Environmental Regulations that a Company needs to follow: Part II

ENVIRONMENTAL REGULATIONS CONTD…

 

Public Consultation [Para 7 (i) (III) and Appendix IV of the notification]

It comprises the concerns of locally affected person and others having plausible stake in the environmental impacts of the project. This has to be undertaken by all the projects in the Category ‘A’ and ‘B1’; with the following exceptions:

  1. Modernization of irrigation project.
  2. Expansion of roads and highways not involving acquisition of land.
  3. Projects concerning National Defence etc.

Public consultation mainly comprises of two components:

  1. Public hearing at the site or at its close proximity in manner that has been prescribed in Appendix IV.
  2. Obtain response in writing from other concerned persons having a plausible stake in the environmental impact from the concerned project or activity.

Public hearing

  • To be held at the site of the project or in close proximity of the project.
  • Conducted by the State Pollution Control Board [SPCB]
  • Manner prescribed in the Appendix IV.
  • Forwarded to the regulatory authorities within forty five days.

If SPCB is not able to conduct the public hearing then the regulatory authority will engage some other public agency within a period of 45 days. If the appointed public agency is also not able to hold the public meeting, it will report the facts in detail to the concerned regulatory authority, which may decide that public consultation in that particular case is not required.

For obtaining responses from the concerned persons having a plausible stake, the regulatory authority will be inviting responses from such concerned persons by placing the summary of the EIA report on their website within seven days of the receipt of the request seeking public hearing.

After public consultation is completed, the applicant will address all the environmental concerns and will make appropriate changes in the draft EIA and Environment Management Plans [EMP]. The applicant will finally submit the report prepared to the concerned regulatory authority for appraisal.

 

 

 

Appraisal [Para 7 (i) (IV) and Appendix V of the notification]

In this a detailed scrutiny of the application, final EIA report, outcome of the public hearing is scrutinized by the EAC or SEAC, as the case may be. The procedure related to appraisal has been mentioned in Appendix V of the notification.

In order to apply for appraisal, the applicant needs to apply to the EAC or SEAC, as the case may be, through a simple communication and needs to enclose the following document:

  1. Final EIA Report [20 hard copies & 1 soft copy]
  2. Copy of the video tape or CD of the public hearing proceeding
  3. Final layout proceeding [20 copies]
  4. Project feasibility report [1 copy]

The scrutiny of the documents will be done within 30 days from the receipt of the application. The appraisal shall be made by EAC or SEAC in a meeting whose date will be informed to the applicant 15 days prior to the meeting. The applicant can be present personally or by way of an authorized representative to furnish necessary clarifications. The EAC or SEAC will give categorical recommendation in which it will have to mention the reason for either granting or rejecting and will also have to mention terms and conditions, if any. The process of appraisal needs to be completed within sixty days of the receipt of the final EIA report.

 

Grant or Rejection [Para 8 of the notification]

Once, pre-clearance is over, the EAC or SEAC, as the case may be, will send its recommendation to the concerned regulatory authority who in turn will convey its decision to the applicant within forty five days of the receipt of the recommendations and will grant the pre-clearance if the regulatory authority agrees and accepts the recommendations of the EAC or SEAC.

If it disagrees with the recommendation it will request the EAC or SEAC, whoever concerned, to reconsider the recommendation by stating the reason for the disagreement within 45 days of receiving the recommendation. The information about the same will be conveyed to the applicant. After this, EAC or SEAC, as the case may be, will furnish its view within 60 days. Then the new view and recommendation will be sent to regulatory authority. After receiving it, the regulatory body will decide whether the clearance has to be given or not. The decision of the regulatory body will be final and it will be communicated to the applicant within next 30 days.

In case, the decision is not communicated within the prescribed period, the applicant can proceed as if the clearance sought has been granted or denied in terms of the final recommendations of the EAC or SEAC.

If there is a deliberate concealment or submission of false or misleading information or data by the applicant which is material information, the application will be liable to rejection.

If the fact about deliberate concealment or submission of false or misleading information or data by the applicant material to screening, or scoping, or appraisal, is discovered after the grant of the clearance, the clearance will be liable for rejection decided by the regulatory body after giving the applicant a personal hearing.

 

Validity [Para 9 of the notification]

After the period of validity is over, the grant of pre-clearance will expire and the industry will have to take the clearance again by following the above mentioned procedure. The following table gives the period for which the pre clearance will be valid with respect to the projects:

                                                                

Sl. No.

Project/ Activity

Period

01.

River Valley Project

10 years

02.

Mining Project

30 years

03.

Area Development Projects

05 years

04.

Other Projects

05 years

 

The above mentioned period for the specific project or activity can be increased by the concerned regulatory authority for a maximum period of 5 years provided that the applicant applies for the same by applying within the validity period by way of an application with which he will need to annex the updated Form 1 and Supplementary Form 1A.

 

Other Environmental Regulations

Rule 3 of the Environment Protection Rules, 1986 prescribes certain limits on the emission of certain particulate for the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution. The standard for the discharge has been mentioned in a tabular form in the Schedule of the EP Rules. Section 8 of the EP Act directs that the person handling any hazardous substance will have to act in accordance with the procedure prescribed under the Rule 13 of the EP Rules.

Penalty

The penalty under the EP Act for contravention of any of the provision of the Act or in the Rules or in the direction issued by the government has been divided into three categories:

  1. Individual
  • Punished with an imprisonment for a term which can extend to 5 years with a fine which may extend to 1 lakh rupees or both.
  • If the contravention continues or extends, an additional fine will be levied on the person which may extend to five thousand rupees for every day.
  • If the contravention continues for a year and in that case the offender shall be punished with imprisonment for a term which may extend to 7 years. [Section 15]
  1. Company
  • Every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be punished accordingly.
  • If the offence that has been committed by the company and with the consent of any director or manager or other officer, then they shall also be deemed guilty and there will be a proceeding against them and they will be punished accordingly. [Section 16]
  1. Government Department
  • The head of the department will be deemed to be guilty and shall be punished accordingly. [Section 17]

 

 

Sources:

  1. The Environment Protection Act, 1986 available at http://envfor.nic.in/legis/env/env1.html last visited on June 30, 2016
  2. Notification dated September 14, 2016 available at http://envfor.nic.in/legis/eia/so1533.pdf last visited on June 30, 2016
  3. The Environment Protection Rules, 1986 available at http://www.moef.nic.in/sites/default/files/fellowships/THE%20ENVIRONMENT.pdf last visited on June 30, 2016
  4. Environmental Regulation available at http://www.archive.india.gov.in/business/starting_business/environment_laws.php last visited on June 30, 2016
  5. National Environment Policy, 2006 available at http://www.moef.gov.in/sites/default/files/introduction-nep2006e.pdf last visited on June 30, 2016.
  6. Pollution Standards available at http://dpcc.delhigovt.nic.in/down/standards.pdf last visited on June 30, 2016.

 

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Environmental Regulations that a Company needs to follow: Part I

Environmental Regulations that a Company needs to follow

Introduction

“A nation that destroys its soil destroys itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people”

—Franklin D. Roosevelt

Everything that surrounds us includes the environment in which we live in. As defined in Section 2(a) of the Environment (Protection) Act, 1986 [EP Act]; environment includes water, air and land and the inter-relationship which exists among them and human beings, other living creatures, and property. When there is presence of pollutant in the Environment it causes Environment Pollution and degrades the quality of the environment.

To ensure that the environment of which we are a part is not degraded because of pollution, several laws were enacted after the Stockholm Conference. Before this conference, Indian Constitution under Article 48A directed the State to take steps in order to ensure that the environment is being protected and the condition of the environment is improving. In India, Ministry of Environment and Forest [MoEF] is the apex administrative body for:

  1. Regulating and ensuring environmental protection.
  2. Formulating the environmental policy framework for the country.
  3. Undertaking conservation and survey.
  4. Planning, promotion, co-ordination and overseeing implementation of environmental and forestry programmes.[i]

The Indian legislation has also enacted several legislations in order to ensure that the environment is being protected and the Environment Protection Act, 1986 is the umbrella legislation. The other legislations are pollution specific.

 

Authority

Section 3 of the EP Act gives power to the Central Government to take measures for the purpose of protecting and improving the quality of the environment. Under Section 3(3) it has the power to establish an authority or authorities for the purpose of giving directions and take necessary steps to ensure that the environment is being protected and for that the Central Government has established State Environment Impact Assessment Authority [SEIAA] which is responsible for giving clearance to the project or the activities at the State Level, while at the Central level it will be given by the Ministry of Environment and Forest. [Para 3 of the Notification] For the purpose of giving clearance to any project or activity, the SEIAA as well as the Central Government in the Ministry of Environment and Forest will constitute an Expert Appraisal Committee [EAC] on whose recommendation the clearance to the project will be given. [Para 4 of the Notification]

 

Clearance

In order to start an industry, it is required to take clearance from the concerned authorities established by virtue of this Act. The clearance has to be taken prior to the establishment of the industry. A notification about all the details related to Environment Clearance was published in the Gazette of India on September 14, 2006. This notification gives all the details that are required to be known to an industry in order to follow the environmental regulations.

 

Who Needs Clearance?

Para 2 of the Notification says that the following projects will be required to get clearance from the concerned authority before any construction work or preparation of land on the project or activity:

  1. All new projects listed in Schedule of the notification
  2. Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization
  3. Any change in product – mix in an existing manufacturing unit included in Schedule beyond the specified range.

In the Schedule, the projects are divided into two categories. If the project or the activity falls under Category A of the Schedule, the clearance has to be taken from the Central Government and if the project or the activity falls under the Category B of the Schedule, then the clearance has to be taken from the SEIAA.

 

How to Apply? [Para 6 of the notification]

If the industry or the company falls within the ambit of the Schedule, then it needs to apply for prior environmental clearance to the concerned authorities. For the purpose of applying, the applicant has to write an application in accordance to the prescribed form which has been provided in the notification [Form 1]. If the Supplementary form [Appendix II] is required then it has to be attached along with the application form. Along with the application in the prescribed form, the applicant will also have to furnish

  1. A copy of pre-feasibility project report except in the case of construction projects.
  2. In case of construction project, a copy of the conceptual plan.

 

Stages in pre-clearance [Para 7 of the notification]

There are maximum four stages that are involved in pre clearance and they are:

  1. Screening
  2. Scoping
  3. Public Consultation
  4. Appraisal

The Expert Appraisal Committee at the Central level and the State EAC at the State level will screen, scope and appraise the projects. The composition of the EAC is given in Appendix VI of the notification and they will meet once a month. EAC and SEAC will be re-constituted after every three years. [Para 5 of the notification]

 

Screening [Para 7 (i) (I) of the notification]

The industries that need pre-clearance has been categorised in two categories in the Schedule. Screening is needed only for those projects or activities that are mentioned in the Group B of the schedule. The purpose of screening is to determine whether or not the project or activity for which pre-clearance has been sought requires any further environmental studies for preparation of Environmental Impact Assessment [EIA] prior to the grant of environmental clearance. This scrutiny will depend on the nature and location of the project. In case the project required further environmental studies, it will be termed as category ‘B1’ in the EIA report and the rest will be termed as ‘B2’ and it won’t be requiring an EIA report.

 

Scoping [Para 7 (i) (II) of the notification]

Scoping is the process by which the EAC or SEAC, as the case may be, for category ‘A’ and ‘B1’ respectively determine detailed and comprehensive Terms of Reference [TOR] in which it addresses all the relevant environmental concerns related to that particular project or activity for which the prior environmental clearance has been sought. The terms of reference will be determined on the basis of the information furnished in the prescribed application or if required, a sub-group of EAC can also visit the site concerned.

The Terms of Reference (TOR) has to be conveyed to the applicant within sixty days of the receipt of the application. In case, the terms of reference has not been conveyed by the EAC then the TOR suggested by the applicant will be deemed as the final TOR approved by EIA.

Once approved, the TOR will be displayed on the MoEF website as well as on the concerned SEIAA website. In case, the application is rejected, the news about the same along with the reason of rejection will be sent to the applicant within sixty days of the receipt of the application.

 

The last two stages of pre clearance, validity and penalties has been discussed in the second part of the Blog.

 


End Notes:

[i] http://www.archive.india.gov.in/business/starting_business/environment_laws.php last visited on June 30, 2016.

Sources:

  1. The Environment Protection Act, 1986 available at http://envfor.nic.in/legis/env/env1.html last visited on June 30, 2016
  2. Notification dated September 14, 2016 available at http://envfor.nic.in/legis/eia/so1533.pdf last visited on June 30, 2016
  3. The Environment Protection Rules, 1986 available at http://www.moef.nic.in/sites/default/files/fellowships/THE%20ENVIRONMENT.pdf last visited on June 30, 2016
  4. Environmental Regulation available at http://www.archive.india.gov.in/business/starting_business/environment_laws.php last visited on June 30, 2016
  5. National Environment Policy, 2006 available at http://www.moef.gov.in/sites/default/files/introduction-nep2006e.pdf last visited on June 30, 2016.
  6. Pollution Standards available at http://dpcc.delhigovt.nic.in/down/standards.pdf last visited on June 30, 2016.

 

Image Credits: http://www.southernfriedscience.com/do-environmental-regulations-harm-the-economy/

National Green Tribunal: What is it?

The working of National Green Tribunal

Introduction

In order to ensure that the cases related to environmental protection are being effectively and expeditiously disposed, the National Green Tribunal [NGT] was established under the National Green Tribunal Act, 2010.[i]

 

Composition

As per the Act, the tribunal has a Chairperson and judicial members along with expert members in the range of ten to twenty [Section 4].

 

Jurisdiction

Original

The jurisdiction of the tribunal extends to all the civil cases wherein the substantial question is related to the environment and the question arises out of the implementation of any of the enactments that are mentioned in Schedule I of the Act. The limitation as prescribed in the Act for entertaining an application for adjudication of the dispute is a period of six months. [Section 14]

 

Appellate

The Tribunal also has an appellate jurisdiction in the case where any person is aggrieved by any order or decision of the Tribunal passed under following sections of their respective Acts:

 

Sl. No.

Section

Act

01.

Section 28

Water (Prevention and Control of Pollution) Act, 1974

02.

Section 29

Water (Prevention and Control of Pollution) Act, 1974

03.

Section 33A

Water (Prevention and Control of Pollution) Act, 1974

04.

Section 13

Water (Prevention and Control of Pollution) Act, 1974

05.

Section 02

Forest (Conservation) Act, 1980

06.

Section 31

Air (Prevention and Control of Pollution) Act, 1981

07.

Section 05

Environment (Protection) Act, 1986

Apart from the table given above, the tribunal also has appellate jurisdiction in the matter wherein the grievance is related to the grant or rejection of pre-clearance under Environment (Protection) Act, 1986. [Section 16]

Procedure

Who can Apply?

As per Section 18 of the Act, the application can be made by any of the following:

  1. The person who sustained the injury
  2. The owner of the property to which the damage has been caused.
  3. In case a person has died, the legal representative of the deceased.
  4. Any aggrieved person
  5. Central Government or State Government or SPCB or CPCB or any local authority or any environmental authority established under Environment (Protection) Act, 1986.

 

How to Apply?

Section 18 of the NGT Act, directs that the application for any appeal or for solving any dispute concerning environment will be made in the prescribed procedure and the procedure for the same has been prescribed in National Green Tribunal (Practices and Procedures) Rules, 2011 [NGT Rules].

As per Rule 8 of the NGT Rules, the application to the Tribunal has to be in the manner as prescribed in Form I and will be presented to the Registrar and in case the application has to be filed under Section 15 of the Act, the prescribed form will be Form II.

The application has to be submitted in three copies wherein the copy must have two compilations:

  1. Application or appeal, as the case may be, with impugned order, if any;
  2. All other documents and annexures that are referred in the application. [Rule 8]

In case there is any defect in the application, the Registrar shall notify in Form V on the Notice Board of the Tribunal fixing a time for rectifying the defect. [Rule 10]

Rule 13 of the NGT Rules further gives us the format of the application wherein it has been mentioned that the typed application has to be typed in double space on one side of the paper.

 

Time Limit

The Tribunal has been established with the objective that the dispute will be resolved expeditiously and hence as per the Act, the Tribunal will try to dispose of the application or the appeal as the case may be within six months from the date of filing of the application or appeal. [Section 18 (3)]

 

Power

The Tribunal for the purpose of discharging its function has the same powers as are vested in the civil court under Code of Civil Procedure, 1908. Further, the Tribunal isn’t bound by any procedure of Indian Evidence Act, 1872. [Section 19]

 

Appeal

In case a person is aggrieved by the order of the Tribunal, an appeal can be filed in the Supreme Court within 90 days from the date of communication of the award. [Section 22]

 

Penalties

In case of any dispute regarding the penalty imposed by the pollutions boards, the matter can be referred to NGT and then accordingly the sentence will be passed. As per the Act, NGT has the power to pass any order that provide relief or compensation in accordance with the Act given in the Schedule I of the Act. Apart from that, the Tribunal can ask the offender for restitution of the property damaged or the environment that has been affected. Further, the Tribunal after regarding the damage to the public health, property and environment can ask the offender to provide compensation to the claimants. [Section 15]

In case a person doesn’t comply with the orders of the Tribunal, the offender will be punishable with imprisonment and the term can extend to three years or with  fine which can extend to ten crore rupees or both. In case the contravention continues, additional fine per day will be levied on the offender which may extend to twenty five thousand. In case, the offender is a company, then fine can extend to twenty five crore and in case the contravention continues, additional fine per day will be levied on the offender which can extend to one lakh rupees. [Section 26]

 


[i]http://www.advocatekhoj.com/library/bareacts/nationalgreen/index.php?Title=National%20Green%20Tribunal%20Act,%202010 last visited on June 30, 2016.

 

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