National Green Tribunal
Suo Motu vs The State Of Kerala, Rep. By Chief ... on 28 September, 2021
Bench: K Ramakrishnan, K. Satyagopal
Item No.14:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 43 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Suo Motu the Tribunal on its own motion on the
Implementation of the Bio-Medical Waste Management
Rules, 2016 in Kerala.
... Applicant(s)
With
The State of Kerala,
Represented by Chief Secretary,
Secretariat,
Thiruvananthapuram, Kerala and Ors.
...Respondent(s)
Date of hearing: 28.09.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. K. SATYAGOPAL, EXPERT MEMBER
For Applicant(s): Suo Motu by Court.
For Respondent(s): Mr. E.K. Kumaresan for R1 to R4.
Smt. V.K. Rema Smrithi for R5.
Mr. Gopakumaran Nair Senior Adv. along with
Mr. Ashwin for R6
Mr. Babu Joseph Kuruvathazha for R7.
Ms. K. Mokshavathy for Ms. Vidhyalakshmi Vipin
for R9
Mr. R. Thirunavukarasu for R10.
1
ORDER
1. As per order dated 24.06.2021, this Tribunal considered the earlier order passed by this Tribunal and also considered the report submitted by the Kerala Pollution Control Board dated 19.02.2021 which was extracted in para 2 of the order and then passed the following order:
6. It is seen from the report that there are certain improvements made in the Government Hospital and steps have been taken by the Board for initiating criminal prosecution as well.
7. It is also mentioned in the report that necessary Consent to Operate and authorizations were granted to the biomedical waste treatment facility that is being established by the 7th respondent at Ambalamedu and they have started collecting the biomedical waste in certain Government Hospitals in Ernakulam District including non COVID biomedical waste from the Government Medical College, Kalamassery. It is also mentioned that immediately after the lockdown, another inspection will be conducted and further action taken report will be filed.
8. The learned counsel appearing for the 7th respondent submitted that in spite of directions given by this Tribunal, the Government has not demarcated the area from where the biomedical waste will have to be collected and the same has to be treated by the 7th respondent unit. The purpose of establishing more common biomedical waste facility is to decentralize the disposal of the same either on regional basis or area basis depending upon the quantity of biomedical waste generated and the capacity of the facility to cater the same.
9. The learned counsel appearing for the Kerala State Pollution Control Board submitted that now the 7th respondent unit has been permitted to collect the biomedical waste and non COVID biomedical waste from the district hospital and also from the Government Medical College Hospital, Kalamassery. 10. The learned counsel appearing for the 7th respondent submitted that they have been permitted to collect the biomedical waste generated from the Government Hospitals in Mallapuram, Ernakulam and Pathanamthitta districts alone, whereas, their capacity is much more than the permitted quantity that is being to be collected and treated by them.
11. The State Government must examine as to whether more area and hospital can be connected with those facilities permitted by the Government depending upon the capacity of the facilities, for which, permission was granted to establish, so that the entire biomedical waste generated in those areas can be scientifically disposed of.
12. The State Government is directed to file a detailed report regarding the policy by which the demarcation is being made and whether the current allocation criteria and caters to the entire biomedical waste generated in that area.
13. When this was pointed out, the learned counsel appearing for the State 2 Government submitted that they will come with a detailed report regarding this aspect.
14. The Kerala State Pollution Control Board is also directed to file a further detailed action taken report and also the status report regarding the implementation of the Solid Waste Management Rules, 2016 and Bio Medical Waste Management Rules, 2016 in the Government Medical College, Kalamassery.
15. The 7th respondent is also directed to file a detailed report regarding the nature of permission granted by the Government for collecting the biomedical waste for the unit and the quantity of biomedical waste that is being collected and disposed of by them, so that, this Tribunal can assess the gap of permitted capacity and the quantity which is available for disposal.
16. They are directed to submit their respective reports to this Tribunal on or before 17.08.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules.
17. The Registry is directed to communicate order to the official respondents, Kerala State Pollution Control Board and also to the Chief Secretary, State of Kerala, Principal Secretaries for Environment and Health by email immediately for their information and submission of report.
The case was originally posted to 17.08.2021 for consideration of further report. Thereafter, the matter was adjourned by successive notification and lastly it was adjourned to today as per notification dated 28.09.2021.
2. Pollution Control Board has filed a report dated 16.08.2021, e-filed on 18.08.2021 and received on 19.08.2021 which reads as follows:
REPORT FILED BY THE ENVIRONMENTAL ENGINEER
ON BEHALF OF THE 5" RESPONDENT
1. I, Mini Mary Sam, aged 54 years, W/o. Sri. Ranjan Jacob Environmental Engineer, Kerala State Pollution Control Board, Regional Office, Ernakulam do hereby submit that I am authorized to represent the 5'h respondent and that I am conversant with the facts of the said case as available from the official records and I state as follows:
2. The Board Officers inspected Kalamassery Medical College on 02.07.202 l and it was reported that the augmentation work of S7P had been completed. In the meeting held on 29.06.2021 by the Additional Chief Secretary, Environment Department it was decided to explore the possibility of helping the Hospital authorities in identifying any nearby STP for treating the effluent till the augmentation of STP is completed and initiated for operation. Accordingly the Board's District Officer conducted a discussion on 14.07.2021 with GCDA to explore the feasibility of utilizing the STP of 3 utilizing the STP of Jewahar Lal Nehru stadium for the treatment of sewage from the Medical College. The minutes of the meeting is attached as Annexure-l. The Joint Secretary, Health Department also conducted discussion with the hospital authorities and GCDA to evolve the terms and conditions to be agreed upon by the hospital and GCDA. The Board has assured the support in monitoring the trial run operation of STP to check the adequacy and confirming the compliance to discharge standards.
3. Regarding common biomedical waste treatment facility at Emakulam, KEIL started the trial run from 24.05.2021 with non COVID BMW from Govt. health care facilities of the three districts allotted to them by the Health Department. Now it is reported by KEIL that the collection of non COVID waste from these hospitals in three districts is stabilized and the average daily quantity is only 2.1 T/day as against the plant capacity of 16 T/day. Average daily quantity of COVID BMW from Kalamassery MC is 0.37 tonne (370 kg) and non COVID BMW is 0.073tonne (73 kg).
4. In the meeting convened by Additional Chief Secretary, Environment Department on 29.06.2021 the matter of effective distribution of BMW among the two facilities, IMAGE, Palakkad & KEIL at Ernakulam, was discussed. The current situation of one facility struggling to operate with optimum capacity while the other operating with full capacity and still accumulating waste of around 8T/day was noted. The Pollution Control Board Chairman was asked to convene a meeting with KEIL & IMAGE authorities to solve this issue and work out a solution. The Chairman KSPCB held a meeting on 19.07.2021 with KEIL and IMAGE authorities. The minutes of the meeting is attached as Annexure 2. KEIL requested for permission to collect BMW from Govt. and private hospitals from the area within 75 km from the facility which covers 5 districts as the facility was proposed accordingly.
5. CPCB granted registration to KEIL in "COVID 19 BWM" app for the collection of COVID waste. The Board also issued instructions to DMOs and the Superintendents, Medical Colleges in the three districts to give COVID BMW also to KEIL vide letter dated 22.07.2021 with intimation to IMAGE and Board's Regional/District offices concerned. It is reported by KEIL that even if they start collecting COVID waste also from the Govt. hospitals in the three districts it would not be sufficientto run the plant viably. KEIL pointed out that as service charge for Govt. health care facilities is at subsidised rate, the transportation cost could be utilized effectively only if the waste from both the Govt. hospital and private hospitals in the same area are allotted. In the meeting the Chairman asked IMAGE to submit alternate proposal, if any, in this regard allowing KEIL to collect waste from both Govt. and private health care institutions within 75 km. As per the CPCB guideline forCBWTF a minimum of 10,000 beds are to be made available and CBWTF shall be allowed to cater waste from health care units situated at a radial distance of 75 km. It is evident from the data updated in the COVID l9BWM app that they are getting about 4.5 t/day max (as on 09.08.2021) including both COVID and non COVID BMW. In consultation with ACS, Environment Department, an order bearing no. PCB/HO/EE2/BMW-03/GENERAL dtd 13.08.2021 in this regard is issued. Copy of the order is attached a3 Annexure 3 4 All that is stated above is true to the best of my knowledge, information and belief.
Dated this the 16th August 2021 They have also annexed minutes of the meeting held in this regard.
3. 6th respondent has filed an affidavit dated 21.09.2021 challenging the action of the Pollution Control Board in bifurcating the transportation and disposal of bio-medical waste generated and allotting certain area to M/s Kerala Enviro Infrastructure Ltd. which was established recently for this purpose.
4. The State Government also filed a report dated 27.09.2021, e-filed on the same date and received today which reads as follows:
REPORT SUBMITTED ON THE ALLOTMENT OF COVID AND NON COVID BIOMEDICAL WASTE BY THE PRINCIPAL SECRETARY, HEALTH & FAMILY WELFARE (M) DEPARTMENT It is submitted that in Kerala the Common Biomedical Treatment and Disposal Facility Image owned and operated by IMA, situated at Palakkad has been engaged for treatment and disposal of Biomedical waste including Covid- 19 waste generated from all Healthcare institutions in accordance with the stipulations and Guidelines of Bio-Waste Management Rules 2016. KEIL yet another Common Biomedical Treatment and Disposal Facility has become operational on the directive of the Supreme Court Monitoring committee on hazardous waste for treatment and disposal of hazardous waste generated from Healthcare institutions with KSIDC as the nodal agency. As Image was carrying out the Common Biomedical Treatment and Disposal Facility all over the state it was decided to bifurcate some areas to the agency in order to lessen the burden on Image and also as a learning curve to the new agency.
Action Taken By Government It is submitted that in a meeting by the Joint Secratary, Health it was decided to allot the Biomedical waste generated from government healthcare in three districts of Ernakulam, Malappuram and Pathanamthitta to KEIL and accordingly communication has been issued to all concerned parties in three districts to handover BMW to KEIL at rates previously fixed for Image for the time being. The policy by which the demarcation is being done is that these three districts was in urgent need for more facilities and hence government instructed to KEIL to collect waste from these three 5 districts which as a new company will also benefit from the experience and at the same time not put Image at a disadvantage as at present the BMW collection and transportation of vehicles of Image are operated daily on a route based method and hence a district wise transportation allocation for them will be difficult. Also the contract with Image has been prepared in terms of unit/bed wise and not in terms of collection transportation services. The current criteria caters to the entire Bio-Medical waste generated in the state and as a more scientific division of working area of Image and KEIL evolves it will cover the entire quantity of Biomedical waste generated in the state. This decision was agreed to by KEIL as well. It is submitted that the Hon'ble Tribunal in its order dated 24.06.2021 has directed the Government to examine whether more area and hospitals can be connected with the facility of KEIL and has also enquired about the policy by which the current demarcation is made and also if the current allocation criteria caters to the entire Biomedical waste generated in the area. It is submitted that in compliance with the Hon'ble Tribunal order the Additional Chief Secretary, Environment Department has convened a meeting on 29/06/2021 in which the pollution control Board has been directed to take a stand on further course of action required like allotment of district to service providers, allotment of both Govt. and private sector hospitals, fixing of rates etc. Accordingly a meeting was held by Chairman KSPCB on 19.07.2021 with both Image and KEIL in this issue and has asked Image to submit their proposal to solve the matter in a mutually beneficial way. KEIL authorities have requested the government to grant permission to collect biomedical waste from all healthcare facilities both Government and private within 75 km radial distance from their facility as their average daily collection is only 3.5 MT/day as against a plant capacity of 16 MT/day. As Image has not submitted any proposals PCB has requested to ACS Environment Dept. to permit KEIL to collect BMW from both Government and private healthcare facilities within a radial distance of 74 Km from their plant based on stipulated guidelines.
It is submitted that Considering the above aspects and as per schedule 111 6 [viii] of Rule 6 and 9 [3] of Biomedical Waste Management rules, 2016 orders have been issued by PCB on 13.08.2021 as PCB/HO/EE2/BMW- 0/GENERAL in which it is mentioned that as per the CPCB guideline a CBWTF located within the respective State/UT shall be allowed to cater healthcare units situated at a radial distance of 75 km and hence the full districts of Pathanamthitta, Alappuzha and Idukki along with Kottayam and Ernakulam has been allocated to KEIL and KEIL shall collect and process the BMW from both Government and Private healthcare institutions in the concerned districts.
The rest of the Biomedical Waste generated both from the Government and private healthcare institutions of the remaining 9 districts will be collected and processed by Image. This arrangement will come into effect from the first day of September 2021.
Therefore it is most humbly prayed that this Hon'ble Tribunal may be pleased to take the said report submitted on the allotment of COVID and Non COVID biomedical waste by the Principal Secretary, Health & Family Welfare(M) Department on Record and thus render justice. Dated at Chennai on this the 27th day of September 2021.
65. Learned Senior Counsel appearing for 6th respondent submitted that Pollution Control Board has no authority to issue such directions and the same has been challenged before the Hon'ble High Court of Kerala by filing a writ petition. If those writ petitions are filed, it for the Hon'ble High Court to consider those aspects and pass appropriate orders.
6. Mr. Babu Joseph Kuruvathazha, Learned Counsel appearing for 7th respondent submitted that the writ petition filed by 6th respondent as W.P. No. 17693/2021was dismissed by the Hon'ble High Court directing them to approach this Tribunal for appropriate consideration.
7. Learned Senior Counsel for 6th respondent submitted that they intend to file Writ Appeal before the Hon'ble High Court itself against that order as according to the Learned Senior Counsel, the order passed by the Hon'ble Single Judge is unsustainable in law. However, it is for the parties to decide as to where they want to challenge the orders according to the remedy provided to them in accordance with law.
8. We are not passing any opinion in this regard as the 6 th respondent wanted to file a Writ Appeal against the order passed by the Hon'ble Single Judge. However, we are not at present interfering with the directions, if any, issued by the Pollution Control Board regarding the allotment of the areas and if ultimately, the Hon'ble High Court of Kerala directs this Tribunal to consider the same at that time this Tribunal can 7 consider those aspects and pass appropriate order. Before that we do not want to express our opinion regarding the allegations made by the 6 th respondent in the latest affidavit filed by them as it may likely to affect their case before the Hon'ble High Court.
9. For consideration of report, post on 26.10.2021.
...................................J.M. (Justice K. Ramakrishnan) ...............................E.M. (Shri. Dr. K. Satyagopal) O.A. No.43/2017, 28th September, 2021. AM 8