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Judgment
Prayer in this application is for prohibiting Common Bio-medical Waste Treatment Facilities (CBWTFs) operating in UP within 75 kms of already functioning CBWTFs.
Case set out in the application is that under Rule 7(3) of Bio-medical Waste Management Rules, 2016 (BMW Rules), it is the duty of Occupier (Health Care Facility) to dispose its Bio Medical Waste by way of providing the same to the Common Bio Medical Waste Treatment Facility within the distance of Seventy Five Kms. The text of Rule 7(3) is reproduced below:-
“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 kilometer.”
As per the said CPCB Guidelines, if a Common Bio Medical Waste Treatment Facility is available at a distance of 75 Km from the “Occupier” (Health Care Facility), then Bio Medical Waste should be treated and disposed only through such CBWTF facility.
The MoEF&CC vide Office Memorandum dated 20/05/2022 expressed its concern over the violation of BMW Rules. In State of Uttar Pradesh many CBWTFs are collecting the Bio Medical Waste from those HCF which have another CBWTF within their 75 km of radius.
When the matter came up for hearing on 03.03.2023, the counsel sought adjournment to file application to implead the alleged violators.
I.A No. 109/2023 has been filed to implead 12 CBWTFs operating at different locations in the State of U.P.
We have heard learned counsel for the applicant but are unable to find any violation calling for interference by this Tribunal.
No doubt the occupier is prohibited from establishing on site treatment disposal facility if a facility is available within 75 kms but there is no bar to another facility being set up within 75 kms of an existing Facility as far as the Rule is concerned. Such bar is only under CPCB Guidelines as follows:-
“5.12 Requirements for Establishment of CBWTF within the premises of HCFs
As per Bio Medical Waste Management Rules, 2016, a Healthcare facility shall not install on-site captive treatment and disposal facility if service of a CBWTF available within 75 Km from the HCF. In case a service of common bio-medical waste treatment facility is not available within 75 KMs, the HCFs can explore the possibility of sending BMW to a CBWTF located beyond 75Km distance if the operator is authorised to cover the area and also capable to provide services of collection, treatment and disposal within 48 hours as required under BMW Rules, 2016.”
The status of the above Guidelines was considered by this Tribunal in recent order dated 23.01.2023 in M.A. No. 98/2022 in Original Application No. 180/2021, Mukul Kumar v. 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 on 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.”
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:
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. ...”
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.”
Thus, the Tribunal has held that the Guidelines could not take precedence over addressing the gaps in compliance of BMW Rules. Under the Rules, the Facility has to obtain EC and consents which are granted after examining the need for establishing such Facility. It is not the case of the applicant that Facilities in question are operating without any permission.
We thus do not find any ground to entertain this application which stands disposed of.