards have also been installed in the major hot spots of the city regarding littering of MSW. The fresh MSW has also been processed into RDF on a daily basis and the same has been sent to cement plants for end disposal. The WTE Plant has sent 10455 MT of RDF to different cement plant doe end disposal, and the council has also borne the 50% transportation cost for the RDF.
2. The Municipal Council Manali has constructed the three leachate collection pits on the boundary of the legacy waste site, currently, all the leachate is being collected in the pits and the same will be lift up with the help of an electric pump, and treated in the existing Effluent Treatment Plant already provided at plant for which process has been initiated."
10. M/s. Nextgen Chemicals Pvt. Ltd. also submitted a compliance Report dated 02.03.2023 which was made annexure-3 to Joint Committee Report, showing compliance which were supposed to be made by the above agency which are as under:
"1. PROCESSING OF ORGANIC WASTE (Point No-07) - Sir, currently, we have FIVE pits for converting the wet/biodegradable waste into compost. These pits are fully operational and ready for converting the waste into compost, reasonable quantity of organic waste received from MMC has been dumped in the pits biodegradation process, and conversion into compost.
Photograph omitted.
2. INSTALLATION OF CCTVS TOWARDS NH-03 (Point No -08)- As instructed, we have installed three CCTV cameras on the NH- 03 side borders of the WTE plant to monitor the offenders for littering in the surrounding area. The report will be submitted, if someone is caught doing non-compliance activity against the 8 cleanliness in the area, and for this, the warning notice signboards have also been installed.
Photograph omitted.
3. OPERATIONAL STATUS OF WTE PLANT (Point No -09)- Daily incoming MSW is being converted into RDF on the same day (except on rainy days), and the RDF is sent to cement industries on for further processing, on a daily basis, but, due to strike of truck unions since last two moths the RDF dispatch had slowed down. Now that the cement plants are operational, the RDF will be sent to cement plants on a regular basis. So far, 7936 MT of RDF has been sent to different cement plants for end disposal.
4. PLANTATION AT THE ENTRANCE OF THE WTE PLANT (Point No-10)- Sir, as instructed, we have prepared a small garden, in which different types of fragrant flower plants will be planted, and if the trial is successful, their number will be increased.
Photograph omitted.
5. INSTALLATION OF BIO-COMPOSTER/ BIO-METHANATION/ PROCESSING OF WET WASTE (Point No 11): - Sir, we would like to bring to your notice that, we are receiving wet waste, which cannot be processed at this time due to the unavailability of space, and, the requisite equipment for processing/ composting. The Hon'ble DC Kullu constituted a procurement committee (your good-self being a member) for the purchase of Bio-Digester in order to sort the issue of wet waste processing. The committee undertook a tour to Chamba, HP on 29/11/2021 to inspect the Bio-Digester installed at the location, the report for which, has already been submitted to the Hon'ble DC Kullu for further consideration and the needful.
Photograph omitted.
6. INSTALLATION OF SEPARATE BINS FOR E-WASTE, HAZARDOUS WASTE, AND SANITARY WASTE (POINT NO-
06)- As instructed, the separate bins for E-waste, hazardous waste, and sanatory waste have been installed at the WTE plant for the purpose of storage of different types for waste."9
11. Joint Committee Report after referring to the above Compliance Reports of Municipal Council, Manali and M/s. Nextgen Chemicals Pvt. Ltd. has observed in its Report dated 12.05.2023 that as per the information given by plant operating agency, it was spraying chemical i.e., Peroxide daily to mitigate foul smell as per Guidelines of CPCB; processing fresh waste on daily basis; waste after segregation and processing converted into RDF is being sent to cement plants for co-processing; it has sent 10676 Metric Tonne of RDF to cement plants till 30.04.2023; CCTV cameras were provided along National Highway; fresh plantation near entry gate to the plant was carried out and there was no littering of solid waste outside the plant. Committee also found that M/s. Rekart Innovation Pvt. Ltd. had installed Trommel machine for processing of legacy waste and the same was found functional; Municipal Council, Manali has provided boundary wall towards roadside and 03 numbers of leachate collection pits along the boundary of legacy waste site for collection of leachate. Committee also observed that treatment of wet waste compost pits was provided and process of purchase of Bio-composter through GEM Portal has been initiated and will be procured shortly whereafter wet waste shall be processed.
12. Regional Officer, HPSPCB, Kullu informed that it is continuously inspecting/monitoring the Waste Processing Facility, Rangree, from time to time and CTO of waste processing plant which was valid up to 31.03.2023 has expired but in the meantime, operating agency has further applied for renewal of CTO for one-year up to 31.03.2024 and the said application is in process.
10 Tribunal's Order dated 14.09.2023:
13. This Report was considered by Tribunal on 14.09.2023. Tribunal found that the Report is unsatisfactory particularly in terms of quantification of waste for generation, processing, remediation of legacy waste and destination of rejects/residue components like RDF, bio-
degradable waste etc. Consequently, Tribunal issued notice to Executive Officer, Municipal Council, Manali for filing a fresh Status Report besides informing about action taken, if any, against Service Provider, if it is not performing as per norms.
Tribunal's order dated 08.12.2023:
14. The matter was again taken up by Tribunal on 08.12.2023 when it found that neither any Status Report was filed by Executive Officer, Municipal Council, Manali nor he was present personally nor through Counsel. Since the matter was initiated on a letter petition exercising suo-
moto jurisdiction, Tribunal in order to give opportunity to all concerned parties, impleaded following respondents:
i. State of Himachal Pradesh;
ii. HPSPCB;
iii. District Magistrate, Kullu, Himachal Pradesh; and
iv. Executive Officer, Municipal Council, Manali
15. Tribunal issued notices to the respondents, requiring them to file their response and Executive Officer, Municipal Council, Manali in particular was directed to appear in person besides filing current Status Report in quantifiable terms as already directed by order dated 14.09.2023.
11 Status Report dated 19.01.2024 filed on 23.01.2024 by Executive Officer, Municipal Council, Manali:
16. Pursuant to order dated 08.12.2023 read with 14.09.2023, Status Report dated 19.01.2024 was filed on 23.01.2024 before Tribunal by Executive Officer, Municipal Council, Manali. On the question of waste quantification, it is said that at Municipal Solid Waste Plant, Rangree, Manali, waste is arriving not only from the area of Municipal Council, Manali but also from the entire District of Kullu and sometimes from Keylong, District Lahaul and Spiti also. From January 2023 to December 2023, 16363 MT of municipal solid waste was received whereagainst after segregation/processing, 7386 MT RDF sent to different plants of State of Himachal Pradesh and rest 15% of reject/inert material quantified as 2500 MT is lying at site due to non-availability of scientific landfill site in the area. Approximately, 5-7% (i.e., 1145 MT) of recyclable material like glass, plastic, rubber, iron and other recyclable was recovered from municipal solid waste and sold out to the scrap dealers. About 33% of municipal solid waste i.e., 5399 MT including bio-degradable material is still lying at the site due to non-processing. There is no space for scientific processing of bio-degradable waste. Report also says that there is legacy waste of about 40000 MT where against 14600 MT has been processed by M/s. Rekart Innovation Pvt. Ltd. and 445.515 MT RDF has been sent to thermal plants for end disposal. The Report further mentions compliance measures and action taken against Service Provider. We may reproduce relevant extract of the Report as under:
"Waste Quantification:
The Municipal Council has conducted a thorough analysis of waste generation, processing, and the end destination of rejects/residue components like RDF, biodegradable, etc. 12 Sr. Month MC TDC MC NP Panchayat Private Total RDF No. Manali Council Kullu Bhunter (Tons) hotel (Tons) (Tons) (Tons) (Tons) (Tons) (Tons) (Tons) 1 Jan-23 408 336 147 73 105 212 1282 119 2 Feb-23 303 273 156 77 135 161 1104 284 3 Mar-23 371 360 209 94 181 199 1413 1253 4 Apr-23 446 386 180 106 160 216 1495 1530 5 May-23 511 463 240 115 190 305 1824 683 6 Jun-23 611 494 242 94 257 330 2026 1032 7 Jul-23 161 150 70 22 84 90 577 368 8 Aug-23 400 363 462 84 111 37 1457 359 9 Sep-23 219 238 215 86 107 50 916 686 10 Oct-23 360 288 384 117 146 41 1338 311 11 Nov-23 373 421 463 116 143 25 1540 64 12 Dec-23 475 421 220 89 138 45 1389 565 Total 4639 4191 2989 1075 1758 1711 16363 7386
1. Total 16363 MT of Municipal Solid Waste (MSW) has been received in last year (January 2023 to December 2023) from which the 7386 MT (45%) of Refuse Derived Fuel has been sent to different plants of Himachal Pradesh, and the rest 15% of rejects/inert material (2500 MT) is lying out at site due to non-availability of scientific landfill site in the area.
2. Approximately 5-7 % of recyclable (Glass, Plastic, Rubber, Iron, and other recyclable) material has been recovered from the MSW (1145 MT) and sold out to the scrap dealers.
3. Approximately 33% of MSW (5399 MT) included Bio-
degradable material is still lying at site due to non- processing. We have no space for the scientific processing of Bio degradable waste.
However, the contribution of Municipal council Manali is only 28% (4639 MT) in the entire incoming MSW, which is coming to Municipal Solid Waste Management (MSWM) site at Rangri, Manali. The rest MSW is coming from the entire district of Kullu, and sometimes from Keylong, District Lahaul & Spiti also. It is submitted that the Pirdi MSWM site of Municipal Council Kullu has been shut down by the orders of Hon'ble NGT due to some local residents' issues in October 2018, and after that the district administration has diverted the Municipal Council Kullu's, Nagar Panchayat Bhunter's and other area's MSW to MSWM site at Rangri on a temporary basis, until the new site is identified by the District Administration. After completion of more than four years the site has still not been identified by the district administration and the MSW of entire district is being sent to the Rangri site, Manali.
13 It is submitted that currently the fresh waste has been handled by M/s Nextgen Chemicals, who commenced their operation on Feb 25, 2020, and the Municipal Council Manali has signed a MOU with company on 08.09.2017 for the handling of MSW for Twenty-five years, and the company will generate energy from waste, and the company has commissioned the first phase of project on Feb 25, 2020, i.e., production of Refuse Derive Fuel from MSW. The second phase of project i.e., installation of incinerator and turbine is still pending due to two years of Covid -19 pandemic and after that Low calorific value (1500-1800 KCAL) of produced RDF (Required 3500 KCAL).
Currently the company has produced RDF from fresh waste and is sending to cement plants for end disposal. Till date Nextgen Chemicals has sent over 15000 MT of RDF to cement plants for end disposal.
Quantum of Legacy Waste It is submitted that the Urban Development Department Shimla has awarded a tender in July 2021 to M/s Rekart Innovation Pvt Ltd for the Bio remediation and Bio-mining of legacy waste for a quantity of 40,000 MT. Till date the company has processed 14600 MT of legacy waste and has sent 445.515 MT of Refused Derived Fuel to Thermal Plants for end disposal. (Annexure.1 Attached) Compliance Measures:
The Municipal Council has taken immediate corrective measures to address the violations and lapses observed during the inspections.
1. Processing of Municipal Solid waste:
A. Dry Waste is being currently processed in to Refused Derived Fuel and sent to cement plants for end disposal. (Annexure.2 attached) B. Wet Waste: Presently Municipal Council Manali generates approximately three to four tons of wet waste. MC Manali has six composting pits at MSWM site, Rangri. Due to extreme cold weather conditions at Manali, it takes longer than usual to convert wet waste into compost. To overcome this problem, Municipal council is purchasing Organic Waste Converter for processing of wet waste. A letter has been sent to DC Kullu and Director of Urban Development for approval of funds. Regional officer, HPPCB, Kullu has also 14 been asked for approved technology for wet waste processing. (Annexure.3 & 7 attached).
C. Mixed Waste- The MSW is coming from entire district of Kullu, i.e., Tourism development Council, Municipal Council Kullu, Nagar Panchayat Bhunter and Rural areas of district panchayats. The Nextgen Chemicals has been instructed not to accept MIXED waste.
D. Inert/Rejects- Request has been sent to district administration for availability of land for scientific landfill site. (Annexure.4 attached)
2. Bad Odor - The spray for arresting the bad odor has been used at site on daily basis.
Action Against Service Provider:
The Municipal Council has initiated actions against the service provider for any non-compliance with the prescribed norms.
1. A notice has been issued to M/s Nextgen Chemicals for processing of 100% fresh waste, and arrest of bad odor in the area. (Annexure.5 Attached).
2. For the processing of Organic waste, Municipal council is purchasing Organic Waste Converter. A letter has been sent to Deputy Commissioner, Kullu and Director of Urban Development for approval of funds. (Annexure.3 attached)
3. Request has been sent to district administration for availability of space for designing of scientific land fill site for dumping of rejects/inert. (Annexure.4 Attached).
4. A notice has been issued to M/s Rekart Innovation Pvt. Ltd. for speedy processing for clearance of Legacy waste, and informed for fine as applicable as per the tender's terms and conditions.
(Annexure.6 Attached)."
17. The above Compliance Report also appended with annexure-8, which is a copy of the letter dated 05.12.2023 sent by Executive Officer, Municipal Council, Manali to this Tribunal, giving status report of solid 15 waste management with regard to Municipal Council, Manali and the said letter gives following details:
"1. Removal of Legacy Waste: The Council have signed MOU with Reekart Company to process the Legacy Waste but the company is not processing the waste. The matter has been brought into notice of Govt. The Principal Secretary during VC held with Deputy Commissioner have issued direction to visit the spot. The spot has been visited by the DC Kullu alongwith representative of M/S Reekart and Municipal Council Manali, after spot inspection the Deputy Commissioner Kullu directed Municipal Council Manali to construct approach road to Legacy waste site where land can be made available to set up Waste processing plant. The Municipal Council Manali has started the C/O approach road for which the MC will have to spent Rs 57 Lacs for approach road and platform etc. for setting up Legacy Waste processing plant. Municipal Council Manali has incurred expenditure about Rs 30.00 Lac.
MC Manali has also applied the electricity connection for Legacy waste processing site and amount Rs. 13,10,590/- deposited with HPSEBL for the same.
M/S Reekart company has processed 2521.39 Tonnes of Legacy waste till date and sent 60.50 Tonnes of processed RDF to Cement plants for final disposal.
2. The Waste to Energy plant has sent 13873 Tonnes of RDF to cement factory for which Municipal Council Manali have spent Rs 79,64,656/- for transportation of RDF on 50% cost of Transport expenditure basis.
15,30,000/- imposed by the Member Secretary HPSPCB vide notice no. PCB (44) MSW/MC Manali/ 2023- 1794-98 dated 10- 05-2023. The MC Manali has handed over the entire site alongwith old structure to the said company to set up waste to energy production plant at Rangari vide resolution no. 227 dated 15-10-2018 on BOT Basis for a period of 25 years. But the company has failed to install the Waste to Energy plant and has already installed the plant upto RDF production section. The MC Manali vide resolution no. 319 dated 31-05-2023 has decided to write a letter to PCB for waving off the Compensation imposed on MC Manali. The MC Manali vide letter no. MCM/Garbage/2023-1199-1205 dated 07-08-2023, and no. MCM/Garbage/2023- 1896-1907 dated 16-09-2023 intimated the M/S Waste To Energy Plant to do the needfull as 16 per the resolution passed by the MC Manali on dated 31-05- 2023."
Response of HPSPCB (respondent 2) dated 24.01.2024 filed on 24.01.2024:
18. A separate response dated 24.01.2023 was filed by HPSPCB stating that site inspection of municipal solid waste facility, Village Rangri, Tehsil Manali, District Kullu was conducted on 03.01.2024 and during inspection, it found heaps of fresh mixed waste lying at the site; lot of legacy waste was also found at the site which required to be processed scientifically; compost pits provided at the facility were filled with mixed waste, bio-methanation facility and bio-composter were not provided despite repeated directions by HPSPCB; retaining wall around legacy waste towards river Beas was found damaged near Gau-Sadan and waste was found overflown towards the bank of River Beas due to over stacking of fresh waste over legacy waste site; leachate collection pits were washed away during flash floods and leachate was found flowing into River Beas without any treatment; and ETP provided at the site was found dis-
functional.
19. HPSPCB further said that several notices and directions were issued to Municipal Council, Manali to take remedial action but it has failed to do so. Vide order dated 17.06.2021, HPSPCB imposed environmental compensation of Rs.05 lakhs for improper management of solid waste and vide Office Order dated 10.05.2023, a further environmental compensation of Rs.15,30,000/- was imposed upon Municipal Council, Manali for discharge of untreated leachate into River Beas and not meeting the prescribed standards for leachate during the period of violation i.e., from 08.04.2022 to 08.09.2022. A fresh notice has also been issued on 17 24.01.2024, proposing imposition of environmental compensation of Rs.31,80,000/- for violation of SWM Rules 2016 during the period of 28.10.2022 to 11.09.2023.
Response dated 24.01.2024 filed by State of Himachal Pradesh through Chief Secretary and District Magistrate, Kullu i.e., respondents 1 and 3:
20. Respondents 1 and 3 i.e., State of Himachal Pradesh through Chief Secretary and District Magistrate, Kullu have also filed their response dated 24.01.2024 stating that District Magistrate, Kullu visited the site on 15.01.2024 alongwith with Assistant Environmental Engineer, HPSPCB, Kullu; Executive Officer, Municipal Council, Manali; the complainant and representative of nearby Schools; Manager, M/s. Nextgen Chemicals Pvt. Ltd. and representative of M/s. Rekart Innovation Pvt. Ltd.
It found that M/s. Nextgen Chemicals Pvt. Ltd. was hired by Municipal Council, Manali for processing daily waste while M/s. Rekart Innovation Pvt. Ltd. was hired for processing legacy waste. M/s. Nextgen Chemicals Pvt. Ltd. had sent approximately 15041 Tons of RDF to cement plants and M/s. Rekart Innovation has processed approximately 13000 Ton of legacy waste. The observations made during the said inspection have been referred to in the said response as under:
"xxx.........................................xxx..............................................xxx During the course of inspection of plant, it has been observed that the Solid Waste Processing Plant was in operation during the time of inspection and processing the waste, however the compost pits provided at the plant were found filled with the mixed plastic contents and the foul smell was observed in the vicinity, the heap of the fresh mixed waste was found at the site. That, during the previous inspection on 27.01.2023 the Municipal Council, Manali was directed to construct leachate collection pits to avoid overflown of leachate into the Beas River and accordingly, Municipal Council, Manali had constructed the leachate collection pits, however, unfortunately the already constructed collection pits for collection of leachate were washed away due to the unprecedented flood in the 18 month of July, 2023 and untreated leachate was flowing towards the river Beas. Moreover, the retaining walls provided in the periphery of the legacy waste site found damaged towards the Gau Sadan and eroded towards the river Beas due to the massive flooding of Beas River. The waste was found spilled over the retaining wall towards the bank of river Beas.
That, the processing of legacy waste lying at the site was started by M/s Rekart Innovation Pvt. Ltd. The Executive Officer. Municipal council, Manali apprised that the company M/s Rekart Innovation Pvt. Ltd. has processed approx. 13000 Tons of legacy waste out of 40,000 Tons and sent approx. 430 Tons RDF (Refused Derive Fuel) to the Delhi MSW solutions Limited Pragati Power Plant Pocket-N1, Sector-5, Bawana Indu-Area New Delhi- 110039. He further apprised that Municipal Council, Manali is in process of procurement of the Organic Waste Composter of capacity 02 tons. The Manager of Nextgen Chemicals Pvt. Limited (operator of plant) apprised the company is spraying the Hydrogen Peroxide in the plant on daily basis to control the smell and maintained the logbook for same and also apprised that they have sent approx. 15041 ton of RDF to the cement plants for further processing till date. The Regional Officer, HPSPCB, Kullu apprised that the State Board is conducting regular inspection & monitoring of the plant and already issued various notices for non-compliances from time to time and already imposed Environmental Compensation amounting to Rs.5 Lacs on Municipal Council, Manali for improper handling of solid waste and Rs. 15,30,000/- for discharge of untreated leachate into river Beas."
21. The response further said that District Magistrate, Kullu issued directions to Executive Officer, Municipal Council, Manali and two operating agencies to undertake remedial measures within 15 days. Tribunal's order dated 25.01.2024:
22. The above Reports and responses were considered by Tribunal on 25.01.2024. Tribunal found that the waste generated and collected is not processed as per SWM Rules 2016; on account of mismanagement, waste is getting disposed into streams/river; issue of processing of waste coming from other places in Kullu District is unresolved for which State Urban 19 Department needs to take steps to ensure that appropriate waste processing is done with allocation of finances and there are serious lapses on the part of Municipal Council, Manali in remediating solid waste and clearing the legacy waste as also treating the daily generated waste. Tribunal also found that environmental compensation imposed by HPPCB as stated above was not deposited, hence direction was issued to Municipal Council, Manali to comply with the order of imposition of environmental compensation. Tribunal also required Municipal Council, Manali to indicate progress in remedial measures by filing a fresh Report.
23. Since the issue involved areas beyond Municipal Council, Manali, therefore, Tribunal impleaded Principal Secretary, Urban Development, State of HP as respondent 5 and notice was issued to it with an opportunity to file its response.
Report dated 26.03.2024 filed on 28.03.2024 by Executive Officer, Municipal Council, Manali:
24. Pursuant to above order dated 25.01.2024, Report dated 26.03.2024 has been filed before Tribunal on 28.03.2024 by Executive Officer, Municipal Council, Manali. Report says as under:
"1. Quantum of Legacy Waste: It is submitted that the Urban Development Department Shimla has awarded a tender in July 2021 to M/s Rekart Innovation Pvt. Ltd for the Bio remediation and Bio-mining of legacy waste for a quantity of 40,000 MT. Till date the company has processed 18331 MT of legacy waste and has sent 476 MT of Refused Derived Fuel to Thermal Plants for end disposal. Due to heavy snowfall and rainfall in the month of February, the processing of legacy waste was slower down. The copy is submitted as Annexure-1
2. Processing of Municipal Solid waste:
a) It is submitted that the Dry Waste is being currently processed in to Refused Derived Fuel by M/s NextGen Chemicals Pvt. Ltd.
Company and is being sent to cement plants for end disposal. Till 20 now, 15864 MT of RDF has been sent to cement plants. The copy is submitted as Annexure-2.
b) Wet Waste: Presently Municipal Council Manali generates approximately three tons (average) of wet waste. Municipal Council Manali has six composting pits at MSWM site, Rangri. Challenges faced: -Due to extreme cold weather conditions at Manali, it takes longer than usual to convert wet waste into compost. To overcome this problem, Municipal council is purchasing Organic Waste Converter for processing of wet waste. A letter has been sent to Election Commission of India for permission to float tender. The copy is submitted as Annexure-3.
c) Mixed Waste: Municipal Council Manali is receiving MSW from entire district of Kullu, i.e., Tourism development Council, Municipal Council Kullu, Nagar Panchayat Bhunter and Rural areas of district panchayats. The Nextgen Chemicals has been instructed not to accept MIXED waste. The copy is submitted as Annexure-4.
3. Inert/Rejects- It is submitted that the Request has been sent to district administration for availability of land for scientific landfill site. The copy is submitted as Annexure-5.
4. Bad Odor- The spray for arresting the bad odor has been used at site on daily basis.
5. Retaining wall: It is submitted that the Municipal Council Manali has awarded tender for the construction of retaining wall near Gau Sadan which was damaged during monsoon floods. Work for the construction of retaining wall has been started on dated 06.03.2024. Waste which was lying at the bank of River Beas due to stacking of fresh waste over legacy waste has been cleared up by Municipal Council Manali. The Copy is submitted as Annexure-6.
6. Environmental Compensation: It is submitted that as per the order and Direction of this Hon'ble Tribunal the Environmental Compensation of Rs. 5,00000/ (Rupees Five lakhs)- & 15,30,000/-(Rupees Fifteen lakhs thirty thousand) respectively has been paid by Municipal Council Manali. The copy is submitted as Annexure-7.
7. Effluent Treatment Plant: It is submitted that the Leachate collection pits were washed away by monsoonal flash floods in 21 July 2023. Again, tender has been awarded for the construction of leachate pits on dated 21.02.2024. Work has been started on 06.03.2024. Work shall be completed within three months. After that leachate shall be lifted through sludge pump and ETP can be made operational after that. The copy is submitted as Annexure-
8."
Response dated 03.04.2024 filed by Principal Secretary, Urban Development, State of HP
25. Principal Secretary, Urban Development, State of HP has also filed its response dated 03.04.2024. It has stated in para 4 to 7, as under:
4. That it is humbly submitted that there are five Urban Local Bodies in the entire Distt. of Kullu namely Kullu, Manali, Bhunter, Banjar and Nirmand, and status of Municipal Solid Waste (MSW) as per the information provided by these Urban Local Bodies is as Follows:
Status of Solid Waste Management in Municipal Council, Manali.
Sr. Status No.
1. Estimated Waste 4. 77 TPD (15-20 TPD during tourist Generation season)
2. Estimated Wet Waste 2.62 TPD (9-12 TPD during tourist season)
3. Estimated Dry Waste 1.91 TPD (6-8TPD during tourist (TPD) season)
4. Door to Door Garbage 100% Collection
5. Segregation 85-90 %
6. Transportation Facility 14 no. of vehicle has been deployed for waste collection.
7. Scientific Wet Waste 06 No. of Composting pits has been Disposal Treatment made for wet waste treatment.
Dry Waste Dry waste is processed through Treatment Trommel machine, Baling machine and Shredder at SWM plant Rangri, Manali.
8. Land Status for Solid MC Manali has already SWM site Waste at Rangri, Manali for Solid waste
9. Legacy Waste The work of processing of legacy waste is in progress and 22 approx. 17,852 tonne legacy waste has been processed and the remaining balance is 22,648 tonnes
5. It is further submitted that a Waste to Energy (WTE) Plant was set up through M/s Next Gen. Chemicals for 35 TPD capacities, for which an agreement was executed between M.C, Manali and M/S Next Gen. Chemicals on 05.08.2017, but inspite of best efforts by M.C. Manali, the Plant could not be made functional by M/s Next Gen. Chemicals. As such concerned Municipal Council is facing great difficulties in processing the waste because there is also not any other land to set up composting and processing Plant by the Municipal Council. The Municipal Council, Manali has issued many notices (Annexure- A to C) to the said firm i.e. M/S Next Gen. Chemicals for making the Plant operational. However permission to purchase Organic Waste Converter has been given by Director, Urban Development to Municipal Council, Manali vide letter dated 29.01.2024 Annexure-D.
6. It is also submitted that Municipal Council, Manali generates 5- 20 TPD Waste which can be managed by the concerned ULB, but at present the Waste of all the adjoining Panchayats and adjoining District is coming to the Waste Management site daily which is beyond the capacity of M.C. Manali. For this Meeting, minutes of which are Annexed as Annexure-E, was convened by Respondent with Deputy Commissioner, Kullu on 13.03.2024 and the concerned Deputy Commissioner has been directed to ensure proper Waste Management facilities on adjoining Gram Panchayats which falls under Rural Development Department as the Municipal Council Manali is unable to enforce the regulatory measures under SWM Rules and environmental Laws beyond its limits. Similar Directions have been given to Rural Development Department as recorded in the Minutes of the Meeting held on 13.03.2024.
Status of Solid Waste Management in Municipal Council, Kullu.
Sr. Status No.
1. Estimated Waste 7.49 TPD Generation
2. Estimated Wet Waste 4.12 TPD 23
3. Estimated Dry Waste 3TPD (TPD)
4. Door to Door Garbage 100% Collection
5. Segregation 70-75 %
6. Transportation Facility 09 No. Vehicles have been deployed for waste collection
7. Scientific Wet Waste 03 TPD Organic waste Disposal Treatment composter has been installed at MRF site Kullu for the treatment of wet waste and some eatable food items is also sent to Gausadan and also taken by local Milk suppliers who came from neighbouring villages on daily basis Dry Waste Currently Dry waste is sent to Treatment WTE plant Rangri, Manali for final disposal. MC Kullu has also installed a 1000 kg/hr shredder but due to some technical problem the shredder could not be operational.
8. Land Status for Solid MC Kullu and NP Bhunter has Waste Jointly identified a SWM land at Bhrain Panchayat.
9. Legacy Waste The work of processing of legacy waste site Pirdi is in progress and approx. 32,467 tonne legacy waste has been processed and the remaining balance is 5533 tonne at site.
Status of Solid Waste Management in Nagar Panchayat, Bhuntar.
Sr. Status No.
1. Estimated Waste 1.81 TPD Generation
2. Estimated Wet Waste 0.99 TPD
3. Estimated Dry Waste 0.72 TPD (TPD)
4. Door to Door Garbage 100% 24 Collection
5. Segregation 75%
6. Transportation Facility 03 vehicles have been deployed for waste collection
7. Scientific Wet Waste 03 No. of composting pits has Disposal Treatment been made for wet waste.
Dry Waste Dry waste is sent to WTE Treatment plant Rangri, Manali for disposal.
8. Land Status for Solid Nagar Panchayat Bhuntar Waste and MC Kullu have jointly identified a SWM land at Bhrain Panchayat but NOC is pending with concerned Gram Panchayat.
Status of Solid Waste Management in Nagar Panchayat, Banjar.
Sr. Status No.
1. Estimated Waste 0.57 TPD Generation
2. Estimated Wet Waste 0.31 TPD
3. Estimated Dry Waste 0.23 TPD (TPD)
4. Door to Door Garbage 100% Collection
5. Segregation 70%
6. Transportation Facility 01 vehicle has been deployed for waste collection
7. Scientific Wet Waste Currently the Nagar Disposal Treatment Panchayat is facing problems in processing Waste because the Waste Processing site has been damaged in the last year floods. However funds have been provided for redevelopment of the site.
Dry Waste Dry waste is sent to WTE Treatment plant Rangri, Manali for disposal.
8. Land Status for Solid A SWM land has been Waste identified by NP Banjar at Manglore Gram Panchayat but Gram Panchayat has 25 refused to give NOC. Now the matter has been taken up with Deputy Commissioner, Kullu for intervention, by the Nagar Panchayat.
Status of Solid Waste Management in Nagar Panchayat Nirmand Sr. Status No.
1. Estimated Waste 0.61 TPD Generation
2. Estimated Wet Waste 0.34 TPD
3. Estimated Dry Waste 0.24 TPD (TPD)
4. Door to Door Garbage 90% Collection
5. Segregation 50%
6. Transportation Facility 01 vehicle has been deployed for waste collection
7. Scientific Wet Waste 0.20 TPD Wet waste is Disposal Treatment treated through old composting pit.
Dry Waste 0.11 TPD Dry waste is Treatment treated at temporary MRF site where recyclable items are picked by rag pickers
8. Land Status for Solid A new land of 3 Bigha has Waste been identified in Chillanalat Gadej Panchyat for which joint inspection has been carried out and NOC of the concerned Gram Panchayat has been received by Nagar Panchayat Nirmand. Nagar Panchayat has applied for the issue of the non-
availability of non-forest land certificate for setting up of solid waste management plant in favour of Himachal Pradesh Urban Development Deptt. (Nagar Panchayat Nirmand), a request regarding this has been made 26 to the Deputy Commissioner Kullu.
7. That the Department is making every effort to maintain good environment at Solid Waste Management Plant and garbage is being processed in scientific manner according to SWM Rules.
In view of the above submissions, it is, respectfully prayed that the Reply on behalf of Respondent may kindly be taken on record in the interest of justice, equity & fair play."
26. Alongwith the response of Principal Secretary, Urban Development, also appended with annexure-E i.e., minutes of the meeting dated 13.03.2024 wherein certain directions were issued by him and the relevant extract therefrom reads as under:
"...After detailed discussion and deliberation with DC Kullu and Eos/Secretaries of ULBs of Kullu District, following decisions were taken/directions were issued:
The EO Manali raised the issue regarding solid waste being transported to Manali site from rural areas/other local bodies and even from District of Lahaul and Spiti. The issue of transportation of waste from Gram Panchayats and other areas to MC Manali was discussed and it was directed that RDD may own its responsibilities and process their waste at their own level. Deputy Commissioner, Kullu will hold a meeting with local Gram Panchayats and Tourism Department within 15 days who are transporting their garbage at the Rangri Plant, Manali and may issue directions that Gram Panchayats shall manage their waste at their own by creating disposal facility within 1 to 3 Months. The handholding support of the Gram Panchayats for FCA cases if required shall also be done by District Administration. The similar action may also be taken by DC Lahaul and Spiti.
It was also directed that MC Kullu, Bhuntar and Banjar may also develop their own waste management facilities and no waste may be transported to MC Manali site.
• It was apprised that land transfer cases of ULBs of Kullu/Bhuntar, Banjar and Nirmand are pending at different levels for which interventions of Deputy Commissioner 27 is required. Therefore, It was decided that Deputy Commissioner, Kullu shall expedite the land transfer cases of these ULBs and monitor them on weekly basis. In case of NP Nirmand, NOC to be issued by District Administration at the earliest and PCA case to be uploaded within 10 days.
It was decided that all ULBs may identify bulk waste generators and they may be directed to treat their waste onsite at their own as per the provisions of SWM Rules, 2016. Whereby ULBs may coordinate with the tourism department accordingly.
During the discussion, it was observed that Concessionaire i.e., M/s Nextgen Chemicals is not working properly. It was decided that Contract Agreement of M/s Nextgen Chemicals shall be reviewed by Deputy Commissioner, Kullu and Director, UDD. Further, for violation of agreement, if any arises, the case for blacklisting the concessionaire shall be forwarded to the Govt.
EO MC Manali apprised that currently there is lack of wet waste treatment facility with MC Manali. In this regard, Director UD apprised that permission for installation of composting machine has already been granted to MC Manali. As such, it was directed that MC Manali shall create wet waste treatment facility within 3 months at their own level or by engaging some private agency it required."
Action Taken Report dated 01.04.2024 filed on 02.04.2024 by Member Secretary, HPSPCB, Shimla:
27. Member Secretary, HPSPCB, Shimla has also filed a fresh Action Taken Report dated 01.04.2024 on 02.04.2024 and it says as under:
"...the State Board vide office order dated 17.06.2021 had imposed the Environment Compensation amounting to Rs. 5,000,00/- (Rupees Five lakhs) on M.C. Manali for improper management of the solid waste. Thereafter, vide office order dated 10.05.2023 further Environmental Compensation of Rs. 15,30,000/-(Rupees Fifteen lakhs thirty thousand) was imposed on the Municipal Council, Manali for discharge of untreated leachate into the River Beas and not meeting the prescribed standards for leachate.
In this regard, it is intimated that the EC amount of Rs. Five lakh rupees imposed on dated 17.06.2021 had already been deposited by M.C. Manali (Annexure R-2/1). The matter was further 28 taken up with MC Manali and the Department of Urban Development for the recovery of the remaining Environmental Compensation of Rs. 15,30,000/- (Rupees Fifteen lakhs thirty thousand) and in this regard, it is intimated that the remaining Environmental Compensation amounting to Rupees 15,30,000/- has now been deposited in the account of HPPCB on dated 07.03.2024 (Annexure R- 2/2).
It is submitted that the Environmental Compensation collected by HPSPCB shall be utilised for remediation/restorative measures in the concerned affected area. In this regard, Action Plan for utilisation of the amount of Environmental Compensation has been submitted by M.C. Manali (Annexure R-2/3) according to which MC Manali will utilise the amount for construction of leak proof leachate collection pits for collection & treatment of leachate and procurement of Organic Waste Composter for treatment of wet waste."
28. The said Report says that environmental compensation of Rs.5,00,000/- and Rs.15,30,000/- imposed by HPSPCB's order dated 17.06.2021 has been deposited by Municipal Council, Manali.
29. The above Reports and the entire matter were considered on 05.04.2024. On behalf of respondents 1 and 3, Shri Divyanshu Kumar Srivastava, Advocate through virtual mode while on behalf of respondent 2 i.e., HPSPCB, Ms. Navya Nanda, Advocate through virtual mode, appeared. On behalf of Municipal Council, Manali, Shri Anant Kumar Vatsya and Shri Karan Thakur, Advocates appeared before Tribunal.
30. The above Advocates advanced their submissions and the matter was heard at length.
31. None has appeared on behalf of applicant.
32. However, record show that the complaint made by applicant in substance is true. Management of solid waste in the territorial area of Municipal Council, Manali is in pathetic condition and in utter violation of 29 SWM Rules 2016. Neither, daily generated solid waste is being managed, handled and processed regularly nor even legacy waste has been managed, handled and processed in a reasonable time and in a systematic, scientific and planned manner. It is also evident from record that solid waste of some other urban local bodies/municipal areas is being transported and dumped at Municipal Solid Waste Management Site (hereinafter referred to as 'MSWM Site') at Rangree, Manali which is in the teeth of provisions of SWM Rules 2016. Approach of the respondent authorities for management, handling and processing of solid waste in the area of respondent 4 is very shoddy, in direct contradiction of the procedure prescribed in the Rules and in fact, causes much more damage to the environment instead of helping to protect it and thereby, also causing health hazards to the local people who have fundamental right of clean environment, enshrined under Article 21 of the Constitution.
33. Learned Counsels appearing for respondents 1 and 4 referred to various reports and replies and said that though it is true that the entire daily generated waste as also legacy waste is not being managed and processed regularly or in an appropriate manner but respondents are taking all possible steps to deal with the situation and may achieve the target in future but no time limit can be ascertained on account of limitations being faced by the authorities concerned with regard to availability of appropriate land for authorised landfill site or processing tenders etc.
34. With regard to transportation of solid waste from certain urban local bodies i.e., Municipal Council, Kullu, Nagar Panchayat Bhunter, Nagar Panchayat, Banjar and Nagar Panchayat, Nirmand to Municipal Counsel 30 Manali is concerned, it is said that at those places, there is no landfill site available, therefore, solid waste generated thereat is being transported and dumped at MSWM Site at Rangree, Manali but efforts are being made to find out suitable sites in the respective urban local bodies and whenever sites will be available, transport of solid waste to MSWM Site at Rangree shall be stopped.
ISSUES:
35. In view of the above arguments and also from the facts borne out from pleadings, Reports and other documents, in our view, following substantial questions relating to environment have arisen which require adjudication by this Tribunal:
(I) Whether Municipal Council, Manali is managing solid waste in accordance with SWM Rules 2016 or there is violation of the said Rules?
(II) Whether respondents 3, 4 and 5 have acted in violation of the provisions of SWM Rules 2016?
(III) Whether District Administration is committing any violation of environmental laws, by allowing transfer of solid waste of different local bodies like Municipal Council, Kullu, Nagar Panchayat Bhunter, Nagar Panchayat, Banjar and Nagar Panchayat, Nirmand to MSWM Site at Rangree, Manali and dumping thereat and thereby, violating provisions of SWM Rules 2016?
(IV) Whether by virtue of violation of provisions of SWM Rules 2016, the concerned authorities are committing offence under 31 Section 15 of Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act 1986'), requiring appropriate action against the violators?
(V) Whether the violators are liable to pay environmental compensation by application of principle of 'Polluter Pays' for violation of the provisions of SWM Rules 2016 by treatment of solid waste in an illegal manner and thereby causing damage to environment?
(VI) What further appropriate remedial, punitive or preventive action is required in this matter and what order would be justified which should be passed by this Tribunal so as to protect environment, prevent damage to environment caused on the part of respondents and to remediate the damage already caused to environment?
36. The issues I and II both, in our view, can be taken together. For considering Issues I and II formulated above, it would be appropriate first to examine the requirement of Statutory provisions with regard to handling, management and processing of solid waste in the territory of an urban local body.
37. In State of Himachal Pradesh, functions, duties, responsibilities and other provisions dealing with Municipality were initially governed by Himachal Pradesh Municipal Act, 1968 (HP Act No. 19 of 1968).
38. In order to make local bodies, including Municipalities more effective, responsible and accountable, provisions were made in the 32 Constitution by inserting Part IXA by Constitution (Seventy-fourth Amendment) Act, 1992 which came into force on 01.06.1993.
39. In Part IXA, provisions were made to deal with Municipalities.
40. Article 243Q refers to three kinds of municipalities i.e., (a) Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area; (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area.
41. Powers, authorities and responsibilities of Municipalities were provided in Article 243W which reads as under:
"243W. Powers, authority and responsibilities of Municipalities, etc. -
Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow -
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-
government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to--
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule."
33
42. Twelfth Schedule, Item 6 deals with the subject of public health, sanitation conservancy and solid waste management. It reads as under:
[TWELFTH SCHEDULE] (Article 243W)
6. Public health, sanitation conservancy and solid waste management."
43. In view of the above provisions made in the Constitution, in State of HP, a new enactment was made to deal with all the three types of municipalities i.e., Himachal Pradesh Municipality Act, 1994 (hereinafter referred to as 'HPM Act 1994') which came into force on 30.05.1994. The Act, per se, did not make any specific provision for handling and management of solid waste. However, bye-laws were framed i.e., Himachal Pradesh Municipal Business Bye-Laws 2006 wherein, duties of Medical Officer of Health were prescribed in Bye-Law 39 which reads as under:
"39. DUTIES OF MEDICAL OFFICER OF HEALTH. (1) The Municipal Medical Officer of Health shall be incharge of the Sanitation, Public Health and Health Departments of a municipality. He shall supervise the sanitary conditions of all buildings and lands, burial and burning places, markets slaughter houses, streets, drains sewerage, latrines, urinals, filth receptacles, cesspool, flushing appliances, farms, filth depots, dairies, milk shops, cow sheds, stables, meat shops and all shops dealing in edibles, bakeries, aviated water factories, wells and dhobi ghats etc. (2) He shall also check the house unfit for human habitation, offensive trades, foods and drinks, plants and stores.
(3) He shall be responsible for the land buildings, machinery, plants and stores intended for the use of the sanitation department and shall maintain registers and stock books as laid down in the municipal account code in which these items shall be entered."
44. In order to deal with municipal solid waste, Government of India, Ministry of Environment, Forest and Climate Change (hereinafter referred to as 'MoEF&CC') framed Municipal Solid Wastes (Management & 34 Handling) Rules, 2000 (hereinafter referred to as 'MSWMH Rules 2000') in exercise of the powers conferred by Sections 3, 6 and 25 of EP Act 1986. These Rules were enforced w.e.f. the date of publication of Official Gazette i.e., 03.10.2000. The term 'Municipal solid Waste' was defined in Rule 3(xv) as under:
"3. Definitions. -- In these rules, unless the context otherwise requires, -
-
xv. "municipal solid waste" includes commercial and residential wastes generated in a municipal or notified areas in either solid or semi-solid form excluding industrial hazardous wastes but including treated bio-medical wastes;"
45. Rule 4 very categorically said that every Municipal Authority shall, within the territorial area of the municipality, be responsible for implementation of the provisions of these rules, and for any infrastructure development for collection, storage, segregation, transportation, processing and disposal of municipal solid wastes. Rule 4 reads as under:
"4. RESPONSIBILITY OF MUNICIPAL AUTHORITY: -
1. Every municipal authority shall, within the territorial area of the municipality, be responsible for the implementation of the provisions of these rules, and for any infrastructure development for collection, storage, segregation, transportation, processing and disposal of municipal solid wastes.
2. The municipal authority or an operator of a facility shall make an application in Form-I, for grant of authorization for setting up waste processing and disposal facility including landfills from the State Board or the Committee in order to comply with the implementation programme laid down in Schedule I.
3. The municipal authority shall comply with these rules as per the implementation schedule laid down in Schedule I.
4. The municipal authority shall furnish its annual report in Form-
II, -
35 a. to the Secretary-incharge of the Department of Urban Development of the concerned State or as the case may be of the Union territory, in case of a metropolitan city; or b. to the District Magistrate or the Deputy Commissioner concerned in case of all other towns and cities, with a copy to the State Board or the Committee on or before the 30th day of June every year."
46. The term "Municipal Authority" was defined in Rule 3(xiv) which included Municipal Corporation, Municipality, Nagar Palika, Nagar Nigam, Nagar Panchayat etc.
47. Rule 7 provided that municipal solid waste generated in a city or a town shall be managed and handled in accordance with the compliance criteria and the procedure laid down in Schedule-II. Sub-rule 2 of Rule 7 provided that waste processing and disposal facilities to be set up by Municipal Authority on their own or through an operator of a facility, shall meet the specifications and standards as specified in Schedules III and IV. Rule 7 read as under:
"7. MANAGEMENT OF MUNICIPAL SOLID WASTES. -
1. Any municipal solid waste generated in a city or a town, shall be managed and handled in accordance with the compliance criteria and the procedure laid down in Schedule-II.
2. The waste processing and disposal facilities to be set up by the municipal authority on their own or through an operator of a facility shall meet the specifications and standards as specified in Schedules III and IV."
48. Schedule II gave details of compliance criteria under the parameters of collection of municipal solid waste, Segregation of municipal solid wastes, Storage of municipal solid wastes, Transportation of municipal 36 solid wastes, Processing of municipal solid wastes and Disposal of municipal solid wastes.
49. Schedule III provided specification for landfill sites and Schedule IV dealt with standards for composting, treated leachates and incineration.
50. MSW Rules 2000 were repealed and substituted by SWM Rules 2016 which came into force on the date of publication in Official Gazette i.e., 08.04.2016 and these rules are presently operating. Rule 2 deals with application of SWM Rules 2016 and reads as under:
"2. Application.- These rules shall apply to every urban local body, outgrowths in urban agglomerations, census towns as declared by the Registrar General and Census Commissioner of India, notified areas, notified industrial townships, areas under the control of Indian Railways, airports, airbases, Ports and harbours, defence establishments, special economic zones, State and Central government organisations, places of pilgrims, religious and historical importance as may be notified by respective State government from time to time and to every domestic, institutional, commercial and any other non-residential solid waste generator situated in the areas except industrial waste, hazardous waste, hazardous chemicals, bio medical wastes, e-waste, lead acid batteries and radio-active waste, that are covered under separate rules framed under the Environment (Protection) Act, 1986."
51. Rule 3 contains certain definitions and for the present purpose, we find it appropriate to reproduce definitions of 'authorization', 'biodegradable waste', 'bio-methanation', 'buffer zone', 'composting', 'contractor', 'disposal', 'dry waste', 'dump sites', 'facility', 'handling', 'inert', 'leachate', 'local body', 'materials recovery facility', 'non-biodegradable waste', 'operator of a facility', 'processing', 'recycling', 'refuse derived fuel', 'residual solid waste', 'sanitary land filling', 'solid waste', 'transportation', 'treatment' and 'vermi composting' hereunder:
"3. Definitions - (1) In these rules, unless the context otherwise 37 requires, -
3. "authorisation" means the permission given by the State Pollution Control Board or Pollution Control Committee, as the case may be, to the operator of a facility or urban local authority, or any other agency responsible for processing and disposal of solid waste;
4. "biodegradable waste" means any organic material that can be degraded by micro-organisms into simpler stable compounds;
5. "bio-methanation" means a process which entails enzymatic decomposition of the organic matter by microbial action to produce methane rich biogas;
7. "buffer zone" means zone of no development to be maintained around solid waste processing and disposal facility, exceeding 5 TPD of installed capacity. This will be maintained within total and area allotted for the solid waste processing and disposal facility.
12. "composting" means a controlled process involving microbial decomposition of organic matter;
13. "contractor" means a person or firm that undertakes a contract to provide materials or labour to perform a service or do a job for service providing authority;
16. "disposal" means the final and safe disposal of post processed residual solid waste and inert street sweepings and silt from surface drains on land as specified in Schedule I to prevent contamination of ground water, surface water, ambient air and attraction of animals or birds;
19. "dry waste" means waste other than bio-degradable waste and inert street sweepings and includes recyclable and non recyclable waste, combustible waste and sanitary napkin and diapers, etc;
20. "dump sites" means a land utilised by local body for disposal of solid waste without following the principles of sanitary land filling;
22. "facility" means any establishment wherein the solid waste management processes namely segregation, recovery, storage, collection, recycling, processing, treatment or safe disposal are carried out;38
25. "handling" includes all activities relating to sorting, segregation, material recovery, collection, secondary storage, shredding, baling, crushing, loading, unloading, transportation, processing and disposal of solid wastes;
26. "inerts" means wastes which are not bio-degradable, recyclable or combustible street sweeping or dust and silt removed from the surface drains;
29. "leachate" means the liquid that seeps through solid waste or other medium and has extracts of dissolved or suspended material from it;
30. "local body" for the purpose of these rules means and includes the municipal corporation, nagar nigam, municipal council, nagarpalika, nagar Palikaparishad, municipal board, nagar panchayat and town panchayat, census towns, notified areas and notified industrial townships with whatever name they are called in different States and union territories in India;
31. "materials recovery facility" (MRF) means a facility where non- compostable solid waste can be temporarily stored by the local body or any other entity mentioned in rule 2 or any person or agency authorised by any of them to facilitate segregation, sorting and recovery of recyclables from various components of waste by authorised informal sector of waste pickers, informal recyclers or any other work force engaged by the local body or entity mentioned in rule 2 for the purpose before the waste is delivered or taken up for its processing or disposal;
32. "non-biodegradable waste" means any waste that cannot be degraded by micro organisms into simpler stable compounds; 33. "operator of a facility" means a person or entity, who owns or operates a facility for handling solid waste which includes the local body and any other entity or agency appointed by the local body;
35. "processing" means any scientific process by which segregated solid waste is handled for the purpose of reuse, recycling or transformation into new products;
36. "recycling" means the process of transforming segregated non- biodegradable solid waste into new material or product or as raw material for producing new products which may or may not be similar to the original products;
38. "refused derived fuel" (RDF) means fuel derived from 39 combustible waste fraction of solid waste like plastic, wood, pulp or organic waste, other than chlorinated materials, in the form of pellets or fluff produced by drying, shredding, dehydrating and compacting of solid waste ;
39. "residual solid waste" means and includes the waste and rejects from the solid waste processing facilities which are not suitable for recycling or further processing;
40. "sanitary land filling" means the final and safe disposal of residual solid waste and inert wastes on land in a facility designed with protective measures against pollution of ground water, surface water and fugitive air dust, wind- blown litter, bad odour, fire hazard, animal menace, bird menace, pests or rodents, greenhouse gas emissions, persistent organic pollutants slope instability and erosion;
46. "solid waste" means and includes solid or semi-solid domestic waste, sanitary waste, commercial waste, institutional waste, catering and market waste and other non residential wastes, street sweepings, silt removed or collected from the surface drains, horticulture waste, agriculture and dairy waste, treated bio-medical waste excluding industrial waste, bio-medical waste and e-waste, battery waste, radio-active waste generated in the area under the local authorities and other entities mentioned in rule 2;
52. "transportation" means conveyance of solid waste, either treated, partly treated or untreated from a location to another location in an environmentally sound manner through specially designed and covered transport system so as to prevent the foul odour, littering and unsightly conditions;
53. "treatment" means the method, technique or process designed to modify physical, chemical or biological characteristics or composition of any waste so as to reduce its volume and potential to cause harm;
55. "vermi composting" means the process of conversion of bio- degradable waste into compost using earth worms;"
52. Rule 11 talks of the duties of the Secretary-in-charge, Urban Development in the States and Union territories and sub-rule (d) 40 makes it incumbent upon such authority to ensure implementation of provisions of these rules by all local authorities.
53. Clause (f) of Rule 11 says that officer concerned shall ensure identification and allocation of suitable land to local bodies within one year for setting up of processing and disposal facilities for solid waste and incorporate them in the master plans of State or as the case may be, cities through metropolitan and district planning committees or town and country planning department.
54. Rule 15 deals with duties and responsibility of local bodies and village Panchayats which reads as under:
"15. Duties and responsibilities of local authorities and village Panchayats of census towns and urban agglomerations. - The local authorities and Panchayats shall, -
(a) prepare a solid waste management plan as per state policy and strategy on solid waste management within six months from the date of notification of state policy and strategy and submit a copy to respective departments of State Government or Union territory Administration or agency authorised by the State Government or Union territory Administration;
(b) arrange for door to door collection of segregated solid waste from all households including slums and informal settlements, commercial, institutional and other non residential premises. From multi-storage buildings, large commercial complexes, malls, housing complexes, etc., this may be collected from the entry gate or any other designated location;
(c) establish a system to recognise organisations of waste pickers or informal waste collectors and promote and establish a system for integration of these authorised waste-pickers and waste collectors to facilitate their participation in solid waste management including door to door collection of waste;
(d) facilitate formation of Self Help Groups, provide identity cards and thereafter encourage integration in solid waste management including door to door collection of waste;41
(e) frame bye-laws incorporating the provisions of these rules within one year from the date of notification of these rules and ensure timely implementation;
(f) prescribe from time to time user fee as deemed appropriate and collect the fee from the waste generators on its own or through authorised agency;
(g) direct waste generators not to litter i.e., throw or dispose of any waste such as paper, water bottles, liquor bottles, soft drink canes, tetra packs, fruit peel, wrappers, etc., or burn or burry waste on streets, open public spaces, drains, waste bodies and to segregate the waste at source as prescribed under these rules and hand over the segregated waste to authorised the waste pickers or waste collectors authorised by the local body;
(h) set up material recovery facilities or secondary storage facilities with sufficient space for sorting of recyclable materials to enable informal or authorised waste pickers and waste collectors to separate recyclables from the waste and provide easy access to waste pickers and recyclers for collection of segregated recyclable waste such as paper, plastic, metal, glass, textile from the source of generation or from material recovery facilities; Bins for storage of bio-
degradable wastes shall be painted green, those for storage of recyclable wastes shall be printed white and those for storage of other wastes shall be printed black;
(i) establish waste deposition centres for domestic hazardous waste and give direction for waste generators to deposit domestic hazardous wastes at this centre for its safe disposal. Such facility shall be established in a city or town in a manner that one centre is set up for the area of twenty square kilometers or part thereof and notify the timings of receiving domestic hazardous waste at such centres;
(j) ensure safe storage and transportation of the domestic hazardous waste to the hazardous waste disposal facility or as may be directed by the State Pollution Control Board or the Pollution Control Committee;
(k) direct street sweepers not to burn tree leaves collected from street sweeping and store them separately and handover to the waste collectors or agency authorised by local body;
(l) provide training on solid waste management to waste- pickers and waste collectors;
42
(m) collect waste from vegetable, fruit, flower, meat, poultry and fish market on day to day basis and promote setting up of decentralised compost plant or bio-methanation plant at suitable locations in the markets or in the vicinity of markets ensuring hygienic conditions;
(n) collect separately waste from sweeping of streets, lanes and by-lanes daily, or on alternate days or twice a week depending on the density of population, commercial activity and local situation;
(o) set up covered secondary storage facility for temporary storage of street sweepings and silt removed from surface drains in cases where direct collection of such waste into transport vehicles is not convenient. Waste so collected shall be collected and disposed of at regular intervals as decided by the local body;
(p) collect horticulture, parks and garden waste separately and process in the parks and gardens, as far as possible;
(q) transport segregated bio-degradable waste to the processing facilities like compost plant, bio-methanation plant or any such facility. Preference shall be given for on site processing of such waste;
(r) transport non-bio-degradable waste to the respective processing facility or material recovery facilities or secondary storage facility;
(s) transport construction and demolition waste as per the provisions of the Construction and Demolition Waste management Rules, 2016;
(t) involve communities in waste management and promotion of home composting, bio-gas generation, decentralised processing of waste at community level subject to control of odour and maintenance of hygienic conditions around the facility;
(u) phase out the use of chemical fertilizer in two years and use compost in all parks, gardens maintained by the local body and wherever possible in other places under its jurisdiction. Incentives may be provided to recycling initiatives by informal waste recycling sector.
(v) facilitate construction, operation and maintenance of solid waste processing facilities and associated infrastructure on their own or with private sector participation or through any agency for optimum utilisation 43 of various components of solid waste adopting suitable technology including the following technologies and adhering to the guidelines issued by the Ministry of Urban Development from time to time and standards prescribed by the Central Pollution Control Board. Preference shall be given to decentralised processing to minimize transportation cost and environmental impacts such as -
a) bio-methanation, microbial composting, vermi- composting, anaerobic digestion or any other appropriate processing for bio-stabilisation of biodegradable wastes;
b) waste to energy processes including refused derived fuel for combustible fraction of waste or supply as feedstock to solid waste based power plants or cement kilns; (w) undertake on their own or through any other agency construction, operation and maintenance of sanitary landfill and associated infrastructure as per Schedule 1 for disposal of residual wastes in a manner prescribed under these rules;
(x) make adequate provision of funds for capital investments as well as operation and maintenance of solid waste management services in the annual budget ensuring that funds for discretionary functions of the local body have been allocated only after meeting the requirement of necessary funds for solid waste management and other obligatory functions of the local body as per these rules;
(y) make an application in Form-I for grant of authorisation for setting up waste processing, treatment or disposal facility, if the volume of waste is exceeding five metric tones per day including sanitary landfills from the State Pollution Control Board or the Pollution Control Committee, as the case may be;
(z) submit application for renewal of authorisation at least sixty days before the expiry of the validity of authorisation;
(za) prepare and submit annual report in Form IV on or before the 30th April of the succeeding year to the Commissioner or Director, Municipal Administration or designated Officer;
(zb) the annual report shall then be sent to the Secretary-in-Charge of the State Urban Development Department or village panchayat or rural development 44 department and to the respective State Pollution Control Board or Pollution Control Committee by the 31st May of every year;
(zc) educate workers including contract workers and supervisors for door to door collection of segregated waste and transporting the unmixed waste during primary and secondary transportation to processing or disposal facility;
(zd) ensure that the operator of a facility provides personal protection equipment including uniform, fluorescent jacket, hand gloves, raincoats, appropriate foot wear and masks to all workers handling solid waste and the same are used by the workforce;
(ze) ensure that provisions for setting up of centers for collection, segregation and storage of segregated wastes, are incorporated in building plan while granting approval of building plan of a group housing society or market complex; and (zf) frame bye-laws and prescribe criteria for levying of spot fine for persons who litters or fails to comply with the provisions of these rules and delegate powers to officers or local bodies to levy spot fines as per the bye laws framed; and (zg) create public awareness through information, education and communication campaign and educate the waste generators on the following; namely:
(i) not to litter;
(ii) minimise generation of waste;
(iii) reuse the waste to the extent possible;
(iv) practice segregation of waste into bio-degradable, non-
biodegradable (recyclable and combustible), sanitary waste and domestic hazardous wastes at source;
(v) practice home composting, vermi-composting, bio-gas generation or community level composting;
(vi) wrap securely used sanitary waste as and when generated in the pouches provided by the brand owners or a suitable wrapping as prescribed by the local body and place the same in the bin meant for nonbiodegradable waste;
(vii) storage of segregated waste at source in different bins;
(viii) handover segregated waste to waste pickers, waste collectors, recyclers or waste collection agencies; and
(ix) pay monthly user fee or charges to waste collectors or local bodies or any other person authorised by the local body for sustainability of solid waste management.
45
(zh) stop land filling or dumping of mixed waste soon after the timeline as specified in rule 23 for setting up and operationalisation of sanitary landfill is over;
(zi) allow only the non-usable, non-recyclable, non-bio- degradable, non-combustible and non-reactive inert waste and pre-processing rejects and residues from waste processing facilities to go to sanitary landfill and the sanitary landfill sites shall meet the specifications as given in Schedule-I, however, every effort shall be made to recycle or reuse the rejects to achieve the desired objective of zero waste going to landfill;
(zj) investigate and analyse all old open dumpsites and existing operational dumpsites for their potential of bio-mining and bio-remediation and wheresoever feasible, take necessary actions to bio-mine or bio-remediate the sites;
(zk) in absence of the potential of bio-mining and bio- remediation of dumpsite, it shall be scientifically capped as per landfill capping norms to prevent further damage to the environment."
55. Rule 16 of SWM Rules 2016 lays down duty of SPCBs or SPCCs. It says that these Regulators shall enforce SWM Rules 2016 in their State through local bodies in their respective jurisdiction and review implementation of these rules at least twice a year in close coordination with concerned Directorate of Municipal Administration or Secretary-in- charge of State Urban Development Department. Statutory Regulators shall also monitor environmental standards and adherence to conditions as specified under Schedule I and Schedule II for waste processing and disposal sites; examine the proposal for authorisation and make such inquiries as deemed fit, after receipt of the application in Form I from the local body or any other agency authorised by the local body; while examining the proposal for authorisation, the requirement of consents under respective enactments and views of other agencies like State Urban Development Department, Town and Country Planning Department, 46 District Planning Committee or Metropolitan Area Planning Committee, as may be applicable, Airport or Airbase Authority, Ground Water Board, Railways, power distribution companies, highway department and other relevant agencies shall be taken into consideration and they shall be given four weeks' time to give their views, if any. Rule 16 of SWM Rules 2016 also makes it obligatory for Statutory Regulator to issue authorisation within a period of sixty days in Form II to the concerned local body or an operator of a facility or any other agency authorised by local body stipulating compliance criteria and environmental standards as specified in Schedules I and II including other conditions, as may be necessary. Statutory Regulator shall also synchronize validity of said authorisation with the validity of the consents, suspend or cancel authorization issued any time, if local body or operator of the facility fails to operate the facility as per the conditions stipulated after giving due opportunity of hearing to the concerned body. In case of renewal of authorisation, it shall renew for next five years, after examining every application on merit and subject to the condition that the operator of the facility has fulfilled all the provisions of the rules, standards or conditions specified in the authorisation, consents or Environmental Clearance. For valid reasons, authorisation can also be denied by a written order after giving opportunity of hearing. Statutory Regulator have also been empowered to issue directions to local bodies for safe handling and disposal of domestic hazardous waste deposited by waste generators at hazardous waste deposition facilities.
56. Rule 19 talks of criteria for duties regarding setting up solid waste processing and treatment facility and reads as under:
"19. Criteria for Duties regarding setting-up solid waste processing and treatment facility. - (1) The department in-charge 47 of the allocation of land assignment shall be responsible for providing suitable land for setting up of the solid waste processing and treatment facilities and notify such sites by the State Government or Union territory Administration.
(2) The operator of the facility shall design and set up the facility as per the technical guidelines issued by the Central Pollution Control Board in this regard from time to time and the manual on solid waste management prepared by the Ministry of Housing and Urban Affairs.
(3) The operator of the facility shall obtain necessary approvals from the State Pollution Control Board or Pollution Control Committee.
(4) The State Pollution Control Board or Pollution Control Committee shall monitor the environment standards of the operation of the solid waste processing and treatment facilities.
(5) The operator of the facility shall be responsible for the safe and environmentally sound operations of the solid waste processing and or treatment facilities as per the guidelines issued by the Central Pollution Control Board from time to time and the Manual on Municipal Solid Waste Management published by the Ministry of Housing and Urban Affairs and updated from time to time.
(6) The operator of the solid waste processing and treatment facility shall submit annual report in Form III each year by 30th April to the State Pollution Control Board or Pollution Committee and concerned local body."
57. In hilly area, a separate provision in respect of criteria and actions to be taken for solid waste management has been made in Rule 20 which reads as under:
"20. Criteria and actions to be taken for solid waste management in hilly areas.-In the hilly areas, the duties and responsibilities of the local authorities shall be the same as mentioned in rule 15 with additional clauses as under:-
(a) Construction of landfill on the hill shall be avoided.
A transfer station at a suitable enclosed location shall be setup to collect residual waste from the processing facility and inert waste. A suitable land shall be identified in the plain areas down the hill within 25 kilometers for setting up sanitary landfill. The residual waste from the transfer station shall be disposed of at this sanitary landfill.
48
(b) In case of non-availability of such land, efforts shall be made to set up regional sanitary landfill for the inert and residual waste.
(c) Local body shall frame Bye-laws and prohibit citizen from littering wastes on the streets and give strict direction to the tourists not to dispose any waste such as paper, water bottles, liquor bottles, soft drink canes, tetra packs, any other plastic or paper waste on the streets or down the hills and instead direct to deposit such waste in the litter bins that shall be placed by the local body at all tourist destinations.
(d) Local body shall arrange to convey the provisions of solid waste management under the bye-laws to all tourists visiting the hilly areas at the entry point in the town as well as through the hotels, guest houses or like where they stay and by putting suitable hoardings at tourist destinations.
(e) Local body may levy solid waste management charge from the tourist at the entry point to make the solid waste management services sustainable.
(f) The department in-charge of the allocation of land assignment shall identify and allot suitable space on the hills for setting up decentralised waste processing facilities. Local body shall set up such facilities. Step garden system may be adopted for optimum utilisation of hill space."
58. A perusal of Rule 20 shows that construction of landfill on hills is required to be avoided. Transfer station at a suitable enclosed location is required to be setup to collect residual waste from processing facility and inert waste. A suitable land is required to be identified in the plain areas down the hill within 25 kilometers for setting up sanitary landfill. Residual waste from the transfer station is required to be disposed of at such sanitary landfill. Where no such land is available, Rule 20 requires that efforts shall be made to set up regional sanitary landfill for the inert and residual waste. Bye-laws are required to be made by the concerned local body to regulate littering wastes by residents and tourists and to prevent disposal of waste in unscientific and indistinct manner in the area concerned and also to levy solid waste management charges from tourists at the entry point to make solid waste management services sustainable. 49 The department in-charge of the allocation of land assignment is required to identify and allot suitable space on the hills for setting up decentralised waste processing facilities which shall be set up by local body.
59. Rule 22 lays down time frame for implementation of SWM Rules 2016 and we find that it varies from one year to five years. Rule 22 reads as under:
Sl No. Activity Time limit
from the date
of notification
of rules
(1) (2) (3)
1. Identification of suitable sites for 1 year
setting up solid waste
processing facilities
2. Identification of suitable sites for 1 year
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
3. Procurement of suitable sites for 2 year
setting up solid waste
processing facility and sanitary
landfill facilities
4. Enforcing waste generators to 2 year
practice segregation of bio
degradable, recyclable,
combustible, sanitary waste
domestic hazardous and inert
solid wastes at source
5. Ensure door to door collection of 2 year
segregated waste and its
transportation in covered
vehicles to processing or
disposal facilities
6. Ensure separate storage, 2 year
collection and transportation of
50
construction and demolition
wastes
7. Setting up solid waste 2 year
processing facilities by all local
bodies having 100000 or more
population
8. Setting up solid waste 3 year
processing facilities by local
bodies and census towns below
100000 population
9. Setting up common or stand 3 year
alone sanitary landfills by 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 untreatable
inert wastes as permitted under
the Rules
10. Setting up common or stand 3 year
alone sanitary landfills by 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 untreatable
inert wastes as permitted under
the Rules
11. Bio-remediation or capping of old 5 year
and abandoned dump sites
60. For the purpose of the present case, we find that the entire timeline prescribed in Rule 23 has already lapsed, in any case, by 2021 and now, no local body can take any excuse for not taking steps for implementation of the provisions of SWM Rules 2016. If there is still any lapses or latches, the same have to be treated as violations in respect of compliance of SWM Rules 2016, therefore, contravention of the provisions of the above Rules read with EP Act 1986 which is also an offence under Section 15 of EP Act 1986 and attract all remedial, preventive and prohibitory directions or steps.
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61. Schedule I of SWM Rules 2016 deals with specifications for Sanitary Landfills and for the purpose of present case, we may refer to only paras A and B which deal with criteria for site selection and criteria for development of facilities at the sanitary landfills and the same are reproduced as under:
"SCHEDULE I [see rule 15 (w), (zi), 16 (1) (b) (e), 16 (4)] SPECIFICATIONS FOR SANITARY LANDFILLS (A) Criteria for site selection. -(i) The department in the business allocation of land assignment shall provide suitable site for setting up of the solid waste processing and treatment facilities and notify such sites.
(ii) The sanitary landfill site shall be planned, designed and developed with proper documentation of construction plan as well as a closure plan in a phased manner. In case a new landfill facility is being established adjoining an existing landfill site, the closure plan of existing landfill should form a part of the proposal of such new landfill.
(iii) The landfill sites shall be selected to make use of nearby wastes processing facilities. Otherwise, wastes processing facility shall be planned as an integral part of the landfill site.
(iv) Landfill sites shall be set up as per the guidelines of the Ministry of Housing and Urban Affairs, Government of India and Central Pollution Control Board.
(v) The existing landfill sites which are in use for more than five years shall be improved in accordance with the specifications given in this Schedule.
(vi) The landfill site shall be large enough to last for at least 20-25 years and shall develop "landfill cells" in a phased manner to avoid water logging and misuse.
(vii) The landfill site shall be 100 meter away from river, 200 meter from a pond, 200 meter from Highways, Habitations, Public Parks and water supply wells and 20 km away from Airports or Airbase. However, in a special case, landfill site may be set up within a distance of 10 and 20 km away from the Airport/Airbase after obtaining no objection certificate from the civil aviation authority/ Air force as the 52 case may be. The Landfill site shall not be permitted within the flood plains as recorded for the last 100 years, zone of coastal regulation, wetland, Critical habitat areas, sensitive eco-fragile areas.
(viii) The sites for landfill and processing and disposal of solid waste shall be incorporated in the Town Planning Department's land-use plans.
(ix) A buffer zone of no development shall be maintained around solid waste processing and disposal facility, exceeding five Tonnes per day of installed capacity.
This will be maintained within the total area of the solid waste processing and disposal facility. The buffer zone shall be prescribed on case to case basis by the local body in consultation with concerned State Pollution Control Board.
(x) The biomedical waste shall be disposed of in accordance with the Bio-medical Waste Management Rules, 2016, as amended from time to time. The hazardous waste shall be managed in accordance with the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, as amended from time to time. The E- waste shall be managed in accordance with the e-Waste (Management) Rules, 2016 as amended from time to time.
(xi) Temporary storage facility for solid waste shall be established in each landfill site to accommodate the waste in case of non-operation of waste processing and during emergency or natural calamities.
(B) Criteria for development of facilities at the sanitary landfills. - (i) Landfill site shall be fenced or hedged and provided with proper gate to monitor incoming vehicles, to prevent entry of unauthorised persons and stray animals
(ii) The approach and / internal roads shall be concreted or paved so as to avoid generation of dust particles due to vehicular movement and shall be so designed to ensure free movement of vehicles and other machinery.
(iii) The landfill site shall have waste inspection facility to monitor waste brought in for landfilling h, office facility for record keeping and shelter for keeping equipment and machinery including pollution monitoring equipment. The operator of the facility shall maintain record of waste received, processed and disposed.
(iv) Provisions like weigh bridge to measure quantity of 53 waste brought at landfill site, fire protection equipment and other facilities as may be required shall be provided.
(v) Utilities such as drinking water and sanitary facilities (preferably washing/bathing facilities for workers) and lighting arrangements for easy landfill operations during night hours shall be provided.
(vi) Safety provisions including health inspections of workers at landfill sites shall be carried out made.
(vii) Provisions for parking, cleaning, washing of transport vehicles carrying solid waste shall be provided. The wastewater so generated shall be treated to meet the prescribed standards."
62. Schedule II deals with standards of processing and treatment of solid waste. For the purpose of present case, it would be appropriate to reproduce the same as under:
"SCHEDULE II [see rule 16 (1), (b), (e), 16 (4) ] STANDARDS OF PROCESSING AND TREATMENT OF SOLID WASTE A. Standards for composting. - The waste processing facilities shall include composting as one of the technologies for processing of bio- degradable waste. In order to prevent pollution from compost plant, the following shall be complied with namely: -
(a) The incoming organic waste at site shall be stored properly prior to further processing. To the extent possible, the waste storage area should be covered. If, such storage is done in an open area, it shall be provided with impermeable base with facility for collection of leachate and surface water run-off into lined drains leading to a leachate treatment and disposal facility;
(b) Necessary precaution shall be taken to minimise nuisance of odour, flies, rodents, bird menace and fire hazard;
(c) In case of breakdown or maintenance of plant, waste intake shall be stopped and arrangements be worked out for diversion of waste to the temporary processing site or temporary landfill sites which will be again reprocessed when plant is in order;
(d) Pre-process and post-process rejects shall be removed from the processing facility on regular basis and 54 shall not be allowed to pile at the site. Recyclables shall be routed through appropriate vendors. The non-recyclable high calorific fractions to be segregated and sent to waste to energy or for RDF production, co-processing in cement plants or to thermal power plants.
Only rejects from all processes shall be sent for sanitary landfill site(s).
(e) The windrow area shall be provided with impermeable base. Such a base shall be made of concrete or compacted clay of 50 cm thick having permeability coefficient less than 10.7 cm/sec. The base shall be provided with 1 to 2 per cent slope and circled by lined drains for collection of leachate or surface run-off;
(f) Ambient air quality monitoring shall be regularly carried out. Odurnuisance at down-wind direction on the boundary of processing plant shall also be checked regularly.
(g) Leachate shall be re-circulated in compost plant for moisture maintenance.
(h) The end product compost shall meet the standards prescribed under Fertilizer Control Order notified from time to time.
(i) In order to ensure safe application of compost, the following specifications for compost quality shall be met, namely: -
Parameters Organic Compost Phosphate Rich
(FCO 2009) Organic Manure
(FCO 2013)
(1) (2) (3)
Arsenic (mg/Kg) 10.00 10.00
Cadmium (mg/Kg) 5.00 5.00
Chromium (mg/Kg) 50.00 50.00
Copper (mg/Kg) 300.00 300.00
Lead (mg/Kg) 100.00 100.00
Mercury (mg/Kg) 0.15 0.15
Nickel (mg/Kg) 50.00 50.00
Zinc (mg/Kg) 1000.00 1000.00
C/N ratio <20 Less than 20:1
pH 6.5-7.5 (1:5 solution)
maximum 6.7
Moisture, percent by 15.0-25.0 25.0
weight, maximum
Bulk density (g/cm3 ) <1.0 Less than 1.6
55
Total Organic Carbon, 12.0 7.9
per cent by weight,
minimum
Total Nitrogen (as N), 0.8 0.4
per cent by weight,
minimum
Total Phosphate (as 0.4 10.4
P205) percent by
weight, minimum
Total Potassium (as 0.4 -
K20), percent by
weight, minimum
Colour Dark brown to -
black
Odour Absence of foul -
Odor
Particle size Minimum 90% Minimum 90%
material should material should pass
pass through 4.0 through 4.0 mm IS
mm IS sieve sieve
Conductivity (as dsm- 4.0 8.2
1), not more than
* Compost (final product) exceeding the above stated concentration limits shall not be used for food crops. However, it may be utilized for purposes other than growing food crops.
B. Standards for treated leachates.-The disposal of treated leachates shall meet the following standards, namely:-
S. Parameter Standards (Mode of Disposal)
No (FCO 2009) Inland surface Public Land
water sewers disposal
(1) (2) (3) (4) (5)
1. Suspended solids, 100 600 200
mg/l, max
2. Dissolved solids 2100 2100 2100
(inorganic) mg/l,
max.
3. pH value 5.5 to 9.0 5.5 to 9.0 5.5 to 9.0
4. Ammonical nitrogen 50 50 -
(as N), mg/l, max.
5. Total Kjeldahl 100 - -
nitrogen (as N), mg/l,
max.
56
6. Biochemical oxygen 30 350 350
demand (3 days at
270 C) max.(mg/l)
7. Chemical oxygen 250 - -
demand, mg/l, max.
8. Arsenic (as As), mg/l, 0.2 0.2 0.2
max
9. Mercury (as Hg), 0.01 0.01 -
mg/l, max
10. Lead (as Pb), mg/l, 0.1 1.0 -
max
11. Cadmium (as Cd), 2.0 1.0 -
mg/l, max
12. Total Chromium (as 2.0 2.0 -
Cr), mg/l, max.
13. Copper (as Cu), mg/l, 3.0 3.0 -
max
14. Zinc (as Zn), mg/l, 5.0 15 -
max
15. Nickel (as Ni), mg/l, 3.0 3.0 -
max
16. Cyanide (as CN), 0.2 2.0 0.2
mg/l, max.
17. Chloride (as Cl), mg/l, 1000 1000 600
max.
18. Fluoride (as F), mg/l, 2.0 1.5 -
max
19. Phenolic compounds 1.0 5.0 -
(as C6H5OH) mg/l,
max.
Note. - While discharging treated leachates into inland surface waters, quantity of leachates being discharged and the quantity of dilution water available in the receiving water body shall be given due consideration.
C. Standards for incineration: -The Emission from incinerators/thermal technologies in Solid Waste treatment/disposal facility shall meet the following standards, namely: -
Parameter Emission standard
(1) (2) (3)
Particulates 50 mg/Nm3 Standard refers to half
hourly average value
HCl 50 mg/Nm3 Standard refers to half
hourly average value
57
SO2 200 mg/Nm3 Standard refers to half
hourly average value
CO 100 mg/Nm 3 Standard refers to half
hourly average value
50 mg/Nm3 Standard refers to
daily average value
Total Organic 20 mg/Nm3 Standard refers to half
Carbon hourly average value
HF 4 mg/Nm 3 Standard refers to half
hourly average value
NOx (NO and NO2 400 mg/Nm 3 Standard refers to half
expressed as NO2 ) hourly average value
Total dioxins and 0.1 ng TEQ/Nm3 Standard refers to 6-8
furans hours sampling.
Please refer guidelines
for 17 concerned
congeners for toxic
equivalence values to
arrive at total toxic
equivalence.
Cd + Th + their 0.05 mg/Nm 3 Standard refers to
compounds sampling time
anywhere between 30
minutes and 8 hours.
Hg and its 0.05 mg/Nm 3 Standard refers to
compounds sampling time
anywhere between 30
minutes and 8 hours.
Sb + As + Pb + Cr + 0.5 mg/Nm3 Standard refers to
Co + Cu + Mn + Ni sampling time
+ V + their anywhere between 30
compounds minutes and 8 hours.
Note. - All values corrected to 11% oxygen on a dry basis. Note: - (a) Suitably designed pollution control devices shall be installed or retrofitted with the incinerator to achieve the above emission limits.
(b) Waste to be incinerated shall not be chemically treated with any chlorinated disinfectants.
(c) Incineration of chlorinated plastics shall be phased out within two years.
(d) if the concentation of toxic metals in incineration ash exceeds 58 the limits specified in the Hazardous Waste (Management, Handling and Trans boundary Movement) Rules, 2008, as amended from time to time, the ash shall be sent to the hazardous waste treatment, storage and disposal facility.
(e) Only low sulphur fuel like LDO, LSHS, Diesel, bio-mass, coal, LNG, CNG, RDF and bio-gas shall be used as fuel in the incinerator.
(f) The CO2 concentration in tail gas shall not be more than 7%.
(g) All the facilities in twin chamber incinerators shall be designed to achieve a minimum temperature of 9500C in secondary combustion chamber and with a gas residence time in secondary combustion chamber not less than 2 (two) seconds.
(h) Incineration plants shall be operated (combustion chambers) with such temperature, retention time and turbulence, as to achieve total Organic Carbon (TOC) content in the slag and bottom ash less than 3%, or the loss on ignition is less than 5% of the dry weight.
(i) Odour from sites shall be managed as per guidelines of CPCB issued from time to time."
63. In the backdrop of the above Statutory provisions, we may look into the facts of the present case to find out the manner in which respondents have complied with the provisions of SWM Rules 2016 read with EP Act 1986.
64. At the outset, we may observe that there are large scale violations/non-compliances on the part of respondent 4 in respect of handling, management and processing of solid waste in the jurisdictional area of respondent 4. Different Reports and replies have come at different times but the common feature is that violation is visibly evident and demonstrable in all such Reports/replies.
65. Pursuant to Tribunal's first order dated 04.01.2023 whereby cognizance was taken and factual Report was called from Joint Committee, 59 we find from Joint Committee Report dated 12.05.2023, the following violation on the part of respondent 4 in handling, management and processing of solid waste in the area of Municipal Council, Manali:
(i) At the time of inspection, solid waste processing plant was not found operational;
(ii) Compost Pits provided at the plant were empty and foul smell was observed in the vicinity;
(iii) Mixed solid waste was found at the site;
(iv) Heap of organic waste mixed with plastic contents was found stored without any measures taken for treatment;
(v) Untreated leachate was flowing towards River Beas;
(vi) Even legacy waste was found to be spilled over the retaining wall towards the bank of River Beas;
(vii) Processing of legacy waste lying at the site had not been commenced till the time of inspection though the processing work was awarded to M/s Rekart Innovation Pvt. Ltd. by Municipal Council, Manali;
(viii) Even machines for the processing work were not installed and Report says that the information given to Committee that the Service Provider i.e., M/s Rekart Innovation Pvt. Ltd. shall install machines like trommels, shredders. JCB etc. at the site and the work will start in February 2023;
(ix) Daily generated solid waste was entrusted for its processing to Service Provider namely M/s. Nextgen Chemicals Pvt. Ltd.
who informed the Committee that it shall make compost pits functional to treat wet waste and shall operate the processing plant regularly.
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66. Compliance Report dated 19.01.2024 filed by respondent 4 shows that up to July 2021, total quantum of legacy waste was about 40,000 MT where against, 14600 MT was processed by M/s Rekart Innovation Pvt. Ltd. when the compliance Report dated 19.01.2024 was filed (i.e., in last two and half years). 445.515 MT of RDF sent to Thermal Plants for end disposal. When we enquired as to what happened to the remaining inert/residual waste, neither the said Status Report provided any answer nor the same could be replied by Learned Counsel appearing for respondent 4.
67. Report also shows that in 12 months of 2023 i.e., from January 2023 to December 2023, 16363 MT was received wherefrom 7386 MT of RDF was generated and sent to different plant of Himachal Pradesh. Details of the said plants have not been given in the said Report nor informed to us at the time of arguments. Be that as it may, it is admitted that about 2500 MT of inert/reject waste remained dumped at the site due to non- availability of scientific landfill site in the area. The status report does not show that the entire 16363 MT of municipal solid waste received in 2023 was processed. In fact, Report shows that quantum of RDF was 45% and inert/reject waste was 15%. What had happened to the remaining waste, the reply is totally silent. Obviously, this must have added to the quantum of legacy waste as computed in January 2021, therefore, cannot be taken the same since on the one hand there was some processing and on the other hand, apparently, there was regularly addition due to lack of processing of daily waste generated within the jurisdiction of Municipal Council, Manali. The Report also shows that against 16363 MT of municipal solid waste, 5-7 % i.e., 1145 MT recyclable waste was recovered which was sold to scrap dealers. It is an admitted position that 5399 MT 61 of municipal solid waste against 16363 MT received from January 2023 to December 2023 remained unprocessed and continued to remain dumped at the site. In computation of legacy waste, this quantity of unprocessed and untreated waste has to be added and this is only of the year 2023 while computation of legacy waste of 40,000 MT was in July 2021. Quantity of the waste received from August 2021 to December 2022 has not been disclosed. Thus, we have not hesitation but to infer that what has happened for the municipal solid waste received in 2023, the same conditions must have prevailed in respect of municipal solid waste received from August 2021 to December 2022 and, therefore, virtually the legacy waste as it was in July 2021 is continuing same and there is no substantial reduction in its quantity due to a smaller amount of legacy waste processed by the service provider.
68. This also shows that M/s. Nextgen Chemicals Pvt. Ltd. which has been awarded contract for treatment and processing of daily generated waste, is not capable of treatment of entire daily generated waste in a regular manner and that is how it is adding to the legacy waste.
69. We may also place on record that the data supplied by respondent 4 in its reply dated 19.01.2024 does not appear to be very accurate in as much as in the response dated 24.01.2024 submitted on behalf of respondents 1 and 3, different figures have been supplied. It is said in para 2 that M/s. Rekart Innovation Pvt. Ltd. has processed approximately 13000 tonnes of legacy waste while in the reply of respondent 4, it is claimed that 14600 MT of legacy waste was processed. In respect of daily generated municipal solid waste when received at the site in question, reply of respondents 1 and 3 states that service provider i.e., M/s. Nextgen 62 Chemicals Pvt. Ltd. has processed and sent 15041 tonnes of RDF to cement plants but on what basis this figure has been derived, no material has been placed on record. On the contrary, respondent 4 who has direct information on the subject and stated in its reply that from January to December 2023, total municipal solid waste received was 16363 MT whereagasint 7386 MT RDF was generated and sent to different plants, 2500 MT reject/inert was generated which is lying at the site, 1145 Mt recyclable was recovered which was sold to scrap dealers and 5399 MT of waste was still lying at the site, therefore, in total, against the daily generated solid waste of the year 2023 i.e., 16363 MT, 5399 MT unprocessed waste and 2500 MT inert/reject/residue as per respondent 4 was lying at the site and this is not consistent with the information supplied by respondents 1 and 2.
70. Admitting that there was violation, HPSPCB imposed environmental compensation of Rs. 5 lakhs and Rs. 15,30,000/- which has not been challenged by respondent 4 and on the contrary, it has paid the amount of environmental compensation as stated in its Compliance-cum-Status Report dated 26.03.2024, in para 5, which reads as under:
"6. Environmental Compensation: It is submitted that as per the order and Direction of this Hon'ble Tribunal the Environmental Compensation of Rs. 5,00000/ (Rupees Five lakhs)- & 15,30,000/-(Rupees Fifteen lakhs thirty thousand) respectively has been paid by Municipal Council Manali. The copy is submitted as Annexure-7."
71. Further Report dated 26.03.2024 filed by respondent 4 shows an admission on the part of respondent 4 that it is receiving daily three tonnes of wet waste but not capable to process the same regularly due to cold weather conditions prevailing at Manali which require longer time for 63 composting and there are only 06 composting pits available at MSWM site, Rangree which are insufficient/inadequate and respondent 4 is proposing to purchase an Organic Waste Converter for processing of wet waste.
72. Inert/reject waste is still lying at the site as scientific landfill site is not available with respondent 4.
73. It is also admitted that the leachate collection pits were washed away in Monsoon flash floods in July 2023 and no arrangement was made for the same till the filing of the reply dated 26.03.2024 meaning thereby, from July 2023 and onwards, continuously leachate is causing contamination of water of River Beas or is contaminating ground water if there is seepage downwards to the earth.
74. Reply dated 03.04.2024 submitted by Principal Secretary, Urban Development i.e., respondent 5 shows that despite execution of agreement for setting up of a waste to energy plant of 35 TPD capacities between Municipal Council, Manali and M/s. Nextgen Chemicals Pvt. Ltd. on 05.08.2017, such plant has not been made functional till the date the said reply was filed.
75. Reply of respondent 5 also admits that huge quantity of solid waste of different local bodies i.e., about 7.49 TPD from Municipal Council, Kully, 1.80 TPD from Nagar Panchayat, Bhuntar, 0.57 TPD from Nagar Panchayat, Banjar and 0.61 TPD from Nagar Panchayat, Nirmand is also being transported and dumped at municipal solid waste site of respondent 4 but under which authority that has been transported and dumped has not been stated. Every local body has its own statutory responsibility to 64 have its own processing plants, landfill sites/sanitary landfill sites but the same is not being observed in the case in hand.
76. It is also nobody's case before us that respondent 4 has obtained any authorisation from HPSPCB for any processing,treatment or disposal facility or landfill site, under SWM Rules 2016 though the total quantum of waste received is more than five metric tons and, therefore, the entire dumping of solid waste is wholly unauthorised and illegal in utter violation of Rule 15 of SWM Rules 2016. No annual report in Form IV, as required under rule 15 (za), has been submitted.
77. There is nothing to show that standards of processing and treatment of solid waste as provided in Schedule II, was observed. Discharge of leachate (untreated) directly in River Beas shows contamination of water which is a serious violation of the part of respondent 4 since it had continued for months together.
78. Violation of non-compliance of SWM Rules 2016 is also writ large on the part of other authorities in as much as Deputy Commissioners, Kullu i.e., respondent 3 has failed to facilitate identification and allocation of suitable land for setting up solid waste processing and disposal facilities to local authorities in his District within one year from the date of notification of SWM Rules 2016 i.e., 08.04.2016. It has also failed to review the performance of local bodies at least once in a quarter on waste segregation, processing, treatment and disposal of solid waste and also in taking corrective measures in consultation with other authorities. Deputy Commissioner, Kullu has clearly violated the requirement of Rule 12 of SWM Rules 2016.
65
79. Secretary Incharge, Urban Development i.e., respondent 5 has also failed to ensure implementation of SWM Rules 2016 by local authorities and, therefore, has violated the mandate of Rule 11 of SWM Rules 2016.
80. In view of the above discussion, the only conclusion obvious and evident is that respondents 3, 4 and 5 have utterly and miserably failed to discharge their statutory functions of compliance of the provisions of SWM Rules 2016 and in fact have functioned in utter violation, therefore, issues I and II are answered accordingly and against respondents 3, 4 and 5. ISSUE III:
81. Now coming to issue III, we find that responsibility of making efforts for identification and allocation of suitable land as per Rule 11(f) of SWM Rules 2016 for setting up solid waste processing and disposal facilities lie upon District Magistrate or District Collector or Deputy Commissioner as the case may be of the concerned district.
82. Rule 12 deal with the duties of District Magistrate or District Collector or Deputy Commissioner and reads as under:
"12. Duties of District Magistrate or District Collector or Deputy Commissioner. - The District Magistrate or District Collector or as the case may be, the Deputy Commissioner shall, -
(a) facilitate identification and allocation of suitable land as per clause (f) of rules 11 for setting up solid waste processing and disposal facilities to local authorities in his district in close coordination with the Secretary-in-charge of State Urban Development Department within one year from the date of notification of these rules;
(b) review the performance of local bodies, at least once in a quarter on waste segregation, processing, treatment and disposal and take corrective measures in consultation with the Commissioner or Director of Municipal 66 Administration or Director of local bodies and secretary-in-
charge of the State Urban Development."
83. Admittedly, no such land has been made available and allocated to respondent 4 and other local bodies by respondent 3 and it has not performed its statutory functions as contemplated under Rule 12 of SWM Rules 2016. We, therefore, answer issue III against respondent 3 and hold that it has also committed breach and violation of requirement of Rule 12 of SWM Rules 2016.
ISSUE IV:
84. This issue can be answered very briefly. Section 15 of EP Act 1986 clearly provides that whoever fails to comply with or contravenes any of the provisions of EP Act 1986, or the Rules made or orders or directions issued thereunder, shall in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to Rs. One Lakh or with both. In case of failure or contravention continues, further severe punishment is provided. Section 15 reads as under:
"15. Penalty for contravention of the provisions of the Act and the rules, orders and directions. --
(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.
(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years."67
85. We have already held while returning issues I, II and III that respondents 3, 4 and 5 have violated the provisions of SWM Rules 2016 which have been framed in exercise of the powers under Section 3, 6 and 25 of EP Act 1986. Therefore, the provisions of SWM Rules 2016 framed under EP Act 1986 are violated and offence is committed and the violators are liable for appropriate action for committing an offence under Section 15 of EP Act 1986.
86. Procedure for taking cognizance under EP Act 1986 is prescribed in Section 19 which reads as under:
"19. Cognizance of offences.
-No court shall take cognizance of any offence under this Act except on a complaint made by
(a) the Central Government or any authority or officer authorised in this behalf by that Government; or
(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid."
87. Section 16 deals with the cases where the offence is committed by companies and Section 17 deals where the offence is committed by Government Departments. Pari-materia provisions are contained in Water Act 1974 and Air Act 1981.
88. In Noorulla Khan vs. Karnataka State Pollution Control Board & Anr., (2021) SCC OnLine SC 601, Supreme Court while referring to Karnataka State Pollution Control Board vs. B. Heera Naik and Others, (2020) 16 SCC 298 said, in the context of Section 48 of Water Act 1974 that Commissioner of Municipal Corporation or Chief Officers of 68 Municipal Councils may not strictly be called "heads of the departments"
but such officials would still come under the provisions of Section 47 of Water Act 1974. The law laid down in Karnataka State Pollution Control Board vs. B. Heera Naik (supra) was summarized in para 11 of judgment in Noorulla Khan (supra), as under:
"11. What emerges from these decisions of this Court is:
i. If the violation of the provisions of the Water Act was at the hands of a Department, subject to the satisfaction of the requirements under Section 48 of the Water Act, "the Head of the Department" would be deemed to be guilty. This would of course be subject to the defences which are available to him to establish whether the offence in question was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
ii. By virtue of the decision of this Court in V.C. Chinnappa Goudar (Supra), because of deeming fiction under Section 48 of the Water Act, the protection under Section 197 of the Code would not be available and the matter ought to be considered de hors such protection.
iii. If the concerned public servant happens to be a Chief Officer or Commissioner of a Municipal Council or Town Panchayat, he cannot strictly be called "the Head of the Department of the Government". Therefore, in terms of decision of this Court in B. Heera Naik (Supra), the matter would not come under Section 48 of the Water Act. But the matter would come directly under Section 47 of the Water Act. According to said decision, even in such cases, the deeming fiction available under Section 47 of the Water Act would dis-entitle the public servant from the protection under Section 197 of the Code.
iv. If the offenders are other than public servants or where the principal offenders are corporate entities in private sectors, the question of protection under Section 197 would not arise."
89. We may also observe that cognizance can be taken by Magistrate, of offence, without insisting for sanction under Section 197 Cr.P.C. since 69 Supreme Court in V.C. Chinnappa Goudar vs. Karnataka State Pollution Control Board & Anr., (2015) 14 SCC 535 and Noorulla Khan (supra) has held that Section 197 is not attracted for offences when prosecution is initiated under Water Act 1974 against the public servants with reference to Sections 47 and 48 of Water Act 1974.
90. The officer incharge (or with whatever designation is called) of Municipal Council, Manali, therefore, has to be dealt with in accordance with Sections 15 and 16 read with Section 19 of EP Act 1986 while District Magistrate and Secretary, Urban Development who are Government Officers have to be dealt with under Sections 15, 17 read with 19 of EP Act 1986.
91. We, therefore, hold that respondents 3, 4 and 5 are liable to be proceeded against by initiating criminal proceedings for committing offence under Section 15 of EP Act 1986 and appropriate action may be taken either by Central Government of India or any authority authorized by it or by Member Secretary, HPSPCB if there is no authorisation by Government of India under Section 19(a) who shall proceed after giving two months' notice as contemplated in Section 19(b) of EP Act 1986.
92. We answer issue IV accordingly in affirmation and against respondents 3, 4 and 5.
ISSUES V AND VI:
93. It is established now that there is violation of environmental laws and norms in respect of handling, management and processing of solid waste in the area of Municipal Council, Manali. When municipal solid waste is allowed to be handled and managed in unscientific and illegal 70 manner, it causes bad odour, generation of leachate which contaminates water whether ground water by seepage or surface water by over flowing therein and in this matter, it is surface water of River Beas and also creates all kinds of health hazards to local residents. Thus, damage to environment is evident.
94. When environment is damaged on account of act of anyone, on account of illegal activities which are in violation of environmental laws and norms, such violator is liable to share the cost which may be incurred for remediation and rejuvenation of damaged environment. Supreme Court on this aspect has categorically has said that the violator is liable to share cost which may be required for remediation of environment which is damaged on account of illegal activity of such violator. For this purpose, Supreme Court has recognized the principle of 'Polluter Pays'.
95. This Principle was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996) 3 SCC 212. Certain industries producing assets were dumping their waste. Even untreated waste water was allowed to flow freely polluting atmosphere and sub-terrain supply of water which ultimately caused darkening and dirtiness of wells and the streams water rendering it unfit for human consumption. Certain environmentalists' organizations broadly alleging severe damage to villager's health, filed a Writ petition as PIL in 1989 before Supreme Court. By that time, some of the units were already closed. Referring to Article 48-A in Directive Principles of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavour to protect and improve environment and to safeguard the forest and wildlife of the country. One 71 of the fundamental duties of citizens is to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creature. Where a Proponent has established its commercial unit and operate contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it fails, a judicial forum can direct it to act in accordance with law.
96. Referring to Oleum Gas leak case, i.e., M.C. Mehta vs. Union of India, (1987) 1 SCC 395, Court observed in para 58 that the constitution bench held that enterprise must be held strictly liable for causing such harm as a part of social cost of carrying on the hazardous or inherently dangerous activity. Hazardous or inherently harmful activities for private profits can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of carrying on of such hazardous or inherently dangerous activity, regardless of whether it is carried on carefully or not.
97. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India, (1995) 3 SCC 77, wherein concerned Pollution Control Board identified about 22 industries responsible for causing pollution by discharge of their effluent and a direction was issued by Court observing that they were responsible to compensate the farmers. It was the duty of State Government to ensure that this amount was recovered from the industries and paid to the farmers. In para 67 of the judgment, Court said that the question of liability of respondent units to defray the costs of remedial measures can also be looked into from another angle which has now come to be 72 accepted universally as a sound principle, for example, 'Polluter Pays' principle. On this aspect, Court further observed as under:
"67. ...The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The 'Polluter Pays' principle was promoted by the Organization for Economic Co- operation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialized society. Since then, there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.
Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme ([1987] OJC 328/1) makes it clear that the cost of preventing and eliminating nuisances must in principle be borne by the polluter', and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventative action; the need for environmental damage to be rectified at source; and that the polluter should pay."
98. Court further said that according to the above principle of 'Polluter Pays', responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 of Environment (Protection) Act, 1986 empower Central Government to give directions and take measures for giving effect to this principle. Court further said: 73
"...In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment [Protection] Act, 1986. It is, of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."
99. The above principle has been followed in Vellore Citizen Welfare Forum vs. Union of India, 1996 (5) SCC 647. In para 25, direction no. 2 reads as under:
2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays"
principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.
100. In Bittu Sehgal and Another vs Union of India & Others, (2001) 9 SCC 181, referring the earlier judgments, Supreme Court has said that 'Precautionary Principle' and 'Polluter Pays Principle' have been accepted as part of the law of the land.
101. In Research Foundation for Science vs. Union of India & Ors., (2005) 13 SCC 186, in para 26 and 29, Court, on 'Polluter Pays' Principle, has said as under:
"26. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter-pays principle. These principles are part of the 74 environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.
29. The polluter-pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case."
102. In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Others, (2006) 6 SCC 371, principle of 'Polluter Pays' has been explained in detail referring to the earlier judgments in Indian Council for Enviro-Legal Action vs. Union of India (supra) and Vellore Citizen Welfare Forum (supra).
103. Even this Tribunal under Section 20 of NGT Act 2010 has been empowered to decide matters by applying the principle of 'sustainable development', 'precautionary principle' and principle of 'Polluter Pays'.
104. Learned Counsel appearing for respondent 4 stated that respondents 4 has already paid environmental compensation of Rs. 5 lakhs and Rs. 15,30,000/-, respectively, imposed by HPSPCB. From the report dated 02.04.2024 filed by HPSPCB, we find that for improper management of solid waste by respondent 4, environmental compensation of Rs. 5 lakhs was imposed by HPSPCB vide order dated 17.06.2021 and another order of environmental compensation was passed on 10.05.2023 imposing Rs.15,30,000/- upon respondent 4. It is the admitted case of 75 respondent 4 that he has deposited the said amount. However, it is not shown to us as to what period of violations has been covered by the orders dated 17.06.2021 and 10.05.2023 passed by HPSPCB. However, we may safely proceed on the basis that the period prior to 10.05.2023 has been covered for imposition of environmental compensation.
105. Further it has been brought to our notice that for the period of 28.10.2022 to 11.09.2023. A notice dated 24.01.2024 has been issued proposing imposition of environmental compensation of Rs.31,80,000/-.
106. The fact is that violations in regard to management, handling and processing of municipal solid waste are still continuing on the part of respondent 4 even till this date. Therefore, for the period from 12.11.2023 till the date when the judgment was reserved by Tribunal i.e., 05.04.2024, we can safely held respondent 4 liable to pay environmental compensation.
107. No categorical information has been given about the generation of municipal solid waste everyday in the area of Municipal Council, Manali but the facts and figures of year 2023 have been given stating that from January to December 2023, total municipal solid waste generated was 16363 MT.
108. Taking it as a basis for calculation for subsequent period, we find that the daily generation of municipal solid waste in the area of Municipal Council, Manali comes to 44.83 MT per day (16363 MT ÷ 365 days) which is being dumped at MSWM Site at Rangree. Total quantity of municipal solid waste for the period between 12.11.2023 to 05.04.2024 would be 6545.18 MT (44.83 MT per day × 146 days).
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109. Besides daily generation, we may also take into account the legacy waste continued to remain dumped at the site which is more than 25000 MT for the entire period. However, for the purpose of computation of environmental compensation, we may restrict ourselves to 25000 MT. Total municipal solid waste which has been dealt with by respondents 1, 3, 4 and 5 in the area of Municipal Council, Manali thus, is 31545.18 MT (25000 MT + 6545.18 MT).
110. Now the question is on what basis, environmental compensation must be computed and what methodology should be adopted. Methodology for computation of environmental compensation:
111. The question of assessment of environmental compensation includes the principles/factors/aspects, necessary to be considered for computing/assessing/determining environmental compensation. Besides judicial precedents, we find little assistance from Statute. Section 15 of NGT Act 2010 talks of relief of compensation and restitution. It confers wide powers on this Tribunal to grant relief by awarding compensation for the loss suffered by individual(s) and/or for damage caused to environment. Section 15 reads as under:
"15. Relief, compensation and restitution-(1) The Tribunal may, by an order, provide-
a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
b) for restitution of property damaged;
c) for restitution of the environment for such area or areas, as
the Tribunal may think fit.
(2) The relief and Compensation and restitution of property and 77 environment referred to in clauses (a), (6) and (c) of sub-section of (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:
Provided that the Tribunal may, if it is satisfied that the' applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may, be, compensation or relief received from, any other Court or authority.
112. Sub-section 1 of Section 15 enables Tribunal to make an order providing relief and compensation to (i) the victims of pollution, (ii) other environmental damage arising under the enactments specified in the Schedule I.
113. Tribunal is also conferred power to pass an order providing relief for restitution of property damaged. Section 15(1)(c) enables Tribunal to pass an order providing relief for restitution of the environment for such area or areas, as Tribunal may think fit. Section 15 sub-section 4 says that Tribunal may divide compensation or relief payable under separate heads specified in Schedules II, having regard to the damage to public health, property and environment so as to provide compensation or relief, (i) to the claimants and (ii) for restitution of the damaged property or environment, 78 as it may think fit.
114. Schedule II of NGT Act 2010 gives a list of heads under which compensation or relief for damage may be granted. It has 14 heads in total out of which items (a) to (f), (l), (m) and (n) relate to loss, damage etc. sustained to the person or individual or their property. Items (i) to (k) relate to harm, damage, destruction etc. of environment or environmental system including soil, air, water, land, and eco-system. Items (i) to (k) of Schedule II of NGT Act 2010 are as under:
"(i) Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauna;
(j) Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards;
(k) Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-systems;"
115. Items (g) and (h) relate to expense and cost incurred by State in providing relief to affected person; and loss caused in connection with activity causing damage.
116. The damage to environment covers a very wide variety of nature as is evident from definition of environment under Section 2(c) which is inclusive and says; 'environment includes water, air, and land and the interrelationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property'.
117. Even Rules framed under NGT Act 2010 are silent on this aspect. Issue of determination of EC is significant in the sense that it should be 79 proportionate to or bears a reasonable nexus with the environmental damage and its remediation/restoration. Similarly in case of compensation to be determined for a victim, it needs to co-relate to injury caused or damage suffered by such person as also cost incurred for treatment/remediation. Computation of environmental compensation may involve some degree of subjectivity but broadly it must be based on objective considerations as it saddles financial liability upon the violator.
118. Taking into consideration multifarious situations relating to violation of environmental laws vis-a-vis different proponents, nature of cases involving violation of environmental laws can be categorized as under:
(i) Where Project/Activities are carried out without obtaining requisite statutory permissions/consents/clearances/NOC etc., affecting environment and ecology. For example, EC under EIA 2006; Consent under Water Act, 1974 and Air Act, 1981; Authorisation under Solid Waste Management Rules, 2016 and other Rules; NOC for extraction and use of ground water, wherever applicable, and similar requirements under other statutes.
(ii) Where proponents have violated conditions imposed under statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology.
(iii) Where Proponents have carried out their activities causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc. 80
119. The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/organizations/associations and group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution.
120. Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc.
121. The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partial restoration/remediation/rejuvenation.
122. Determination/computation/assessment of environmental restoration/remediation/rejuvenation should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of "being punitive". The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.
123. To impose appropriate 'environmental compensation' for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of 'Harmness cost'. This includes risk assessment. The concept of risk assessment will include human- health risk assessment and ecological risk assessment. U.S. Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of human- 81 health risk assessment, it comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the pollutant are examined and the third step involves integration of effects and exposure assessment to determine risk.
124. Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. Here also we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and further comprised of two components, i.e., risk assessment and risk description.
125. In totality, problem is multi-fold and multi-angular. Solution is not straight but involves various shades and nuances and vary from case to case. Even Internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied. As the term suggest, compensation means a return for loss or damage sustained. Therefore, it must always be just and not based on a whim or capricious.
126. In India, where commercial activities were carried out without obtaining statutory permissions/consents/clearance/NOC, Courts have determined, in some matters, compensation by fixing certain percentage of cost of project. In some cases, volume of business transactions, 82 turnover, magnitude of establishment of proponent have also been considered as guiding factors to determine environmental compensation. In some cases, a lump sum amount has been imposed.
127. In an article, 'the cost of pollution-Environmental Economics' by Linas Cekanavicius, 2011, it has been suggested, where commercial activities have been carried out without consent etc., and pollution standards have been violated, Total Pollution Cost (hereinafter referred to as 'TPC') can be applied. It combines the cost of abatement of environmental pollution and cost of pollution induced environmental damage. The formula comes to TPC(z)=AC(z)+ED(z), where z denotes the pollution level. Further, clean- up cost/remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation.
128. When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user's respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally, and this principle must also be given due consideration and be taken care.
129. Determination/assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be based on a principle which is 83 simple and can be applied easily. In other words, it can be said that wherever Court finds it appropriate, expert's assessment can be sought but sometimes experts also go by their own convictions and belief and fail to take into account judicial precedents which have advanced cause of environment by applying the principles of 'sustainable development', 'precautionary approach' and 'polluter pays', etc. In such circumstances, it is the ultimate responsibility of Court's to assess and compute environmental compensation, rationally.
130. Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this Country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.
131. This Tribunal vide order dated 31.08.2018 passed in OA 593/2017, Paryavaran Suraksha Samiti and another vs. Union of India and others observed that "CPCB may also assess and recover compensation for damage to the environment and said fund may be kept in a separate account and utilized in terms of an action plan for protection of the environment".
132. Pursuant thereto, CPCB published a Report on 15.07.2019 suggesting methodology for assessment of environmental compensation 84 which may be levied or imposed upon industrial establishments who are guilty of violation of environmental laws and have caused damage/degradation/loss to environment. The above Guidelines do not encompass individuals, statutory institutions and Government etc. and since in the present case, we are concerned with the Statutory body like Municipal Council, Manali which is constituted under HPM Act 1994, therefore, we are not going into the details of the said Guidelines as the same have no application to the present case.
133. In some cases, compensation has been awarded by Tribunal on lump sum basis without referring to any methodology. For example: (i) in Ajay Kumar Negi vs Union of India, OA No. 183/2013, Rs.5 Crores was imposed. (ii) In Naim Shariff vs M/s Das Offshore Application no. 15(THC) of 2016, Rs.25 Crores was imposed (iii) Hazira Macchimar Samiti vs. Union of India, Rs. 25 Crores was imposed.
134. In Goa Foundation vs. Union of India & Others (2014) 6 SCC 590, Supreme Court relied on Samaj Parivartana Samudaya & Others vs. State of Karnataka & Others (2013) 8 SCC 209 and held that ten per cent of the sale price of iron ore during e-auction should be taken as compensation. To arrive at the above view, Court observed that this was an appropriate compensation given that mining could not completely stopped due to its contribution towards employment and revenue generation for the State. Further, Court directed to create a special purpose vehicle, i.e., "Goan Iron Ore Permanent Fund" for depositing above directed compensation and utilization of above fund for remediation of damage to environment.
135. In Goel Ganga Developers vs Union of India and Others, (2018) 85 18 SCC 257, Tribunal imposed Rs.195 Crores compensation since construction project was executed without EC. Supreme Court made it Rs.100 Crores or 10% of project cost whichever is higher. Supreme Court also upheld Rs. 5 Crores imposed by Tribunal vide order dated 27.09.2016. Thus, total amount exceeded even 10% of project cost.
136. In Mantri Techzone Private Limited vs. Forward Foundation & Others, (2019) 18 SCC 494, Supreme Court affirmed imposition of environmental compensation by Tribunal, considering cost of the project, where there was violation regarding EC/consent and proponent proceeded with construction activities violating provisions relating to EC/Consent. Tribunal determined environmental compensation at 5% and 3% of project cost of two builders. 5% of project cost was imposed where PP had raised illegal constructions while 3% was imposed where actual construction activity was not undertaken by PP and only preparatory steps were taken including excavation and deposition of huge earth by creating a hillock. Besides, Tribunal also directed for demolition and removal of debris from natural drain at the cost of PP.
137. On the issue of assessment of compensation for damage to environment in the matter of illegal mining, recently Supreme Court in Bajri Lease LOI holders Welfare Society vs. State of Rajasthan and others, SLP (Civil) No. 10584 of 2019 (order dated 11.11.2021) has said that compensation/penalty to be paid by those indulging in illegal sand mining cannot be restricted to be value of illegally mined minerals. The cost of restoration of environment as well as the cost of ecological services should be part of compensation. 'Polluter Pays' principle as interpreted by this Court means that absolute liability for harm to the environment 86 extends not only to compensate victims of pollution but also cost of restoring environmental degradation. Remediation of damaged environment is part of the process of "sustainable development" and as such the polluter is liable to pay the cost the individual sufferers as well as the cost of reversing the damaged ecology.
138. Recently, in respect of pollution of River Yamuna due to violations caused by Nagar Nigam, Agra and Nagar Nigam, Mathura-Vrindavan in OA 840/2022, Sanjay Kulshresthra vs. Government of Uttar Pradesh & Ors. and OA 773/2022, Rajesh Pareek vs. Government of Uttar Pradesh & Ors. passed on 24.04.2024, this Tribunal has computed environmental compensation by applying the rate of compensation at Rs. 0.01 per MLD since that was a case of discharge of untreated sewage in River Yamuna.
139. In the present case, respondent 4 is a statutory local body and, therefore, even if we take a very considerate view, the rate of computation of environmental compensation cannot be less than Rs. 0.01 i.e., One Paisa per KG per day of illegally dumped solid waste which has not been properly handled, managed and disposed by Municipal Council, Manali.
140. Accordingly, we compute environmental compensation at the above rate for 146 days on 31545.18 MT (31545180 KG) of solid waste as under:
Environmental compensation:
31545180 KG × 146 days × Rs. 0.01 = Rs. 4,60,55,962/- (round-off)
141. We accordingly, hold that respondent 4 is liable to pay environmental compensation by application of principle of 'Polluter Pays' for the period from 12.11.2023 to 05.04.2024 i.e., 146 days environmental 87 compensation of Rs. 4,60,55,962/-. The said amount shall be paid within three months and deposited with HPSPCB.
142. The said amount of environmental compensation as also the amount already paid by respondent 4 or likely to paid pursuant to notice dated 24.01.2024 shall be utilized by HPSPCB for the purpose of remediation, rejuvenation and restoration of damaged environment. For the aforesaid purpose, we constitute a Joint Committee comprising District Magistrate, Kullu, Member Secretary, CPCB and Member Secretary, HPSPCB. The said committee shall prepare an environmental rejuvenation plan within two months and execute the same within next six months.
143. District Magistrate, Kullu shall be the nodal agency for compliance and co-ordination.
144. We also direct that in case violation of the part of respondent 4 in handling, management and processing of municipal solid waste continues, HPSPCB shall on monthly basis determine environmental compensation in the light of the discussion made above and recover the same from respondent 4 till there is complete compliance with SWM Rules 2016 on the part of respondent 4.
145. Issues V and VI are answered accordingly.
146. In the result and in view of above discussion, this M.A. is disposed of with the following directions:
(i) Respondent 4 is liable to pay environmental compensation of Rs. 4,60,55,962/- and shall deposit the same HPSPCB within three months from today.88
(ii) In view of the findings recorded in respect of issues I, II and III, action for criminal prosecution under Sections 15, 16, 17 and 19 of EP Act 1986 as the case may be, shall be taken against respondents 3, 4 and 5 by Government of India or any authority authorised by it or HPSPCB as directed above, within two months and Compliance Report shall be submitted in the next one month with Registrar General of this Tribunal.
(iii) The amount of environmental compensation pursuant to this order, already deposited, and may be deposited in future, shall be utilized by HPSPCB for the purpose of remediation, rejuvenation and restoration of damaged environment on the basis of a Rejuvenation Plan which shall be prepared jointly by a Joint Committee comprising of District Magistrate, Kullu, Member Secretary, CPCB and Member Secretary, HPSPCB within two months and executed within next six months.
(iv) Compliance/Progress Report shall be submitted by Joint Committee constituted above firstly by 15.09.2024 and thereafter, by 15.02.2025 before Registrar General of this Tribunal and if finds necessary, he may place the matter before the Bench for further orders.
(v) Environmental compensation on monthly basis be determined by HPSPCB in case of violation on the part of respondent 4 in handling, management and processing of municipal solid waste continues and Compliance Reports shall be filed in the next one month before Registrar General of this Tribunal. 89
147. Copy of this judgment shall also be forwarded to Chief Secretary, State of Himachal Pradesh, Principal Secretary, Urban Development, District Magistrate, Kullu, Member Secretary, CPCB and Member Secretary, HPSPCB by e-mail for information, necessary action and compliance.
PRAKASH SHRIVASTAVA, CHAIRPERSON SUDHIR AGARWAL, JUDICIAL MEMBER DR. A. SENTHIL VEL, EXPERT MEMBER May 29, 2024 M.A. No. 79/2023 In Original Application No. 758/2022 R 90