Allowed

R K Gupta vs

NGT9 Mar 2022IA No. 55/2022 in Original Application No. 362/2021

Case brief

AI extract

What is this about?

The Tribunal examined a report by a Joint Committee regarding persistent hazardous waste storage and groundwater contamination at the defunct Union Carbide factory in Bhopal. Finding a failure to act despite previous directions, it directed the occupier to expedite waste disposal, site remediation, and pond dismantling within six months, while barring local borewater use.

What did the court decide?

Directing the occupier to dispose of hazardous waste, dismantle ponds, and remediate soil/groundwater within six months; restraining digging of new borewells; and dismissing the inter-applicant's pray

R K Gupta vs — Environment and Pollution | NGT (2022)

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Item No. 02

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(Court No. 01)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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(By Video Conferencing)

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Original Application No. 362/2021 (with I.A. No. 55/2022)

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(With report dated 25.02.2022)

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R. K. Gupta Applicant

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Versus

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State of Madhya Pradesh Respondent(s)

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Date of hearing: 09.03.2022

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CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE PROF. A. SENTHIL VEL, EXPERT MEMBER HON’BLE DR. VIJAY KULKARNI, EXPERT MEMBER

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Applicant: Ms. Karuna Nundy, Advocate for Applicant in I.A 55/2022

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Respondent: Mr. Raghav Sharma, Advocate for MPPCB

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ORDER

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This complaint has been filed on the basis of media report dated 30.03.2017 highlighting that huge hazardous waste is still lying at the defunct Union Carbide factory of Bhopal where well known gas tragedy took place in 1984, posing continuous hazard to the environment and public health. The situation is not being remedied inspite of directions for remedial action in various proceedings, including orders of this Tribunal.

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Vide order dated 22.12.2021, the Tribunal considered it appropriate to require a factual report in the matter from a Joint Committee of CPCB, State PCB and the District Magistrate, Bhopal.

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In pursuance of above, report has been filed on 25.02.2022, after undertaking visit to the site on 21.01.2022, along with local authorities, including representatives of the occupier of M/s. Union Carbide India Ltd. (UCIL) factory - Bhopal Gas Tragedy Relief & Rehabilitation Dept. (BGTRRD), Govt. of MP, Municipal Corporation Bhopal and Capital Project Authority (CPA) officials. The Committee inspected the area where hazardous waste is stored and directed the State PCB to take samples and to monitor ground water quality in nearby localities and also from Solar Evaporation Pond (SEP). It was found that 337MT hazardous waste is still stored . Lime sludge is also stored. Part of it was transported and disposed of in landfill. The remaining is to be disposed of by BGTRRD, Govt. of MP. The Committee found the possibility of contamination of soil and also found need for remediation of the SEP, contamination in terms of pesticide was observed in five wells and also possibility of contamination of soil was indicated . The PCB carried out monitoring of the ground water at 13 locations. The Committee has accordingly suggested speedy disposal of the waste and remediation of contaminated area. It has asked Municipal Corporation not to allow digging of the borewells around the area to avoid exposure to contaminated water. Further recommendation is to dismantle the SEPs and till dismantling the same need to be protected from any unauthorized entry due to possible contaminants. Timebound action plan is required for disposal of the stored waste, dismantling of ponds and remediation of the sites for which guidelines have already been issued by the MoEF&CC in December 2015 under National Program for Rehabilitation of Polluted sites in India. Relevant extracts from the report are reproduced below:

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“xxx ……………………………xxx ……………………………..xxx

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B. Background information of Union Carbide. Bhopal:

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M/s. Union Carbide India Ltd., (UCIL) was manufacturing carbamate type pesticides and the associated intermediate chemicals between 1969 and 1984 at their Bhopal plant. The plant was closed down since December 1984 due to accident of leakage of Methyl IsoCyanate (M.I.C.) gas. UCIL was occupier of the premises till 09.07.1998. The total 87.74 acre area of M/s. Union Carbide Ltd. was taken over by M.P. Govt. from M/s. Union Carbide India Ltd. on 09.07.1998. Presently, Bhopal Gas Tragedy Relief and Rehabilitation Department, M.P. Govt. is the occupier of the said premises.

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The major issues related to the Union Carbide Factory premises after the MIC gas disaster are

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1. Safe disposal of the waste stored in union carbide premises, Bhopal

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2. Decontamination of contaminated areas and ground water in and around the union carbide premises

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3. Decommissioning of remaining Plant structure.

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C. Activities performed by Joint committee during the visit of Union Carbide

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1. The joint committee members visited the premises of Union Carbide, Bhopal and taken the total overview of the site including the remaining structure, plant and machinery and area of Solar Evaporation Pond (SEP). It was observed that the area of Solar Evaporation Pond found unguarded and accessible to nearby residents, some stray animals were also found within the premises.

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2. The joint committee inspected the area within Union Carbide premises where 337MT hazardous waste is stored. The waste was found stored inside the covered shed under lock and key. The waste was put inside jumbo bags, metal trays & drums over a concrete platform.

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3. The joint committee members also visited the probable dump areas within Union Carbide premises identified by NEERI in its study report submitted in 2010. The areas identified in NEERI report were found covered with trees and bushes and was not identifiable physically.

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4. The joint committee also directed MPPCB to perform sampling and monitoring of groundwater in nearby localities around Union Carbide premises and from water collected in Solar Evaporation Pond. The monitoring was later carried out on 24/1/2022.

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D. Factual Status of the issues raised in media report appended with Hon'ble NGT directions

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S. *No.*	*Issue raised*	*Factual Status*	*Remark*
1.	Toxic waste store in Union Carbide premises	l. As per the available records the details of waste stored within the Union Carbide premises in covered shed on RCC platform is as follows:	The occupier of the premises i.e. Bhopal Gas Tragedy Relief and Rehabilitation Dept. (BGTRRD), Govt. of M.P. has already taken
		Name of waste Quantity (approx.)	initiatives for the disposal of remaining
		Contaminateds (Excavated waste) 162MT	337 MT waste stored in Union Carbide premises. Information received from
		Sevin and Naphthol residues Together- 92 MT	BGTTRD vides letter no. 87 dated 12.01.2022 and letter no.
		Semi processe pesticides 54MT	07/73NCtLt2022/291 dated 07.02.2022, which stated the action taken
		Reactor 29MT	by BGTRRD w.r.t
		residues	disosal of 337 MT
		Total 337 MT	p stored waste,
		*2, Disposal of lime sludge in* *CTSDF, Pithampur* Earlier, in addition to the waste specified in point number l, lime sludge was also stored within Union Carbide premises. As per Hon'ble High Court Order dated 10.01.2008, the occupier of the Union Carbide premises i.e. Bhopal Gas Tragedy, Relief and Rehabilitation Dept., Govt. of M.P. (BGTRRD) called tenders for the transportation of the waste to pithampur and Ankleshwar respectively.	remediation of union carbide premises and status of supply of potable water to gas affected colonies around the union carbide letter appended as Annexure- 2a&b.
		BGTRRD informed to MPPCB Vide letter No. 1698 dated 28.06.2008 (along with form 9 - Hazardous Waste Manifest) that total 33.31 tons of lime sludge were transported in three Trucks/ Container of N{/s Kataria Transport Co., Gujarat on 27.06.2008 to CTSDF, Pithampur (Dhar) and the same was treated and disposed off in a Secured Land Fill on 30.06.2008 . Copy of Hon'ble HC order dated 10.01.2008 &. Intimation letter from MPPCB, RO (Dhar) vide letter no. 3260/ROA4PPCB/HW2008 dated 04.10.2008 is enclosed as Annexure- 3.

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		3. W.r.t Hon'ble SC SLP (Civil) No. - 9874/2012 (Sh. Alok Pratap Singh Vs Union of India & Ors.) filed on 22.03.2012 for the disposal of the waste stored in Union Carbide Bhopal, in a trial run at CTSDF, Pithampur between 13- 18/082015 total l0 MT of stored HW was successfully incinerated. The case was disposed off on l8/7/2018. The copy of the trial run report is attached as Annexure.4. 4. Process for the disposal of remaining 337 MT waste stored in Union Carbide premises is being carried out by the occupier BGTRRD, Govt. of M.P.
1.	Contamination of soil in and around the Union Carbide premises including three Solar Evaporation Ponds (SEP) and groundwater contamination	l. In the Year 2O10, National Environmental Engineering Research Institute (NEERI) Nagpur along with National Geophysical Research Institute (NGRI) Hyderabad submitted its study report to BGTRR entitled Assessment and Remediation of Hazardous Waste Contaminated Areas in and around M/s Union Carbide India Ltd., Bhopal,'. Highlights of the report pertaining to contaminated area and groundwater contamination are as follows: *Contaminated area:*The report reveals that approximately 9 sites within Union Carbide premises indicated possibilities of dumps. Out of this, 3 sites indicated possibilities of contamination. contamination is about 16 hectares with an average depth of contamination 2 m. The total volume of contaminated soil to be remediated from Union Carbide premises was estimated about 3, 20,000 m3. Solar Evaporation Pond located outside the premises cover an area of around 14 hectare. This area also needs to be remediated (total volume to be remediated was estimated about 2, 80,000 m3). The copy of Executive Summary of the NEERI Report is enclosed as Annexure -5. *Ground water contamination:*	l. As per the directions of Hon'ble Supreme Court of India on Wp No. 657/1995 [Research Foundation for Science Vs Union of India & Ors.l 42 colonies in the vicinity of Union Carbide premises supplied with potable water by Bhopal Municipal Corporation. Report of tap water samples analysed by MPPCB in the year 2014 is enclosed as Annexure- 7. Minutes of Meeting of Supreme Court Monitoring Committee dated 07.06.2012 w.r.t supply of potable water to localities around Union Carbide, Bhopal and Commissioner, Bhopal Division w.r.t stoppage of water supply from tube wells of that area and supply of potable water to gas affected colonies located around the Union Carbide are enclosed as Annexure-8.
		The report reveals that NGRI, Hyderabad has collected 05 borewell samples within Union

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Carbide premises and 30
samples around the union
carbide premises (up to 5 km
from Union Carbide site). The
results showed that "Ground
water in general is not
contaminated due to seepage of
contaminants from UCIL
contamination in terms of
pesticides was observed in 5
wells near union carbide
premises. The sources of
contamination of these wells
attributed to surface run off from
the dumps".
The study also indicated the
possibility of contamination of
soil and groundwater with BHC,
Aldicarb, Carbaryl, a-naphthol
and Mercury.
2. M.P. Pollution Control Board
(MPPCB) also carried out
monitoring of ground water of
about 13 localities around Union
Carbide, Bhopal from year 1996
to 2012. Contamination W.r.t
metals and pesticides like
alpha-BHC, Lindane, Aldrin,
Dialdrin, Endrin, DDT,
Endosulphan, BHC,
Methoxychlor, methyl parathion,
Melathion, Phorate, Heptachlor
were not evident since year
2006.
Later on Bhopal Municipal
Corporation, as per directions
dated 07.06.2012 of Hon'ble
Supreme Court Monitoring
Committee started supplying
potable water in the localities
around the Union Carbide
premises and also closed the
bore wells.
Summary of groundwater
quality monitoring carried out by
MPPCB is appended as
Annexure- 6.

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As per the instructions of Joint Committee, MPPCB has collected groundwater samples through bore wells available in the vicinity of Union Carbide premises and from Solar Evaporation Pond (SEP) on 24.01.2022 and analysed at Central Laboratory, MPPCB Bhopal. The details of sampling locations are tabulated in Table- 1 and Google map of the sampling locations is given at Figure-1.

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Table 1: Details of Sampling Locations (24.01.2022)

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*S. No.*	*Sampling Location*	*Co-ordinates*
1.	Bore Well at Atal Ayub Nagar	23.28095 77.41219
2.	Bore Well at Kainchi Chhola	23.27790 _77.41624 _
3.	Bore Well at Garib Nagar	23.28561 77.41479
4.	Bore Well at Blue Moon colony	23.28436 77.40834
5.	Bore Well at New Arif Nagar	23.28199 77.40618
6.	Bore Well at Shiv Nagar	23.28828 77.42519
7.	Open well inside Union Carbidepremises	23.27963 77.41004
8.	Surface water of Solar Evaporation Pond	23.28618 77.41192

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Results reveal that some of the Physico-chemical parameters like Color, Chloride, Total Hardness, Calcium and Magnesium ions and Heavy Metals like Manganese and Nickel in bore well water of some locations exceeding the acceptable limits of IS 10500[2012]. However, Pesticides are not detected in any of the collected samples.

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The copy of the analysis results are is enclosed at Annexure- 9.

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The relevant photographs of the site visit taken by the Joint Committee are enclosed at Annexure- 10.

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Action taken and proposed by the Joint Committee:

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1 . Bhopal Gas Tragedy Relief and Rehabilitation Department, Government of M.P being occupier of Union Carbide, Bhopal may be directed to speed up the process of disposal of waste on priority and remediation of contaminated area in and around the premises of Union Carbide, Bhopal. Letter No. 419/CL/MPPCB/Bhopal dated 03/02/2022 issued to BGTRRD from Dist. Magistrate, Bhopal in this regard.

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The copy of the issued letter is enclosed as Annexure- 11.

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2. Letter No. 418/CUMPPCB/Bhopal dated 03/02/2022 issued to Bhopal Municipal Corporation from Dist. Magistrate, Bhopal to not allow any digging of bore wells around the Union Carbide premises to protect the exposure of consumers to any contamination of water and also immediate closure of hand pumps/ bore wells (if any) located in nearby localities around the Union Carbide premises till restoration of site.

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The copy of the issued letter is enclosed at Annexure- 12.

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3. Area of Union Carbide premises is covered and protected, however the area of Solar Evaporation Pond is unprotected and accessible to nearby residents. Rain water collected in Solar Evaporation Ponds. Solar Evaporation Pond should be

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dismantled. Till then solar pond area shall be guarded & protected to restrict the unauthorized entry and for human protection from possible contaminants. Action to be taken by the occupier of the Union Carbide premises i.e. Bhopal Gas Tragedy Relief and Rehabilitation Department, Government of M.P.

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4. A time-bound Action Plan for the disposal of stored waste, dismantling of solar ponds' area and remediation of the contaminated sites shall be prepared by the occupier of the Union Carbide premises i.e. Bhopal Gas Tragedy Relief and Rehabilitation Department, Government of M.P. and the same should be submitted before Hon^’ ble NGT for the timely execution of the work without any delay. [Disposal of waste and remediation of site is being performed by BGTRRD is as per directions of Hon Supreme court].

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5. MoEF&CC has already issued a guidance document for assessment and remediation of contaminated sites in India in Dec., 2015 under National Program for Rehabilitation of Polluted Sites in India, available at that may be referred (https://cpcb.n ic.inr'uploads/bwmd/MoEFCC_guidelines_contaminatedsites.pdf)”

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We have heard learned Counsel for the State PCB who simply submitted that the situation is serious which needs to be remedied by the concerned authorities. We however note that the State PCB has failed to perform its obligation as a statutory regulator under the Water and Air Acts and also under the Hazardous Waste Management Rules, 2016 framed under the Environment (Protection) Act, 1986. There is also failure of the BGTRRD, Govt. of MP in clearing the waste and remediating the site even though the plant was closed in the year 1984 due to Bhopal Gas disaster and the area was taken over by MP Government on 09.07.1998 – 24 years back. The resultant effect is continued contamination to the prejudice of environment and public health. Necessary safeguards are not being adopted. The report refers to orders of Madhya Pradesh High Court on the issue of taking steps for scientific removal of the hazardous waste. There is also a report on trial incineration of such waste in the year 2015 by CPCB and also report of NEERI recommending fencing of the premises, sealing of the borewells,

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disposal of the waste, de-contamination and de-commissioning of plant, remediation of soil and ground water.

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The above undisputed facts show serious unsatisfactory state of affairs and apathy and failure of the concerned authorities to perform their responsibility under public trust doctrine which calls for prompt action by BGTRRD, Govt. of MP, which further needs to be monitored by the Chief Secretary, M.P. personally in view of long time failure to take such requisite steps, to the detriment of environment and public health. This should be in a timebound manner, not beyond six months. As already noted, trial has already been held in the year 2015 and thus there can possibly be no reason for any further delay. Oversight Committee in the MoEF&CC and in the Ministry of Chemical and Fertilizer may grant necessary sanctions in terms of directions of the Hon’ble Supreme Court on the subject within one month.

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We note that the matter has been earlier dealt with by the Hon’ble Supreme Court in SLP (C) No. 9874/2012, Union of India v. Alok Pratap Singh, including orders dated 04.04.2012, 11.05.2012, 18.02.2013 and 17.04.2014 and also in W.P. No. 657/1995, Research Foundation for Science Technology and Natural Resource Policy v. Union of India .

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Vide order dated 30.08.2018 in W.P. No. 657/1995, Research Foundation for Science Technology and Natural Resource Policy v. Union of India , the Hon’ble Supreme Court directed preparation of an action plan on the subject.

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On transfer of proceedings in WP No. 657/1995, Research Foundation¹ , supra , on the issue of compliance of Hazardous Waste

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1 (2005) 10 SCC 510 and (2012) 7 SCC 769

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Management Rules, 2016, the matter has been dealt with by this Tribunal in OA No. 804/2017, Rajiv Narayan & Anr. vs. Union of India & Ors . The Tribunal constituted a Monitoring Committee to compile relevant information and in the light of orders of the Hon’ble Supreme Court dated 18.07.2018 transferring proceedings before this Tribunal. The Tribunal issued further directions, considering the report of the Monitoring Committee, fixing timelines for disposal of hazardous waste in scientific manner. The Tribunal reviewed the compliance status on 07.07.2020 and finally on 29.01.2021 and issued following final directions:

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“xxx ……………………………….xxx………………………………….xxx 14. We have considered the report of the CPCB and appreciate the efforts in compiling all the relevant information on this important subject and direct that observations/suggestions of the CPCB with reference to the compliance by the State PCBs/PCCs may now be duly complied expeditiously, which may be further overseen by the CPCB. The CPCB may assess compensation if the State PCBs/PCCs neglect compliance, following due process, which may be recovered and utilized for restoration of the environment, by preparing an action plan to be approved by the Chairman, CPCB. Even though the report of the CPCB is exhaustive for all the States, we take on record the report furnished by the Oversight Committee for State of UP filed on 10.09.2020. As directed earlier, the MoEF&CC may follow up compliance of steps to be taken by the Central Ministries, for which purpose the CPCB may coordinate with the MoEF&CC. CPCB may impose compensation, if necessary, on the States/UTs which fail to set up TSDF or make other alternative arrangement for management of hazardous waste as per Rules. CPCB may also notify the contaminated sites, having potential for damage to the environment, in public domain, alongwith damage caused and the studies undertaken. CPCB may also ensure that hazardous waste generators/recycles/operators of TSDF follow safety protocols, undertake periodical audits, have onsite and offsite emergency plans to avert accidents and fire and other environmental damage .”

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The timelines in the order of this Tribunal dated 28.06.2019 are as follows:

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“………… iv. 126 sites which have already been identified as contaminated may be cleared of the hazardous waste within six months so that remediation process may start. The remediation work may start at the 55 sites for which DPRs have been completed within the timelines specified in the DPRs. For the remaining 71 sites , DPRs may be completed expeditiously but not later than one yea r and thereafter remediation may be done as per the timelines in the DPRs.

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v. Failure to remove the waste from the 126 identified sites will result in environmental compensation to be paid at the rate of Rs. 10 lakhs per site from 01.04.2020 by the concerned SPCBs/PCCs to the CPCB . Same rate will apply in respect of such of the 195 sites as are identified as contaminated with effect from 01.01.2021 .

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vi. With regard to 195 probable contaminated sites , the assessment may be completed within six months and thereafter the waste may be removed within next six months form sites cleared by the CPCB to be contaminated.

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vii. The clearance of site by way of disposal or transfer should be strictly as per the HOWM Rules, to be monitored by the CPCB. The cost of removal of waste may be first paid out of the environment funds/consent funds available with the State PCBs/PCCs and thereafter recovered from the persons concerned……………….”

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It appears that there is failure to comply with the above direction which may be verified by the CPCB and if violations is found, CPCB may take further action in terms of order of this Tribunal, quoted above.

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The application will accordingly stand disposed of.

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A copy of this order be forwarded to the Secretary, MoEF&CC, Secretary, Ministry of Chemical and Fertilizer, Govt. of India, CPCB and Chief Secretary, M.P. by e-mail for compliance.

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IA No. 55/2022

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This application has been filed by Bhopal Group for Information and Action praying for closing these proceedings as the matter is being dealt with by the Madhya Pradesh High Court in W.P.(C) No. 2802/2004, Alok Pratap Singh v. Union of India & Ors. and also by the Hon’ble Supreme Court in W.P.(C) 657/1995, Research Foundation for Science

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Technology and Natural Resource Policy v. Union of India. We have heard learned Counsel for the applicant in the IA and asked for any suggestion in the matter beyond suggesting that the Tribunal should not deal with the issue. No suggestion has come forth. Thus, we are unable to find any bona fides in the prayer and are at loss to understand how the applicant is helping the cause by such prayer. There is no threshold bar to the jurisdiction of this Tribunal in the circumstances nor the orders proposed are in any manner in conflict with orders of the High Court or the Hon’ble Supreme Court. Rather, the Tribunal is enforcing the said orders, finding that the authorities are failing to perform their obligation. Needless to say that the orders are subject to any order of the Hon’ble Supreme Court and not in conflict with the same. IA is accordingly dismissed.

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Since the order has been passed based on the report of the joint Committee of CPCB, State PCB and District Magistrate, which has also considered the viewpoint of the BGTRRD, Govt. of MP, we have not considered it necessary to issue a separate notice to the BGTRRD, Govt. of MP. However, if it is aggrieved by order of this Tribunal, it is at liberty to move this Tribunal with such grievance.

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Adarsh Kumar Goel, CP

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Sudhir Agarwal, JM

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Prof. A. Senthil Vel, EM

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Dr. Vijay Kulkarni, EM

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March 09, 2022 OA No. 362/2021 with I.A. 55/2022 DV

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R K Gupta vs

Case brief

What is this about?

What did the court decide?

R K Gupta vs

Case brief

What is this about?

What did the court decide?

What the court decided

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