Environmental Clearances & Project Investments in India Rakesh Saxena, B.Sc. B.Arch.E, M.S (Env. Planning) PhD, LLB The Industrial Revolution heralded an era of prosperity, comforts and other blessings. On the other hand, it also brought with it a serious threat to the environment. Since then the rain forests have been decimated, oil spilled by the tankers, harmful gases spewed into the atmosphere, poisonous fluids into rivers, lakes and the sea. Industry has always been and continues to be the prime cause of economic development all over the world. For example the single most important step to control global warming can be taken by reducing carbon dioxide emissions by improving upon energy efficiency. The industry needs to be encouraged and monitored for conserving energy and using less energy intensive technologies. In contemporary liberal and burgeoning economic environment like India, which is having a large scale inputs in the form of Foreign Direct Investment (FDI), the Government has to play an important role by bringing out environmental legislations and encouraging industry to adopt environment friendly technologies etc., by means of charges, subsidies, market creation and enforcement incentives. In India, however, in view of limited public resources both financial and human, lack of awareness about ecological aspects, inability to derive competitive advantage by producing eco-friendly products, the role of Investor assumes high importance. The need of the hour is to bring awareness among all, for pollution prevention, waste minimization, resource recovery, recycling and waste utilization in the industry. This paper is an effort to suggest such FDI investors, the law and procedure for promoted by the Government of India for environmental protection. Constitutional Status The Indian Constitution is among the few in the world that contains specific provisions for environmental protection. Article 48A of the Directive Principles of State Policy of Constitutions of India provides for the State's Commitment to protecting the environment and Article 51A (g) states that to protect and improve the natural environment shall be the fundamental duty of the citizens of India. Regulatory Environment Protection Laws: In observation of the Directive Principles, the Union of India has enacted the following major legislations: a) The Environment (Protection) Act, 1986, which is a umbrella Legislation b) The Water (Prevention & Control of Pollution) Act, 1981, as amended in 1978 and 1988 c) The Air (Prevention & Control of Pollution) Act, 1981, as amended in 1987.The above two Acts have been substantially amended in the recent past and some of the most significant aspects of amendments are: (a) A consent order is now valid for 15 years or till such time there is some significant change in the process, whichever is earlier; (b) A consent order cannot be provided provisionally and will be obtainable only when all the pollution prevention requirements are adopted; Action under these two Acts is to be taken by the respective d) The Forest Conservation Act, 1980
The Wildlife Preservation Act, 1982; extended to cover biosphere Resources and the Hazardous Wastes (Management & Handling) Rules, 1989. Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 Manufacture, Use, Import, Export and Storage or Hazardous Micro organisms and Genetically Engineered Organism or Cell Rules, 1989, to regulate the storage, use, trade, transport and disposal of hazardous wastes. i) The Public Liability Insurance Act, 1991 j) The Motor Vehicles Act, 1939, amended in 1988, and k) The Environment Tribunal Bill, 1992. Government Agencies Ministry of Environment & Forest is the nodal agency in the administrative structure of the Central Government for the planning, promotion and coordination of environmental and forestry programs. The Ministry deals, inter-alia, with the following: Survey and conservation of forests Survey, conservation and utilization of resources Environmental Impact Assessment of development efforts Prevention and control of pollution Research, education and training.
e) f) g) h)
While the Central Ministry of Environment and Forests is the nodal Ministry for environmental legislation, several States and Union Territories have enacted their own legislation besides the major ones enacted by the Ministry of Environment and Forests. The State Pollution Control Boards (SPCB) established in every State of the country, are responsible for implementing these legislations as well as issuing the rules, regulations and notifications thereof, which prescribe the standards for emissions and effluents of air and water pollutants and noise levels. In the case of Union Territories (UT), the Pollution Control Committee (PCC) is responsible for this. Therefore, all the industries located or to be located in any State or UT, are required to interact with the respective SPCB or PCC as the case may be. The Central Pollution Control Board (CPCB) at New Delhi coordinates the activities of the SPCBs and PCCs. It also advises the Central Government on any matter concerning the prevention and control of air, water and noise pollution. The CPCB also brings out numerous Rules and Notifications from time to time which are priced, and can be bought by any intending investor either directly from the CPCB or from the concerned SPCB. Guidelines Environmental clearance of polluting or degrading development activities is done by the Central and/or the State Governments, with the following objectives:
Optimal utilization of finite natural resources through use of better technologies and management packages. Incorporating suitable remedial measures at the project formulation stage
The environmental concerns of Indian government have found expression in several documents such as the National Forest Policy, the National Conservation Strategy and the Policy Statement for Abatement of Pollution brought out by the Ministry of Environment and Forests from time to time. These documents also form the basis for the formulation of specific guidelines and regulations which are to be followed by an investor for the clearance of investment proposals from the environmental angle. It is inevitable with changes in environmental problems as well as solutions, the rules see frequent changes. Till January 1994, obtaining environmental clearance from the Central Ministry was only an administrative requirement intended for a mega project undertaken by the Government or Public Sector Undertakings. However, the new Notification (EIA Notification) issued by the Ministry in January 1994 (as amended in May 1994) makes Environmental Impact Assessment statutory for 29 different identified activities. All the projects listed under Schedule-I of the EIA Notification are required to obtain environmental clearance from the Central Government. It is worth pointing out here even if any of these projects fall under the delicenced category of the New Industrial Policy, they are still required to get environmental clearance from the Central Government to be able to get established and function. Besides this, site specific projects such as mining, pit-head thermal power stations, hydro-power, major Irrigation projects, ports and harbors will also have to obtain separate site clearance from the Central Government (or the State as the case may be) as specified in the EIA Notification. Over the above this, the Government of India (Ministry of Environment and Forests) notifies certain areas as ecologically sensitive/fragile areas from time to time and all developmental projects which are to be located in these notified areas need to obtain environmental clearance from the Central Government irrespective of whether they are listed under Schedule-I of the EIA Notification or not. Environmental Impact Assessment While all industrial projects may have some environmental impacts all of them may not be significant enough to warrant elaborate assessment procedures. The need for such exercises should be decided after initial evaluation of the possible implications of a particular and its location. The projects, which could be the candidates for detailed Environmental Impact Assessment, include the following: (i) (ii) Those which can significantly alter the landscape, land use pattern and lead to concentration of working and service population; Those which need upstream development activity like assured mineral and forest products supply or downstream industrial process development; Those involving manufacture, handling and use of hazardous materials;
Those which are sited near ecologically sensitive area, urban centers, hill resorts, places of scientific and religious importance; Industrial Estates with constituent units of various types which could cumulatively cause significant environmental damage.
The Environmental Impact Assessment (EIA) should be prepared on the basis of the existing background pollution levels vis-à-vis contributions of pollutants from the proposed Industry. The EIA should address some of the basic factors listed below: (i) Meteorology and air quality Ambient levels of pollutants such as sulphur dioxide, oxides of nitrogen, carbon monoxide, suspended particulate matters, should be determined at the centre and at 3 other locations on a radius of 10 km with 120 degrees angle between stations. Additional contribution of pollutants at the locations are required to be predicted after taking into account the emission rates of the pollutants from the stacks of the proposed plant, under different meteorological conditions prevailing in the area. Hydrology and water quality Site and its surroundings Occupational safety and health Details of the treatment and disposal of effluents (liquid, air and solid) and the methods of alternative uses. Transportation of raw material and details of material and details of material handling. Impact on sensitive targets. Control equipment and measures proposed to be adopted.
(ii) (iii) (iv) (v) (vi) (vii) (viii)
Environmental Risk Assessment & Management Preparation of environmental management plan is required for formulation, implementation and monitoring and of environmental protection measures during and after commissioning of projects. The plans should indicate the details as to how various measures have been or proposed to be taken including cost components as may be required. Cost of measures for environmental safeguards should be treated as an integral component of the project costs and environmental aspects should be taken into account at various stages of the projects: Conceptualization: preliminary environmental assessment. Planning: detailed studies of environmental impacts and design of safeguards. Execution: implementation of environmental safety measures. Operation: monitoring of effectiveness of built-in safeguards.
The environmental risk assessment is implemented for the new small and large industrial units for safeguarding Nation’s interest from potential environment impact problems. To make the risk assessment realistic, the site should be properly analyzed. Site inspection report should include review of past and present use of
site, the nature of the neighborhood, the company's production process, status of discharge permits, locations and conditions of storage tanks, wells, etc. Environmental Clearance Procedures a) Under the Environment (Protection) Act, 1986, 32 categories of projects and industries will require environmental clearance from the Central Government. b) ·In addition, any project proposed to be located within 10 km of the boundary of a reserved forest or a designated ecologically sensitive area or within 25 Kms of the boundary of a national park or sanctuary will require environmental clearance from the Central Government. c) For all other projects, environmental clearances need to be obtained only at the level of the State Government. Clearance is required from the environmental (for site clearance) and pollution control angle, which has to be obtained by all units other than certain, specified non-polluting units in the small scale sector. d) No Objection Certificate (NOC) for the site clearance usually involves clearance from the concerned State Pollution Control Board NOC is also required for adequacy of pollution control measures. e) In general, the State Pollution Control Board is the concerned authority which wills the State Pollution Control Board is the concerned authority which will usually specify certain pollution control measures to be taken by the unit. Following is the list of polluting industries about 32, notified by Ministry of Environment and Forests which needs to be given special attention: 1. 2. 3. 4. 5. 6. 7. 8. 9. Aluminum and steel Paper, pulp and newsprint pesticide/insecticides Refineries Fertilizers Paints Dyes Leather tanning Rayon
10. Sodium/Potassium Cyanide 11. Basic drugs 12. Storage Batteries (lead acid type) 13. Acids/alkalis 14. Plastics
15. Rubber - synthetic 16. Cement 17. Asbestos 18. Fermentation industry 19. Electroplating industry 20. Primary metallurgical producing industries, viz., zinc lead, copper Therefore, it is strongly recommended that every FDI investor must assess and should incorporate the environmental requirements, environmental risk assessment, related legislations, analysis of EA and EIA of the project, pricing for environmental compliance in their budgets in advance. References 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. The Environment (Protection) Act, 1986, The Water (Prevention & Control of Pollution) Act, 1981, as amended in 1978 and 1988 The Air (Prevention & Control of Pollution) Act, 1981, as amended in 1987. The Forest Conservation Act, 1980 The Wildlife Preservation Act, 1982; Resources and the Hazardous Wastes (Management & Handling) Rules, 1989. Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 Manufacture, Use, Import, Export and Storage or Hazardous Micro organisms and Genetically Engineered Organism or Cell Rules, 1989 The Public Liability Insurance Act, 1991 The Motor Vehicles Act, 1939, amended in 1988, The Environment Tribunal Bill, 1992. MC Mehta v State of Orissa AIR 1992 ORI 225, 227 Research papers of Department of Environment, Govt. Of India Environmental and Social Aspects of Large Dams in India: Problems of Planning, Implementation and Monitoring, by Ashish Kothari. Environmental impact assessment for developing countries edited by Asit K Biswas and SBC Agrawal; The American Environmental Movement: SURVIVING THROUGH DIVERSITY by Stacy J. Silveira Earth Day Recollections: What It Was Like When The Movement Took Off by John C. Whitaker [EPA Journal - July/Aug. 1988] Diwan S and Rosencranz A, 2001: Environmental Law and Policy in India,