Recently the State Pollution Control Board (KSPCB) slapped heavy fines on multiple apartments in the city. The reason: “STP is not running properly”, “treated sewage does not meet some quality parameters”.

Some apartments have rightly questioned KSPCB’s sampling method, the inordinate delay in sending test reports, and the fact that the apartments’ own monthly tests (conducted at NABL-accredited labs) had never shown any problem with the treated water quality.

While these objections are valid, the ugly truth is that many STPs may really be unable to treat sewage fully. In a previous article, I explored why this happens, and how some reforms in KSPCB’s STP approval process can change things. In this article, I explain why KSPCB itself must be held legally liable for the systemic problems that lead to STP malfunction.

Here I will take you through the following questions:

1. What does the law say?
2. What are the implications for the buyer (occupier) of the apartment/office?
3. In case the STP does not perform well, why should we blame the STP approval process?
4. Why KSPCB cannot absolve itself of blame?
5. How does KSPCB actually deal with STP defects?
6. How should KSPCB resolve the problem?

Let us look at each topic in detail.

1. What does the law say?

Before we come to the actual problems, let us review the legal provisions. Below, I quote sections of the Water (Prevention and Control of Pollution) Act, 1974.

1. 1. Every SPCB [state pollution control board] is a body incorporate [a legal entity], which may contract, and may sue or be sued. (Ref: Section 4(3) of the Act)
   2. A developer cannot establish or take any steps to establish […] operation or process, or any treatment and disposal system, which is likely to discharge sewage without the prior consent of the SPCB. (Ref: Section 25)
      1. If any changes, alterations or extensions are proposed, the proponent must seek a fresh approval from SPCB (Ref: Section 25(1))
   3. According to Section 17(f) of the Water Act, it is the function (duty) of the PCB-
      1. to inspect [=test] sewage or trade effluents,
      2. [to inspect] works and plants for the treatment of sewage [=STPs] and trade effluents
      3. to review plans, specifications or other data relating to plants set up for the treatment of water [=STPs], works for the purification thereof [=machinery in the STP plant] and the system for the disposal of sewage [=final treated sewage tank, pumps and pipeline till SWD] or trade effluents or in connection with the grant of any consent as required by this Act;
   4. The SPCB is supposed to give its consent only when the STP meets the conditions. (Ref: Section 25 (4)(a))
   5. To discharge this function, the project proponent/RWA (Residents’ Welfare Association) must pay charges to SPCB.
      1. Consent fee (Ref: Section 25(2))
      2. Water/sewage testing fee (Ref: Section 52(2)(b))

In plain English, these sections mean:

1. 1. The developer must obtain CFE (Consent For Establishment) and CFO (Consent for Operation) for the STP. Only then can they operationalise the new STP.
   2. KSPCB is supposed to check the following:
      1. All plans, specs and other data related to the STP
      2. The machinery in the STP (individually and as a system)
      3. The quality of treated sewage (output of STP) at the point of disposal
   3. KSPCB can give consent only when these are OK. Consent is not issued based on the quality of treated sewage alone.
   4. The developer gets the CFE and CFO on chargeable basis; these are not free.
   5. The building gets OC (Occupancy Certificate) only when its STP has a CFO.
      The developer in turn can transfer individual apartments to buyers only after getting the OC. This means, getting CFO for the STP is crucial for property transfer. A property worth hundreds of crores can be transferred only when the CFE and CFO are issued by KSPCB. If KSPCB finds any defect in the STP, it can block the transfer, and delay the transfer till the developer rectifies all defects.

2. What does this mean for the buyer?

The Indian buyer relies heavily on government certificates:

• • Trustworthiness of labs – NABL
  • Trustworthiness of hospitals – NABH
  • Safety against adulteration of food – Agmark/FSSAI/FPO mark
  • Purity of gold/silver – Hallmark
  • Safety of home appliances – ISI mark
  • The roadworthiness of a new vehicle – RTO certificate
  • Content of food (veg/non-veg) – green dot /red dot

Likewise, he trusts the CFE-CFO implicitly.

1. 1. For the buyer of the property, the CFE/CFO is a crucial certificate (It means that the STP is “government-approved”).
   2. To the buyer, it means that the STP has met all regulatory requirements, as well as the undocumented arbitrary requirements imposed by KSPCB staff.
   3. The buyer can also reasonably expect that the STP will not have premature or intermittent failures.

3. If the STP has problems, how can we pin the blame on the CFE-CFO process?

Well, if an STP has design flaws or manufacturing defects, KSPCB is supposed to find them all during the CFE-CFO process.

But in reality, the CFE-CFO process is completely incapable of detecting these problems, because:

• • It is neither defined nor documented. So the inspector can do anything (or not!)
  • It does not specify which STP types are approved, and which are not. (Several types of STPs are available in the market – EAAS, MBR, MBBR, SBR, SBBR, EADOx, etc., but some of them are not suitable!)
  • It does not provide reference design criteria against which the inspector can check the STP.
  • It does not require the inspector to record crucial observations (as evidence for passing/rejecting the STP). Thus, hardly anything is captured on paper.
  • In case of a mishap or poor performance, the inspector can disown the complete approval process! This knowledge emboldens KSPCB inspectors, and they approve any STP that’s poorly designed and constructed, without fear of consequences. If any design/fabrication issues are found later, KSPCB disowns accountability, and pressurises the developer or RWA to spend their own money for rectification.
  • As per the Water Act, KSPCB is supposed to issue CFO only after inspecting the STP and testing the treated sewage. But in practice, it is always issued without testing the quality of treated sewage!
  • Worst of all, there are no data-collection forms, so there is no traceability of what the inspector has approved, and what he missed checking.

As a result, the STP can have any number of hidden defects, even after the CFE and CFO are issued. These defects are typically discovered by the KSPCB inspector in subsequent annual CFOs. Since the annual CFO process is also equally ineffective, the problems are discovered quite by chance, and randomly, over a long period of time. Naturally, if a problem is reported after 3-4 years, the buyers will never realise that it was a design flaw or manufacturing defect.

If there was a formal process for handing over the STP to the RWA, these defects would be identified; because the RWA would insist on conducting a third party audit before taking charge of the STP. But KSPCB has no formal handover process – the developer simply abandons the STP, and KSPCB holds the RWA responsible. The unsuspecting RWA simply assumes that they have inherited a fully-functional and robust plant, and that any problems reported by KSPCB must be a new problem.

So, they end up paying their hard-earned money to rectify basic issues that should have been fixed long ago at the developer’s cost.

Thus, the current CFE-CFO practices are to be directly blamed for the design flaws and fabrication defects found in apartment STPs.

4. Why can’t KSPCB absolve itself of blame?

KSPCB issues the CFE and CFO on chargeable basis, and holds up the property transfer indefinitely till all its requirements are met. Having done that, KSPCB cannot tell the public that the CFE and CFO are not “serious” certificates, and that the buyer must fend for himself.

Thus, for a buyer, KSPCB is fully accountable for all his direct and indirect losses.

1. 1. If a defect is found in the design or fabrication of the STP, it means that KSPCB failed to detect these at the time of issuing CFE/CFO.
   2. The customer can sue KSPCB for damages as per the Indian Contract Act, 1872.
   3. In addition, the customer can sue the KSPCB inspector under the law of torts.

5. How does KSPCB actually deal with defects?

Instead of accepting its liability for the inherent defects, KSPCB forces RWAs to rectify these at their own cost. Earlier, KSPCB at least didn’t fine RWAs. But in recent weeks, thanks to NGT (National Green Tribunal) directions, KSPCB has started slapping heavy fines claiming that STPs are “not running properly”. Thus, KSPCB is injuring its own victims again.

KSPCB has also started fining the complexes for discharging their treated sewage into the underground drainage (UGD) system. This is also unfair, because the onus is on the government to provide the necessary discharge network. In fact, it is the duty of KSPCB to evolve ways to treat and dispose of sewage (Ref: Section 17 (J) of Water Act).

In the case of Bengaluru, the management of stormwater drains (SWD) and underground sewerage lines (UGD) is split between BBMP and BWSSB. Their infighting as to which network should be used to carry treated sewage, has left citizens in the lurch. Rather than punishing citizens for this administrative gap, let KSPCB advise both BWSSB and BBMP on what to do.

Finally, the citizen should never have to worry as to which network he can dispose the discharge into – SWD or UGD.

6. Apart from accepting liabilities, how should KSPCB resolve problems?

1. Since KSPCB provides its STP-approval service on a chargeable basis, this should be treated as a contract. Hence KSPCB should be forced to compensate for any problem that results from a deficiency in the contract. This includes penalty for causing damage to the environment.
2. Legally, a lax CFE/CFO should be treated as a dereliction of duty by the KSPCB inspector who is a public servant. Punishment should be meted out to him under the Environment Protection Act, 1986.
3. We should insist on punishing the guilty and recovering the cost of damages as per the law of torts.
4. KSPCB must set up a formal CFE-CFO process, and a formal data-recording form that captures details of the STP’s features and components. The CFO should be split into two parts – Provisional CFO and Final CFO.
5. KSPCB must also mandate a formal handing over process, where the developer hands over the STP to the RWA after a formal third-party audit. Till that time, the developer must remain in charge of the STP, and the occupiers must not be punished for any defect of the STP.
6. KSPCB must ensure that no citizen is made to suffer because of the squabbling between BWSSB and BBMP, and that every building is allocated a place where it can discharge its excess treated sewage.