National Green Tribunal
Ms J K Medical Waste Management System vs Madhya Pradesh State Environment ... on 4 December, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH AT BHOPAL (MADHYA PRADESH)
(Through Video Conferencing)
APPEAL NO.05/2023(CZ)
IN THE MATTER OF:
M/S J. K. MEDICAL WASTE MANAGEMENT SYSTEM
Through Partner Smt. Pramila Sharma,
Having Office at - 85, Vinay Nagar,
Jatkhedi, Bhopal (MP)
...Appellant(s)
Versus
1. MADHYA PRADESH STATE ENVIRONMENT
IMPACT ASSESSMENT AUTHORITY,
Through Member Secretary,
Having Office at Paryavaran Parisar,
E-5, Arera Colony, Bhopal,
Madhya Pradesh-462016
2. MADHYA PRADESH STATE EXPERT APPRAISAL
COMMITTEE,
Through Chairman,
Paryavaran Parisar,
E-5, Arera Colony, Bhopal,
Madhya Pradesh 462016
3. MADHYA PRADESH STATE POLLUTION CONTROL BOARD,
Through Member Secretary,
Having Office at
Paryavaran Parisar,
E-5, Arera Colony, Bhopal,
Madhya Pradesh-462016
4. CENTRAL POLLUTION CONTROL BOARD,
Through Zonal Director,
Paryavaran Parisar,
E-5, Arera Colony, Bhopal,
Madhya Pradesh 462016
5. DISTRICT COLLECTOR
Tikamgarh, Composite
Collectorate Building,
Tikamgarh,
Madhya Pradesh-472001
1
6. M/S INDO TECH WATSE SOLUTIONS,
Through Authorized
Representative - Smt. Vandana Parihar,
Having Office
at Khasra No. 758/6,
Village Ahar, Tehsil Baldeogarh,
District Tikamgarh
Madhya Pradesh-472111
...Respondent(s)
COUNSELS FOR APPELLANT(S):
Mr. Sanjay Upadhyay, Ms. Mansi Bachani,
Ms. Sonali Sengupta and Ms. Arush Malik, Advocates
COUNSELS FOR RESPONDENT(S):
Mr. Sachin K. Verma, Advocate for SEIAA MP
Ms. Parul Bhadoria, Advocate for MPPCB
Mr. Yadvendra Yadav, Advocate for CPCB
Mr. Sumit Babbar, Advocate for R-6
CORAM:
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
RESERVED ON: AUGUST 07, 2023
PRONOUNCED ON: DECEMBER 04, 2023
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. Assailing order dated 14.02.2023 (Annexure A-1 at page 23) issued by State Environment Impact Assessment Authority, Madhya Pradesh (hereinafter referred to as 'SEIAA MP') in favour of M/s Indo Tech Waste Solutions i.e., respondent 6 (hereinafter referred to as 'the proponent or respondent 6 or PP') granting Environmental Clearance (hereinafter referred to as 'EC'), to establish a Common Bio Medical Waste Treatment Facility (hereinafter referred to as 'CBWTF'), present Appeal has been filed by M/s J.K. Waste Management System, another CBWTF. 2
2. Respondent 6 has been permitted to establish its unit at Khasra No. 758/6, Village Ahar, Tehsil Baldeogarh, District Tikamgarh (State of Madhya Pradesh). Permitted capacity of CBWTF of respondent 6 with installation of one incinerator is 100 Kg/hr (Dry). The proposed area of operation of respondent 6 is Districts-Tikamgarh, Chhatarpur, Damoh, Niwari and Panna.
3. Bio-Medical Waste is a hazardous waste generated during diagnoses, treatment or immunisation of human beings or animals or research activities or in the production or testing of biological or in health camps at hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, health care facilities, clinical establishments etc.
4. For regulation of management of bio-medical waste generated in the country, Ministry of Environment, Forest and Climate Change (hereinafter referred to as 'MoEF&CC') framed rules in exercise of powers under Sections 6, 8 and 25 of Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act, 1986') and published the said Rules titled as "Bio- Medical Waste Management and Handling) Rules, 1998" (hereinafter referred to as 'BMWMH Rules, 1998'), published vide Notification dated 20.07.1998. These Rules were replaced by Bio-Medical Waste Management Rules, 2016 (hereinafter referred to as 'BMWM Rules 2016') issued vide Notification dated 28.03.2016 by MoEF&CC.
5. Rule 7(1) of BMWM Rules, 2016 says that bio-medical waste shall be treated and disposed of in accordance with Schedule I and in compliance with the standards provided in Schedule II by 'Health Care Facilities' (hereinafter referred to as 'HCF') and CBWTF. Rules 7(3) states that no 'Occupier' shall establish on-site treatment and disposal facility if a service 3 of CBWTF is available at a distance of 75 kilometres. HCF is defined in Rule 3(j) and Bio-Medical Waste Treatment and Disposal Facility (hereinafter referred to as 'BMWTDF') is defined in Rule 3(g).
6. Central Pollution Control Board (hereinafter referred to as 'CPCB') vide Circular dated 21.12.2016 issued Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities (hereinafter referred to as 'RG for CBWTF by CPCB 2016').
7. Requirement of prior EC for establishment of CBWTF was added in Environment Impact Assessment Notification dated 14.09.2006 (hereinafter referred to as 'EIA 2006') as amended by Notification dated 17.04.2015 published in the Gazette of India (Extraordinary) dated 30.04.2015. By the aforesaid amendment, in the Schedule of EIA 2006, Entry 7(da) was inserted. The amendment reads as under:
"In the said notification, in the Schedule, after item 7(d) and the entries relating thereto, the following item and entries shall be inserted, namely:
(1) (2) (3) (4) (5)
7(da) Bio-Medical Waste - All _
Treatment Facilities projects
8. Appellant established CBWTF namely M/s JK Medical Waste Management System in 2017 with the capacity of one incinerator of 100 Kg/hour. The unit of appellant was established at Plot No. 55/5 G, Godhan, Teshil Chanderi, District Ashoknagar (State of Madhya Pradesh).
It was allowed to operate in Districts Ashoknagar, Guna, Shivpuri, Rajgarh, Niwari and Tikamgarh. Consent under Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act, 1974') and Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act, 1981'), and Authorisation under BMWM Rules, 2016 were granted to appellant from time to time. Copy of the recent 4 Consent to Operate (hereinafter referred to as 'CTO') issued under Section 25 of Water Act 1974 and Section 21 of Air Act, 1981 on 28.12.2022, valid till 31.01.2028, is on record as annexure A/4 (page 104). Authorisation under BMWM Rules, 2016 dated 25.11.2022 valid upto 31.01.2028 is on record at page 108.
9. Respondent 6 submitted application dated 04.11.2022 to SEIAA MP in Form I and IA of EIA 2006 for grant of EC for establishing CBWTDF at Plot 758/6, Village Ahar, Tehsil Baldeogarh, District Tikamgarh. The application was filed through its partner Ms. Vandana Parihar. It is said that requisite steps under EIA 2006 including public hearing, EIA study was done prior to November 2022. Copy of the application form is placed on record as annexure A/5 (page 112) and EIA report as annexure A/6 (page 130).
10. Appellant after getting information of the application submitted by respondent 6 for grant of EC, filed objections dated 16.05.2022 (annexure A/7 at page 511), 06.09.2022 (at page 513), 08.09.2022 (at page 515), 02.11.2022 (at page 517), and 11.01.2023 (at page 519) stating that only 3758 beds are available to appellant though as per the Guidelines, appellant was entitled to have management and disposal of bio-medical waste upto 10,000 beds, and further, distance of Tikamgarh and Niwari districts is within 75 kilometres, therefore, respondent 6 cannot be granted permission. It was also said that in the gap analysis study, reference of appellant has not been given.
11. Application of respondent 6 was examined and the proposal was appraised by State Level Expert Assessment Committee (hereinafter referred to as 'SEAC') in its meeting dated 19.05.2022 and it decided to recommend standard 'Terms of Reference', (hereinafter referred to as 5 'TOR') to be issued to respondent 6 on certain conditions which are as under:
"After deliberations committee decided to recommend standard TOR prescribed by the MoFF&CC may be issued for conducting the EIA with following additional TORs and as per conditions mentioned in Annexure-D:-
a. PP shall submit DFO certificate wrt forest land and WL distance from the project site as certificate submitted during presentation is issued by Range Officer vide letter no 710 dated 18/05/22.
b. PP shall carry out comprehensive gap analysis through data authentication from Government agency and justify their proposal far establishment of another CBWT facility within 75 Kms.
c. The CBWT facility is not proposed in notified industrial area.
Thus PP shall justify their site selection & location criteria as per clause 6(b) of CPCB Guidelines for Common Bio-medical Waste Treatment & Disposal Facility with all sensitive features.
d. PP is proposing to new CBWT facility and on the allotted area, some old structures are seen. If these structures are to be dismantled, details of C&D waste shall be furnished in the EIA report and proposed land shall be diverted for industrial purpose and credible proof shall be annexed with the EIA report.
e. Details of all the water bodies within the study area shall be furnished in EIA report with their protection plant.
f. Water balance details.
g. Facility should be developed in accordance with the
provisions made in the Bio-Medical Waste Management Rules, 2016 published by GOI and Guidelines published by CPCB for Common Bio-medical Waste Treatment Facilities.
h. Elaborate in the EIA report considering that the proposed technology is "Best Available Technology" of CBWTF.
i. Plume Dispersion Modelling study and result discussed in the EIA report shall be conducted.
j. Justify in EIA report, how unit will remain zero discharge.
k. Disposal plan of autoclaved material should be discussed in the EIA report.6
l. PP should carry out the public hearing of the site as per the procedure laid down in the EIA Notification, 2006.
m. Carbon emission foot print analysis shall be studied and discussed in EIA report.
n. Maximum storage time of Bio-medical waste within the facility and disposal plan of autoclaved material should be discussed in the EIA report.
o. Monitoring of VOC should be added in the proposed monitoring protocol of EIA study.
p. Justify in EIA report, how unit will remain zero discharge.
q. Proposal for GPS enable vehicles and their route maps shall be discussed in the EIA report.
r. Elaborate handling and disposal of hazardous waste and possible spillage avoidance in the EIA report.
s. Ash storage and sharp pit design criteria shall be discussed in the EIA report.
t. If any case is under consideration in any court of law with respect to this facility, same shall be reported/decision taken by court of law (orders/judgements) with its chronology till date in EIA report."
12. Copy of minutes of meeting dated 19.05.2022 of SEAC is on record as annexure A/8 (page 520). An additional TOR with certain terms and conditions was recommended by SEAC in its meeting dated 27.05.2022 and copy of the said recommendation is annexure A/10 (page 547). Additional TOR was also subject to certain conditions which read as under:
"राज्य स्तरीय पयाा वरण समाघात निर्ाा रण प्रानर्करण (SEIAA) द्वारा SEAC की अिु शंसा को मान्य करते हुए प्रकरण में निम्ननिखित अनतररक्त शतों के साथ ToR प्रदाि नकए जािे का निणाय निया गया:
I. परियोजना प्रस्तावक द्वािा प्रस्ताववत CBWTF के कायय क्षेत्र के पूवय में स्थित CBWTF का ववविण ईआईए में सस्िवित किते हुए इस बात का भी अध्ययन किे की पूवय थिावपत सी बी डब्ल्यू टी एफ के काययक्षेत्र में कोई प्रभाव तो नही ीं पड़ िहा है ।7
II. प्रस्तानवत यूनिट के निए जै व निनकत्सा अपनशष्ट उपिार हे तु तथा एकनित करिे के निए प्रस्तानवत नजिे के पररवहि मागा को भी दशाा एं।
III. ऐसी इकाइयों की स्थापिा के निए स्वास्थ्य नवभाग के नदशा-निदे शों को ईआईए ररपोटा में शानमि करें ।
IV. ईटीपी से उत्सनजात Sludge के निपटाि की प्रनिया के साथ ही ईआईए ररपोटा में भौनतक रासायनिक मापदं डों सनहत ईटीपी से उपिाररत अपनशष्ट जि के निष्पादि (Disposal) के निए निगरािी प्रावर्ािों का ईआईए में समावेश करें ।
V. ईआईए ररपोटा में CBWTF के संिािि अवनर् में पररयोजिा में प्रस्तानवत ई.टी.पी. के सञ्चािि के समय में उजाा िपत का आकिि क्या जाए।
VI. ईआई प्रनतवेदि में प्रस्तानवत काया स्थि का नवस्तृत िे आउट प्लाि सं िग्न करे , नजसमें प्रावर्ानित सभी काया मुख्यत: हररत क्षेि नवकास, िैंड स्केप प्लाि एवं समस्त गनतनवनर्यों के काया स्थि स्पष्ट रूप से दनशात करें ।
VII. पयाा वरण प्रबंर्ि योजिा में प्लां ट के संिानित होिे पर दु गान्ध का नियंिण एवं उपिार हे तु क्या प्रावर्ाि नकए जा रहे हैं का नवस्तृत नववरण दें ।"
"The State Level Environment Impact Assessment Authority (SEIAA) has accepted the recommendation of SEAC and decided to provide ToR in the case with the following additional conditions:
I. While including the details of the CBWTF located to the east of the CBWTF's working area proposed by the project proponent in the EIA, it should also study whether there is any impact on the previously established CBWTF's working area.
II. Indicate the transportation route in the proposed district for biomedical waste treatment and collection for the proposed unit.
III. Include the guidelines of Department of Health for setting up such units in the EIA report.
IV. The process for disposal of sludge emitted from the ETP as well as monitoring provisions for the disposal of treated waste water from the ETP including physio-chemical parameters must be included in the EIA report.
V. The energy consumption during operations in the proposed ETP in the project during operations of CBWTF in the EIA report?
VI. A detailed layout plan of the proposed site should be attached in the EI report including the proposed work, mainly green area 8 development, landscape plan and the sites of all the activities should be clearly pointed out.
VII. Provide a detailed description of provisions made for the control and treatment of odor of the operated plant in the Environment Management Plan."
(English Translation by Tribunal)
13. Public hearing was conducted on 07.09.2022. Appellant has said that several objections were raised by local public but the same were not made part of the reference in the office of respondents 1 and 2.
14. Again SEAC, in its meeting dated 07.12.2022, considered the proposal. The minutes of the meeting dated 07.12.2022 are on record as annexure A/11 (page 548) which shows that the proposal was considered for establishing first CBWTF in District Tikamgarh for covering area of 5 districts namely Niwari, Tikamgarh, Chhatarpur, Panna and Damoh. Distance of various districts from Tikamgarh is mentioned in the said minutes as under:
Sr. District Distance No. of Beds
No.
1 Tikamgarh-Tikamgarh 0 Km 600
2 Tikamgarh- Chhatarpur 59 Km 1,450
3 Tikamgarh- Damoh 71 Km 1,000
4 Tikamgarh-Panna 108 Km 1,200
5 Tikamgarh-Niwari 72.86 Km 650
Total Beds 4,900
15. SEAC also deliberated on the issue as per clause (2) of Guideline for CBWTF and observed that responsibility for allocation of area lies with State Pollution Control Board. Madhya Pradesh Pollution Control Board (hereinafter referred to as 'MPPCB') has published Report on "Review of Coverage Area for CBWTF in State of Madhya Pradesh" and it is stated 9 therein that every District of State should have CBWTF facility for timely collection and disposal of bio-medical waste.
16. Respondent 6, in the meantime, had applied for grant of Consent to Establish (hereinafter referred to as 'CTE') vide application dated 19.12.2022 and the same was granted by MPPCB vide order dated 02.01.2023 under Section 25 of Water Act, 1974 and Section 21 of Air Act, 1981. Copy of CTE dated 02.01.2023 is on record as annexure A/12 (page
554).
17. Appellant challenged CTE dated 02.01.2023 by filing an Appeal under Section 28 of Water Act, 1974 read with Section 31 of Air Act, 1981 before Appellant Authority on 30.01.2023 and the matter is pending.
18. SEAC in its meeting dated 13.01.2023 decided to recommend grant of EC subject to certain special conditions. The minutes of the meeting dated 13.01.2023 of SEAC are on record as annexure A/14 (page 644).
19. The above recommendations were considered by SEIAA MP in its meeting dated 02.02.2023 and it decided to grant EC to respondent 6. Relevant extract of minutes of the meeting dated 02.02.2023 of SEIAA MP, (annexure A/15 at page 659) reads as under:
"SEAC की उपरोक्त बैठक में की गई अिुशंसा के प्रकाश में उपरोक्त सभी नबन्दु ओं पर प्रानर्करण द्वारा नविार नवमशा नकया और निम्ननिखित तथ्ों पर ध्याि नदया गया जो नक SEAC की कायावाही नववरण में समानहत है :-
I. CBWTF Revised Guideline for CBWTF-CPCB के पैरा 2(b) में गैप एनाविवसस का दावयत्व State Pollution Control Boards (MPPCB इस प्रकिण में) का है।
॥. इस के आर्ार पर MPPCB ने "Review of coverage areas / Gap Analysis Report - 2017 में प्रत्येक वजिे में प्रािवमकता के साि CBWTF थिापना की अनुशींसा की है ।
III. CBWTF Revised Guideline for CBWTF - CPCB के पैरा 2(a) के तहत SPCB 10 एक वववहत प्राविकृत सींथिा (Prescribed Authority) है।
iv. परियोजना प्रस्तावक द्वािा सूवित वकया है वक MPPCB द्वािा वविािािीन प्रकिण में CTE वदनाींक 2 जनविी 2023 को प्राप्त कि िी है। इस कायावाही से यह आशय समझा जा सकता है नक, MPPCB नजिा टीकमगढ़ में एक CBWTF की स्थापिा करिा िाहता है और इस वविािािीन CBWTF का कविे ज एरिया एवीं बेड्स सींख्या उनके द्वािा ही वनिायरित की जायेगी।
V. मे. जे. के. वेस्ट मैिेजमेंट नसस्टम की नशकायत 10,000 बेड्स संख्या के संबंर् में प्रानर्करण िे यह पाया नक जब MPPCB िे उक्त पररयोजिा को CTE जारी की है तो इस नवषय पर उिके द्वारा नविार नकया गया होगा क्योंनक MPPCB ही BMWW Rule 2016 की इि सब मामिों के निणाय हे तु प्रानर्कृत संस्था है ।
VI. SEAC द्वािा परियोजना प्रस्तावक के सभी तथ्ोीं को सींतोषप्रद माना है वजसमें माना है वजसमें परियोजना प्रस्तावक का गेप एनाविवसस 4900 बेड है जो वक टीकमगढ़, छतिपुि, दमोह, पन्ना एवीं वनवाड़ी वजिोीं में आगामी 10 वषों में स्वास्थ्य सेवाओीं की वृस्ि एवीं प्रत्येक वजिोीं में मेवडकि कािेजोीं की थिापना की जाने हेतु मध्यप्रदे श शासन की योजना के दृविगत प्रस्ताववत प्रकिण व्यवहारिक एवीं तकयसींगत है।
VII. पररयोजिा की स्थापिा का प्रस्ताव औद्योनगक क्षेि में िहीं है इसके स्थापिा की श्रेणी को दे िते हुये इकाई के समस्त स्थापिा योग्यता का परीक्षण SEAC द्वारा नकया गया है और इस इकाई की स्थापिा की अिुशंसा की है ।
VIII. मेससा जे. के. वेस्ट मैिेजमेंट नसस्टम की नशकायत नदिां क 11.01.2023 को प्रानर्करण द्वारा संज्ञाि में निया गया एवं नविार नवमशा के पश्चात् निम्नािुसार कायावाही निनणात की गई। म.प्र. प्रदू षण वनयींत्रण बोडय के "Review of coverage areas / Gap Analysis Report - 2017" की प्रत्येक वजिे में CBWTF की अनुशींसा, जैव अपवशि की प्रदू षणकािी प्रकृवत, इसका समयबि वनष्पादन, प्रदू षणकािी पदािय का अनावश्यक परिवहन से होने वािे प्रदू षण की सींभावनाओीं के दृविगत जनस्वास्थ्य सेवाओीं की भववष्य में वजिे में वृस्ि की आवश्यकता एवीं जनवहत एवीं जनस्वास्थ्य को ध्यान में िखकि टीकमगढ़ वजिे में प्रिम CBWTF की थिापना किना न्याय सींगत है।
IX. यह टीकमगढ़ की प्रिम CBWTF इकाई होगी।
उपरोक्त तथ्ों के प्रकाश में, नविार नवमशा एवं जैव अपवशि के प्रदू षणकािी प्रकृवत को ध्यान में िखते हुये जनवहत आम नागरिकोीं के स्वास्थ्य एवीं स्वास्थ्य सेवाओीं, अस्पतािोीं की आवश्यकता एवीं भववष्य की योजनाओीं को ध्यान में िखकि व उपरोक्त प्रस्ताव पर पररयोजिा प्रस्तावक द्वारा प्रस्तुत ऑििाइि दस्तावेज, EIA प्रनतवेदि एवं से क के समक्ष की गई प्रनतबद्धता एवं SEAC की समग्र रूप से की गई अिुशंसा को मान्य करते हुये नवस्तृत ििाा उपरां त सवा सखिनत से निम्ननिखित नवनशष्ट शतों एवं पररनशष्ट - 4 के साथ पररयोजिा प्रस्तावक िे इं डोटे क वेस्ट सॉल्यूशंस पाटा िर श्रीमती वंदिा पररहार निवासी मकाि िंबर 104 ब्रम्हपुरी कॉिोिी िीिबड़ बेथि पखिक स्कूि िीिबड़ नजिा भोपाि CBWTE इकाई िसरा 11 िमां क 758/6, रकमा 4050 sq. meter ग्राम अहर, तहसीि बल्दे वगढ़ नजिा टीकमगढ़ (म.प्र.) में स्थापिा हे तु पूवय पयायविण मींजूिी प्रदान की जाती है।
1. प्लां ट के िारों ओर तीि कतार में सघि वृक्षारोपण नकया जायें।
2. प्लां ट की स्थापिा रोड से अनर्कतम दू री पर की जावें तानक रोड़ से उसकी दू री अनर्कतम नमिे एवं उिसे निकििे वािी ऊष्मा एवं प्रदू षण से रोड़ से निकििे वािे िोगों को सुरनक्षत रिा जा सके।
3. प्लां ट के सामिे रोड पर नकसी भी प्रकार का पररवहि प्रभाव, प्लां ट गनतनवनर्यों द्वारा ि पड़े ।
4. प्लां ट हे तु जैव अपनशष्ट के पररवहि में संपूणा सावर्ािी रिी जाए एवं पयाा वरण नियमों का पािि कड़ाई से नकया जायें।
5. जैव अपवशि के एकत्रीकिण एवीं वनष्पादन 48 घींटे के अींदि अवनवायय रूप से वकया जायें।
6. CBWTF का काययक्षेत्र का वनिायिण MPPCB द्वािा वकया जावेगा जो वक बींिनकािी होगा।
7. अपनशष्ट की राि एवं ETP के बीि का अंनतम निष्पादि प्रानर्कृत TSDF में ही नकया जावेगा। नजसका िेिा भी रिा जावेगा। पररवाहि एवं निष्पादि की सूििा MPPCB को दी जावेगी।
8. प्रदू षण को ध्याि में रिते हुए रोड साईट Incinerator एवं निमिी की ओर बाउण्ड्रीवाि की ऊँिाई 3 से 3.6 मीटर की रिी जाये।
9. ETP के पयावेक्षण हे तु पृथक से नवद् युत मीटर की स्थापिा अनिवाया रूप से की जाये।
10. पररयोजिा स्थि का रोड़ समीपस्थ होिे के कारण यनद आवश्यक हो तो, निमिी की ऊंिाई 30 मीटर से अनर्क रिी जाये।
11. पयाा वरण प्रभाव आकिि प्रनतवेदि के अिुसार दु गंर् निवारण एवं नियं िण हे तु प्रस्तानवत उपायों का पािि अनिवायातः नकया जावे , साथ ही दु गंर् के निवारण हे तु सक्षम नियंिण उन्नत तकिीकी से नकया जाये
12. यह पररयोजिा ईकाई औद्योनगक क्षेि में प्रस्तानवत िहीं है इस कारण CETP की सुनवर्ा ि होिे के कारण इकाई में Zero Liquid Discharge के प्राविानोीं का कड़ाई से पािन सतत् अवनवायय है।
13. पररयोजिा प्रस्तावक द्वारा जि सुिवाई के दौराि की गई प्रनतबद्धताओं का पररपािि नजिा प्रशासि एवं मध्य प्रदे श प्रदू षण नियंिण बोडा के मागादशाि एवं समन्वय में अनिवायातः सुनिनश्चत नकया जावे।12
14. पररयोजिा प्रस्तावक द्वारा भारत सरकार की जि संसार्ि, िदी नवकास और गंगा संरक्षण नवभाग (केन्द्रीय भूनम जि प्रानर्करण) द्वारा अनर्सूििा नदिां क 24.09.2020 में भूजि दोहि हे तु निनहत प्रावर्ाि अिुसार निमाा ण काया के पूवा अनिवायातः अिुज्ञा प्राप्त की जाये।
15. पररयोजिा प्रस्तावक द्वारा कायास्थि पर इं सीिेटर के तापमाि का नडस्प्ले कर उक्त तापमाि का ररकाडा अद्यति रिा जायेगा।
16. पररयोजिा प्रस्तावक द्वारा CBWTF से उत्पन्न कुि ठोस अपनशष्ठ, वेस्ट वाटर टर ीटमेन्ट से उत्सनजात स्लज को नमिाकर अपवहि TSDF के माध्यम से नकया जाये। पररसर में नकसी भी प्रकार के ठोस अपनशष्ठ का भण्ड्ारण एवं उसका भूनम के अं दर अनिवायातः िहीं डािा जावे ।
17. प्रकरण में जारी पयाा वरण स्वीकृनत माििीय सवोच्च न्यायािय, माििीय उच्च न्यायािय, माििीय एि.जी.टी. एवं अन्य न्यायाियों के आदे शों / नदशा निदे शों के अर्ीि मान्य रहें गी तथा माििीय सवोच्च न्यायािय, माििीय उच्च न्यायािय, माििीय एि.जी.टी. एवं अन्य न्यायाियों द्वारा जारी सभी निदे शों / निणायों का अिुपािि पररयोजिा प्रस्तावक के निये बाध्यकारी होगा।"
"In reference to the recommendations made in the above meeting of SEAC, all the above points were discussed by the Authority and the following facts were taken into consideration which are contained in the minutes of the SEAC:
I. The responsibility of gap analysis rests with the State Pollution Control Boards (MPPCB in this case) in para 2(b) of CPCB of CBWTF Revised Guideline for CBWTF.
II. Based on this, MPPCB has recommended establishment of CBWTF in each district on priority in "Review of coverage areas / Gap Analysis Report - 2017."
III. CBWTF Revised Guideline for CBWTF - SPCB is a Prescribed Authority under para 2(a) of CPCB.
IV. The project proponent has informed that the CTE in this case has been received by MPPCB on 2nd January 2023. It is understood that MPPCB wants to establish a CBWTF in District Tikamgarh and the coverage area and number of bed of the proposed CBWTF will be decided by them only. V. Regarding the complaint by M/s. J.K. Pest Management System for 10,000 beds, the authority found that when MPPCB issued CTE to the said project, this issue must have been considered by them because MPPCB is the only authority authorized Institution to decide all these matters as per BMWW Rule 2016. 13 VI. SEAC has considered all the facts of the project proponent as satisfactory in which the gap analysis of the project proponent is 4900 bed which is for the growth of health services in the next 10 years in Tikamgarh, Chhatarpur, Damoh, Panna and Niwari districts and the proposed case is practical and logical in view of the plan of Government of Madhya Pradesh to establish the medical colleges in each district.
VII. The project is not proposed in an industrial area. Considering the category of its establishment, the entire installation capability of the unit has been tested by SEAC and recommended for the establishment.
VIII. The complaint of M/s. J.K. Waste Management System was taken into cognizance by the Authority on 11.01.2023 and the following action was decided after discussion. Review of coverage areas / Gap Analysis Report - 2017 of M.P. Pollution Control Board's recommends CBWTF in each district, keeping in view the polluting nature of organic waste, its timely disposal, and the possibility of pollution caused by unnecessary transportation of polluting substances in the future of public health services. Keeping in mind the need of growth in the district and public interest, it is justified to establish the first CBWTF in Tikamgarh district.
IX. This will be the 1st CBWTF unit of Tikamgarh In the light of above facts, discussion and the polluting nature of organic waste, public health services, need of hospitals; future plans; online documents submitted by Project Proponent, EIA report; commitment made towards SEAC and approved recommendations submitted by SEAC; the environment clearance is given after unanimously discussion to establish CBWTE Unit Khasra No. 785/6 Rakba 4050 sq. meter at Vill: Ahar, Teh: Baldevgarh, Distt. Tikamgarh (M.P.) along with specified conditions and Annexure - 4 to Indotech Waste Solutions Partner Smt. Vandana Parihar residence of H. No. 104, Brahmpuri Colony, Neelbarh, Bethal Public School, Neelbarh, Distt. Bhopal by Project Proponent.
1. Dense Plantation should be done around the plant in three rows.
2. Plant should be established at the maximum distance from road so that heat and pollution couldn't be the hindrance to the passers.
3. Transportation on the road in front of plant should not be affected by the plant activities.
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4. Transportation of organic waste for plant should be handled carefully and environment rules should be compliance strictly.
5. Aggregation and disposal of organic waste within 48 hours mandatorily.
6. The determination of scope of CBWTF will be done by MPPCB which is obligatory.
7. Final execution of waste ash and ETP will be done by the authorized TSDF. Account should be maintained.
Transportation and disposal information will be given to MPPCB.
8. Road site incinerator and height of boundary wall towards chimney should be 3 to 3.6 meters in view of the pollution.
9. The electric meter should be established separately & mandatorily to supervise the ETP.
10. The height of chimney should be above 30 meters, if required due to the short distance of project site and road.
11. The proposed measures for Odor Convention and Control according to Environment Impact Assessment Report should be adopted necessarily. Effective control should be done with advanced technology to prevent odor convention.
12. This project unit is not proposed in an industrial area, hence due to lack of CETP facility, strict adherence to the provisions of Zero Liquid Discharge in the unit is mandatory.
13. Implementation of the commitments made by the Project Proponent during the public hearing must be ensured under the guidance and coordination of the district administration and Madhya Pradesh Pollution Control Board.
14. The project proponent should compulsorily obtain permission before the construction work as per the provisions contained in the Notification dated 24.09.2020 for utilization of groundwater by the Department of Water Resources, River Development and Ganga Rejuvenation (Central Ground Water Board), Government of India.
15. The project proponent will display the temperature of the incinerator at the work site and record of the temperature should be updated.
16. The total solid waste generated from CBWTF by the project proponent, including the sludge emitted from waste water treatment, should be discharged through TSDF. Any kind of 15 solid waste should not be stored in the premises or dumped underground.
17. Environment clearance issued in the case, Hon'ble Supreme Court, Hon'ble High Court, Hon'ble National Green Tribunal and will remain valid under the orders / guidelines of other courts and instructions / decisions issued by the above said Hon'ble Courts will be binding on the project proponent."
(English Translation by Tribunal)
20. Consequently, EC dated 14.02.2023 was granted to respondent 6 which has been challenged in the present Appeal inter-alia on the ground that it is in violation of the Guidelines 2016 of CPCB; Appellant is entitled to cater upto 10,000 beds but presently able to get only about 5,000 beds, hence considering the gap of catering number of beds by appellant, no new CBWTF could have been permitted in the area of operation of appellant; gap analysis ought to have been done by MPPCB but that has not been done and without such analysis EC should not have been granted to respondent 6; the decision of MPPCB for establishment of CBWTF in every district being in contravention to the guidelines of CPCB, could not have been accepted and EC is contrary to the Guidelines of CPCB; MPPCB has not discharged its obligation of gap analysis to be performed by it and not by project proponent; objection raised by appellant have not been properly examined; CBWTF a 'red category' industry cannot be permitted in larger numbers so as to cause severe pollution and damage to environment; requisite assessment on the impact of environment has not been carried out by SEAC or SEIAA MP and the procedure prescribed in EIA 2006 has not been followed.
21. Appellant, on the above-mentioned grounds, has prayed for setting aside EC dated 14.02.2023 issued in favour of respondent 6 and to compute environmental compensation recoverable from respondent 3 i.e., MPPCB.
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22. Tribunal's order dated 31.03.2023: Appeal was considered by Tribunal on 31.03.2023 and it formulated the grounds raised by appellant, in brief, in para 2, as under:
"i. Violation of CPCB guidelines, 2016. ii. Concealment of material facts by the Project
Proponent/Respondent No. 6 in the application for Environment Clearance.
iii. Public Hearing Report not furnished by Respondent No. 3 and
5. iv. Reliance placed on MPPCB report of 2017, which is in contravention to the CPCB guidelines.
v. Despite the Terms of Reference conditions not being complied properly, the proposal for grant of environment clearance considered by respondent no. 1 and 2.
vi. Objections of the Appellant overlooked by respondent no. 1 and 2 leading to passage of impugned order."
23. Tribunal issued notices to the respondents permitting them to file their responses.
24. Pursuant to the above order, respondents 1, 2, 3, 4 and 6 have filed their replies.
Reply dated 18.05.2023 filed on behalf of Respondent 4 i.e., CPCB:
25. It is said that BMWM Rules, 2016 were notified by MoEF&CC in supersession of BMWMH Rules, 1998 to improve collection, segregation, processing, treatment and disposal of bio-medical waste in an environmentally sound manner and thereby reducing bio-medical waste generation and its impact on environment. Under BMWM Rules, 2016 it is statutory mandate for CPCB to prepare guidelines on bio-medical waste management and pursuant thereto CPCB has prepared guidelines on bio- medical waste management including CBWTF, issued in 2016 i.e., RG for CBWTF by CPCB 2016. Under Guidelines 2016, EC is required from 17 respective competent authorities under EIA 2006 before any construction or other work commences. The proponent is also required to obtain consent under Water Act, 1974 and Air Act, 1981 and after installation of requisite equipment's, Authorisation under BMWM Rules, 2016 is also necessary. RG for CBWTF by CPCB 2016 also mandates that prior to allowing any new CBWTF, the prescribed authority under BMWM Rules, 2016, i.e., State Pollution Control Board (hereinafter referred to as 'SPCB') in the respective State or Pollution Control Committee (hereinafter referred to as 'PCC') in the respective Union Territory, is required to prepare an Inventory or review with regard to the bio-medical waste generation, at least once in five years, in the coverage areas of the existing BMWTDF. The prescribed authority is also required to extrapolate the coverage area wise bio-medical waste generation for the next ten years. Moreover, SPCB/PCC is required to conduct gap analysis with respect to the coverage area of the bio-medical waste generation, projected over a period of next ten years, with adequacy of existing treatment capacity of CBWTF in each coverage area of a radius of 75 kms. As per RG for CBWTF by CPCB, CBWTF located within the respective State/UT shall be allowed to cater healthcare units situated at a radial distance of 75 km. However, in a coverage area where 10,000 beds are not available within a radial distance of 75 km, existing CBWTF in the locality (located within the respective State/UT) may be allowed to cater healthcare units situated upto 150 km radius with respect to its location provided bio-medical waste generated is collected, treated and disposed of within 48 hours as stipulated under BMWM Rules, 2016. In case number of beds are exceeding 10,000 beds in a locality that is coverage area of the CBWTF and the existing treatment capacity is not adequate, in such a case, a new CBWTF may be allowed in such locality in compliance to various provisions notified under EP Act, 1986, to cater services only to such additional bed strength of the health care facilities located. BMWM Rules, 18 2016 restricts establishment of on-site or captive bio-medical waste treatment facilities and disposal facility, if service of a CBWTF is available within a distance of 75 Km. This is also mandated to prevent proliferation of inadequate and ill-equipped treatment technologies in a particular town or city. By running the treatment equipment at CBWTF to its full capacity, the cost of treatment of per kilogram bio-medical waste gets significantly reduced.
Reply dated 29.05.2023 filed by MPPCB i.e., respondent 3:
26. This reply is confined only to the public hearing aspect of the matter. It says that Member Secretary, MPPCB vide letter dated 08.07.2022 directed Regional Officer, Sagar and respondent 6 to conduct a public hearing as per provisions of EIA 2006 at village Ahar, Tehsil Baldeogarh, District Tikamgarh in correspondence with District Collector, Tikamgarh. Consequently, vide letter dated 22.07.2022, Collector, Tikamgarh informed for holding public hearing on 07.09.2022 in Gram Panchayat Bhawan, Village Ahar, under Chairmanship of Additional Collector. After public hearing, Regional Officer, MPPCB, Sagar submitted report of public hearing vide letter dated 11.10.2022.
27. CTE was granted to respondent 6 after conclusion of public hearing vide letter dated 02.01.2023. It is also said that SEIAA MP is the concerned respondent to contest the matter since MPPCB was having role for conducting only public hearing as per EIA 2006.
Reply dated 22.07.2023 of SEIAA MP (Respondent 1) and SEAC MP (Respondent 2):
28. Respondents 1 and 2 i.e., SEIAA MP and SEAC MP have jointly filed reply dated 22.07.2023. The stand taken is that SEIAA and SEAC both are working within aegis of MoEF&CC; RG for CBWTF by CPCB 2016 nowhere says that if there is any deviation the action would be a nullity; the decision 19 taken by MPPCB for providing CBWTF in every district is for general public benefit and for early disposal of bio-medical waste; establishment of more units of CBWTF is environment friendly activity since it will provide more options and cost cutting for user health care units; CPCB guidelines are not mandatory; the appeal is not maintainable as CTE has not been challenged; appellant has failed to point out any legal or procedural flaw in grant of EC; RG for CBWTF by CPCB 2016 have not been notified, hence not enforceable in view of the law laid down by Supreme Court in Gulf Goans Company Limited vs. Union of India 2014(10) SCC 673; and, no substantial illegality has been pointed out by the appellant. Reply dated 27.07.2023 of Proponent of proposed project i.e., Respondent 6:
29. It is said that appeal is not maintainable; it is result of ulterior motive on the part of appellant; the unit of appellant is located beyond 75 km radius to the location of CBWTF of respondent 6; there is no substantive grievance to the appellant in maintaining this appeal; the appellant wants to avoid competition but to ensure monopoly in its favour; the owner of appellant facility is engaged in a large number of litigations; it is not running CBWTF plants in accordance with law and several investigations and large scale violations and damage to environment are going on; appellant's plant is in Ashok Nagar while respondents 6's plant in Tikamgarh and both are beyond 75 kms range; appellant itself has taken support of Gap Analysis Report-2017 for establishment of CBWTF in various districts of Madhya Pradesh including within close proximity of Ashok Nagar; and many CBWTF in State of Madhya Pradesh are already under direct control of appellant which are either in operation or under process and this information has been concealed. Details of various CBWTF owned by Smt. Pramila Sharma, owner of appellant unit including appellant unit have been given as under:
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I. CBWTF by M/s J. K. Medical Waste Management System at Ashok Nagar, Chanderi, MP owner Smt. Pramila Sharma already under operation.
II. CBWTF with Case No 8894/2021, SIA/MP/MIS/70716/ 2021 at Village - Rauda Chhapar, Tehsil & Dist. Shivpuri, MP, under the name M/s J.K. Medical Waste Management System, Smt. Pramila Sharma, Partner, Environment Clearance Granted.
III. CBWTF at Khasra No.559/1, Village-Kashipura, Tehsil & District-Chhatarpur, MP, vide Application No. SIA/MP/INFRA2/400401/2022 & Case No.9566/2022, filed by Smt. Pramila Sharma, Director, M/s Vaishnavi Environ Care Waste Management System, TOR granted on 05/04/2023.
IV. CBWTF at Survey No 36/5, Village Tutipura, Tehsil & District Rajgarh, Madhya Pradesh under the name of M/s Prathvi Eco Care by owner/proprietor Smt. Pramila Sharma, proposal accepted by SEAC and SEIAA."
30. Appellant has carried out its operation of running CBWTF in a manner so as to cause damage to environment in a larger way, contaminating water bodies in the area of Chanderi and other surrounding areas and had indulged in other illegal activities; appellant has wrongly stated that it is catering to 4,000 beds though as per annual report of 2020 appellant itself has said that the number of beds is 7502 and total number of HCF covered within the area of the appellant are 473 with 554.81 kg/day of bio-medical waste generated by member HCFs; copy of annual report of 2020 of the appellant has been placed on record as annexure R6/1 (page
732).
31. Respondent 6 has placed reliance on Tribunal's judgement in OA 900/2022, M/s Rainbow Environments Pvt. Ltd. vs. State of Punjab & Others wherein it was observed that object of RG for CBWTF by CPCB 2016 is to ensure effective treatment of bio-medical waste, for protection of 21 environment and public health and not to advance sole business interest of a facility by creating monopoly.
32. It is also said that CTE was granted on 02.01.2023 before issue of EC dated 14.02.023 and it is consistent with MoEF&CC's order dated 20.09.2021 which permits grant of CTE before grant of EC; objection with regard to public hearing has no basis as it has been correctly conducted in accordance with the procedure prescribed in EIA 2006 and there is no material substance in the various submissions advanced by the appellant. REJOINDERS:
33. Appellant has filed two rejoinders, one in reply to the counter affidavit of SEIAA MP and SEAC MP and another in reply to counter affidavit of respondent 6.
Rejoinder dated 27.07.2023 filed in reply to Counter Affidavit jointly filed by SEIAA MP and SEAC MP:
34. Basically, averments made in the rejoinder are repetition of the application with the only betterment is that the grounds taken by the appellant have been formulated as under:
(i) EC can be challenged irrespective of whether CTE has been challenged or not.
(ii) RG for CBWTF by CPCB 2016 are binding and enforceable.
(iii) EC has been granted without application of mind by SEIAA MP (respondent 1).
35. We do not propose to repeat the averments but may refer the same whenever it is found necessary.
22 Rejoinder dated 06.08.2023 filed by applicant in reply to Counter Affidavit of respondent 6:
36. It is said that respondent 6 has wrongly said that distance between CBWTF of appellant and respondent 6 is more than 75 kms radius in as much as actual distance between the two plants is hardly 68 kms. In support thereof, a Google image showing distance between the unit of appellant at Chanderi and that of respondent 6 at Tikamgarh is filed and it is said radial distance between two units is 68.50 kms. It is further said that Guidelines with respect to the distance, number of beds etc. is mandatory, and violation whereof, vitiates impugned EC; allegations against the partner of appellant unit are denied and it is said that allegation of three CBWTFs in districts Shivpuri, Chhatarpur and Rajgarh sought to be established by partner of appellant firm are incorrect; only CBWTF at Shivpuri belong to appellant's firm and the same has been installed in terms of the mandatory requirement of relevant provisions with regard to having a standby incinerator; the CBWTF at districts Chhatarpur and Rajgarh are at a prominent distance of 150 kms from the existing plant of the appellant and there is no bar in law; with regard to the number of beds stated in annual Report of 2020 it is said that it is a typographical error; in fact number of beds catered in the last 4 financial years are as under:
Sr. Year Number of beds
No.
1 2019 3945
2 2020 4060
3 2021 4282
4 2022 5004
37. Appellant has also said that judgments of Tribunal in Appeal No. 5/23, Santosh Kumar Singh vs. SEIAA Uttar Pradesh & Others and OA No. 900/22, Rainbow Environment Pvt. Ltd. vs. State of Punjab & Others are in different facts and circumstances, have no application to the 23 present case; appellant is performing its function to the utmost satisfaction of HCF, some of such letters are placed on record as annexure RJ/4 and RJ/5; EC granted to respondent 6 is illegal; in OA No. 22/2022(CZ), Dharmendra Gayakwad & Another vs. MPIDC Ltd. & Others, vide judgment dated 23.08.2022, Central Zone Bench, Bhopal has directed MPPCB to submit Report with regard to gap analysis (generation and disposal) and on the basis of fresh gap analysis Report to take appropriate decision within a time frame but the said judgment has not been complied with till date.
38. It is said that the allegations made against appellant's unit that it is operating unscientifically, are incorrect. Though, respondent 6 has relied on a letter sent by Tikamgarh Nursing Home Association making complaint against the appellant but appellant's performance has been appreciated by private hospitals and Government hospitals of Tikamgarh and in support thereof, letter dated 15.02.2023 sent by Shri U.K. Gupta and also containing signatures and seals of some nursing homes, pathology and x- ray facilities, hospitals, maternity homes and City Hospital, filed as annexure RJ/4, and dated 08.05.2023 issued by Civil Surgeon, Co-Main Hospital Superintendent, District Tikamgarh, Madhya Pradesh giving Experience Certificate to appellant filed as annexure RJ/5. It is reiterated that Consent to Establish was granted prior to grant of EC which is a procedural impropriety and requires re-appraisal. It is also reiterated that since appellant unit did not have availability of 10,000 beds in the area of its operation hence EC granted of respondent 6 is illegal as it could not have been issued.
ARGUMENTS:
39. Learned Counsel appearing for appellant argued that objective of introducing CBWTF is to facilitate limited number of facilities and reduce 24 emission of hazardous substances as the same falls under 'Red Category' of industries; there is an embargo placed upon permission to establish a new CBWTF if the existing CBWTF in the area concerned has not exhausted its capacity of availability of 10,000 beds and this embargo is provided by BMWM Rules, 2016 and RG for CBWTF by CPCB 2016; appellant's unit is catering to only 5,000 beds and still there is a gap of about 5,000 beds which needed to make available to appellant hence no new CBWTF could have been permitted to be established and no such permission could have been granted within the area of operation of appellant; objection raised by appellant with regard to exhaustion of capacity has not been considered by SEAC and it has observed that the said issue shall be addressed by SEIAA MP which in turn said that the issue of bed criteria shall be redressed by MPPCB and in nut-shell, no statutory authority has looked into the above objection raised by appellant; SEIAA MP has granted EC without considering that additional establishment of CBWTF will cause pollution to environment; a gap analysis was to be done properly by MPPCB which has not been done, no EC could have been granted to respondent 6; issues raised before the authorities during public hearing have not been addressed and made part of record which shows connivance of the officers of MPPCB, SEIAA MP and project proponent i.e., respondent 6 vitiating the grant of EC to proponent; in fact, the entire purpose of having a public hearing has been defeated by virtue of above conduct; proponent has obtained NOC from Gram Panchayat though it was mandatory to obtain NOC from Gram Panchayat as well as Gram Sabha which has not been taken; the decision of MPPCB to allow establishment of CBWTF in every district is in contradiction to CPCB's Revised Guidelines of 2016 and hence, Revised Guidelines of CPCB had to prevail over the decision of MPPCB; in the present case, by grant of EC impugned in this Appeal, CPCB Guidelines have been violated; 25 MPPCB's decision is also in contravention of BMWM Rules, 2016, hence cannot be given effect; every district cannot be allowed to establish its own incinerator as it would be more like a Captive Incinerator and entire purpose of formulating BMWM Rules, 2016 would be defeated; the responsibility of conducting gap analysis was that of MPPCB and not project proponent but in the present case, no such study has been conducted by MPPCB; project proponent i.e., respondent 6 has furnished a Gap Analysis Report depicting bed availability at 5 districts but has failed to disclose that bio-medical waste generated from the beds of these districts are already being disposed of scientifically by existing CBWTF; in the ToR, respondents 1 and 2 have directed respondent 6 to ensure that establishment of its CBWTF shall not hamper functioning of existing CBWTF but this is being breached; appellant raised various objections regarding vacant capacity of its plant and also to show that establishment of CBWTF at Tikamgarh would affect its techno-economic working but the same has not been paid due attention by the authorities concerned and it has rendered the conditions mentioned in ToR as a mere formality; the provisions for allowing establishment of large number of CBWTF, Red Category industry is unwarranted as it is a blatant violation of environmental jurisprudence tantamount to causing intentional loss and damage to environment; respondents 1 and 2 have not carried out appropriate assessment of impact on environment and merely on the recommendation made in Gap Analysis Report- 2017 of MPPCB and on the basis of CTE granted to respondent 6, EC has been accorded in favour of respondent 6 which is unjustifiable and illegal.
40. Per-contra, Learned Counsel appearing for respondent 6 stated that there is no violation of BMWM Rules, 2016 and Revised Guidelines of 2016 issued by CPCB in this regard; every aspect has been considered by the 26 concerned authorities, due application of mind is there in granting EC and the procedure has been rigorously followed, hence Appeal has no merit and liable to be dismissed. He urged that there is no restriction of establishment of a new CBWTF within radial distance of 75 km. of an already operating CBWTF; the new CBWTF is not in the same locality; the disposal of bio medical waste expeditiously and within prescribed time of 48 hours is of prime importance; no monopoly can be allowed to appellant; coverage area of appellant is very large and some places of bio medical waste generating entities/establishments/HCFs is more than 150 kms.; appellant has placed reliance only on bedded HCFs while non bedded HCFs/establishments are also catered and facts relating to their bio medical waste load have not been disclosed; one each CBWTF have already been allowed to function at Shivpuri and Rajgarh which districts are in coverage area of appellant and if there is no illegality, same condition apply to respondent 6; there is no misrepresentation or concealment of any fact or information on the part of respondent 6; appeal has no merit and is liable to be dismissed.
41. It is pointed out that in the State of MP, districts are geographically larger and the area of operation of appellant's unit is much larger than it can be appropriately catered by it, therefore, there was a genuine need of establishment of new CBWTF in a different locality which has been proposed by respondent 6 and EC has been granted after considering all relevant aspects of the matter.
42. Learned Counsels appearing for SEIAA MP and MPPCB have also supported the case of respondent 6 by arguing that EC granted to respondent 6 is valid and conforms to all procedural requirements and consideration of relevant aspects hence warrants no interference. 27
43. Learned Counsel appearing for CPCB has said that it has issued Guidelines consistent with BMWM Rules, 2016 and while granting EC, the same have to be complied with. So far as the validity of EC in the present case is concerned, it is said that the same has been granted by SEIAA MP, therefore, SEIAA MP will reply about the correctness of EC and CPCB has nothing to say.
ISSUES:
44. From the respective arguments of the Learned Counsels for the parties, the issues which have arisen, requiring adjudication by this Tribunal, in our view, are as follows:
(I) Whether EC in question violates the provisions relating to distance between two CBWTFs and area of operation?
(II) Whether a CBWTF has a right to have a coverage area providing 10000 beds and no other CBWTF can be allowed in such coverage area?
(III) Whether coverage area is confined to locality/city or can be extended to a number of districts and different localities?
(IV) Whether EC in question violates any condition of BMWM Rules, 2016 and RG for CBWTF by CPCB 2016?
(V) Whether EC in question has been granted in violation of procedure prescribed under EIA 2006, warranting interference by this Tribunal?
(VI) Whether appellant is entitled for any relief and if yes, what appropriate order is required to be passed in this Appeal?28
CONSIDERATION ON MERITS ISSUES I to VI:
45. We propose to consider all the above issues together as they are inter connected and overlapping.
46. Three aspects with regard to the alleged violation of BMWM Rules, 2016 and RG for CBWTF by CPCB 2016 have been seriously canvassed, argued and pressed on behalf of appellant. One is regarding 75 km radial distance between two plants i.e., CBWTF of appellant and respondent 6; another is the non-availability of 10,000 beds to appellant and non- exhaustion of capacity for full utilisation of its unit's functional capacity and third one is regarding non-preparation of final Gap Analysis Report by MPPCB.
Issue relating to 75 km radial distance:
47. This aspect has to be considered in the light of the relevant provisions of BMWM Rules, 2016 and RG for CBWTF by CPCB 2016.
48. Going through the legislative history of Rules relating to management of bio-medical waste, we find that vide notification dated 20.07.1998, published in Gazette of India, dated 27.07.1998, BMWMH Rules, 1998 were framed in exercise of powers conferred by Sections 6, 8 and 25 of EP Act, 1986. They came into force from the date of publication in Gazette. The said Rules provided regulatory framework for management of bio-medical waste generated in the country. BMWMH Rules, 1998 were applicable to all persons who generate, collect, receive, store, transport, treat, dispose or handle bio-medical waste in any form. The terms 'Authorisation', 'Authorised Person', 'Bio-medical waste', 'Bio-medical waste treatment facility', 'Occupier' and 'Operator of a bio-medical waste 29 facility' were defined in Rule 3 (3), (4), (5), (7), (8) and (9) which read as under:
"(3) "Authorisation" means permission granted by the prescribed authority for the generation, collection, reception, storage, transportation, treatment, disposal and/or any other form of handling of bio-medical waste in accordance with these rules and any guidelines issued by the Central Government;
(4) "Authorised person" means an occupier or operator authorised by the prescribed authority to generate, collect, receive, store, transport, treat, dispose and/or handle bio-medical waste in accordance with these rules and any guidelines issued by the Central Government;
(5) "Bio-medical waste" means any waste, which is generated during the diagnosis, treatment or immunisation of human beings or animals or in research activities pertaining thereto or in the production or testing of biologicals, and including categories mentioned in Schedule I;
(7) "Bio-medical waste treatment facility" means any facility wherein treatment, disposal of bio-medical waste or processes incidental to such treatment or disposal is carried out;
(8) "Occupier" in relation to any institution generating bio-medical waste, which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank, by whatever name called, means a person who has control over that institution and/or its premises;
(9) "Operator of a bio-medical waste facility" means a person who owns or controls or operates a facility for the collection, reception, storage, transport, treatment, disposal or any other form of handling of bio-medical waste;"
49. A perusal of Rule 3(7) of BMWMH Rules, 1998 shows that initially Common Bio-Medical Waste Treatment Facilities were not included within the definition of 'Bio-medical waste treatment facility'. The said inclusion of common facilities is by virtue of amendment made by notification dated 02.06.2022 which came into force from the said date. The definition of 'Bio-medical waste' shows that besides the kind of bio- medical waste enumerated therein, it also included the categories of bio- medical waste mentioned in Schedule I. A perusal of Schedule I shows that it put bio-medical waste in ten categories and the type of waste was mentioned as under:
30
Sl. Waste Waste Category (Type) No. Category No.
1. Category No. 1 Human Anatomical Waste (Human tissues, organs, body parts)
2. Category No. 2 Animal Waste (Animal tissues, organs, body parts carcasses, bleeding parts, fluid, blood and experimental animals used in research, waste generated by veterinary hospitals colleges, discharge from hospitals, animal houses)
3. Category No. 3 Microbiology & Biotechnology Waste (Wastes from laboratory cultures, stocks or specimens of micro-organisms live or attenuated vaccines, human and animal cell culture used in research and infectious agents from research and industrial laboratories, wastes from production of biologicals, toxins, dishes and devices used for transfer of cultures)
4. Category No. 4 Waste sharps (Needles, syringes, scalpels, blades, glass, etc. that may cause puncture and cuts. This includes both used and unused sharps)
5. Category No. 5 Discarded Medicines and Cytotoxic drugs (Wastes comprising outdated, contaminated and discarded medicines)
6. Category No. 6 Solid Waste (Items contaminated with blood, and body fluids including cotton, dressings, soiled plaster casts, lines, beddings, other material contaminated with blood)
7. Category No. 7 Solid Waste (Wastes generated from disposable items other than the waste sharps such as tubings, catheters, intravenous sets etc.)
8. Category No. 8 Liquid Waste (Waste generated from laboratory and washing, cleaning, house- keeping and disinfecting activities)
9. Category No. 9 Incineration Ash (Ash from incineration of any bio-medical waste)
10. Category No. 10 Chemical Waste (Chemicals used in production of biologicals, chemicals used in disinfection, as insecticides, etc.) 31
50. Rule 4 talked of 'Duty of occupier' i.e., the person concerned with an institution generating bio-medical waste and said that it shall take all steps to ensure that bio-medical waste is handled without any adverse effect to human health and environment. It read as under:
"4. Duty of occupier. - It shall be the duty of every occupier of an institution generating bio-medical waste which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank by whatever name called to take all steps to ensure that such waste is handled without any adverse effect to human health and the environment.
51. Rule 5 said that bio-medical waste shall be treated and disposed of in accordance with Schedule I and in compliance with the standards prescribed in Schedule V.
52. In column 3 of Schedule I, treatment and disposal options were given and in Schedule V, standards for treatment and disposal of bio-medical wastes were mentioned in detail which included standards for incinerator, standards for waste autoclaving, standards for liquid waste, standards of microwaving and standards for deep burial.
53. Rule 6 made provision for segregation, packaging, transportation and storage of bio-medical waste. Sub-rule (1) said that bio-medical waste shall not be mixed with other wastes. Sub-rule (4) provided that notwithstanding anything contained in Motor Vehicles Act, 1988 or rules thereunder, untreated bio-medical waste shall be transported only in such vehicle as may be authorised for the purpose by the Competent Authority as specified by the Government.
54. Sub-rule (5) of rule 6 said that no untreated bio-medical waste shall be kept stored beyond a period of 48 hours. Proviso, thereof said that if for any reason it becomes necessary to store the waste beyond such period, the authorised person must take permission of the prescribed authority 32 and take measures to ensure that waste does not adversely affect human health and environment.
55. Rule 7 talked of 'Prescribed Authority' and made SPCB and SPCCs to be the prescribed authority in States or Union Territories as the case may be. However, in respect of health care establishments of Armed Forces under Ministry of Defence, the Director General, Armed Forces Medical Services was made prescribed authority.
56. Rule 8 talked of 'Authorisation'. Sub-rule (1) said that every occupier of an institution generating, collecting, receiving, storing, transporting, treating, disposing and/or handling bio-medical waste in any other manner, except such occupiers of clinics, dispensaries, pathological laboratories, blood banks providing treatment/service to less than 1,000 patients per month, shall make an application in Form I to Prescribed Authority for grant of authorisation.
57. Sub-rule (2) dealt with 'Operator of a bio-medical waste facility' provided that every operator of a bio-medical waste facility shall apply for authorisation to the Prescribed Authority.
58. The distinction is clear that in case of occupier, exemption from authorisation is granted to those where treatment/service is made available to less than 1,000 patients per month and rest all were required to apply for authorisation but in case of operator of a bio-medical waste facility, every operator had to apply for grant of authorisation.
59. Under sub-rule (4) of Rule 8, it was provided that authorisation to facility shall be issued in Form IV, subject to conditions laid therein and such other condition as the Prescribed Authority may consider it necessary.
33
60. BMWMH Rules, 1998 provided for maintenance of records with respect to the details of bio-medical waste and its disposal. Rule 10 said that every occupier/operator shall submit an annual report to prescribed authority in Form II by 31st January every year, giving information which would include about the categories and quantities of bio-medical wastes handled during the preceding year. Prescribed Authority in turn was required to forward the information in a compiled form to CPCB by 31st March every year.
61. Rule 11 required every authorised person to maintain record related to the generation, collection, reception, storage, transportation, treatment, disposal and/or any form of handling of bio-medical waste in accordance with BMWMH Rules, 1998 and Guidelines issued.
62. As contemplated under BMWMH Rules, 1998 and reference made in Rule 3(3) of the Guidelines, the same were issued under the title "CPCB Guidelines for Common BMW Treatment Facilities" in 2003 by CPCB (hereinafter referred to as 'Guidelines 2003').
63. Guidelines 2003 said that CBWTF is a set up where bio-medical waste, generated from a number of health care units, is imparted necessary treatment to reduce adverse effects that this waste may pose. Treated waste may finally be sent for disposal in a landfill or for recycling purposes.
64. Guidelines 2003 also said that installation of individual treatment facilities by small health care units would require comparatively high capital investment and also separate man power and infrastructure development for proper operation and maintenance of treatment systems. The concept of CBWTF not only addresses such problems but also prevents proliferation of treatment equipment in a city. It would reduce monitoring 34 pressure on regulatory agencies. Further, by running the treatment equipment at CBWTF to its full capacity, cost of treatment of per kilogram would get significantly reduced. Therefore, establishment of CBWTF has several advantages. BMWMH Rules, 1998, while requiring health care facilities to set up their own bio-medical treatment equipments provided an option to get the waste treated at CBWTF. Guidelines 2003 clearly said that in order to set up a CBWTF to its maximum perfection, care shall be taken in choosing the right technology, development of CBWTF area, proper designing of transportation system to achieve optimum results etc.
65. Para B made provisions for location and said that CBWTF shall be located at a place reasonably far away from residential and sensitive area so that it has minimal impact on these areas. Further a CBWTF shall be located as near to its area of operation as possible in order to minimize travel distance in waste collection, thus enhancing its operational flexibility. It is further said that location shall be decided in consultation with SPCB/SPCC.
66. Para D talked of coverage area of CBWTF and said that one CBWTF may be allowed to cater upto 10,000 beds but not to cater health care units situated beyond the radius of 150 kms. The said provision read as under:
"D. COVERAGE AREA OF CBWTF In any area, only one CBWTF may be allowed to cater up to 10,000 beds at the approved rate by the Prescribed Authority. A CBWTF shall not be allowed to cater health care units situated beyond a radius of 150 km. However, in an area where 10,000 beds are not available within a radius of 150 km, another CBWTF may be allowed to cater the health care units situated outside the said 150 km."
67. Para E talked of treatment equipments and provided that a CBWTF shall have following treatment facilities:
(i) Incineration
(ii) Autoclaving/Microwaving/Hydroclaving
35
(iii) Shredder
(iv) Sharp pit/Encapsulation
(v) Vehicle/Container Washing Facility
(vi) Effluent Treatment Plant (hereinafter referred to as 'ETP')
68. Para F made provision for infrastructure set up required for a CBWTF and said that a CBWTF shall have the following infrastructures:
(i) Treatment Equipment Room
(ii) Main Waste Storage Room
(iii) Treated Waste Storage Room
(iv) Administrative Room
(v) Generator Set
(vi) Site Security
(vii) Parking
(viii) Sign Board
(ix) Green Belt
(x) Washing Room.
69. Para G talked of record keeping details which we are omitting.
70. Para H made provision for collection and transportation of bio- medical waste. It is said that from generation of bio-medical waste till its treatment it shall be ensured that total time taken shall not exceed 48 hours. The relevant extract reads as under:
"...It shall be ensured that the total time taken from generation of bio- medical waste to its treatment, which also include collection and transportation time, shall not exceed 48 hours."
71. Para I made provision for disposal of treated bio-medical waste as under:
"DISPOSAL OF TREATED BIO-MEDICAL WASTE The treated bio-medical waste shall be disposed as per the following 36 table:
Sl. Waste Category Disposal Method
No.
1. Plastic wastes after Recycling or municipal
disinfection and shredding landfill
2. Disinfected Sharps
(except syringes)
(i) If encapsulated Municipal landfill
(ii) If non-encapsulated Municipal
landfill/Possibility of
recycling shall be
explored.
3. Incineration ash Secured landfill
4. Other treated solid wastes Municipal landfill
5. Oil & grease Incineration
6. Treated waste water Sewer/drain or recycling
72. Para J of the Guidelines 2003 said that cost to be charged from health care units shall be so worked out that neither it becomes a monopoly of CBWTF operator nor the interest of CBWTF operator is over-looked. The cost was to be worked out in consultation with SPCB/SPCC and local Medical Association.
73. Para K said that setting up and operating a CBWTF required compliance with a number of regulatory requirements/provisions and the same are detailed therein.
74. However, BMWMH Rules, 1998 were found lacking on certain aspects and did not prove much effective in management and handling of bio-medical waste. Government of India, therefore, reviewed BMWMH Rules, 1998 with a view to implement the Rules more effectively and to improve collection, segregation, processing, treatment and disposal of bio-
medical waste in an environmentally sound management and thereby, reducing bio-medical waste generation and its impact on environment. New set of Draft Rules was published in the Gazette vide Notification dated 03.06.2015, inviting objections or suggestions from public within 60 days 37 from the date on which copies of the Gazette containing the said Notification were made available to the public. The copies of Gazette were made available to public on 03.06.2015. After considering objections and comments received against the Draft Rules, Government of India considered the matter of finalisation of Rules and in supersession of BMWMH Rules 1998, a new set of Rules was published vide Notification dated 28.03.2016 called as BMWM Rules, 2016.
75. Rule 1(2) of BMWM Rules, 2016 provides that the said Rules shall come into force on the date of their publication in the Official Gazette.
Rules have been published in the Gazette of India (Extraordinary) Part II-
Section 3-Sub-section (i) dated 28.03.2016 and hence came into force on the said date.
76. Rule 2 talks of application and sub-rule (i) says that BMWM Rules, 2016 shall apply to all persons who generate, collect, receive, store, transport, treat, dispose, or handle bio-medical waste in any form including hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, Ayush hospitals, clinical establishments, research or educational institutions, health camps, medical or surgical camps, vaccination camps, blood donation camps, First-Aid rooms of schools, forensic laboratories and research labs. The above description shows that all kinds of entities handling bio-medical waste in the broadest possible manner have been included to attract BMWM Rules, 2016 and even this description is inclusive and not exhausted. However, certain categories are excluded from the application of BMWM Rules, 2016 which are specifically stated in Rule 2(2) and the same are as under:
"2. Application. -
(2). These rules shall not apply to, -38
(a) radioactive wastes as covered under the provisions of the Atomic Energy Act, 1962(33 of 1962) and the rules made there under;
(b) hazardous chemicals covered under the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 made under the Act;
(c) solid wastes covered under the Municipal Solid Waste (Management and Handling) Rules, 2000 made under the Act;
(d) the lead acid batteries covered under the Batteries (Management and Handling) Rules, 2001 made under the Act;
(e) hazardous wastes covered under the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 made under the Act;
(f) waste covered under the e-Waste (Management and Handling) Rules, 2011 made under the Act; and
(g) hazardous micro organisms, genetically engineered micro organisms and cells covered under the Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms, Genetically Engineered Micro organisms or Cells Rules, 1989 made under the Act."
77. Rule 3 is a definition clause and defines various terms used in BMWM Rules, 2016. For our purposes, the definition of 'authorisation', 'authorised person', 'bio-medical waste', 'bio-medical waste treatment and disposal facility', 'handling', 'health care facility', 'occupier', and 'operator of a common bio-medical waste treatment facility' are relevant and reproduced as under:
(c) "authorisation" means permission granted by the prescribed authority for the generation, collection, reception, storage, transportation, treatment, processing, disposal or any other form of handling of bio-medical waste in accordance with these rules and guidelines issued by the Central Government or Central Pollution Control Board as the case may be;39
(d) "authorised person" means an occupier or operator authorised by the prescribed authority to generate, collect, receive, store, transport, treat, process, dispose or handle bio-medical waste in accordance with these rules and the guidelines issued by the Central Government or the Central Pollution Control Board, as the case may be;
(f) "bio-medical waste" means any waste, which is generated during the diagnosis, treatment or immunisation of human beings or animals or research activities pertaining thereto or in the production or testing of biological or in health camps, including the categories mentioned in Schedule I appended to these rules;
(g) "bio-medical waste treatment and disposal facility" means any facility wherein treatment, disposal of bio-medical waste or processes incidental to such treatment and disposal is carried out, and includes common bio-medical waste treatment facilities;
(i) "handling" in relation to bio-medical waste includes the generation, sorting, segregation, collection, use, storage, packaging, loading, transportation, unloading, processing, treatment, destruction, conversion, or offering for sale, transfer, disposal of such waste;
(j) "health care facility" means a place where diagnosis, treatment or immunisation of human beings or animals is provided irrespective of type and size of health treatment system, and research activity pertaining thereto;
(m) "occupier" means a person having administrative control over the institution and the premises generating biomedical waste, which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank, health care facility and clinical establishment, irrespective of their system of medicine and by whatever name they are called;
(n) "operator of a common bio-medical waste treatment facility"
means a person who owns or controls a Common Bio-medical Waste Treatment Facility (CBMWTF) for the collection, reception, storage, transport, treatment, disposal or any other form of handling of bio-medical waste;"
78. Rule 4 talks of duties of occupier i.e., the person having administrative control over the institution and premises generating bio- medical waste.
40
79. Rule 5 gives in details duty of operator of a CBWTF and since the same are relevant for the present case, we find it appropriate to reproduce as under:
"5. Duties of the operator of a common bio-medical waste treatment and disposal facility. - It shall be the duty of every operator to -
(a) take all necessary steps to ensure that the bio-medical waste collected from the occupier is transported, handled, stored, treated and disposed of, without any adverse effect to the human health and the environment, in accordance with these rules and guidelines issued by the Central Government or, as the case may be, the central pollution control board from time to time;
(b) ensure timely collection of bio-medical waste from the occupier as prescribed under these rules;
(c) establish bar coding and global positioning system for handling of bio- medical waste within one year;
(d) inform the prescribed authority immediately regarding the occupiers which are not handing over the segregated bio-medical waste in accordance with these rules;
(e) provide training for all its workers involved in handling of bio-
medical waste at the time of induction and at least once a year thereafter;
(f) assist the occupier in training conducted by them for bio-medical waste management;
(g) undertake appropriate medical examination at the time of induction and at least once in a year and immunise all its workers involved in handling of bio-medical waste for protection against diseases, including Hepatitis B and Tetanus, that are likely to be transmitted while handling bio-medical waste and maintain the records for the same;
(h) ensure occupational safety of all its workers involved in handling of bio-medical waste by providing appropriate and adequate personal protective equipment;
(i) report major accidents including accidents caused by fire hazards, blasts during handling of bio-medical waste and the remedial action taken and the records relevant thereto, 41 (including nil report) in Form I to the prescribed authority and also along with the annual report;
(j) maintain a log book for each of its treatment equipment according to weight of batch; categories of waste treated; time, date and duration of treatment cycle and total hours of operation;
(k) allow occupier, who are giving waste for treatment to the operator, to see whether the treatment is carried out as per the rules;
(l) shall display details of authorisation, treatment, annual report etc on its web-site;
(m) after ensuring treatment by autoclaving or microwaving followed by mutilation or shredding, whichever is applicable, the recyclables from the treated bio-medical wastes such as plastics and glass, shall be given to recyclers having valid consent or authorisation or registration from the respective State Pollution Control Board or Pollution Control Committee;
(n) supply non-chlorinated plastic-coloured bags to the occupier on chargeable basis, if required;
(o) common bio-medical waste treatment facility shall ensure collection of biomedical waste on holidays also;
(p) maintain all record for operation of incineration, hydroor autoclaving for a period of five years; and
(q) upgrade existing incinerators to achieve the standards for retention time in secondary chamber and Dioxin and Furans within two years from the date of this notification."
80. Rule 6 deals with the duties of the authorities and says that the Authority specified in column (2) of Schedule-III shall perform duties as specified in column (3) thereof, in accordance with the provisions of the Rules.
81. Rule 7 talks of treatment and disposal of bio-medical waste. It says that bio-medical waste treated and disposed of in accordance with Schedule I, and in compliance with the standards provided in Schedule-II by the Health Care Facilities and CBWTF. The said Rule lays down various 42 provisions for treatment and disposal of bio-medical waste to be observed by Health Care Facility as also CBWTF and we find it appropriate to reproduce the same as under:
7. Treatment and disposal. - (1) Bio-medical waste shall be treated and disposed of in accordance with Schedule I, and in compliance with the standards provided in Schedule-II by the health care facilities and common bio-medical waste treatment facility.
(2) Occupier shall hand over segregated waste as per the Schedule-I to common bio-medical waste treatment facility for treatment, processing and final disposal: Provided that the lab and highly infectious bio-medical waste generated shall be pre-treated by equipment like autoclave or microwave.
(3) No occupier shall establish on-site treatment and disposal facility, if a service of common bio-medical waste treatment facility is available at a distance of seventy-five kilometer.
(4) In cases where service of the common bio-medical waste treatment facility is not available, the Occupiers shall set up requisite biomedical waste treatment equipment like incinerator, autoclave or microwave, shredder prior to commencement of its operation, as per the authorisation given by the prescribed authority.
(5) Any person including an occupier or operator of a common bio medical waste treatment facility, intending to use new technologies for treatment of bio medical waste other than those listed in Schedule I shall request the Central Government for laying down the standards or operating parameters.
(6) On receipt of a request referred to in sub-rule (5), the Central Government may determine the standards and operating parameters for new technology which may be published in Gazette by the Central Government.
(7) Every operator of common bio-medical waste treatment facility shall set up requisite biomedical waste treatment equipments like incinerator, autoclave or microwave, shredder and effluent treatment plant as a part of treatment, prior to commencement of its operation.
(8) Every occupier shall phase out use of non-chlorinated plastic bags within two years from the date of publication of these rules and after two years from such publication of these rules, the chlorinated plastic bags shall not be used for storing and transporting of bio-medical waste and the occupier or operator of a common bio- 43 medical waste treatment facility shall not dispose of such plastics by incineration and the bags used for storing and transporting biomedical waste shall be in compliance with the Bureau of Indian Standards. Till the Standards are published, the carry bags shall be as per the Plastic Waste Management Rules, 2011.
(9) After ensuring treatment by autoclaving or microwaving followed by mutilation or shredding, whichever is applicable, the recyclables from the treated bio-medical wastes such as plastics and glass shall be given to such recyclers having valid authorisation or registration from the respective prescribed authority.
(10) The Occupier or Operator of a common bio-medical waste treatment facility shall maintain a record of recyclable wastes referred to in sub-rule (9) which are auctioned or sold and the same shall be submitted to the prescribed authority as part of its annual report. The record shall be open for inspection by the prescribed authorities.
(11) The handling and disposal of all the mercury waste and lead waste shall be in accordance with the respective rules and regulations."
82. Rule 8 made provision for segregation, packaging, transportation and storage of bio-medical waste. Rule 9 deals with 'prescribed authority' for implementation of provisions of BMWM Rules, 2016. The Regulator i.e., the 'Prescribed Authority' under Rule 9 for implementation of BMWM Rules, 2016 are SPCBs in respect of States and SPCCs in respect of Union Territories. However, in respect of health care establishments to which the Rules apply, belong to Armed Forces under Ministry of Defence, the Prescribed Authority is Director General, Armed Forces Medical Services who is required to function under the supervision and control of the Ministry of Defence. Rule 9(3) says that the prescribed authorities shall comply with the responsibilities as stipulated in Schedule III of these Rules.
83. Rule 10 lays down the procedure for authorization and different provisions are made for authorization to be issued for bedded Health Care Facility and non-bedded Occupiers. Rule 10(1) provides that the authorization for non-bedded occupiers shall be one time and if after 44 receipt of completed application along with all necessary documents, no objection is raised by the prescribed agency within a period of 90 days, the authorization in such cases for non-bedded occupiers shall be deemed to have been granted. However, in respect of bedded Health Care Facility and operator of a CBWTF, Prescribed Authority shall grant provisional authorization in Form III and validity of such authorisation shall be synchronized between bedded Health Care Facility and operator of a common facility with the validity of consent. In case of any change in bio- medical waste generation, handling, treatment and disposal for which authorisation was earlier granted, the occupier or operator is required to intimate to the Prescribed Authority about the change or variation and has to submit a fresh application in Form II for modification of the conditions of authorisation vide Rule 10(4).
84. Rule 11 talks of an Advisory Committee, constitution whereof is prescribed. Sub-rule (3) says that the Advisory Committee shall meet at least once in six months and review all matters related to implementation of the provisions of BMWM Rules, 2016 in the State and Armed Forces Health Care Facilities, as the case may be.
85. Rule 12 talks of monitoring of implementation of the rules in Health Care Facilities. MoEF&CC is authorized for review of the implementation of the Rules in the country once in a year. CPCB however, is required to monitor implementation of the Rules in respect of all Armed Forces health care establishments under Ministry of Defence.
86. State Government or Union territory Administration are required to constitute District Level Monitoring Committee in the districts under the Chairmanship of District Collector or District Magistrate or Deputy Commissioner or Additional District Magistrate to monitor compliance of 45 the Rules in the health care facilities generating bio-medical waste and in CBWTF where bio-medical waste is treated and disposed. District Level Monitoring Committee is required to submit its report once in six months to State Advisory Committee with a copy to SPCB or SPCC concerned for taking necessary action.
87. Rule 13 talks of 'Annual Report' to be submitted by every Occupier or Operator of CBWTF and the same is required to be submitted on or before 30th June of every year.
88. Rule 14 talks of maintenance of records for a period of 5 years in accordance with the Rules and Guidelines issues by Central Government or CPCB or the prescribed authority, as the case may be.
89. Rule 15 says that in case of any major accident at any institution or facility or any other site while handling bio-medical waste, the authorised person shall intimate immediately to the Prescribed Authority about such accident and forward a report within 24 hours in writing regarding remedial steps taken in Form I.
90. Rule 16 provides right of appeal against order made by the Prescribed Authority, if any person is aggrieved by such an order, and the limitation of filing Appeal.
91. Rule 17 makes provision for making a site available for CBWTF and says that the department in the business allocation of land assignment shall be responsible for providing suitable site for setting up of CBWTF. The selection of the site shall be made in consultation with the Prescribed Authority, other stakeholders and in accordance with Guidelines published by MoEF&CC or CPCB.
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92. Rule 18 lays an obligation/liability on the occupier and operator of a facility and reads as under:
"18. Liability of the occupier, operator of a facility. - (1) The occupier or an operator of a common bio-medical waste treatment facility shall be liable for all the damages caused to the environment or the public due to improper handling of bio- medical wastes.
(2) The occupier or operator of common bio-medical waste treatment facility shall be liable for action under section 5 and section 15 of the Act, in case of any violation."
93. After promulgation of BMWM Rules, 2016, Guidelines 2003 had to be re-considered and require a new set of Guidelines consistent with BMWM Rules, 2016. Consequently, CPCB issued new set of Guidelines with reference of BMWM Rules, 2016 and titled the same as "Revised Guidelines for CBWTF" vide circular dated 21.12.2016 i.e., RG for CBWTF by CPCB 2016. It reiterates that an occupier is restricted for establishment of on-site or captive bio-medical waste treatment and disposal facility, if a service of common bio-medical waste treatment and disposal facility is available within a distance of 75 km since installation of individual treatment facility by health care facility requires comparatively high capital investment. In addition, it requires separate dedicated and trained skilled manpower and infrastructure development for proper operation and maintenance of treatment systems. The said restriction on occupiers also takes care of running of a CBWTF treatment equipment at full capacity which will result in reducing cost of treatment per kg of bio-medical waste and will be advantageous to all health care facilities and other establishments which are generating bio-medical waste. The running of common bio-medical waste treatment and disposal facility by an occupier also may have cause health hazards to patients undergoing treatment due to operation of the captive treatment equipments within health care facilities and by providing a separate treatment and disposal facility in the 47 form of CBWTF even this apprehensive adverse effect could be avoided. The occupier however is permitted to install its own independent or individual treatment and disposal equipments if within distance of 75 km, no CBWTF is located.
94. Guidelines also say that if any aspect is not covered by the said Guidelines and needs attention, in such a case, Prescribed Authority may take suitable action in the interest of protection of environment in consultation with MoEF&CC/CPCB. However, to the extent, Guidelines occupy the field, the same are mandatory having been issued under BMWM Rules, 2016. The relevant content of the Guidelines in this regard reads as under:
"However, any other aspects which are not been covered under these guidelines and needs attention, in such a case, the prescribed authority may take suitable action in the interest of protection of the environment in consultation with MoEF & CC/CPCB. Also, it is pertinent to mention here that these guidelines are mandatory henceforth under the Bio-medical Waste Management Rules, 2016."
95. Para 2 of the Guidelines lays down criteria or steps which are to be followed for development of new CBWTF for a locality or region and reads as under:
2) Criteria for development of a new Common Bio-medical Waste Treatment and Disposal Facility for a locality or region.
Prior to allowing any new CBWTF, following criteria or steps may be followed:
a) Prescribed authority under the BMWM Rules, 2016 [i.e., State Pollution Control Board (SPCB) in the respective State or Pollution Control Committee (PCC) in the respective Union Territory Administration] is required to prepare an inventory or review with regard to the bio-medical waste generation at least once in five years in the coverage areas of the existing bio-medical waste treatment and disposal facility. The prescribed authority is also required to extrapolate the coverage-area wise bio-medical waste generation for the next ten years.48
b) SPCB/PCC is required to conduct gap analysis w.r.to coverage area of the bio-medical waste generation and also projected over a period of next ten years, adequacy of existing treatment capacity of the CBWTF in each coverage area of radius 75 KM, as given in Annexure-I. All the SPCBs and PCCs shall conduct the gap analysis and based on the gap analysis, action plan for development of new CBWTFs is required to be prepared and submitted to MoEF & CC & CPCB within six months' time. In case of States/UTs, where no CBWTF is available, in such a case, SPCB/PCC being prescribed authority under the BMWM Rules is required to submit the detailed proposal to MoEF & CC/MoH & FW through the respective State Government or UT Administration. Also, the option of forming association by the group of heath care facilities (HCFs) to develop their own CBWTF also be encouraged following these guidelines. In case, any coverage area requires additional treatment capacity, in such a case, action may be initiated by the prescribed authority for allowing a new CBWTF in that locality without interfering the coverage area of the existing CBWTF and beds covered by the existing CBWTF.
c) SPCB/PCC shall identify the coverage area, which require additional treatment facility and bring it to the notice of the concerned department in the business allocation of land assignment in the respective State Government or UT Administration. The department in the business allocation of land assignment shall be responsible for providing suitable site in the identified coverage area for setting up of a CBWTF, in consultation with the prescribed authority (i.e., SPCB/PCC), other stakeholders and in accordance with these guidelines issued by CPCB from time to time.
d) Alternately, a CBWTF may also be allowed to be established on a land procured by an entrepreneur in accordance with the location criteria suggested under these guidelines.
e) The SPCB/PCC or concerned department in the business allocation of land assignment in the respective State Government or UT Administration may seek expression of interest from the proponents for development of new CBWTF (s) in the identified coverage area. Upon allocation of site to the proponent, the proponent is required to take necessary approvals as required under the Environment (Protection) Act, 1986 for development of the new CBWTF in accordance with these guidelines.
f) In the absence of expression of interest by any proponent, then 49 SPCB/PCC shall insist health care facilities to form association and to develope its own CBWTF in line with these guidelines or to have captive treatment facilities for ensuring treatment and disposal of generated bio-medical waste as stipulated under the BMWM Rules, 2016.
g) In case of any regulatory action including closure of any existing CBWTF is inevitable, the respective SPCB/PCC may take action under the BMWM Rules including for making alternate arrangement to ensure safe disposal of the bio-medical waste generated from the member health care facilities of such default CBWTF through CBWTF located nearby.
h) In case of hilly areas considering the geography, only one CBWTF with adequate treatment capacity may be developed covering atleast two districts to cater treatment services to the HCFs located in the respective Districts. The selection and allocation of site etc., should be done as per the criteria suggested under these guidelines. The treatment charges to be prescribed by the respective SPCB/PCC in consultation with the State Advisory Committee."
96. Para 5 deals with applicability of environmental laws for commissioning or operation of a CBWTF and provides that consents under Water Act, 1974 and Air Act, 1981 as well as Authorization under BMWM Rules, 2016 shall be obtained from respective Regulators before commencement of CBWTF. Para 5.3 says that EIA 2006 was amended by Notification dated 17.04.2015 and bio-medical waste treatment facility was placed at item 7 (da) in the schedule, hence, EC is required from concerned respective competent Authority before any construction work, or preparation of land commences.
97. Para 6 deals with the location criteria of a CBWTF and reads as under:
"6) Location criteria In the context of these guidelines, buffer zone represents a separation distance between the source of pollution in CBWTF and the receptor - following the principle that the degree of impact reduces with increased distance. The following parameters may be considered for ascertaining buffer distance 50 on case-to-case basis:
(i) potential for spread of infection from wastes stored in the premises.
(ii) applicable standards for pollution control and the relative efficiency of the existing incinerators and emission control systems,
(iii) potential of fugitive dust emission from incinerators,
(iv) potential for discharge of wastewater
(v) the potential for odour production,
(vi) the potential for noise pollution,
(vii) the risk posed to human health and safety due to exposure to emissions from incinerator,
(viii) the risk of fire and
(ix) Significance of the residual impacts such as bottom ash and fly ash.
As far as possible, the CBWTF shall be located near to its area of operation in order to minimize the transportation distance in waste collection, thus enhancing its operational flexibility as well as for ensuring compliance to the time limit for treatment and disposal of bio- medical waste as stipulated under the BMWM Rules (i.e., within 48 hours). Also, the location of the CBWTF should be in conformity to the CRZ Norms and other provisions notified under the Environment (Protection) Act, 1986. The location shall be decided in consultation with the State Pollution Control Board (SPCB)/ Pollution Control Committee (PCC). The location criteria for development of a CBWTF are as follows:
(a) A CBWTF shall preferably be developed in a notified industrial area without any requirement of buffer zone (or)
(b) A CBWTF can be located at a place reasonably far away from notified residential and sensitive areas and should have a buffer distance of preferably 500 m so that it shall have minimal impact on these areas. In case of non-availability of such a land, the buffer zone distance from the notified residential area may be reduced to less than 500 m by SPCB/PCC without referring the matter to CPCB by prescribing additional control measures such as (i) adoption of best available technologies (BAT) by the proponent of CBWTF; (ii) 51 prescribing stringent standards for operation of the CBWTF by the SPCB/PCC; (iii) adoption of zero liquid discharge by the CBWTF and (iv) in case of any complaints from the public, then CBWTF should prove that the facility is not causing any adverse impact on environment and habitation in the vicinity.
If SPCB/PCC is not in a position to resolve the issue relating to buffer zone while selecting the site for CBWTFs, in such a case, SPCBs/PCCs may refer the matter to CPCB.
(c) The CBWTF can also be developed as an integral part of the Hazardous Waste Treatment Storage and Disposal Facility (TSDF) subject to obtaining of necessary approvals from the authorities concerned including 'environmental clearance' as per Environmental Impact Assessment 2006 and further amendments notified under the Environment (Protection) Act, 1986, provided there is no CBWTF exist within 150 KM distance from the existing TSDF."
98. Para 7 talks of land requirement and says that sufficient land shall be allotted for establishment of CBWTF. Preferably, a CBWTF shall be set up on a plot size of not less than one acre in all the areas. A CBWTF can be developed in adjacent plots but cannot be set up in two or more different plots located in different areas. Separate plots can be permitted only for vehicle parking if located in the close vicinity of the proposed or the existing CBWTFs. In the Municipal limits, population of more than 25 lakhs or in rural areas, the land area requirement may be relaxed for a new or upcoming CBWTF by ensuring additional control measures such as Zero Liquid Discharge, increase in stack height, stringent emission norms, odour control measures or any other measures felt necessary by the prescribed authority on case-to-case basis, only in consultation with CPCB.
99. Para 8 talks of coverage area of CBWTF and reads as under:
"8) Coverage area of CBWTF Suggested coverage area for development of a CBWTF is as follows:
a) A CBWTF located within the respective State/UT shall be allowed to cater healthcare units situated at a radial 52 distance of 75 KM. However, in a coverage area where 10,000 beds are not available within a radial distance of 75 KM, existing CBWTF in the locality (located within the respective State/UT) may be allowed to cater the healthcare units situated upto 150 KM radius w.r.to its location provided the bio-medical waste generated is collected, treated and disposed of within 48 hours as stipulated under the BMWM Rules.
b) In case, number of beds is exceeding >10,000 beds in a locality (i.e., coverage area of the CBWTF under reference) and the existing treatment capacity is not adequate, in such a case, a new CBWTF may be allowed in such a locality in compliance to various provisions notified under the Environment (Protection) Act, 1986, to cater services only to such additional bed strength of the HCFs located.
c) In case of hilly areas, considering the geography, only one CBWTF with adequate treatment capacity may be developed covering atleast two districts to cater treatment services to the HCFs located in the respective Districts. The selection and allocation of site etc. should be done as per the criteria suggested under these guidelines. The treatment charges to be prescribed by the respective SPCB/PCC in consultation with the State Advisory Committee to be constituted under the BMWM Rules by the respective State Government or UT Administration."
100. CBWTF should have certain treatment facilities which are detailed in para 9 which talks of treatment equipments and prescribes for the following:
(a) Incineration/Plasma Pyrolysis
(b) Autoclaving/Hydroclaving
(c) Microwaving
(d) Chemical disinfection
(e) Dry heat sterilization
(f) Shredder
(g) Sharp pit/ Encapsulation
(h) Deep burial
(i) Non-burn technology
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(j) Vehicle/Containers washing facility
(k) Effluent Treatment Plant
101. Para 10 says about infrastructure set up and provides that a CBWTF must have following infrastructure:
(a) Treatment Equipment Room
(b) Main waste storage space
(c) Treated waste storage room
(d) Administrative Room
(e) Generator set
(f) Continuous emission monitoring system (CEMS)
(g) Vehicle Parking
(h) Display and sign board
(i) Washing Room
(j) Site Security
(k) Fire safety
(l) First Aid Box
(m) Green Belt
(n) Website
102. Para 11 deals with record keeping and says that record should include all information relating to each activity at CBWTF site as per BMWM Rules, 2016. The minimum requirement is outlined as below:
(a) Record to waste movements
(i) Waste accepted
(ii) Treated waste to be disposed
(b) Logbook for the treatment equipment
(c) Monitoring and reporting of operations in the CBWTF
(i) Monitoring of operating parameters of the incinerator/plasma pyrolysis 54
(ii) Monitoring of operating parameters of the Autoclave
(iii) Frequency of monitoring
(d) Site records- which shall include the following:
(i) All the approvals obtained from other concerned departments other than the prescribed authority;
(ii) Details of construction or engineering works;
(iii) Maintenance schedule, breakdowns/trouble shootings and remedial actions;
(iv) Emergencies;
(v) Incidents of unacceptable waste received and the action taken; and
(vi) Details of site inspections by the officials of the regulatory authorities, purpose of visits with date and necessary actions initiated on the observations.
103. Para 12 of the RG for CBWTF by CPCB 2016 talks of collection and transportation of bio-medical waste. It says that collection and transportation of bio-medical waste shall be carried out in a manner so as to prevent any possible hazard to human health and environment. All care shall be taken to ensure that the segregated bio-medical waste handed over by health care units reach CBWTF without any damage, spillage or unauthorized access by public, animals etc. No private transport vehicles should not be authorised by SPCBs/PCCs for transportation of bio-medical waste. A responsible person from operator of CBWTF shall always accompany the vehicle to supervise for collection and transportation of bio- medical waste and CBWTF operator shall be made responsible for collection and transportation of bio-medical waste. The person responsible for collection of bio-medical wastes shall also carry a register with him to maintain the records such as name of the healthcare unit, the type and 55 quantity of waste received, time at which waste collected from the member health care facility, signature of the authorised person from the healthcare unit etc. During transportation, the containers should be covered in order to prevent exposure of public to odours and contamination. It is also provided that all the vehicles used by CBWTF operator shall be owned by it and registered for the said purpose under Motor Vehicle Act by concerned authorities of Transport Department. Such vehicle shall not be sub-letted or contract vehicles.
104. Para 12 also says that CBWTF operator shall ensure that total time taken from generation of bio-medical waste to its treatment, which also includes collection and transportation time, shall not exceed 48 hours. The relevant extract of para 12 reads as under:
"It shall be ensured that the total time taken from generation of bio-medical waste to its treatment, which also includes collection and transportation time, shall not exceed 48 hours."
105. Para 13 says about disposal option of solid waste generated from CBWTF and it is said that the same may be disposed as per the options suggested in the Table 2 which reads as under:
"Table 2: Suggested Disposal option of solid waste generated from the CBWTF Sl. Treated Suggested Treatment and Disposal No. Waste Options Category
1. Plastic wastes Plastic waste should not be sent to landfill after sites. Treated plastic waste to be disinfection and shredding (i) sent to registered or authorized recyclers (or)
(ii) for energy recovery (or)
(iii) for diesel or fuel oil recovery (or)
(iv) for road making, whichever is possible.
2. Disinfected Encapsulation in metal container or cements Sharps concrete; (or) sent for final disposal to iron (including foundries (having consent to operate from the 56 needles and SPCBs/PCCs (or) sanitary landfill or syringes) (i.e., designated concrete waste sharp pit.
Treatment by Autoclaving or Dry Heat Sterilization followed by shredding or mutilation combination of shredding cum autoclaving)
3. Incineration Incineration ash (ash from incineration of any ash bio-medical waste) shall be disposed through hazardous waste treatment, storage and disposal facility (TSDF), if toxic or hazardous constituents are present beyond the prescribed limits as given in Schedule -II of the Hazardous and Other Waste Management & Transboundary Movement Rules or as revised from time to time.
4. Other treated Disinfection (by soaking the washed glass solid wastes waste after cleaning with detergent and like Glass Sodium Hypochlorite treatment) or through waste autoclaving or microwaving or hydroplaning and then sent for recycling.
5. Oil & Grease By Incineration
6. ETP Sludge After drying in sludge drying beds or removal of moisture content using 'Filter Press' and such ETP sludge shall be given to CBWTF for incineration or to the hazardous waste treatment, storage and disposal facility (HWTSDF) for disposal in Secured Landfill
7. Hazardous Disposal through a TSDF located nearby Waste following the manifest as per the Hazardous and Other Waste (Management & Transboundary Movement) Rules, 2016
106. Para 14 is an important provision which talks of cost, to be charged by CBWTF for health care facilities and it reads as under: 57
"14) Cost to be charged by the CBWTF Operator for the Health Care Facilities Cost to be charged from the healthcare facilities plays an important role in financial viability and sustainable operation of a CBWTF project, for providing the best treatment services to the Health Care Units and for ensuring compliance to the BMWM Rules. The cost shall be so worked out that neither it becomes a monopoly of the CBWTF operator nor the interest of the CBWTF operator is overlooked. It is recommended that cost to be charged from the healthcare units, depending on the size, no, of beds and the distance from the location of the CBWTF and same shall be worked out in consultation with the concerned SPCB/PCC and the local Medical Association, keeping in view the following options:
(a) In case of non-bedded health care units, fixed charges depending on the average quantity of waste generation per day, in case of the nursing homes/clinics/sample collection Centres /Dental Centres, dispensary, pathological laboratory, blood banks, and other non-bedded hospitals irrespective of their system of medicine including ayush hospitals.
(b) In case of bedded hospitals, fixed charges per bed per day basis and based on the no. of beds for which consents under the Water Act, 1974/Air Act, 1981 and authorization granted under the BMWM Rules, by the prescribed authority Note:
(i) Rates are required to be revised once in a year based on the Wholesale Price Index (WPI Index) or Consumer Price Index (CPI Index) (considering the prevailing market price especially in respect of the labour expenses, diesel prices, electricity, operating cost etc.), by the State Advisory Committee in consultation with the concerned SPCB/PCC, local Medical Association and the representatives of the CBWTF Association.
(ii) The Health Care Facilities are required to ensure timely payments to the CBWTFs for ensuring timely treatment services in compliance to the BMWM Rules as well as agreement made with the concerned CBWTF Operator."
107. In para 15, a check list for development of CBWTF has been provided as annexure - IV and para 16 talks of periodical inspection/monitoring or performance evaluation of CBWTF. It says that all State PCBs/PCCs shall inspect CBWTFs at least once in six months and a copy of inspection report 58 shall be submitted to CPCB and MoEF&CC with a copy of the action taken for ensuring compliance to BMWM Rules, 2016 and CPCB Guidelines issued from time to time. CPCB is also required to carry out random inspection of CBWTF, once in a quarter and if violation is observed, further action shall be initiated by CPCB if required under EP Act, 1986.
108. The guidelines 2016 also talks of 10000 beds as was stated in guidelines 2003 which shows that either there is some mistake or a total non-application of mind. In the Guidelines 2003, the extent of availability of 10,000 beds to a CBWTF was contemplated which also had its own reasons. At that time, number of CBWTF in the country were very small and the coverage area contemplated was 150 kms. However, in the Revised Guidelines, the basic coverage area has been reduced to 75 kms. Even this coverage area is not available to a CBWTF solely but it puts a restriction on health care facilities on their own installation of bio-medical waste treatment equipments if within 75 kms, a CBWTF is available. There is no provision in the Guidelines that distance between two CBWTFs should be minimum 75 kms or that within 75 kms of radial distance. There cannot be two CBWTFs or more. The difference between old and new Rules and old Guidelines, it appears, has not been taken note/care in the Revised Guidelines wherein the extent of 10,000 beds availability has been repeated. The old provision has been reiterated showing lack of application of mind on the part of CPCB.
109. Be that as it may be, the aforesaid provisions cover a very wide area of operation for the purpose of functioning of CBWTF and also makes provisions with regard to functioning of health care facilities and various other institutions, bedded and non-bedded, which are generating bio- medical waste with regard to their functioning.
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110. The argument that radial distance from appellant's unit to the unit of respondent 6 is less than 75 kms i.e., 68.5 kms and, therefore, respondent 6 could not have been allowed to establish its unit within 75 km and it is in violation of BMWM Rules, 2016 and RG for CBWTF by CPCB 2016, we find, is not correct. A distinction has been made in BMWM Rules, 2016 between the terms 'Occupier' and 'CBWTF' or 'Operator of a CBWTF'. The term 'occupier' has been used in the context of the establishments/entities which are generating bio-medical waste while 'CBWTF' or 'Operator of a CBWTF' is a term which is concerned and connected with a unit engaged in the functioning of treatment and disposal of bio-medical waste after collecting the same from the entities/establishments which are generating bio medical waste. This is evident from the definition of 'Occupier' in Rule 3(m) and 'Operator of a Common Bio-Medical Waste Treatment Facility' in Rule 3(n) which we have quoted above.
111. Rule 7(1) imposes an obligation upon health care facilities and CBWTF to treat and dispose bio-medical waste in accordance with Schedule I and in compliance with the standards provided in Schedule II. It means that 'health care facility', a term defined in Rule 3(j), an entity which generates bio-medical waste is also under an obligation to treat and dispose bio-medical waste in accordance with Schedule I of BMWM Rules, 2016. However, such treatment and disposal plant would be confined to the concerned health care facility.
112. CBWTF is an entity which is constituted for the purpose of treatment and disposal of bio-medical waste by collecting from various health care facilities, hence is a 'common facility'. It does not generate bio medical waste itself and its principal function is treatment and discharge of bio- medical waste collected from a number of entities generating bio medical 60 facilities and it has to perform in accordance with Schedule I and in compliance with the standards provided in Schedule II of BMWM Rules, 2016.
113. A restriction has been imposed under Rule 7(3) of BMWM Rules 2016 upon the 'occupier' i.e., an entity generating bio-medical waste, for establishment of on-site treatment and disposal facility if service of CBWTF i.e., a common treatment and disposal facility is available within a distance of 75 kms. The restriction is on an 'occupier', which, in the absence of availability of treatment and disposal of bio-medical waste through a CBWTF within 75 kms, has to establish its own treatment and disposal plant and equipments but where such common treatment facility i.e., CBWTF is available, the occupiers i.e., the entities which are generating bio-medical waste are restrained from establishing their own treatment and disposal facility.
114. Rule 7(3) nowhere imposes any restriction or prohibition with regard to distance between two CBWTFs. This is also clear from Rule 7(4) which says, where service of CBWTF is not available within 75 kms., the 'occupiers' i.e., the entities generating bio-medical waste, shall set up requisite bio-medical waste treatment equipment like incinerator, autoclave or microwave, shredder prior to commencement of its operation, as per the authorisation given by the prescribed authority.
115. In RG for CBWTF by CPCB 2016, we do not find any provision otherwise with regard to establishment of two units of CBWTFs prohibiting within a particular distance. The location criteria in para 6 only says that CBWTF shall be located near to its area of operation in order to minimize the transportation distance in waste collection and thus enhancing its 61 operational flexibility as well as for ensuring compliance to the time limit for treatment and disposal of bio-medical waste which is 48 hours.
116. In para 2(b) of Revised Guidelines for CBWTF by CPCB 2016, it is provided that a Gap Analysis shall be conducted by SPCBs/PCCs with regard to coverage area of bio-medical waste generation and also projected over a period of next 10 years, adequacy of existing treatment capacity of CBWTF in each coverage area of radius 75 kms as given in annexure-I. Here, the reference of radius of 75 kms of coverage area is with reference to Rule 7(3) so as to make available to every entity generating bio-medical waste a Common Bio-medical Waste Treatment Facility so that it may not be required to install its own treatment and disposal facility since the obligation for treatment and disposal is on both but an arrangement has been made in a manner that such treatment and disposal should normally be conducted through CBWTF and to that extent within 75 kms from each entity generating bio-medical waste, a CBWTF must be available. It nowhere provides that within a coverage area, radius 75 kms, another CBWTF shall not established.
117. Since there is a restriction on a health care facility not to install its own bio medical waste treatment and disposal equipments therefore it is said that a CBWTF shall cater its service to all health care facilities within radius of 75 kms. It does not mean that a prohibition has been imposed upon establishment of another CBWTF within 75 kms radius of an existing CBWTF.
118. For the purpose of adhering to the time schedule with respect to treatment and disposal of bio-medical waste from the time of its generation till disposal, radial distance of 75 kms has been contemplated so that the collection of bio-medical waste, its transportation and thereafter treatment 62 and disposal may be completed within the time prescribed i.e., 48 hours. It can be said that normally in an area with a radial distance of 75 kms, a CBWTF should be allowed to operate but it does not mean that within the said area, there cannot be more than one CBWTF. Enabling provision, in the guidelines, however, has been made to extend coverage area beyond 75 kms where a CBWTF does not have availability of 10000 beds. This is provided in para 8 of RG for CBWTF by CPCB 2016 with respect to CBWTF and in such a case, the radial distance may extend to the health care units situated upto 150 kms with respect to location of CBWTF. This enabling provision is with a condition that bio-medical waste generated is collected, treated and disposed of within 48 hours as stipulated under BMWM Rules, 2016. Similarly, in a locality i.e., coverage area of CBWTF, number of beds are more than 10,000 and the existing CBWTF is not able to comply with provisions relating treatment and disposal within time or the treatment capacity of CBWTF is not adequate, in such a case, a new CBWTF may be allowed in the said locality to cater services only to such additional bed strength of health care facilities located. Here the additional CBWTF which is permitted in para 8(b) of RG for CBWTF by CBCB 2016 is restricted only to the additional beds beyond 10,000 but it permits establishment of new CBWTF in the same locality where the earlier CBWTF was established. However, a CBWTF may be located in a different locality to cater needs of health care facilities and entities generating bio-medical waste and for timely collection, transportation, treatment and disposal, and in such a case, the restriction of 75 kms radial distance, neither we find in BMWM Rules, 2016 nor in RG for CBWTF by CPCB 2016.
119. The number of beds prescribed by guidelines, in our view, renders the provision impracticable. It has come before this Tribunal that bio 63 medical waste generated per bed, on an average, at national level, was 274.10 grams per day.
120. In Dharmendra Gayakwad & Another vs. MPIDC & Others (supra), Central Zonal Bench, Bhopal in para 5 of the judgment referred to its earlier order dated 09.03.2022 whereby a Joint Committee comprising representative from CPCB, representative from SEIAA MP, representative from MPPCB was constituted and the said Committee submitted report. The said Report has been quoted in para 5 of the judgment. The said Report shows that the Joint Committee made assessment of bio-medical waste and studied future projection. Country level data for five years i.e., 2016 to 2020 was given and it was mentioned that average bio-medical waste generation per gram per bed at country level came to 274.10 grams per day. The chart given in the said judgment giving country level data read as under:
"Country Level data:
Year No. beds Biomedical Biomedical Change of rate Average waste waste % per annum Biomedical generation generation Beds Bio waste * (tonne/per (gm/per Medical generation day) bed) Waste (gm/per Generationbed) 2020 25,44,116 774 304.23 7.83% 25.04% 2019 24,86,327 619 248.96 12.69% 0.81% 2018 22,06,362 614 278.29 5.32% 9.83% 274.10 2017 20,94,858 559 266.84 10.30% 8.12% 2016 18,99,269 517 272.21 7.83% 3.19% *Quantity of bio-medical waste through bedded & non bedded HCF Source: CPCB Annual Reports
121. Thereafter, the above judgment in Dharmendra Gayakwad & Another vs. MPIDC & Others (supra) also referred to State (Madhya Pradesh) level data and found that average bio-medical waste generation in grams per bed during the last five years i.e., 2016 to 2020 was 168.50 grams. Chart of State of MP level data read as under: 64
"State (Madhya Pradesh) Level data:
Year No. beds Biomedical Biomedical Change of rate Average waste waste % per annum Biomedical generation generation Beds Bio waste * (tonne/per (gm/per Medical generation day) bed) Waste (gm/per Generationbed) 2020 1,15,505 20.00 173.23 15.04% 12.11% 2019 1,00,401 17.85 177.75 5.22% 12.62% 2018 95,421 15.85 166.07 9.47% 6.90% 168.50 2017 95,421 15.85 166.07 9.47% 6.90% 2016 82,449 12.81 155.37 12.47% 19.56% *Quantity of bio-medical waste through bedded & non bedded HCF Source: CPCB Annual Reports
122. If generation of bio medical waste for 10,000 beds is computed even at the rate of 274.1 grams per day, it would come to 2741000 grams i.e., 2741 kilogram per day. A CBWTF, with incinerator of 100 kg. per hour capacity, can treat only 800 to 1000 kg. bio-medical waste in a day, if it works for 8 to 10 hours per day. It is suggested that incinerator can function for 24 hours in a day. In our view 24 hours continuous working of an incinerator is neither possible nor practicable but for the sake of argument, even if it is accepted, it would come to only 2400 kg per day, still leaving 341 kg of bio medical waste, untreated.
123. Similarly, if we take average generation of bio medical waste at State level in Madhya Pradesh, as per the figures given in Dharmendra Gayakwad & Another vs. MPIDC & Others (supra), for 10000 beds, the total generation per day would be 1685000 grams or 1658 kg. CBWTF 65 working for 8-10 hours per day with capacity of 100 kg per hour will not be able to treat such quantity of bio medical waste.
124. Most important fact need to be considered here is that the above quantity of bio medical waste does not include generation of bio medical waste by non-bedded health care facilities which are more in number. In OA 710/2017, Shailesh Singh vs. Sheela Hospital, decided vide judgement dated 18.01. 2021, this Tribunal in para 6 of the judgment has referred to a Report dated 18.07.2020 of CPCB wherein national scenario of health care facilities has been mentioned and it inventorised 2,70,416 health care facilities which included 97,382 bedded and 1,73,831 non- bedded health care facilities.
125. It appears that either there is some mistake in the guidelines and 1000 beds has got mentioned as 10,000 beds or the provision suffers arbitrariness being made without application of mind. We may also mention that when we talk of beds, the bio medical waste generated by non-bedded health care facilities is not included, though the same is also to be collected for treatment and disposal by CBWTF. If the waste of non- bedded health care facilities is also included, the deficiency would be much high.
126. Here, we may also mention an inconsistency between Rule 7(3) and (4) and para 8 of RG for CBWTF by CPCB 2016. Rules lay an obligation upon a health care facility to establish its own treatment and disposal facility of bio medical waste generated by it if within 75 kms a CBWTF is not available. This obligation placed by rules upon a health care facility can not be diluted by RG for CBWTF by CPCB 2016 by making a provision of extension of coverage area of a CBWTF beyond 75 kms, and to this extent the guidelines have to subserve the Rules being subordinate to it. We make 66 it very clear that guidelines cannot make a provision which is inconsistent to Rules and in case of inconsistency, Rules shall prevail. It appears that CPCB found that as a matter of fact, in 2016, number of CBWTFs across the country was very small and highly inadequate to the requirement. Thus, to provide services of CBWTF available to maximum number of health care facilities, the idea of 10000 beds and extension of coverage area beyond 75 kms was conceived and given effect to in the guidelines. The intention may be valid and justified but still CPCB should have known that it cannot overreach the power of Government of India's of rule making and could not have made a provision in guidelines contrary to Rules. The efficacy and implementation of Rules could not have been altered or modified by guidelines. The proper way for CPCB was/is to place all relevant facts before Rule framing authority and to pursue it to make amendment in the rules. So long as rules are not amended, the existing rules shall operate without being diluted by guidelines. We are also bound to consider the matter in accordance with rules and apply guidelines only to the extent the same are not inconsistent with rules.
127. We may also examine the issue raised with regard to 75 kms radial distance from another angle.
128. State of MP was created after independence in 1950 from the former British Central Provinces and Berar and the Princely States of Makrai and Chhattisgarh with Nagpur as the Capital of the State. New States of Madhya Bharat, Vindhya Pradesh and Bhopal were formed out of the Central India Agency. In 1956, States of Madhya Bharat, Vindhya Pradesh and Bhopal were merged into Madhya Pradesh and Nagpur was ceded to Bombay State. Bhopal became the State's Capital. At that time, area wise, Madhya Pradesh was the largest State in the country. In November 2000, vide Madhya Pradesh Reorganisation Act, 2000, State was split into two by 67 creating a new State of Chhattisgarh, splitting off the South-eastern portion of State of Madhya Pradesh. Despite division, area wise, State of Madhya Pradesh is 2nd in country. The total area of State is about 113017 square miles i.e., 308252 km2. The dimensions of State are 605 km in length and 870 km in width. As per 2011 Census, the population of State is about 7.26 Crores. It has 52 Districts under 10 Divisions.
129. Appellant's unit was established in 2017 at Tehsil Chanderi of District Ashoknagar. From a report published by MPPCB titled as 'Review of Coverage Areas of Common Bio-Medical Waste Treatment and Disposal Facility (CBWTFs) of Madhya Pradesh (Year-2017)', we find from table-2 and 3 that initial coverage area of appellant included Districts Guna, Shivpuri, Ashoknagar and Tikamgarh. Districts Niwari and Rajgarh have been included later.
130. Guna, Shivpuri and Ashoknagar are part of the common Division i.e., Gwalior while Rajgarh comes in Bhopal Division and Tikamgarh and Niwari in Sagar Division. Therefore, initially 3 districts of coverage area of appellant were adjoining and part of the same division i.e., Gwalior but one district i.e., Tikamgarh was separately situated as it is after the area of district Lalitpur of State of UP and separately situated and part of different division i.e., Sagar. Rajgarh which was later on added, is adjacent to districts Bhopal, Sehore, Shajapur, Agar, Malwa and Guna and part of Bhopal Division but was added in the coverage area of appellant. Niwari is separated from earlier coverage area of Ashoknagar, Shivpuri and Guna by the area of districts Lalipur and Jhansi of State of UP and adjacent to Tikamgarh but the same was also added with the coverage area of appellant. With regard to 6 districts which are part of coverage area of appellant, we may mention hereat, on the basis of the information available 68 in public domain with regard to concerned districts of State of MP, that the area in square kilometers of the districts, is very large and as under:
Sl. District Division Area (km2) Population as per No. 2011 Census
1. Ashoknagar Gwalior 4674 845071
2. Shivpuri Gwalior 10666 1726050
3. Guna Gwalior 6390 1240938
4. Tikamgarh Sagar 3878 1040359
5. Niwari Sagar 1170 404807
6. Rajgarh Bhopal 6154 1545814 Total Area 32932 6803039
131. Niwari District was initially part of District Tikamgarh. It was separated and formed as a new revenue district on 01.10.2018.
132. We may also notice here the proposed coverage area of respondent 6 i.e., the proposed CBWTF at Tikamgarh in respect of the division, area and population as under:
Sl. District Division Area (km2) Population as per No. 2011 Census
1. Tikamgarh Sagar 3878 1040359
2. Niwari Sagar 1170 404807
3. Panna Sagar 7135 1016520
4. Chhatarpur Sagar 10863 1762857
5. Damoh Sagar 7306 1264219 Total 30352 5488762 69
133. In order to demonstrate the coverage area of appellant and the proposed proponent i.e., respondent 6, we find it appropriate to place the map of State of MP in which coverage area of both is shaded, as under:
134. The aforesaid map shows that four districts constituting coverage area of appellant i.e., Shivpuri, Ashok Nagar, Guna and Rajgarh are adjoining and on the North-West side of the State. Then, there is a gap on east side, due to the area of district Lalitpur and some part of district Jhansi of State of UP, and on the North-East side, are district Niwari and Tikamgarh which are adjoining.
135. Further, district Shivpuri is on the extreme North-West and it is adjoining with district Ashok Nagar and Guna. District Rajgarh is adjoining to Guna on the West-South side.
136. With regard to district Chhatarpur, Panna and Damoh, they are all adjoining with Tikamgarh and Niwari on North-East side of State of MP's 70 map but Niwari is on the extreme North adjoining to district Tikamgarh which is completely adjoining to district Chhatarpur which is on the South- East side of district Tikamgarh. District Panna and Damoh, both are adjoining district Chhatarpur.
137. Evidently, appellant was allowed a very big coverage area of 32932 km2. The total coverage area of appellant, more than 32000 km2 is running in 3 divisions and six districts. Distance from Ashoknagar to Rajgarh, as per Google Map, is more than 166 kms. Similarly, distance of tehsil Chanderi district Ashok Nagar to Tikamgarh is 72 kms (flight distance) and 97 by road. From Chanderi district Ashok Nagar to Guna, flight distance is 85 kms and road distance is 109 kms. Shivpuri from Ashok Nagar has flight distance of 95 kms and by road it is 119 kms. Shortest distance of Niwari from Ashok Nagar by road (via NH 44) is 190.4 kms. There is a route involving local roads which takes longer time but there is also distance between Niwari and Ashok Nagar is 163 kms.
138. It is also important to notice that Rule 7(3) does not talk of radial distance. The reason is that bio medical waste has to be collected by deploying vehicles which would run on road. The rules insist upon time schedule of 48 hrs. from the time of generation of bio medical waste till its disposal. This includes time taken in collection, transportation, treatment and disposal of bio-medical waste. Therefore, access being by road, aerial or radial distance is irrational. In the guidelines, distance in terms of radius is mentioned which frustrates the object of rules and in our view, this amounts to an alteration of rules which is impermissible. This also shows non application of mind on the part of CPCB in making such Guideline.
139. Reason for allowing this large coverage area to appellant, we could locate in the above mentioned report of MPPCB of 2017 on Gap Analysis. 71 The said report shows that vide office letter dated 10.08.2017, MPPCB constituted Review Committee comprising Director (Environment), Chief Chemist-Incharge-Bio-medical Waste Management and two Field Officers i.e., Regional Officers of Indore and Bhopal for review of coverage area of existing CBWTFs and to explore possibility of establishment of new common facilities to ensure proper collection, treatment and safe disposal of bio-medical waste looking into the population growth of State and future need of CBWTFs. The said Committee's report shows that in a large State with area of more than 3 lacs square kms, i.e., Madhya Pradesh, in 2017, only 10 CBWTFs were in operation. Committee reviewed the current status of bio-medical waste management on the basis of record available with Bio- Medical Waste In-charge, keeping following points in consideration as per Guidelines issued by CPCB:
"(1) A buffer zone or safe distance available between the source of pollution in CBWTF and the receptor for Health and environment safety.
(2) Potential for spread of infection from wastes stored in the premises.
(3) Applicable standards for pollution control and the relative efficiency of the existing incinerators and emission control systems.
(4) Potential of fugitive dust emission from incinerators.
(5) Potential for discharge of wastewater, odour problem & noise pollution.
(6) The risk posed to health and safety of general public due to exposure of infectious waste during transportation and emissions from incinerators.
(7) Possibility of strengthening of treatment network in State by setting up new facilities in each district in future and immediate need of CBWTFs in present scenario.
(8) As far as possible, the CBWTF shall be located near to its area of operation in order to minimize the transportation distance in waste collection, thus enhancing its operational 72 flexibility for ensuring collection, treatment and safe disposal of bio-medical waste within 48 hours."
140. The Committee gave reasons for necessitating review of coverage area of CBWTFs and said:
"State of Madhya Pradesh has 308,000 square kilo-meters geographical area covered under 51 districts, having population about 72627000 (As per Census 2011) and as per projected population for 2016 it is 77875000 and expected to be increased to 83135000 (in 2021) and 8,41,11000 (in 2022) respectively.
The Bio-medical waste is being generated from various sources like Govt. and Private hospital, Medical Colleges, District Hospitals, Civil Hospitals, Community Health Centres, Primary health centres, Dispensanes, Pathology labs. Veterinars Colleges, Research Labs, etc. As per inventorization carried out by various Regional Offices of M.P. Pollution Control Board and formation received from Madhya Pradesh Health Directorate, there are 5,000 such institute identified in Madhya Pradesh which are generating about 13,000 Kg/day bio-medical waste. Apart from this the household bio-medical waste is also being generated and disposes of along with Municipal Solid Waste. Such waste has to be collected and handed over to Municipal Authority for separate collection and disposal in designated CBWTF.
There are 10 authorized CBWTF being operated in various parts of Madhya Pradesh. These common facilities are having incinerators, autoclave, shedders for treatment of bio-medical waste. These CBWTFs are having dedicated vehicles for collection of bio-medical waste from surrounding areas but entire waste is not being collected by these facilities.
The details of common facilities, its coverage areas, waste collection and treatment along with no of vehicles associated with facility are given in enclosed tables.
At present about 9000 Kg/day BMW is being collected by these common facilities which is about 70% of total waste generation from Madhya Pradesh. Thus, there is a gap of about 30% waste (4000 Kg/day) which is still to be collected, transported and treated in these dedicated CBWTFs. After thorough review of each CBWTF, its treatment capacity, coverage area, number of health care facilities, generation of waste, collection of waste, number of member HCFs following points have been emerged which have to be addressed on priority to bridge the gap of waste generation and treatment: -
(a) The area of coverage required to be reviewed in light of waste collection and its transportation and treatment 73 within stipulated time i.e. within 48 hrs, because few facilities are collecting waste from more than 150 Kms.
and covering many districts but the waste is not being collected from all HCFs of districts covered by these facilities. Therefore infectious waste left unattended may cause adverse impact on health of general public.
(b) All the HCFs are to be covered under CBWTFs so that untreated BMW could not be thrown/deep buried illegally.
(c) There should not be any backlog of collected BMW at the level of CBWTF which is not treated within 48 hours. It is observed that few facilities used to store the infectious waste in their waste storage rooms even beyond 48 hours.
(d) The common facilities are not collecting waste from rural and remote areas therefore such waste found to be accumulated at source of generation.
(e) The vehicles associated with few CBWTF for collection of waste are travelling even more than 800 KM/day and taking lot of time in collection and transportation. This practice lead to bear and tear of vehicles and long time travelling of infectious waste on the route between source of waste generation and treatment facility. It also increases the possibility of exposure of infectious waste to the general public during transportation.
(f) As per Rule 7 (3), no occupier shall establish on-site treatment and disposal facility, if a service of "Common Biomedical Waste Treatment Facility" is available at a distance of seventy-five kilometres.
The location of various existing CBWTFs, its coverage area are shown on the map of M.P. and the tables showing numbers of facilities, its coverage area, number of HCFs associated with common facility, number of beds and waste generation are enclosed."
141. In the light of provisions of BMWM Rules, 2016 and Revised Guidelines of CPCB, the Committee's decisions/recommendations are as under:
"12.0. Outcome of Review / Recommendations:
Based on the review of existing common Biomedical Waste treatment facilities, its area distribution and the waste being collected by these common facilities. It is observed that an immediate action should be initiated for collection and treatment of 4000 Kg per day bio-74
medical waste which is not being collected /treated by existing CBWTFs.
It is also observed that some facilities are not covering entire area with respect to collection of Biomedical Waste from government hospitals located in remote areas like Community Health centres, Primary Health centres dispensaries etc. Therefore the area of few facilites required to be limited in accordance to the guidelines issued by Central Pollution Control Board, so that the facilities could deliver their services effectively.
At present 10 facilities are in operation (one facility at Seoni has been closed and one captive common facility of people group of hospitals is operating in populated area) covering 51 districts of Madhya Pradesh. These facilities are not able to collect entire Bio-medical Waste from all the areas. Thus a gap of 4000 Kg/ day is being reflected in annual report of Bio-waste which is still unattended. Therefore, there is immediate need of new facilities which may be set up for coverage of entire Madhya Pradesh effectively based on cluster approach.
Looking into current scenario of Biomedical Waste Management in the State, a gap of treatment of about 4-5 metric ton per day and future growth of state, the committee has arrived on the following conclusions that: -
1. Every district should have Common Bio-medical Waste Treatment Facility (CBWTF) for timely collection and disposal of Biomedical Waste, so that travelling of infectious Biomedical Waste across many districts could be avoided.
2. On review of treatment capacities of existing Common Bio-medical Waste Treatment Facility (CBWTF), its coverage area of surrounding districts, number of Hospitals and beds associated with particular common facility, it is felt that in each Metro city i.e. Indore, Bhopal, Jabalpur and Gwalior more than one common facilities may be established for complete and safe disposal of infectious waste. These facilities may be established at such location so that the entire area of the city and its surrounding may be covered conveniently for effective collection and disposal of Biomedical Waste.
2.1 In Indore one CBWTF is operational having 903 Health Care Facilities (HCFs) as a member out of 1247 HCFs in Indore area covering 25340 beds of Indore, Khandwa, Khargone, Badwani, Burhanpur, Ujjain, Dhar, Dewas, Shajapur, Rajgarh, Jhabua, Alirajpur and Aagar-Malwa. Therefore, looking in to gap of HCFs still to be associated with common facility, number of beds associated beyond the permissible 75 limit prescribed in CPCB guidelines (i.e. max. 10,000) and to ensure effective collection and safe treatment and disposal of infectious waste one more facility may be promoted in Indore district.
2.2 In Bhopal, one CBWTF is operational having 626 Health Care Facilities (HCFS) as a member out of about 1000 HCFs in Bhopal area covering 13831 beds of Bhopal and Raisen districts. Furthermore one captive common facility is operational in the campus of People General Hospital established for its group hospitals which has now been surrounded by population and there is no enough buffer zone between the facility and the habitation as defined in guidelines of CPCB, therefore such captive facilities should be closed and the waste of group hospitals may be sent to nearest common facility located within 75 kilometres distance as per the guidelines issued by Central Pollution Control Board. Therefore, looking in to gap of HCFs still to be associated with common facility, number of beds.
associated beyond the permissible limit prescribed in CPCB guidelines (i.e. max. 10,000) and to ensure effective collection and safe treatment and disposal of infectious waste, one more facility may be promoted in Bhopal district. 2.3 In Jabalpur, one CBWTF is operational having 343 Health Care Facilities (HCFS) as a member out of 514 HCFs in Jabalpur area covering 6855 beds of Jabalpur, Katni, Mandla, Seoni, Narsinghpur, Balaghat and Dindori. Therefore, looking in to gap of HCFs still to be associated with common facility and to ensure effective collection and safe treatment and disposal of infectious waste, one more facility may be promoted in Jabalpur district.
2.4 In Gwalior, one CBWTF is operational having 416 Health Care Facilities (HCFS) as a member out of approx 1000 HCFs in Gwalior area covering 8441 beds of Gwalior, Datia, Bhind, Morena and Seopur districts. Therefore, looking in to gap of HCFs still to be associated with common facility and to ensure effective collection and safe treatment and disposal of infectious waste, one more facility may be promoted in Gwalior district.
3. The guidelines also says that "In case, number of beds is exceeding >10,000 beds in a locality (i.e. coverage area of the CBWTF under reference) and the existing treatment capacity is not adequate, in such a case, a new CBWTF may be allowed in such a locality in compliance to various provisions notified under the Environment (Protection) Act, 1986, to cater services only to such additional bed strength of the HCFs located."
76
4. Each common facility must engage sufficient numbers of well-designed vehicles according to its coverage area to collect Biomedical Waste effectively within shortest possible time so that the exposure of general public could be minimised/ avoided.
5. The maximum distance allowed to be travelled by a vehicle of common facility is 150 KM (75 KM radius) and the maximum numbers of beds are allowed to be covered are 10,000 as per the guidelines issued by CPCB. Therefore, in first phase, new facilities may be set up immediately at Khargone, Ujjain, Dhar, Hoshangabad, Seoni, Morena and Sidhi on cluster-based approach and in near future more and more facilities may be allowed to ensure at least one facility in each district as per need of field conditions.
6. The coverage area of any facility may be extended or reduced by M.P. Pollution Control Board i.e., the prescribed authority defined in the rules, as per the requirement of field conditions, quantity of infectious waste generation, number of Health Care Facility coming up in any area and Environmental conditions to be maintained in particular district.
7. The project proponent of the CBWTF is required to obtain Consent to Establishment under Rule 25 of the Water (Prevention and Control of Pollution) Act, 1974 and under Rule 21 of the Air (Prevention and Control of Pollution) Act, 1981, from the respective prescribed authority i.e. SPCB/PCC. Upon installation of the requisite equipment, the CBWTF Operator is also required to obtain authorization under BMWM Rules, 2016 co-terminus with consent to operate under Water (Prevention and Control of Pollution) Act, 1974 & Air (Prevention and Control of Pollution) Act, 1981 from the respective SPCB/PCC prior to commencement of the CBWTF. The coverage area of the CBWTF shall be mentioned in the consent and Authorization letters."
142. The above report also shows that bio-medical waste load is based on bedded hospital. Bio-medical waste load of non-bedded entities/establishments/health care units was not identified in details probably for the reason that the same was not documented and unavailable to the Committee. Under BMWM Rules, 2016 and RG for CBWTF by CPCB 2016, treatment and disposal of bio-medical waste is not confined only to bedded hospitals and health care facilities but include non-bedded health care facilities/entities/establishment. Their load, therefore, has also to be 77 taken into account and holistic and wholesome approach has to be adopted.
143. The coverage area of the proposed CBWTF of respondent 6 is also very large i.e., more than 30000 km2. Considering the expediency of collection of bio-medical waste, minimum time it should take in transportation so that the entire process from stage of generation till collection, transportation, treatment and disposal may be completed within 48 hours. It is thus necessary that the coverage area should not be very large.
144. The facts disclosed above also show that the population density in State of MP is low in as much as area wise, State is second largest in the country but it is not densely populated and, therefore, number of health care facilities (bedded and non-bedded) may not be much, still treatment of bio-medical waste in the stipulated time is mandatory and, therefore, what is of importance is the distance which should be allowed to be covered by the collection vehicle of CBWTF and not treatment capacity of CBWTF. The larger distance increases possibility of larger exposure of general public from untreated bio-medical waste collected from health care facilities during transportation to CBWTF unit besides consuming more time in the entire process from the stage of collection till disposal which would not be consistent with BMWM Rules, 2016. It is in these facts and circumstances, MPPCB in its Gap Analysis Report-2017 took a decision that in every district, there should be a CBWTF which will be necessary for timely collection and disposal of bio-medical waste and would also avoid more traveling of infectious bio-medical waste across various districts, and would save general public from possibility of exposure. 78
145. We, therefore, do not find this decision of one district one CBWTF, taken by MPPCB in 2017, per se contrary to any provision of BMWM Rules, 2016 and RG for CBWTF by CPCB 2016. The argument, therefore, that the proposed CBWTF of respondent 6 is within 75 km of radial distance from the unit of appellant and is contrary to BMWM Rules, 2016 and Guidelines is hereby rejected.
The issue relating to ensuring availability of 10,000 beds to appellant irrespective of the coverage area:
146. BMWM Rules, 2016 nowhere ensure availability of 10,000 beds to any CBWTF and to allow coverage area irrespective of the distance so that a CBWTF may have within its coverage area at least 10,000 beds. On the contrary, Rule 7(3) contemplates that there should be a CBWTF available to occupier i.e., the institutions and the premises generating bio medical waste, at a distance of 75 kms and if such common treatment facility is not available then such occupier who is generating bio-medical waste itself is under a statutory obligation to set up its own bio-medical waste treatment equipment for treatment and disposal of bio-medical waste under Rule 7(4). From a cumulative reading of 7(3), (4) and (5), we find that CBWTF must be available to a bio-medical waste generating institution within 75 kms so that it may hand over its bio-medical waste to such CBWTF for treatment and disposal. If CBWTF is not available within such distance then the institution generating bio-medical waste itself has to make its own arrangement for treatment and disposal of bio-medical waste. It means that rule 7 (3) talks of obligation of bio medical waste generating institution and not the right of CBWTF.
147. RG for CBWTF by CPCB 2016 has been prepared by CPCB in discharge of its duties with reference to Rule 6 and 9(3) read with Schedule III item 4 (i) which says as one of the duties of CPCB, as under: 79
"Prepare guidelines on bio-medical waste management and submit to the Ministry of Environment, Forest and Climate Change."
148. Guidelines, being statutory, are enforceable and binding. The stand of SEIAA MP and SEAC MP that the said Guidelines are not mandatory and cannot be enforced, having not being published in Official Gazette, we find ourselves unable to accept. The purpose of publication in the Gazette is communication to the public. It is not in dispute that the Guidelines have been circulated to all SPCBs and PCCs, therefore, they cannot take any stand that Guidelines have not been published, hence not enforceable. We find it strange that Statutory Regulators like SEIAA MP and SEAC MP i.e., respondents 1 and 2 have challenged authority of CPCB and taken a stand that Guidelines neither mandatory nor enforceable having not being published in the Gazette. This stand is misconceived and deserve to be rejected.
149. However, though Guidelines are statutory still would stand subordinate to BMWM Rules 2016. The argument of assurance of 10,000 beds irrespective of the area has been advanced by referring to RG for CBWTF by CPCB 2016. We have referred the said Guidelines in detail above and found that one of the location criteria for establishing CBWTF is that it should be near to its area of operation in order to minimise transportation distance in waste collection. The nearness to area of operation would enhance flexibility as also would ensure compliance to the time limit for treatment and disposal of bio-medical waste within 48 hours.
150. Para 8(a) of the Guidelines says that a CBWTF located within a respective State/UT shall be allowed to cater health care units situated at a radial distance of 75 kms. This we have to understand by reading the same with Rule 7(3) which imposes restriction on an occupier i.e., the person having administrative control over the institution and premises 80 generating bio-medical waste i.e., health care facilities, not to establish their own bio-medical waste treatment facility if a common treatment facility i.e., CBWTF is available at a distance of 75 kms. This part has nothing to do with the number of beds for the reason that health care facilities include both i.e., bedded units as well as non-bedded units.
151. It is further provided in para 8(a) of the Guidelines that in a coverage area where 10,000 beds are not available within a radial distance of 75 kms, the existing CBWTF in the locality may be allowed to cater health care units situated upto 150 kms radius with respect to its location provided bio-medical waste generating is collected, treated and disposed of within 48 hours as stipulated under BMWM Rules, 2016. Here, a discretion has been given to the prescribed authority to allow extension of distance from 75 kms to 150 kms if within 75 kms radial distance of the location of CBWTF, 10000 beds are not available. It does not confer any right upon a CBWTF to claim that it must be allowed extension of coverage area from 75 kms to 150 kms if 10,000 beds are not available within radial distance of 75 kms. It also does not give any assurance to CBWTF that it must have availability of 10,000 beds and so long as 10,000 beds are not available, no new CBWTF can be allowed to be operated within a radial distance of 75 kms.
152. In fact, with regard to establishment of new CBWTF, the radial distance of 75 kms has no connection or relevance. Moreover, if we read para 8(a) strictly, it would mean that the coverage area allowed to a CBWTF cannot be in terms of the district(s). It is in terms of radial distance of 75 kms from its location or the extention is allowed by the prescribed authority within its discretion finding, if necessary, then upto 150 kms. The entire district(s) or large number of districts, if travel beyond 150 kms, cannot be allowed to be the coverage area of CBWTF.
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153. In the present case, we find that appellant was allowed a coverage area in 6 districts where the total distance from its location is even more than 150 kms. This is impermissible.
154. In any case, we have already discussed above that this part of para 8(a) of guidelines which allows prescribed authority to extend coverage area beyond 75 kms, up to 150 kms, is inconsistent with Rule 7(3) which imposes an obligation upon a bio-medical waste generating unit i.e., occupier to arrange its own bio-medical waste treatment equipment if a CBWTF is not available at a distance of 75 kms.
155. Para 8(b) talks of permitting a new CBWTF in the same locality where there already exists a CBWTF if the total number of beds exceeds 10,000. Here also, we may mention that in the said Guidelines, CPCB has completely ignored bio-medical waste generated by non-bedded health care facilities. For treatment and disposal of bio-medical waste, the health care facilities whether bedded or non-bedded, both are equally important and it cannot be said that for the purpose of capacity of functioning of a CBWTF, only bedded health care facilities are to be considered and not non-bedded. To this extent, we find that even otherwise the Guidelines are not strictly in accordance with the Rules which contemplates that bio-medical waste of all kinds of health care facilities, whether bedded or non-bedded, have to be taken care since the same has to be treated in the same manner and no specific stress can be laid only to bedded health care facilities.
156. It is a matter of common knowledge that there are number of non- bedded health care facilities which generate huge quantity of bio-medical waste, for example, pathological laboratories, blood banks, clinics, dispensaries where OPDs run and small surgical and other activities are undertaken, forensic laboratories, research labs and veterinary hospitals. 82 No other provision has been brought to our notice to show that appellant has a right to claim that unless 10,000 beds are ensured or assured to it irrespective of coverage area and distance, no other CBWTF can be allowed to be established within a particular distance of existing CBWTF. Moreover, this prescription of 10000 beds, we have demonstrated above, is also improbable, arbitrary and a result of non-application of mind of CPCB.
157. Hence, this aspect is also answered against the appellant and the contention of appellant is rejected.
Issue regarding non-preparation of fresh Gap Analysis Report by MPPCB:
158. It is said that MPPCB was under an obligation to prepare a fresh Gap Analysis Report in view of the direction given by Bhopal Bench of this Tribunal in Dharmendra Gayakwad & Another vs. MPIDC & Others (supra) vide judgment dated 23.08.2022 and since no such Gap Analysis Report was prepared, in the absence thereof, respondent 6 could not have been granted any EC for establishment of a new CBWTF.
159. It is admitted that Gap Analysis Report was prepared by MPPCB, and published in the year 2017. Copy of the said report is also available on the public domain. In the said Report, there are two tables i.e., table-2 containing latest status of existing CBWTF and the coverage area and at item 10 thereof, details of appellant are mentioned as under:
Latest status of Existing Common Bio Medical Waste Treatment Facility CBWTF and its coverage area S. Name of Coverage No. No of BMW No. of No. CBWTF Area of member collected vehicle (District) HCFs HCF (kg)
10. J.K. Medical Guna, 112 56 150 04 Shivpuri, Waste Ashoknagar Management 83 System, Chanderi, Ashoknagar
160. Table-3 gives details of existing CBWTF's coverage area and proposed new facilities and therein, the appellant is at serial no. 15 with the following details:
"Existing CBWTFs, coverage area and proposed new facilities S. Name of Coverage Area No. Quantity Remarks No. CBWTF of of Beds BMW (kg/day)
15. J.K. Medical Guna-108.4 km 3432 371 Waste Shivpuri- 102.8 km Management Tikamgarh-84.9 km System, Chanderi, Ashoknagar
161. In table-2, the coverage area is shown as districts Guna, Shivpuri and Ashoknagar while in table-3, coverage area shown is Guna, Shivpuri and Tikamgarh. District Niwari was created in 2018 and earlier, it was part of district Tikamgarh, therefore, obviously it could not have been mentioned separately but it is clear that district Rajgarh was not a part of coverage area of appellant when the said Report was prepared. Further, there is a discrepancy in table-2 and 3 with respect to appellant in as much as in table-2, the coverage area did not include district Tikamgarh while in table-3, district Ashoknagar has not been mentioned. Even number of health care facilities and load of bio medical waste is not correctly mentioned.
162. Be that as it may, and without taking the said discrepancies to be of any consequence, we find from a perusal of Guidelines that para 2 sub- para (b) contemplates a gap analysis to be conducted with respect to 84 coverage area of bio-medical waste generation by SPCBs/PCCs which should be projected over a period of next 10 years. The gap analysis study shall consider adequacy of existing treatment capacity of CBWTFs in each coverage area of radius 75 kms. The gap analysis study would have a projection over a period of next 10 years. There is nothing in para 2(b) that such gap analysis shall be conducted after a particular period or every 5 years.
163. Moreover, consideration of matter of respondent 6 for grant of EC commenced in May 2022, i.e., within a period of 5 years of gap analysis report of 2017. Respondent 6 applied for grant of EC for establishment of CBWTF at village-Ahar, Tehsil-Baldeogarh, District-Tikamgarh by submitting online proposal no. SIA/MP/MIS/76041/2022 registered in SEIAA MP on 10.05.2022. This is evident from page 341 of the memo of appeal. The application was forwarded to SEAC MP for scoping so as to determine ToR to carry out EIA and prepare EMP for project. Respondent 6 and its consultant presented its case before SEAC MP in its 572nd meeting held on 19.05.2022. SEAC MP, in the meeting dated 19.05.2022, decided to recommend standard ToR prescribed by MoEF&CC with additional ToR. The recommendation of SEAC MP was considered by SEIAA MP in its 728th meeting dated 27.05.2022 and it decided to approve ToR as recommended by SEAC MP. SEIAA MP vide letter dated 06.06.2022 approved ToR as recommended by SEAC MP and decided to issue additional ToR with certain conditions.
164. The fact that respondent 6 filed application seeking grant of EC in May 2022 has also been stated in para 3.6 of the memo of appeal. So, this is an admitted fact that application for grant of EC was filed by respondent 6 on 10.05.2022.
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165. After grant of ToR and additional ToR, MPPCB took steps for public hearing and vide letter dated 08.07.2022, directed Regional Officer, MPPCB, Sagar and respondent 6 to conduct public hearing as per the provisions of EIA 2006. Collector Tikamgarh was also sent a copy of the said letter who vide letter dated 22.07.2022 informed Regional Officer, MPPCB and respondent 6 that public hearing shall be conducted on 07.09.2022 in Gram Panchayat Bhawan, Village Ahar under Chairmanship of Additional Collector. As scheduled by Collector Tikamgarh, public hearing was held on 07.09.2022 and the report of public hearing was submitted by Regional Officer, Sagar vide letter dated 11.10.2022. Thereafter EIA Report was submitted by respondent 6. Thereupon SEAC MP, pursuant to its decision taken in 620th meeting dated 13.01.2023 recommended grant of EC. SEIAA MP considered the said recommendation in its 770th meeting held on 02.02.2023 and decided to grant EC which was ultimately issued on 14.02.2023.
166. In the meantime, respondent 6 applied for grant of CTE vide application dated 19.12.2022 and MPPCB issued a letter dated 02.01.2023 granting CTE.
167. It thus appears that the exercise was undertaken by MPPCB and SEIAA MP by taking into account Gap Analysis Report-2017 prepared by MPPCB, which in our view is justified. The contention that no Gap Analysis Report has been prepared and no such study has been conducted by authorised agency i.e., MPPCB is not correct. Nothing has been placed before us to show that at the time when the issue of grant of EC and CTE to respondent 6 was under consideration, Gap Analysis Report-2017 prepared by MPPCB was not validly operating at that time and has lapsed. 86
168. We may also place on record that MPPCB is also undergoing a fresh Gap Analysis study for the purpose whereof MPPCB vide Office Order dated 03.11.2022 has constituted a Review Committee comprising following officers:
(i) Mr. R.S. Kori, Director (Environment)
(ii) Mr. H.K. Sharma, Director (Environment)
(iii) Mr. M.L. Patel, Superintending Engineer
(iv) Mr. Neetesh Chaurasiya, Sub-Engineer
169. Be that as it may, it cannot be said that Gap Analysis Report had not been prepared and examined by the concerned authorities while granting CTE and EC to respondent 6. This contention is negatived. Issue relating to grant of CTE before issue of EC:
170. It is argued that CTE was issued to respondent 6 by MPPCB vide letter dated 02.01.2023 when application for grant of EC was pending and no EC was issued to respondent 6. As a matter of fact, recommendation for grant of EC was made by SEAC MP in its meeting dated 13.01.2023 i.e., after the grant of CTE to respondent 6 and SEIAA MP considered the said recommendation in its meeting dated 02.02.2023 when it accepted the recommendation and decided to grant EC which was ultimately issued on 14.02.2023. Learned Counsel for appellant stated that CTE granted to respondent 6 prior to grant of EC is illegal and in the teeth of the provisions of EIA 2006. However, despite our queries, he could not refer to any provision in EIA 2006 which bars or prohibits grant of CTE before issue of EC.
171. On the contrary, our attention is drawn by learned Counsel of respondent 6, to a direction contained in the letter dated 20.09.2021 issued by MoEF&CC under Section 5 of EP Act, 1986 which prohibits grant or 87 renew of Consent to Operate (hereinafter referred to as 'CTO') unless EC has been obtained. It is stated therein that grant of EC and consents are requirements under different statutes and not inter-dependent and can be carried out as a parallel process. Industrial units may be in possession of a valid CTE which can be issued before grant of EC subject to stipulated condition therein that EC, if applicable, shall be obtained before construction/commencement of project/activity. However, no CTO shall be granted or renewed unless EC has been obtained. Para 6 of the aforesaid order dated 20.09.2021 is reproduced as under:
"6. Now therefore, in exercise of powers conferred by section 5 of the Environment (Protection) Act, 1986 (29 of 1986), the Central Government, hereby directs that all SPCB/UTPCC shall:
i. Ascertain the applicability of EIA Notification at the time of grant/renewal of CTE and stipulate appropriate condition for obtaining Environmental Clearance (EC), if applicable, before construction/commencement of project/activity.
ii. Ensure that the project proponent possesses a valid Prior EC in terms of the extant EIA Notification, if applicable, at the time of grant/renewal of CTO and no CTO shall be granted or renewed unless EC, if applicable, has been obtained."
172. The said letter has been issued by Director in MoEF&CC (Impact Assessment Division) and the letter says that it has been issued with the approval of Competent Authority. This direction which has been issued under Section 5 of EP Act, 1986 makes it very clear that there is no bar in issue of CTE before grant of EC provided stipulation is made in CTE that before commencement of the project or any activity or construction, EC shall be obtained. In that view of the matter, grant of CTE to respondent 6 before grant of EC is neither illegal nor can be said to be invalid under any provision of law. The arguments deserve to be rejected. 88 Issue relating to holding of public hearing without following procedure and completion of pubic hearing before filing of application for grant of EC:
173. Learned Counsel appearing for appellant contended that Form I and IA under EIA 2006 submitted by respondent 6 for grant of EC are dated 04.11.2022 while public hearing was held on 07.09.2022 and report was submitted by Regional Officer on 11.10.2022 and on the basis of public hearing held earlier to the filing of application for grant of EC, the impugned EC has been granted which is illegal. The submission, we find is contrary to the material on record.
174. Appellant himself has admitted by stating in para 3.6 of the memo of appeal that respondent 6 filed application seeking grant of EC before SEIAA MP in May 2022. Application proposed establishment of CBWTF at khasra no. 758/6 at village Ahar, Tehsil, Baldeogarh, District- Tikamgarh. It shows consideration by SEAC MP for grant of ToR and additional TOR in the meeting dated 19.05.2022, acceptance of the said recommendation by SEIAA MP in its meeting dated 27.05.2022 and public hearing conducted on 07.09.2022, not prior to filing of the application for grant of EC under EIA 2006 but the application was filed much before the above proceedings.
175. It is true that annexure A/5 is a copy of common application form submitted by respondent 6 wherein certain information of period of May and June have been given and at page 129 of memo of appeal, the date of application is mentioned as 04.11.2022 but it appears that the said application was filed by respondent 6 along with final EIA report i.e., annexure A/6 though there is nothing in EIA which requires filing of such application again. It can be said to be only an irregularity but would not vitiate the proceedings which have been conducted admittedly pursuant to the application filed by respondent 6 for grant of EC on 10th May 2022 and 89 registered at SEIAA MP on the same date i.e., 10.05.2022, as is evident from letter dated 06.06.2022 at page 341 issued by SEIAA MP to respondent 6 with regard to approval of ToR as recommended by SEAC MP. Contention, therefore, that the application for grant of EC was submitted in November 2022 and grant of ToR and public hearing was held earlier thereto, hence the procedure under EIA was not followed, is neither correct nor can be accepted. This argument is also negatived. Issue relating to non-application of mind on the part of SEIAA MP in grant of EC:
176. It is contended that an objection was raised by appellant regarding location and distance between CBWTF of appellant and respondent 6 and it was contended that distance is less than 75 kms and as per RG for CBWTF by CPCB 2016, no new CBWTF could be permitted to be established within 75 kms of the existing CBWTF. SEIAA MP in EC observed that this aspect is within the authority of MPPCB and while granting CTE, they may have considered the same. This shows that SEIAA MP itself did not apply mind to the above objection of appellant. It is further contended that MPPCB did not consider this issue/objection raised by appellant, therefore, the same remained unconsidered by both the authorities i.e., MPPCB and SEIAA MP.
177. In this regard, we have already discussed the matter and found that MPPCB undergone Gap Analysis in 2017 wherein a decision was taken to encourage establishment of at least one CBWTF in each district. MPPCB followed the said decision. To suggest that no mind was applied by MPPCB, therefore, is not correct for the reason that one CBWTF may be allowed in every district, was the decision already taken in Gap Analysis Report-2017 of MPPCB. It is not disputed that study of Gap Analysis has to be done by SPCB/SPCC and, therefore, MPPCB was the Competent Authority to 90 undertake this study. It is also not shown to us that in May 2022 and thereafter, till EC was granted to respondent 6, Gap Analysis Report-2017 either had outlived its utility or had expired or lapsed or was not validly operating and, therefore, would have not been taken into consideration by the concerned authorities.
178. Moreover, we have already examined this aspect in the light of RG for CBWTF of CPCB 2016 read with BMWM Rules, 2016 and specially with reference to Rule 7(3) and (4) and found that there is no embargo in allowing a new CBWTF within 75 kms radius of existing CBWTF and the provision that a CBWTF can cater to health care facilities within radius of 75 kms, per se, did not prohibit establishment of another unit within the said area.
179. Moreover, we find that on this aspect, matter has been examined by this Tribunal in some cases and similar contention has been rejected.
180. Vide order dated 23.01.2023 passed in M.A. 98/2022 in OA 180/2021, Mukul Kumar vs. State of Uttar Pradesh & Others, Tribunal in para 14 has said as under:
"14. Thus, with a view to ensure protection of environment, we find it necessary to direct that pending further decision of the CMC in the matter, radius for permission for additional CBMWTFs will stand reduced to 40 km of existing Facility and number of 1000 beds will stand reduced to 500 beds for addition of a Facility, as suggested by Odisha and Punjab State PCBs. State PCBs will be entitled to further reduce the gap, if found necessary in a fact situation, for ensuring better compliance. Principle of one district one facility cannot be universal as there may be big districts which may require more than one Facility or there may be small districts which may have to be dealt with differently."
181. The above order has been passed by a three Judges' Bench of Tribunal. Background of passing the above order is that an issue of non- compliance of BMWM Rules, 2016 and RG for CBWTF by CPCB 2016 in 91 handling, treatment and disposal of waste generated during treatment/diagnosis/quarantine of Covid-19 patients was raised in OA.
182. A four Members' Bench of Tribunal decided OA finally vide judgment dated 07.01.2022. It is evident from the judgment that though initially grievance was raised in respect of violation by waste management facilities in District Shahjahanpur, State of UP but Tribunal, finding similar violation across the country, enlarged the scope of the matter to all other States and Union Territories. Tribunal referred to report submitted by Monitoring Committee CPCB, giving PAN India detail facts. Tribunal found that though report did not give complete picture of violation yet taking the same at face value, it was evident that there are patent and serious violations whereagainst requisite action was not taken by Statutory Regulators and the matter required emergent remedial action. In para 21, it was observed that there are huge gaps in compliance of environmental norms in handling and disposal of bio-medical waste, causing health hazard to the citizens, emergent and effective measures are inevitable to remedy the situation. While broad gaps have already been indicated in collection, handling, transportation and remediation, micro management is a matter of continuous monitoring at several levels in the Government. Tribunal thus, found it appropriate to direct rigorous monitoring at District, State and National levels by Joint Committees representing concerned authorities in co-ordination with all stake holders. It was brought to the notice of Tribunal that vide order dated 22.11.2021, MoEF&CC has constituted a Central Monitoring Committee (hereinafter referred to as 'CMC') to review implementation of BMWM Rules, 2016. The said Committee is headed by Joint Secretary, Ministry of Health and Family Welfare with representatives of other Departments, States and other experts. Meeting of the Committee, Tribunal found was held only once in 92 a year, therefore, it directed for more frequent meetings of CMC but urgently a meeting within two weeks to consider the state of affairs prevailing in the country and to prepare an effective monitoring strategy to ensure that there are adequate number of facilities with appropriate infrastructure and their functioning is reviewed on regular basis at District and State level. Tribunal also constituted State level and District level Committees for monitoring purposes. CMC was directed to compile a national report as on 30.04.2022 based on reports received from State Level Committees who were required to submit their reports after compiling reports from District Level Committee which are to be uploaded on its website.
183. After disposal of OA, CMC submitted its report before Tribunal which was registered as MA 98/2022 (supra) and the said report was considered vide order dated 23.01.2023.
184. Tribunal found that in the meeting held on 09.05.2022 by CMC, some suggestions were received requiring modification of existing Guidelines on the issue of CBWTFs for better compliance. Odisha and Punjab Pollution Control Boards suggested that the coverage area of 75 kms radius allowed for CBWTF should be reduced to 40 or 50 kms so as to avoid the probability of creation of monopoly and further number of beds which may be catered by CBWTF be reduced to 500. However, in the meeting, it was found that the said proposal required some further discussion among various entities engaged in bio-medical waste management, hence no decision was taken. In this backdrop, Tribunal observed that inadequate number of treatment facilities are not able to cater to large areas and large number of beds, make daily collection and treatment difficult. This gap results in unscientific disposal of bio-medical 93 waste to the detriment of public health. Accordingly, Tribunal issued direction in para 14 which we have quoted above.
185. The above order has been followed in Appeal No. 03/2023, Medical Pollution Control Committee vs. State of Uttarakhand & Others decided on 06.03.2023, by a four Members' Bench of Tribunal. Therein, specifically, a contention was raised that no facilities can be allowed within 75 kms of distance of the facility set up by appellant but the same was rejected. In para 8, noticing the contention and its rejection, Tribunal said as under:
"8. Contention that no facility can be allowed within 75 kms distance of the facility set up by the appellant can also not be accepted. This aspect has been considered in recent order of this Tribunal dated 23.01.2023 in M.A. No. 98/2022 in OA No. 180/2021, Mukul Singh vs. State of Uttar Pradesh & Ors., as follows:
"12. Record of discussion of meeting conducted by the CMC held on 09.05.2022 (Annexure 7 to the report) shows suggestions to modify existing guidelines on the issue of CBMWTFs for better compliance. At the moment only one CBMWTF is allowed in radius of 75 KMs and upto 1000 beds to enable service provider fair return on investment. Important suggestion of Odisha and Punjab PCBs is to reduce limit of 75 km radius for CBMWTF to 40 or 50 km decrease mandatory requirement of 1000 beds for CBWTF facility approx. 500 beds to achieve the aim of 'One district, one Facility'. After all, fair return to investor is not to take precedence over compliance as is being understood in certain quarters. Relevant extract the discussion in the meeting is as follows:
"5. On the aspect of operation of CBWTFs, the representative of Odisha PCB and Punjab PCB suggested that the limit of 75 km radius for CBMWTF should be further reduced to 40 or 50 km radius, as a prescription of radius in small states allow a player to create monopoly in the area for BMW management. Further, it was also suggested that the mandatory requirement of 1000 beds for CBWTF facility should be decreased to approx. 500 beds to achieve the aim of 'One district, one Facility'. However, the CMC and other stakeholders noted that the proposal needs further discussion among various entities engaged in BMW management."94
13. No decision appears to have been taken on such important suggestion. It is well known that inadequate number of treatment Facilities are not able to cater to large areas and large number of beds as it makes daily collection and treatment difficult. This gap results in unscientific disposal of bio-medical waste to the detriment of public health. In this regard, we may refer to observations of the Tribunal in order dated 15.12.2022 in OA No.900/2022, M/s Rainbow Environments Pvt. Ltd. vs. State of Punjab & Ors., as follows:
8. In above background, guidelines on the subject are to be understood. Object of guidelines being to ensure effective treatment of bio medical waste for protection of environment and public health and not merely to advance business interest of a Facility by creating monopoly, prime concern is bridging of gap in compliance of norms for which free play in joints has to be allowed to the statutory prescribed authority under the BMW Rules to take effective measures for better compliance and coverage, including availability of a Facility close to generation of waste and efficiency of existing Facility. ..."
14. Thus, with a view to ensure protection of environment, we find it necessary to direct that pending further decision of the CMC in the matter, radius for permission for additional CBMWTFs will stand reduced to 40 km of existing Facility and number of 1000 beds will stand reduced to 500 beds for addition of a Facility, as suggested by Odisha and Punjab State PCBs. State PCBs will be entitled to further reduce the gap, if found necessary in a fact situation, for ensuring better compliance. Principle of one district one facility cannot be universal as there may be big districts which may require more than one Facility or there may be small districts which may have to be dealt with differently."
186. Tribunal relied on its order dated 23.01.2023 in Mukul Kumar vs. State of Uttar Pradesh & Others (supra), and accordingly, Appeal No. 03/2023 (supra) was rejected.
187. An argument was raised that CBWTF is a Red Category industry and causes pollution. Tribunal refers to CPCB circular dated 30.04.2020, 95 whereby it was directed that CBWTF shall be treated as a non-industrial operation. It was observed in para 7 of the judgment passed in Appeal No. 3/2023(supra) that even if activities of waste treatment are hazardous since waste generation cannot be prevented that treatment thereof is a compulsion.
188. Similar objection was that as per CPCB Guidelines, no facility can be set up within 75 kms of an existing CBWTF if less than 10,000 beds are available, then existing facility can cover upto 150 km radius. Hence, if any new facility is allowed to be establish, it would violate Guidelines. This argument was raised in Appeal No. 05/2023, Santosh Kumar Singh vs. State Level Environment Impact Assessment Authority, U.P. & Others. Tribunal, vide judgment dated 13.04.2023, discussing Appeal and rejecting the contention, relied on its judgment dated 06.03.2023 in Medical Pollution Control Committee vs. State of Uttarakhand & Ors. (supra) and observed that Guidelines are to be read subsidiary to the main consideration i.e., addressing huge gaps in generation and treatment of medical waste in the interest of environment. The relevant part of the order dated 23.01.2023 passed in Mukul Kumar vs. State of Uttar Pradesh & Ors. (supra) was also quoted in para 3 of the judgment where judgment dated 06.03.2023 passed in Medical Pollution Control Committee vs. State of Uttarakhand & Others (supra) was referred. This order was also passed by a four Members' Bench of Tribunal.
189. Further, Tribunal has also held that the Guidelines framed by CPCB with regard to collection, treatment and disposal of bio-medical waste by CBWTF, it has to be kept in mind that object is to ensure effective treatment of bio-medical waste for protection of environment and public health and not to merely advance business interest of the facility by creating monopoly. These observations have been made by a three Members' Bench 96 in OA 900/2022, M/s. Rainbow Environments Pvt. Ltd. vs. State of Punjab & Others decided vide judgment dated 15.12.2022. In para 8 of the judgment, Tribunal has said as under:
"8. In above background, guidelines on the subject are to be understood. Object of guidelines being to ensure effective treatment of bio medical waste for protection of environment and public health and not merely to advance business interest of a Facility by creating monopoly, prime concern is bridging of gap in compliance of norms for which free play in joints has to be allowed to the statutory prescribed authority under the BMW Rules to take effective measures for better compliance and coverage, including availability of a Facility close to generation of waste and efficiency of existing Facility. Arguments in the Application ignore these considerations and focus only on assumed vested right of the applicant."
190. Learned Counsel, however, has relied on a Division Bench judgment of Tribunal dated 23.08.2022 passed in Dharmendra Gayakwad & Another vs. MPIDC & Others (supra), wherein also, similar issue with regard to violation of RG for CBWTF by CPCB 2016 with regard to establishment of CBWTFs within 75 kms and other violation of BMWM Rules, 2016 etc. was raised. Tribunal referred to provisions of Rules, Guidelines, quoted the report of Joint Committee constituted in the said matter, in detail and also referred to the judgment of this Tribunal passed in some similar cases wherein also an argument was raised on behalf of SEIAA MP that Guidelines are not mandatory but that was not accepted and tribunal in para 18 of judgment said that BMWM Rules, 2016 are eco- friendly and intended to dispose of the waste within 48 hours and there is no hard and fast rule with regard to 75 kms. Therein, since EC was not granted and pending consideration before SEIAA MP, matter was pending before Tribunal, hence, while disposing OA, Tribunal said that in the light of the recommendations of the Joint Committee Report, a fresh Gap Analysis shall be conducted by MPPCB with regard to concerned CBWTF and such report shall be submitted to SEIAA MP who will take appropriate 97 decision within time frame. The said judgment, we find, neither says that Gap Analysis Report-2017 of MPPCB which was of the entire State in general, needs to be revised nor the said judgment renders the earlier report to be ineffective nor it lays down anything in favour with regard to the right claimed by appellant with respect to the radius of 75 kms and on the contrary, in para 18, Tribunal clearly observed as under:
"18. The Bio Medical Waste Management Rules, 2016 are eco friendly and intended to dispose of the waste within 48 hours and there is no hard and fast rule with regard to the 75 km...."
191. We, therefore, do not find anything in the above judgment which may help appellant and on the contrary, there are observations which supports the view which we have taken in the above discussion.
192. The issue of treatment and disposal of bio-medical waste is very serious. Bio-medical waste is one of the most hazardous wastes generated in today's time and various State Agencies have formulated various laws time and again with necessary improvements so as to ensure that bio- medical waste is treated and disposed of properly so as to minimalize pollution of environment by way of bio-medical waste pollutants. Initially, for treatment of bio-medical waste, there used to be captive incinerators but eventually with the passage of time when it was realized that captive plants are difficult to monitor and can be one of the major reasons attributable towards violation of the environmental norms, it was formulated that there shall be establishment of CBWTFs throughout the nation. This was done majorly to limit the number of bio-medical waste treatment facility and disposal plants and to keep a proper check and monitor over these by the concerned State PCBs as well as CPCB.
193. In the 21st century, with increased use of disposable material and the presence of dreaded disease like Hepatitis B and AIDS, it is utmost 98 important to take care of the infectious and hazardous waste to save the mankind from disaster. Health care institution or hospitals which are responsible for care of morbid population are emitting voluminous quantity of rubbish, garbage and bio-medical waste matter each day from wards, operation theatres and outpatient areas. Proper management of hospital waste is essential to maintain hygiene, aesthetics, cleanliness and control of environmental pollution. Hospital waste like body parts, organs, tissues, blood and body fluids along with soiled linen, cotton, bandage and plaster casts from infected and contaminated areas are very essential to be properly collected, segregated, stored, transported, treated and disposed of in safe manner to prevent hospital acquired infection. Various communicable diseases, which spread through water, sweat, blood, body fluids and contaminated organs, are important to be prevented. The bio medical waste scattered in and around the hospitals invites flies, insects, rodents, cats and dogs that are responsible for the spread of communication disease like Plague and Rabies. Rag pickers in the hospital, sorting out the garbage are at a risk of getting tetanus and HIV infections. Recycling of disposable syringes, needles, IV sets and other article like glass bottles without proper sterilization are responsible for Hepatitis, HIV and other viral diseases. It becomes primary responsibility of Health Administrators to manage hospital waste in most safe and eco- friendly manner.
194. Unscientific disposal of bio-medical waste had potential of serious diseases such as Gastrointestinal infection, Respiratory infection, Eye infection, Genital infection, Skin infection, Anthrax, Meningitis, AIDS, Haemorrhagic fevers, Septicaemia, Viral Hepatitis type A, Viral Hepatitis type B and C, etc. Such unscientific disposal also causes environmental pollution leading to unpleasant smell, growth and multiplication of vectors 99 like insects, rodents and worms and may lead to the transmission of diseases like Typhoid, Cholera, Hepatitis and AIDS through injuries from syringes and needles contaminated with various communicable diseases.
195. Right to life under Article 21 includes clean environment and right to live in pollution free environment. Article 48(A) in Part IV of the Constitution containing directive principles enjoins that State shall endeavour to protect and improve environment and to safeguard the forests and wild life of the country. Article 47 imposes duty on the State to improve public health as its primary duty. Article 51(A) (g) imposes Fundamental Duties upon every citizen to protect and improve natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
196. In T.N. Godavarman Thirumalpad vs. Union of India & Ors., (2002) 10 SCC 606, in para 17 at page 621, Supreme Court observed that the word "environment" is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance". It is, therefore, not only the duty of the State but also duty of every citizen to maintain hygienic environment. The State, in particular has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a Fundamental Right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance, free from pollution, air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now 100 become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man- made and the natural environment. Therefore, there is constitutional imperative on the Central Government, State Governments and bodies like municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve the man-made environment and natural environment.
197. It was further observed that industrialization, urbanization, explosion of population, over-exploitation of resources, depletion of traditional sources of energy and raw materials, and the search for new sources of energy and raw materials, the disruption of natural ecological balances, the destruction of a multitude of animal and plant species for economic reasons and sometimes for no good reason at all are factors which have contributed to environmental deterioration. While the scientific and technological progress of man has invested him with immense power over nature, it has also resulted in the unthinking use of the power, encroaching endlessly on nature. If man is able to transform deserts into oasis, he is also leaving behind deserts in the place of oasis.
198. In the light of the above observations and also considering the fact that State of MP is a very large State in area and number of CBWTFs available comparing to the area of the State are very nominal, permitting new CBWTF to establish and operate, cannot be faulted. We are informed that upto 2023, i.e., when we heard the matter, only 18 CBWTFs in the entire State were operational. In such a large area where long distances have to be covered, commercial interest of CBWTF may have its importance only to a limited extent but the primary object of collection, treatment and disposal of bio-medical waste within the prescribed time i.e., 48 hours is of 101 prime importance and, therefore, if in different areas i.e., different districts, new CBWTFs are established, the same, per se, cannot be said to be illegal, arbitrary or violative of any provision or law particularly, in view of the discussion made above.
199. At this stage, we may also observe that the allotment of coverage area is within the domain of SPCBs and SPCCs. Presently, appellant is having six Districts within its coverage area out of which Districts Tikamgarh and Niwari (which was part of Tikamgarh earlier) are proposed to be placed simultaneously within the coverage area of respondent 6 since its unit is proposed to be installed in District Tikamgarh and is also proposed to cater three other Districts which are not within the coverage area of appellant. The allotment of coverage area if needs to be re-scheduled or re-allocated, this aspect can be examined by MPPCB and requisite alteration, if necessary, can be done, after giving opportunity of hearing to all concerned parties.
200. Subject to above directions and observations, we find no merit in various submissions raised by appellant.
201. Therefore, all the issues are answered against appellant.
202. Appeal has no merit, hence dismissed.
SUDHIR AGARWAL, JUDICIAL MEMBER DR. AFROZ AHMAD, EXPERT MEMBER December 04, 2023 Appeal No. 05/2023(CZ) R 102