ENVIRONMENTAL LAWS, COMPLIANCE, ENFORCEMENT & REGULATION in INDIA

Friday, February 18, 2011

ENVIRONMENTAL LAWS, COMPLIANCE, ENFORCEMENT & REGULATION in INDIA

India is a common-law country, judgments by the Supreme Court of India and the various state-level high courts also form part of the law. Certain landmark decisions of the higher judiciary have had a strong impact on the state of environmental law in the country. In addition a new National Environment Policy was adopted in May 2006, which will further serve as a guide to actions by the three organs of state. The prime environmental enforcement agencies in India are the SPCBs and the CPCB. Though initially set up under the Water Act, 1974, the scope of their authority can be described as ‘residual’ in nature with regard to environmental pollution, and encompass the enforcement of the Air Act, various Rules adopted under the EP Act, etc, unless a specific authority has been set up under the Rules, such as the Genetic Engineering Committee, the Environmental Impact Assessment Agency, etc.

Under the Water Act and the Air Act, officers of a SPCB may take samples of any sewage or trade effluent that is passing from any plant or any emissions from any chimney, etc. The result of such sampling analysis is not, however, admissible in evidence in any legal proceeding, unless the detailed procedure prescribed by the Act has been followed.

The SPCB officers have the power of entry and inspection of any place for the purpose of examining any plant, record, register, document or any other material object, or for conducting a search of any place in which he has reason to believe that an offence has been or is about to be committed. The provisions of the Code of Criminal Procedure, 1973, shall apply, as they would to searches and seizures made under the authority of a warrant. The powers of investigation as provided for in the various environmental laws itself cannot be challenged; however the arbitrary application thereof can be challenged by way of writ petition before the high courts or the Supreme Court.

The Water Act and the Air Act were amended in the late 1980s to empower the SPCBs to issue directions to any person, officer or authority found to be in non-compliance with the environmental permit, including orders to close, prohibit or regulate any industry, operation or process and to stop or regulate the supply of water, electricity or any other service. The Water Act and the Air Act provide for a specific appeal procedure (time-bound) or revision procedure (not time-bound) to challenge the conditions contained in a permit (consent order), or the withdrawal of a permit, or the refusal to grant a permit.

Appellate authority (time-bound)

The Water Act and the Air Act provide for a route to challenge the conditions imposed by the SPCB in its consent order with a state-level appellate authority (which often consists of scientists as well as jurists).An appeal with the appellate authority would have to be filed within 30 days from the date on which the new, revised or renewed consent order is communicated. Importantly, the appellate authority may uphold, annul or substitute conditions imposed by the SPCB in the consent order.

Revision by the state government (not time-bound) After the expiry of the 30-day period for filing an appeal with the appellate authority or after its decision, an industry may at any time approach the state government to seek a revision of a consent order issued by a SPCB.

Appeal: writ petition at the high court After exhausting the above two remedies, a company would have the right to file a writ petition with the high court to challenge the consent order or failure to issue a permit, on the ground that the conditions imposed are, or the refusal is, unreasonable or arbitrary.

The infringement of most of the environmental pollution laws, such as the Water Act or the Air Act, are criminal in nature and attract penalties and possible imprisonment. Infringements of, for example, environmental zoning notifications would, however, be civil in nature. The courts, be it the regular courts or the environmental courts, would have the powers to impose penalties, imprisonment sentences, uphold closure orders by the SPCBs, etc.

India is an active player in international forums and has ratified numerous Multilateral Environmental Agreements, such as the Ramsar Convention on Wetlands, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973; the Montreal Protocol on Substances That Deplete the Ozone Layer, 1987; the Basel Convention, 1989;the Convention on Biological Diversity, 1992, and its Cartagena Protocol on Biosafety, 1992; the UNFCCC and its Kyoto Protocol; the Rotterdam Convention On the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 1998; and the Stockholm Convention on Persistent Organic Pollutants, 2001.

The prime environmental laws in India include the:

Water (Prevention and Control of Pollution) Act, 1974 (Water Act), which also gave shape to the powers, functions and hierarchy of the environmental agencies – the Central Pollution Control Board (CPCB) and the State Pollution Control Boards (SPCBs);

Air (Prevention and Control of Pollution) Act, 1981 (Air Act);

Environment (Protection) Act, 1986 (the EP Act), an umbrella law enabling the central government to take all such measures as it deems necessary to protect and improve the quality of the environment and to prevent, control and abate environmental pollution. A wide range of Rules and Notifications have been adopted under this umbrella Act with the objective of providing for the protection and improvement of the environment. It empowers the Central Government to establish authorities [under section 3(3)] charged with the mandate of preventing environmental pollution in all its forms and to tackle specific environmental problems that are peculiar to different parts of the country. The Act was last amended in 1991.

Acts No.29 of 1986, [23/5/1986] - The Environment (Protection) Act, 1986, amended 1991 Rules S.O.844(E), [19/11/1986] - The Environment (Protection) Rules, 1986 The power conferred by the Environment Protection Act are followed under the following heads: Coastal Regulation Zone , Delegation of Powers, Eco-marks Scheme, Eco-sensitive Zone Environmental Clearance ? General Environmental Labs, Environmental Standards, Hazardous Substances Management, Loss Of Ecology, Noise Pollution , Ozone Layer Depletion, Water Pollution , 2-T Oil, Environment Impact Assessment Notification, 1994; Wild Life (Protection) Act, 1972; Forest (Conservation) Act, 1980; Biodiversity Act, 2002; Public Liability Insurance Act, 1991; and National Environment Appellate Authority Act, 1997.

In India, four main categories of waste are governed by separate Rules: hazardous waste; radioactive waste; biomedical waste; and municipal solid waste (the latter being applicable to municipal authorities only). The most comprehensive and relevant law for companies is found in the HW Rules.

Hazardous waste is defined as any waste that by reason of any of its physical, chemical, reactive, toxic, flammable, explosive or corrosive characteristics causes danger or is likely to cause danger to health or the environment, whether alone or when in contact with other waste or substances, and includes, inter alia:

Importantly, as per the HW Rules, the import of waste from any country shall not be permitted for dumping and disposal. The import of such waste may, however, be allowed for processing or reuse as raw material, after each case has been examined on merit by the relevant SPCB, and finally approved by the Ministry of Environment and Forests.

Every occupier (person having the control over the affairs of the factory or premises) handling and storing hazardous waste, every recycler of waste and every operator of a facility for the collection, reception, treatment, storage and disposal of hazardous waste must obtain prior authorisation from the relevant SPCB. The producers of waste shall retain liability for the said waste, based on the joint reading of the various liability principles pertaining to hazardous waste. First, the occupier and the operator of a facility shall both be responsible for the proper collection, reception, treatment, storage and disposal of hazardous waste.

Second, the occupier, transporter and operator of a facility shall all be liable for damages caused to the environment owing to the improper handling and disposal of hazardous waste. Third, the occupier and the operator shall also be liable to reinstate or restore damaged or destroyed elements of the environment at their cost.

As per the Air Act, a person must obtain previous consent from the SPCB to establish or operate any industrial plant in an ‘air pollution control area’.

The Air Act empowers the SPCBs to notify standards for emission of air pollutants into the atmosphere from industrial plants and automobiles, or any other source (not being a ship or an aircraft). The EP Act enables the central government to lay down emissions standards, and the EP Act prevails over provisions found in other environmental laws (with the exception of the penalty provisions). The EP Rules prescribe emission norms for specific industries (such as the rayon industry, coke oven plants, brick kilns, etc). In the absence of industry-specific norms, the general emission standards would apply.

Water is protected by the provisions of the Water Act and the EP Act. The Water Act lays down that no person shall without the previous consent of the state board, establish or take any steps to establish any industry, operation or process, or any treatment and disposal system, that is likely to discharge sewage or trade effluent into a stream, well or sewer or on land. The EP Rules set standards for certain pollutants in water. The Pollution Control Boards also lay down standards and guidelines for the discharge pollutants into water. The word ‘stream’ in the context of the Act includes a river, water course, inland water, subterranean waters and sea or tidal waters.

Marine pollution in India is controlled by the Territorial Waters, Continental Shelf (CS), Exclusive Economic Zone (EEZ) and Other Maritime Zones Act, 1976. This Act asserts India’s sovereignty over the natural resources in the CS and the EEZ, and confers exclusive jurisdiction to the central government to preserve and protect the marine environment and to prevent and control marine pollution within the CS and EEZ. This is complemented by the Merchant Shipping Act, 1958, which governs the civil and criminal liability regimes in the event of oil spills.

Development along the coastal stretches of India is governed by the Coastal Regulation Zone (CRZ) Notification, 1991. The CRZ Notification prohibits 13 types of activities, including the establishing of new industries and the expansion of existing industries, with the exception of activities which require water front and foreshore facilities. It further classifies the coast into four categories, depending on their ecological sensitiveness in which different types of activities are prohibited or allowed.

According to the Indian Constitution, water is a subject covered by the ‘state list’. That is, the states have control over the extraction of ground water from surface water sources. However, there is no comprehensive Act to cover groundwater extraction.

A model Bill to regulate and control the development and management of groundwater was prepared in 2005. It has been adopted by some states, though it has yet to be enacted as a law. Certain states like Maharashtra (of which Mumbai is the state capital) have enacted separate laws to regulate the extraction of groundwater to the extent that it affects drinking water supply.

The Indian Forest Act, 1927 provides states with jurisdiction over both public and private forests, and regulates the extraction of timber for profit. The forests are divided into three categories: reserve forests, village forests and protected forests. Once an area is notified as a reserve forest, all previous individual and community rights over the forest will be extinguished, and access to the forest and forest products becomes a matter of state privilege.

It must be added that the Supreme Court has set up a Central Empowered Committee to closely supervise timber availability in India and regulate all wood-based industries, including saw-mills, veneer and plywood plants, as well as, to a certain extent, secondary users of timber (eg, users of wooden packing crates), which all require prior permission to operate. This illustrates to what extent the judiciary in India can be involved in the enforcement of environmental laws.

There are 25 wetland sites notified by India under the Ramsar Convention on Wetlands, 1971, which are well protected. Other wetland sites are less well protected. The Wildlife (Protection) Act, 1972 adopts a twofold conservation strategy: certain listed endangered species are protected regardless of their location; and all species are protected in designated areas, ie, sanctuaries and national parks. Recently, two new types of reserves have been created: conservation reserves (state-owned land) and community reserves (community or private land), to improve the socio-economic conditions of people living in such eco-sensitive areas as well as ensuring conservation of wildlife.

The Wildlife Act also implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973, by regulating trade and commerce in wild animals (listed in various categories depending on whether the species is endangered), animal articles, trophies and derivatives from animals.

The Noise Pollution (Regulation and Control) Rules, 2000, were made to regulate and control noise producing and generating sources. It lays down limitation on noise levels and specifies the existence of silence zones around hospitals, educational institutions, courts, religious places and any such area declared by the competent authority. There are restrictions on the use of loudspeakers and public-address systems. Contravention of the Noise Pollution Rules will lead to penalties under the EP Act. Under the Air Act, an air pollutant is defined to include noise and the provisions of the Air Act extend to noise pollution as well. The Air Act provides for the identification of air pollution control areas, in which pollutants are regulated. There is no singular regime dealing with liability for environmental damage. The various Acts and Rules governing environmental pollution in India contain provisions for penalties in the case of contravention of the various laws, with the EP Act serving as an umbrella or almost ‘residual’ legislation. The EP Act provides that whoever fails to comply with or contravenes any of the provisions of the Act, or the rules made or orders or directions issued under the Act, shall be punishable. Thus, the effect of contravening any of the Rules made under the umbrella of the EP Act would be construed as a violation of the provisions of the EP Act and would attract the penal provisions as laid down in the Act, apart from the specific statutory provisions for penalties. Many environmental petitions have been filed via the public-interest litigation route by concerned citizens or NGOs. Under the Constitution, Supreme Court judgments become law. We may add that in the context of hazardous chemicals, the Supreme Court had adopted the concept of ‘absolute’ liability, Pursuant to the aforementioned Rules for the Manufacture, Storage and Import of Hazardous Chemicals, every occupier that has control of an industrial activity in which a hazardous chemical (specified under the Rules) is involved or stored (above a certain threshold quantity), must provide evidence to the relevant authority (which may be the SPCB or the chief inspector of factories) that he has identified the major accident hazards, and taken adequate steps to prevent major accident and to limit any consequences to persons and the environment, as well as provided the persons working on-site with the necessary information, training and equipment to ensure safety. A written report must be submitted in this regard at least three months before commencing the activity.

The Factories Act, 1948, as part of its general environmental, health and safety (EHS) provisions pertaining to hazardous processes in factories, requires that every occupier, with the approval of the chief inspector, draw up an on-site emergency plan and detailed disaster control measures for his factory and make known to his workers and to the general public living in the vicinity of the factory the safety measures required to be taken in the event of an accident.

The Environment Impact Assessment Notification, 1994 (EIA 1994), adopted under the EP Act, prescribed a mandatory EIA procedure for various types of projects. The notifications and all its amendments have now been replaced by a comprehensive EIA Notification published on 14 September 2006 (EIA 2006). The EIA 1994 will still be relevant for pending applications and the EIA 2006 contains specific interim guidelines for such cases. In EIA 2006, various activities have been identified where an EIA report is mandatory. The notification envisages that the various activities be classified into two categories, ‘A’ and ‘B’, based on the spatial extent of potential impact, and possible effects on human health and natural and man-made resources. New projects as well as expansion and modernisation of existing projects falling under the mentioned activities will require prior environmental clearance. Whereas category-A activities require clearance from the central government, category-B activities require clearance from a state-level Environment Impact Assessment Authority (SEIAA).

The identified activities requiring prior clearance include:

mining of minerals;

offshore and onshore oil and gas exploration, development and production;

oil and gas transportation pipelines;

thermal power plants;

nuclear power projects and processing of nuclear fuel;

coal washeries;

mineral beneficiation;

metallurgical industries (ferrous and non-ferrous);

cement plants;

petroleum-refining industry;

coke oven plants;

asbestos milling and asbestos-based products;

chlor-alkali industry;

soda ash industry;

leather, skin and hide processing industry; chemical fertilisers;

pesticides industry;

petrochemical complexes;

man-made fibres manufacturing;

synthetic organic chemicals industry;

distilleries;

integrated paint industry;

pulp and paper industry;

sugar industry;

isolated storage and handling of hazardous chemicals;

ship-breaking yards;

industrial estates and parks;

building and construction projects;

townships and area development projects, etc.

The prior environmental clearance granted for a project or activity shall be valid for a period of ten years in the case of river valley projects, project life as estimated by EAC or SEAC subject to a maximum of 30 years for mining projects and five years in the case of all other projects and activities. It is mandatory for the project management to submit half-yearly compliance reports in respect of the stipulated prior environmental clearance terms and conditions.

A prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor (or by the transferee with a written ‘no objection’ by the transferor) to the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period. No reference to the expert appraisal committee concerned is necessary in such cases.

There are four stages which have to be followed by typical projects to obtain clearance:

screening (only for category-B projects and activities);

scoping;

public consultation; and

appraisal.

Public hearings are exempted for some projects, such as modernisation of irrigation projects, projects within industrial estates or parks, expansion of roads and highways not needing further land acquisition, all building, construction and area development and townships.

An expert appraisal committee (EAC) or state-level expert appraisal committee (SEAC) must complete its assessment and make a recommendation within 60 days of receipt of all requisite documents and the completion of the public hearing. The regulatory authority shall consider the recommendations of the (S)EAC and convey its decision to the applicant within 45 days of receipt of the recommendations of the (S)EAC, or in other words within 105 days of the receipt of the final Environment Impact Assessment Report. For projects that do not require an EIA (so-called ‘B-2’ projects identified by the SEAC in stage (ii) or ‘scoping’ stage), the final decision must be conveyed within 105 days of the receipt of the complete application with requisite documents.

By:

Dr. Amar Nath Giri

M.Sc. Env. Science,

Ph.D -Environmental Science & Law,

PGDEPL,

CES

ENVIRONMENT & QUALITY

NFCL. INDIA