Not-so-serious initiative

A committee constituted by the Union Ministry of Environment and Forests (MoEF) has issued first-of-its-kind guidelines categorising non-compliance of Environmental Clearance (EC) conditions as serious and not-so-serious. The Ministry of Environment and Forests constituted a committee under the Chairmanship of Shri J.M. Mauskar, Special Secretary to Government of India in 2009 to examine the issues relating to monitoring of projects.

The mandate of the committee was as follows:

(i) To examine the existing monitoring procedures/methodology adopted under EIA and CRZ Notifications.

(ii) To provide suggestions for an effective monitoring mechanism for various projects that are accorded clearance.

(iii) To provide suggestions for the monitoring mechanisms to bring in quantitative analysis of the parameters listed in the environmental clearance (EC) letter.

(iv) To provide suggestions for use of information technology for effective monitoring at Ministry/State level, Regional Office level and at the level of industrial unit.

The above committee submitted its report in January, 2011 and recommended various actions for more effective monitoring and to achieve intended goals. One of the recommendations was to constitute a committee under the Chairmanship of Dr. B. Sengupta, Former Member Secretary, CPCB with representatives from Regional Offices of MoEF and CPCB to develop criteria and formulate guidelines for categorization of non compliances into the category of serious and not so serious.

Categorisation of non-compliance into Serious/Not-so-serious
The MoEF while according environmental clearance generally stipulates two types of conditions, ‘Specific Conditions’ and ‘General Conditions’ in all categories of projects which are covered under EIA Notification 2006 or Coastal Regulation Zone Notification, 2011. Specific conditions vary from one sector to another whereas general conditions by and large remains the same. The committee, therefore, decided to categorise general conditions across all projects and specific conditions sector wise for effective monitoring of EC conditions. The sectors selected for the categorization were in line with the ones Environmental Appraisal Committee constituted for appraisal of projects for environmental clearance.

The most obvious question is on what basis the non-compliances are categorised as not-so-serious. What is obvious is that once these recommendations are notified there will be uniformity in terms of action taken against non-compliance of EC conditions. But nevertheless, there is no rationale provided in the report that could be referred to understand why some conditions are not-so-serious and some are serious.

Another issue is how to monitor these conditions. Some of the conditions are straight forward which can easily be monitored. But some of the conditions like 'appropriate mitigative measures shall be taken to prevent pollution of the river water/nallah located close by the mines' or 'overburden should not be kept active for long period' are very subjective conditions which are open to any interpretation by the industries. Efforts should be made to quantify these conditions in order to make their monitoring simple. Some of the observations on committee report is listed down in the table below.

Table 1: Serious/Not-so-serious?

General conditions
Conditions	Serious/not-so-serious non-compliance	Comments
15. For employing unskilled, semi-skilled and skilled workers for the project, preference shall be given to local people	Not-so-serious	How will it be monitored? Which industry is complying, one which employs 5 locals or other where locals constitute 5 per cent of total manpower?
16. The responses/commitments made during public hearing should be complied with letter and spirit.	Serious	At present, there is also a provision that the public hearing needs to be video recorded and sent to the EACs. But there are allegations by various local NGOs/activists that these are often edited and sent to EACs. The committee could have recommended putting unedited versions of these proceedings on the company/SPCB website within 12/24 hours of the public hearing being held.
22. All necessary clearances from the concerned Authorities shall be obtained before initiating the project. and 67. Under the provisions of Environmental (Protections) Act,1986, Legal action shall be initiated against the project proponent if it was found that construction of the project has been started without obtaining Environmental Clearance.	Serious	Legal action may only entail a show cause. It would have been sensible for the committee to suggest scrapping the project altogether at this initial stage if the proponent flouts a condition. Such a project proponent may otherwise flout many more norms during its period of operation especially if it goes scot-free to start with.
25. All the recommendations made in the Charter of Corporate Responsibility for Environmental Protection (CREP) issued by CPCB should be implemented.	Not-so-serious	CREP guidelines strive for lowering emission levels, latest technology and recycling of waste. Instead of making it not-so-serious non-compliance, the committee could have recommended to the Ministry to update CREP guidelines to take into consideration latest emission level and technology advancement.
Cement sector
4. Continuous monitoring system for particulate matter should be installed in cement kiln, coal mill, clinker cooler, cement mill and data should be displayed in company’s website.	Serious	Good steps by the committee. The issue here is; does the committee want real time data or daily/monthly/half-yearly/yearly data on website, this point has been missed out. Real time data will ensure greater transparency in pollution monitoring, which is completely missing as of know.
7. Asphalting / concreting of roads and water spray all around the critical areas prone to air pollution and having high levels of PM shall be ensure. Fugitive emission should be controlled and maintained within the prescribed limit and regularly monitored. Guidelines / code of practice issued in this regard should be followed.	Serious	Fugitive dust emission is a major issue in cement sector. Million tonnes of raw material is being handled in cement industry every year. Assuming only 0.1 per cent of material is lost as fugitive dust, amount is huge. There are best practices such as closed storage yard for limestone, gypsum, coal, clinker, flyash and other raw materials. Transportation of material within plant mostly occurs through conveyor belt and the best practice is to have 100 per cent covered conveyor belt. These issues are to be dealt with seriousness in cement sector EC conditions.
10. Noise levels emanating from plants shall be so controlled such that the noise in the work zone shall be limited to prescribed limit. Workers engaged in noisy areas such as turbine area, air compressors etc. shall be periodically examined to maintain audiometric record and for treatment for any hearing loss including shifting to non-noisy/less noisy areas.	Not-so-serious	In cement sector, impact on health because of fugitive dust is more important than that of high noise level. Status of health survey for workers, regular check-ups needs to be included in cement sector conditions.
Mining of minerals
9. Appropriate mitigative measures shall be taken to prevent pollution of the river water/nullah located close by the mines.	Not-so-serious	There are a number of cases across where water bodies/river/nullahs have been affected adversely because of mining and hence it is imperative to rethink of keeping this condition as not-so-serious.
11. Blasting operation shall be carried out only during the day-time. Controlled blasting should be practiced with use of delay detonators. The mitigative measures for control of ground vibrations and to arrest fly rocks and boulders should be implemented.	Not-so-serious	It is a serious issue but it has been kept under non-serious offence. Operation of many industries was halted in the recent past because blasting posed threat to archaeological sites, monuments and caused damage to the houses and buildings nearby. Committee needs to reconsider the impacts of blasting seriously.
13. Drills shall be wet operated. Roads shall be metal topped and mechanical sweepers shall be regularly deployed to clear the dust off the main approach and mineral transportation roads. Water sprinkling (fixed and mist type, mobile) shall be regularly done along the main haul roads. Plantation would be developed along the sides of roads.	Not-so-serious	Drilling operation is a short span operation but it generates huge amount of fine particulates which cause respiratory problems among workers, in case wet drilling is not employed. Transportation on haul road is a full day operation and generates huge amount of fugitive dust. These issues are very subjective in nature and monitoring certainly would be difficult to carry out. In addition, there are many conditions which contradict each other. In one of the condition which says, water sprinkling system to be provided to check fugitive emissions from crushing operations, conveyor system, haulage roads etc as serious non-compliance. Another condition puts water sprinkling on main haul road as not-so-serious non-compliance. The committee needs to remove these ambiguities.
2. Crushers at the CHP shall be operated with high efficiency bag filters. Water sprinkling system shall be provided to check fugitive emissions from crushing operations, conveyor system, haulage roads, loading and unloading areas including transfer points. These should be properly maintained and operated.	Serious
Thermal Power Plants
13. Regular monitoring of ground water in and around the ash pond area including heavy metals (Hg, Cr, As, Pb) shall be carried out. The data so obtained should be compared with the baseline data so as to ensure that the ground water and surface water quality is not adversely affected due to the project.	Not-so-serious	Mercury contamination from thermal power plants is a serious cause of concern. Many studies have confirmed Hg contamination in the vicinity from thermal power plants. However the report places non-compliance of this condition in a not-so-serious category.
Metallurgical (Iron and Steel including sponge iron plant)
2. Total requirement of the water shall not exceed prescribed limit and prior ‘permission’ for the total water requirement shall be obtained from the concerned Department before commissioning the project. Effluent Treatment Plant (ETP) shall be installed for the treatment of process water. During the rebuilding of coke oven battery, BOD plant shall be provided for the disposal of liquid effluent. The wastewater generated from blast furnace (BF) shall be treated in clarifier and reused in the system. Blow down from BF recirculation system shall be reused in SGP as make up water. Blow down from BOF re-circulation system shall be reused in SMS slag yard. Reverse Osmosis plant shall be installed. All the wastewater generated shall be treated, recycled, and reused either in the process or for dust suppression or greenbelt development.	Serious	Too many important conditions under one heading. The committee needs to separate it out. Same is needed for condition 3 and 4 of metallurgical sector.
17. Slag from EAF shall be utilized without land filling/dumping and the waste processing area shall be provided with lining. A time bound action plan shall be submitted to reduce solid waste, its proper utilization and disposal.	Serious	There has not been any process in use which can recycle and reuse 100 per cent of the EAF slag. Most of the EAF based steel making plants recycle and reuse the EAF slag for filling low lying areas, storing it in the boundaries and finally dumping. Some plants have taken initiatives for making tiles, pavement blocks, using it in boundary walls and for metal extraction for sinter making which can recycle only a small part of the total generated slag. As committee hasn’t allowed EAF slag to be land filled, reusing and recycling the EAF slag is still a matter of further exploration.

Strict Penalty for non-compliance?
The mandate of the committee was to categorise consent condition (general or specific) into serious and not-so-serious. Serious non-compliance means direct closure order/notices depending upon seriousness of non-compliance and the Non-compliances categorized as ‘Not So Serious’ will become ‘Serious’ when the particular condition remained ‘Non Complied’ during submission of Second Six Monthly report after receiving environmental clearance. The following penalties are suggested in the report to deal with non-compliance of EC conditions as per E (P) Act:

Table 2: Penalty suggested by committee

SN.	Nature of violation	Action by MoEF or other agency to whom Section 5 power is delegated
1	Non-compliance of EC conditions and due to that immediate threat to public life and property is anticipated (serious violation)	Direct closure using Section 5 of E (P) Act
2	on-compliance of EC conditions and due to the same, public life, property and vegetation are to be affected	Giving notice under Section 5 of E (P) Act. Decision on the basis of reply received from industry by competent Authority within stipulated time.
3	Non compliance of EC conditions (not so serious in nature)	Direction to SPCB under Section 18(1)(b) to take action as per Water/Air Act Or Writing letter to project proponent for compliance and repeated failure to comply will be considered as serious violation

There is subjectivity in Point 1 and 2 of table 1: Penalty suggested by committee. Both, point 1 and 2, deals with serious non-compliance but different penalties. It’s obvious that agency will take action under point 1 where there is a definite proof of threat to public life and property. On the contrary, the agency will act according to point 2 when there is no definite proof. It’s very subjective. For example, an industry discharging effluent with high concentration of heavy metal. This is a serious case of non-compliance and industry should be penalised as this has serious implication on aquatic life as well on human health. But what does proof mean in this case. It will take time to establish the proof. Does it mean company will be served only notices? It’s not rationale. On paper, it seems the committee have recommended punitive action against non-compliance but on ground only notices will be send to defaulting industries.

There are ample provision under E(P) Act to penalise industry for their non-compliance of EC conditions (see table 2: Power under Environment (Protection) Act, 1986). Obviously question is not about ‘power to take action’ but no faith of regulatory agencies on these provisions.

Table 3: Power under Environment (Protection) Act, 1986

Section	Power
Section 5	The power to issue directions under this section includes the power to direct- (a) the closure, prohibition or regulation of any industry, operation or process; or (b) Stoppage or regulation of the supply of electricity or water or any other service.
Section 15	(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. (2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.
Section 16	Where any offence under this Act has been committed by a 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 liable to be proceeded against and punished accordingly
Section 17	Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Under section 5 of E(P) Act, agencies can issue direct closure order for non-compliance. They need not to send notices after notices but direct closure order. Under section 15, there is provision of financial penalty. It talks of Rs one lakhs penalty for non-compliance to provision under E(P) Act. If non-compliance continues, there is additional penalty of Rs five thousand for every day during which failure continues. These provisions make non-compliance cheaper than compliance. If committee would have recommended heavy financial penalty, it would have been a welcome step. But there is no necessity of suggesting subjective penalties for non-compliance. “Section 5 of E(P) Act is specific, relating to issue of direction. As such notice cannot be issued under the said provision. If that is allowed, it will dilute the provision and would be against the intent of Parliament which enacted the Act. Notice could be issued under other provisions for getting clarification but not under section 5 of EP Act,” says a senior High Court Lawyer, who does not want to be named. He further added repeated failure to comply EC conditions’ should not be allowed. EC conditions are to be complied in letter and spirit at the first instance itself. Periodation of compliance would defeat the very objective of environmental clearance.

Way ahead: Heavy financial penalty for non-compliance.
In the US, the federal and state EPA's (Environment Protection Agency) can issue an administrative order to resolve a violation without going to the courts for relief. Administrative orders are legally enforceable, provide evidence of the violation, and afford the violator due process and an opportunity to be heard.
Under an administrative order, the violator will be required to take corrective actions within a prescribed time period, penalties may be assessed, and supplementary enforcement projects may be established. Where appropriate, the USEPA and state EPAs use administrative enforcement as their preferred first response for routine enforcement cases because it is viewed as more expedient than the judicial system. The Ministry of Environment and Forests should also provide Central Pollution Control Board and State Pollution Control Board administrative order as a tool for ensuring compliance

Written by: Nivit Kumar Yadav
Email: nivit@cseindia.org

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