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Judgment
The Issue
The question for consideration in the main matter is the remedial measures against pollution of river Daman Ganga and drain Bill Khadi in District Valsad in Gujarat on account of discharge of effluents by industries and the CETP in Vapi Industrial Cluster, operated by M/s Vapi Green Enviro Ltd. In the course of consideration of the said question, incidental but significant issue of compliance of judgement of the Hon’ble Supreme Court in Techi Tagi Tara Vs. Rajendra Singh Bhandari & Ors., (2018) 11 SCC 734 with regard to manning and functioning of the statutory environmental regulators throughout India was also taken up.
Procedural History
Since by this order we propose to finally dispose of this matter, we may briefly refer to the proceedings so far. Mainly, there are three orders by which matter has been earlier dealt with – Orders dated 13.5.2019, 28.8.2019 and 5.2.2021.
Vide order dated 13.05.2019, the Tribunal considered the factual report of the joint Committee dated 09.05.2019 on the issue of discharge of untreated pollutants by more than 500 industries in the Vapi Industrial cluster. The Committee specified the extent of non-compliances and failure of the CETP system and also failure of the monitoring by the State PCB. Considering the same, the Tribunal issued directions for remedial measures, payment of compensation on polluter pays principle for past violations and also directed performance audit of PCBs.
Vide next order dated 28.08.2019, this Tribunal considered the status report submitted about the remedial action in respect of CETP in question and recovery of compensation from the erring parties as also performance reports about the PCBs/PCCs. The said reports are:
I. Report dated 14.08.2019 from CPCB in respect of performance of CETP;
II. Report dated 05.08.2019 furnished by the CPCB on behalf of the joint Committee with regard to payment of compensation by the polluting industries;
III. Report dated 10.07.2019 from the CPCB on the subject of performance audit of the State PCBs/PCCs; and
IV. Report dated 17.08.2019 from the MoEF&CC on the subject of compliance of judgment of the Hon’ble Supreme Court in Techi Tagi Tara Vs. Rajendra Singh Bhandari & Ors.( 2018) 11 SCC 734
The matter was last considered vide order dated 05.02.2021. The issue of performance audit of PCBs and compliance of judgment in Techi Tagi Tara (supra), reports filed by the MoEF&CC on 11.05.2020 and by the CPCB dated 30.09.2020 were considered. It was noted that there were huge gaps in infrastructure in terms of key manpower and procurement of necessary equipment and also gaps in compliance status on key environmental issues. There were serious deficiencies in functioning of the statutory regulators and in remedial action against violation of waste management systems. The Tribunal issued final directions on the subject. However, the issue of pollution by the industries in the Vapi Industrial area and performance of CETP in question was deferred sine die in view of pendency of Civil Appeal No. 9398/2019, M/s Vapi Green Enviro Limited v. Aryavart Foundation and Ors. before the Hon’ble Supreme Court against order of the Tribunal dated 28.08.2019 and interim order of stay of earlier order of this Tribunal.
The Tribunal considered the report of the CPCB dated 30.9.2020. In view of deficiencies in functioning of statutory regulators, the Tribunal held that for compliance of ‘sustainable development’, ‘precautionary’ and ‘polluter pays’ and to prevent damage to the environment, recommendations in the CPCB report were required to be urgently implemented. Accordingly, directions were issued for remedial measures as follows
“22. The directions on the subject are summed up as follows:
i. The Chief Secretaries of all States/UTs, in coordination with their respective Secretary Environment and Chairman State PCB/PCCs, need to forthwith study and address the issues emerging from the CPCB report, prepare and execute their respective action plans which will include filling up all vacant posts by competent persons and procuring the requisite equipment, including commissioning and upgradation of all laboratories and recognition under the EP Act, 1986. The CPCB may assist and monitor all the States for compliance of these directions. The steps in this regard be initiated and completed as far as possible within six months. In view of Section 33 of the NGT Act, 2010, whereunder the NGT Act has overriding powers over other statutes, any restriction placed by any administrative order will not stand in the way of carrying out this direction.
ii. We direct the CPCB to prepare a format which may contain qualifications, minimum eligibility criteria, required experience for the key positions and the specifications of equipment. All States/UTs may act accordingly.
iii. MoEF&CC and CPCB may design a mechanism for annual performance audit of all the State PCBs/PCCs.
iv. It is suggested that if some of the State PCBs find it difficult to select/recruit suitable candidates, a designated Committee of the MoEF&CC and CPCB, in consultation with such State PCBs, may explore possibility of the central selection mechanism so that the talent pool so selected can be made available for posting at appropriate locations, where requirement is found to be otherwise difficult. A plan be prepared for continuous training of the incumbents at regional levels periodically.
v. In view of the findings in the report that at some places administrative manpower is more than technical manpower, such situation may be reviewed and remedied by the concerned States.
vi. The observations that the work of regulators should be fulltime for the incumbents appointed applies to all key positions, including Chairman/Member Secretary and Regional Officers, Engineers, Scientists of PCBs/PCCs. Such incumbents may not be given any other additional charge. Only exception can be in States where there are no significant environmental issues so as to provide the incumbents fulltime work. Such States may seek exemption in respect of this direction from CPCB, giving relevant information justifying such exemption.
vii. CPCB and State PCBs/PCCs, as directed earlier, may utilise EC funds on laboratory set up/upgradation, and on the mentioned areas in the report as well as on approved District Environment Plans. No approval of Central/State Government will be necessary in this regard in view of section 33 of the NGT Act, supra.
viii. Consistent with Digital India initiatives, MoEF&CC/MoJS/CPCB may consider setting up and periodically updating National Environment Data Grid (NEDG) linked to the State Environment Data Grids (SEDGs) DEDGs and further linked to available portals like online air/water quality, Sameer and other monitoring stations to facilitate analysis, research and planning on the subject. It may be further interlinked to initiatives like NMCG/Swachh Bharat/Jal Jeevan Mission.
ix. To assess the extent of monetary loss caused to the environment on account of violation of environmental norms by failure to scientifically manage waste, violating Water/Air/EP/Forest (Conservation) Acts and other specified Acts for fixing accountability, for improving efficiency and better enforcement of ‘Polluter Pays’ principle.
x. To monitor the extent of carrying capacity for particular activities at different locations for planning suitability of siting of particular activities for giving effect to
‘Precautionary’ and ‘Sustainable Development’ principles The issue of manning and functioning of State PCBs/PCCs will stand disposed of accordingly. However, the issue of pollution in Vapi Industrial cluster which has been adjourned sine die will now be taken up after disposal of the matter pending in the Hon’ble Supreme Court.
All pending interlocutory/miscellaneous applications will stand disposed of with liberty to State PCBs/PCCs to point out their difficulties, if any, to the joint Committee of MoEF&CC and CPCB.
The executive summary of the CPCB report dated 30.09.2020
The executive summary of the CPCB report dated 30.09.2020 is quoted below for ready reference:-
“xxx ………………………..xxx ………………………………xxx………..
The Performance Audit of each State Pollution Control Board contained three sections. The first part shows about general information, State’s potential in terms of resources, environmental factors and performance with reference to other indices. The second part is the summary of the audit findings mainly dealing with infrastructure, monitoring, regulatory and other actions with recommendations. Third part contains information at a glance on all environmental aspects.
Serious concerns were mentioned regarding the infrastructure in the form of manpower, laboratories and other facilities available at State Pollution Control Boards and Pollution Control Committees. The information is collected from the States on the aspects related to infrastructure were detailed in the report.
MANPOWER: It has been reported from time to time that shortage of manpower is the chief cause for under performance of State Pollution Control Boards. CPCB requested all SPCBs / PCCs to provide the Scientific, Technical and Administrative manpower details w.r.t. Group A, B, and C in prescribed format.
Category
Group A
Group B
Group C
Total
Sanctioned
1,749
2,629
5,060
9,438
In Place
1,092
1,591
2,413
5,096
Vacancy
657
1,038
2,647
4,342
• It is evident that about 46 % posts are vacant and need to be filled up urgently.
• North Eastern States and UTs have skeleton staff attending urgent matters only.
• Six Boards namely Andaman & Nicobar (05), Arunachal Pradesh (56, including 49 Group C), Daman, Diu & Dadra and Nagar Haveli (10), Mizoram (11), Nagaland (14) and Sikkim (19) have filled all sanctioned posts.
• Arunachal Pradesh, Delhi, Himachal Pradesh, Jammu & Kashmir, Madhya Pradesh, Meghalaya, Punjab, Sikkim Board had administrative staff more than Scientific & Technical manpower.
LABORATORIES: The strengthening of laboratories at SPCBs is one of the major concerns and expected regular upgradation and establishment of analytical facilities to meet the regulatory and research requirements. Shortage of funds was not a reason for most of the Boards. Similarly, there are no reasons for the State Boards for not obtaining the recognition of their laboratories under E (P) Act. NABL Accreditation is recommended for all laboratories and followed up by CPCB with moderate success. The shortage of scientific manpower, procurement delays in instruments, equipment, & consumables and need for quality control are important aspects identified during the audit process.
• Six Central Laboratories at SPCBs had valid recognition as Environmental Laboratories.
• Two applications are under process for renewal of recognition at MoEF&CC.
• Three regional laboratories had valid recognition as Environmental Laboratories.
• Five Laboratories have obtained accreditation for four major group of parameters.
• Eight SPCBs have accreditation for more than two groups of parameters.
Five SPCBs notified adequate number of Board Analysts.
• Twelve Boards have notified more than one Analyst at Laboratories.
• Thirteen SPCBs / PCCs have not notified any Analysts.
The two short comings related to recruitment and procurement need urgent attention all the SPCBs and if needed, professional services in private sector may be hired for effective and timely actions.
PERFORMANCE: After examining the performance of SPCBs during the audit process, short-comings noted are mentioned here. Some of these shortcomings are prevailing in well-structured Boards also.
i. Many States / UTs have not yet felt the need for state specific Environment Policy. The existing Environment Policies at other States need a review in view of new thrust areas are related to the civic issues and waste management practices
ii. There are many SPCBs / PCCs who have not yet prepared the Environment Status Reports. There is a strong need of preparing such reports regularly incorporating the inventory of wastes and management regulations revised in the year 2016.
iii. Most of the SPCBs / PCCs (exceptions NE States and UTs such as Lakshadweep) do not have any kind of financial constraints and the budget utilization is mostly for the non-plan activities. There are many SPCBs which have built reserves funds.
iv. A number of States still do not have the industrial siting policy/criteria. It is very important step in regulating industrial growth, especially for the hilly states in view of the very sensitive ecology
v. The Boards and Committees have not met regularly to review the functioning and provide much needed direction & vision.
vi. The SPCBs / PCCs are not submitting annual reports as per the timelines specified in the various rules. This in-turn affects the timely compilation and preparation of the National Status Report by CPCB. Considerable improvement in compliance with reference to the submissions was seen after 2018.
vii. Many SPCBs / PCCs are yet to adopt to the practice of issuing the integrated / consolidated consents and conducting regular inspections of the industries for timely identification and action against the defaulters.
viii. Many SPCBs having CETPs have not yet prescribed the inlet standards. This implies that the uncertainty, of the member industries discharging their effluents into the CETP not complying these standards, continues to prevail.
ix. The quantity of the hazardous waste shown as ‘sent to the TSDF’ pose risk in the absence of effective verification and tracking.
x. The present implementation status of Bio-Medical Waste Management Rules 2016, is reasonably satisfactory, while the compliance with reference to Batteries Management Rules, 2001 is very poor.
xi. The present network of the Air / Water Quality Monitoring Stations provides representative Air / Water Quality of the State only for selected areas and water bodies. The Class II towns and stagnant water bodies in States need to be included in monitoring networks.
xii. Majority of the SPCBs / PCCs are not well-equipped for the quality assurance in the analysis & data generation at their laboratories. Representative analysis data is essential for the preparation of action plans for abatement and control of pollution.
xiii. The monitoring network of coastal waters is very small and practically insignificant. The recent data from coastal districts show serious issues of sewage and solid waste management.
xiv. Many SPCBs expressed the need for technical guidance and regular professional trainings in effective discharge of their functions
xv. SPCBs have challenges in their working because of geographical & climatic conditions and different procedures and processes followed for implementation of Rules
Compliance Status: The State Boards are deploying most of the resources in consent management and finally at compliance of industrial operations. The performance of SPCBs is expected to be better in the segment of Regulatory in view of time and resources spent. During audit exercise, the compliance outcome is categorised in 17-categories of industries, Grossly Polluting Industries (GPI), Water Polluting industries needed ETPs, Sewage Treatment Plants and CETPs.
Compliance
17-Cat. of industries
Grossly Polluting Industries
Industries discharging
Trade Effluent
Common ETPs
Sewage Treatment Plants
Gross Total
4,359
2,747
64,001
189
1,122
Functional
3,813
2,500
62,174
189
1,114
Complying with standards
3,497
2,225
60,980
132
878
Percentage of non-
8.3
11
1.9
30
21
Actions taken against non-complying Industries (%)
Show-cause notice
55
27
55
30
40
Closure
33
52
13
9
0
Legal case
2
1
1
14
5
Pending action
10
20
31
47
55
i. There are 4,359 Industries of 17-Categories identified by the States and 546 of these were closed down on their own. The overall compliance of the industries is 91.7 %, 3,497 industries are complying with the prescribe standards. The states Tamil Nadu, Odisha, Kerala, Uttar Pradesh, Bihar, Madhya Pradesh and Haryana have shown better compliance.
ii. Gujarat, West Bengal, Jharkhand and Puducherry have recorded less than 80 % compliance, while Rajasthan, HP, Assam and Uttarakhand have reported less than national average compliance percentage of 91 %
iii. The non-complying industries, 316 are mostly located in Gujarat (97), Maharashtra (40), UP (25), West Bengal (24) and Rajasthan (20).
iv. The SPCBs generally issue Show-Cause Notices (SCNs), then closure and finally file legal cases. There were only 6 legal cases filed by States, 4 by Telangana, while 105 units were issued Closure directions and 174 were issued SCNs
v. The water polluting industries with discharges to a water course having BOD of 100 kg/day and / or handling hazardous substances are categorised as Grossly Polluting Industries. The inventory of these units was not updated by many States.
vi. There were 2,747 GPI units identified in the country and 247 of these were found closed on their own. Most of the operating GPIs are located in Uttar Pradesh (1,079) followed by Haryana
(638) Andhra Pradesh (193) and Gujarat (178)
vii. The overall compliance percentage was 89 and Gujarat, West Bengal, Jharkhand, Uttarakhand, Uttar Pradesh and Arunachal Pradesh have reported lesser compliance than the national average.
viii. The non-complying units are located in UP, Gujarat, Jharkhand and Arunachal Pradesh. UP has issued closure directions to 84 units out of 143 in the country and also the state was in the process of taking required action against 39 noncomplying industries. Only three legal cases are filed against the non-complying units, two in Jharkhand and one in UP.
ix. In the country; 64,001 industrial units were identified Generating Trade Effluents & Requiring ETPs from 32 States and UTs. Uttar Pradesh has not provided the details and there were no units reported in Manipur and Lakshadweep.
x. It was identified that 1,827 units were operating without functional ETPs. Assam has maximum of 795 units followed by J & K (212), Karnataka (156) and Gujarat (117). SPCBs have issued closure directions to 804 and Show-Cause Notices (SCN) to 842 units. Legal cases were filed against 6 units, while action was pending for remaining 164 industries.
xi. The 60,980 industrial units having functional ETPs complied with prescribed standards and the remaining 1,194 units failed to comply. Closure directions were issued to 163 units, SCNs to 652, 13 legal cases filed and action was pending against 366 non-complying units. The non-complying units were located in Assam (237), Maharashtra (208), Punjab (143) and Rajasthan (120).
xii. Nineteen States have reported 189 Common Effluent Treatment Plants (CETPs) operating in the country and most of these are located in Tamil Nadu (36), Gujarat (34), Maharashtra (26) and Haryana (19).
xiii. The compliance status of CETPs is very poor at 70 %, mainly because of undisciplined member units. Some of the agencies involved in management of CETPs were unprofessional and found lacking required skilled manpower.
xiv. SPCBs have issued closure directions to five CETPs and filed legal cases against eight CETPs. The non-complying CETPs were reported in Gujarat (15), Tamil Nadu (9), Rajasthan (9) and Delhi (8).
xv. The sewage generation from urban population in the country was estimated as 70,089 MLD and the treatment capacity was reported as 27,240 MLD in 2018. After 2018, the States have calculated the gap in generation and installed capacity to create additional capacity needed for treatment.
xvi. The total operating STPs reported in the country were 1,122 and 236 of these STPs were not complying with discharge standards. These STPs are located in Punjab (47), West Bengal (42), Karnataka (31), Rajasthan (30) and Uttar Pradesh (22).
xvii. Most of the SPCBs preferred issuing SCNs (98) to non-complying STPs and only 13 legal cases were filed. The action needed against the defaulters was delayed in 137 cases, mostly in Punjab, Rajasthan and UP.
xviii. As per the information furnished by SPCBs / PCCs, about 10.71 Million MT of hazardous waste was generated during 2018-19 by 69,054 units. About 45 % of waste is utilized / recycled and about 31 % of waste is disposed through TSDFs / SLFs
xix. There are 42 Common HW Treatment, Storage and Disposal Facilities (TSDFs) available in 18 States / UT, which includes 18 integrated TSDFs, having both Secured Landfills and Incinerators. In remaining 17 States / UTs the generated waste is mostly stored at occupier’s premises.
xx. About 1,050 applications for utilization of different categories of HW under Rule 9 of HOWM Rules, 2016 have been received at CPCB. Upon technical examination and evaluation followed by successful trial runs, 54 SOPs for utilization of 40 different categories of HW have been developed and circulated to all SPCBs / PCCs. Gujarat is in forefront in utilising the hazardous wastes in industrial processes
xxi. As per compiled information from the Annual Reports of 2018, there were 2,70,416 Health Care Facilities (HCFs) reported in the country, 97,382 of HCFs bedded and 1,73,831 non-bedded. About 41 % of HCFs, 1,10,356 HFCs have obtained authorization under BMWM Rules, 2016.
xxii. About 615 TPD of biomedical waste was generated by the HCFs and 534 TPD of waste is treated and disposed. There were 200 Common Biomedical Waste Treatment Facilities (CBWTFs) and 12,326 captive treatment facilities installed by HCFs for the treatment & disposal of biomedical waste. In addition, 28 CBWTFs were under construction.
xxiii. All States / UTs; except Arunachal Pradesh, Goa, Jharkhand, Kerala and Uttarakhand had granted more than 75 % authorizations to the Health Care Faculties (HCFs), applied for authorization under the Bio-Medical Waste Management Rules.
xxiv. Municipal Solid Waste generation in the country was reported as 1,62,836 TPD. About 92 % (1,49,346 TPD) of waste is collected and 37 % (60,683 TPD) of the collected waste is treated. About 27 % (44,835 TPD) of total waste is landfilled in 3,115 dumpsites. The remaining 43,828 TPD of solid waste was unaccounted, littered and dumped in drains, canals and low-lying areas
Overall Recommendations: Based on the information gathered through questionnaires, visits of the Expert Teams for auditing and interactions, the following general recommendations are made:
i. The State Governments should allow the recruitment of the staff required by the respective SPCB and if needed, comprehensive assessments may be carried out for building suitable infrastructure for effective and improved performance.
ii. Based on the information collected on manpower at SPCBs, it was observed that large number of sanctioned posts are still vacant. It is recommended that recruitment process may be outsourced availing professional services, wherever internal shortcomings were observed.
iii. The State should prepare / revisit their Environmental Policies incorporating all the current aspects concerning the sustainability of the development, conservation of the resources and the objectives of the Environment Legislation of the country.
iv. The State Environmental Status Reports should be prepared / updated by the SPCBs incorporating the aspects of environmental quality parameters.
v. The States should prepare / update their industrial siting policies / criteria and regulated strictly as per the criteria
vi. The SPCBs should ensure preparation and submission of their annual reports with complete inventory details as per the timelines specified under the rules.
vii. All the SPCBs should ensure issuing the consolidated consents & authorization from the year 2021 by processing all applications online in transparent manner.
viii. The SPCBs should prepare / update the protocols for regular inspection of the polluting industries for timely identification of & action against the defaulters.
ix. The Online CEMS data generated from the system should be used for surveillance and monitoring for identifying habitual and frequent violators.
x. The SPCBs / PCCs should prescribe the inlet standards for CETPs for compliance of member industries.
xi. The States and UTs should adopt ‘Online Tracking’ for all wastes from generation point to final disposal point.
A national tracking system initiated by CPCB may be shared with SPCBs.
xii. The SPCBs should ensure 100 % compliance of the Batteries Management Rules, 2001 and submission of the report to CPCB by December, 2020.
xiii. The SPCBs should develop & upgrade their laboratories and obtain the NABL Accreditation and MoEF&CC recognition on top priority by 2021.
xiv. The SPCBs should identify air & water quality monitoring locations covering the district headquarters, minor rivers, ponds, lakes and other important water bodies of the State / UT.
xv. The SPCBs / PCCs, situated along the main coastline, should establish a representative number of stations / locations for the monitoring of coastal waters in the range of 80 to 150 stations.
It is expected that the State Pollution Control Boards and Pollution Control Committees prepare comprehensive plans for strengthening the organisations and also incorporate short-term & long-term actions for abatement and control of pollution with budgetary estimates and obtain required approvals from the respective departments under State Government and UT Administration.”
Consideration of the matter today for final order
The matter has been put up today to consider the matter further. Apart from considering final order with regard to remedial measures in respect of CETP in question, we have to consider the letter dated 26.03.2021 of Mizoram State PCB addressed to Department of Environment, Government of Mizoram for compliance and the Reports dated 08.06.2021, 10.07.2021, 03.12.2021, 14.02.2022, 02.08.2022, 28.11.2022 and 27.12.2022 filed by CPCB about the steps taken by GPCB in Vapi Industrial Area to the effect that there is improvement of functioning of CETP though further efforts are required. I.A. No. 136/2022 is to file fresh Vakalatnama by the Counsel for the applicant. I.A. No. 22/2023 is for impleadment and EA 5/2023 is for compliance of directions of the Tribunal in the matter of revamping the J&K PCC where only seven persons are working at the moment which is not adequate to enforce the Environmental Regulatory Mechanism.
We have considered the above issues with the assistance of learned appearing Counsel for the parties.
With regard to the monitoring of Vapi CETP, we take on record the CPCB reports mentioned above. On further consideration, instead of keeping the matter pending for indefinite period, we dispose of the matter treating the earlier orders as final as far as this Tribunal is concerned with direction for further action in the light of reports of CPCB mentioned above, subject to orders/further orders of Hon’ble Supreme Court with liberty to aggrieved parties to take further remedies, if necessary, in the light of orders of the Hon’ble Supreme Court or if cause of action so requires.
I.A. No. 136/2022 being formal to which there is no objection will stand allowed. I.A. No. 22/2023 and EA 5/2023 for revamping J&K PCC and E.A No. No. 5/2023 for strengthening J&K Pollution Control Committee are disposed of with the direction that the Chief Secretary, J&K may look into the matter and take necessary action within two months.
We further direct that CPCB may take follow up action in the light of order of this Tribunal dated 5.2.2021 after taking stock of compliance status by having an interaction with PCBs and PCCs within one month.
The OA and all IAs/EA stand disposed of with above directions.
A copy of this order be forwarded to Chief Secretary, J&K, GPCB, Mizoram State PCB and CPCB by e-mail for compliance.