environment management through legislations

ASHOK B. JAIN

MANAGEMENT OF ENVIRONMENT THROUGH LEGISLATIONS

AN OVERVIEW

The process of population explosion, heavy industrialization and growing urbanisation has successed in creating acute problems of environmental pollution. The Indian economy has grown at a rapid pace during the 1980’s with heavy & chemical industries serving as a driving force. At the same time, we have seen our natural environment being damaged by extensive pollution. Laws, in this regard are one of the vital tools for prevention and control of pollution by proper administration and checks.

There is an increased awareness that for effective environmental protection more stringent and result oriented statutes are required. Prior to specific Environmental Legislations, the provisions relating to environment protection were scattered in various state and central laws, which were totally inadequate and did not play significant role in protecting the environment.

Foremost and the oldest ‘Act’ on the statute book on control of water pollution is ‘The Shore Nuisance (Bombay & Colaba) Act, 1853’ followed by ‘Oriental Gas Company Act, 1887’. The fundamental principles of environment protection can be seen in the 144 year old ‘Indian Penal Code’.

Maharashtra being the most industrialized State in the country, felt the need to control and prevent pollution of river. In the year 1962, an expert committee was constituted to look in the aspects of discharge of trade effluent and municipal sewage. In the year 1969, a comprehensive legislation ‘Maharashtra Prevention of Water Pollution Act, 1969’ was enacted and the ‘Maharashtra Prevention of Water Pollution Board’ was constituted in 1970.

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At the close of 1970’s, rapid growth in environmental consciousness, the world over, ushered in a series of new central laws and institutions designed to restore and maintain the quality of environment, through comprehensive regulations on air and water pollutants. In the mid 1980’s, a new strategy was added to improve the effectiveness of existing laws by way of amendments and strict enforcement of statutes and regulatory standards.

Ø Constitution of India and the Environment

Several constitutional provisions form the basis for central and state authority in environmental law. In the Constitution of India, specific provisions for the protection of Environment have been incorporated by the Constitution (42nd Amendment) Act, 1976. Now, it is obligatory both for the State and the citizen to protect and improve the environment and to safeguard the forests and wildlife of the country.

Ø Role of Local Bodies

The Constitution (Seventy Fourth Amendment) Act, 1992 empowers the state to make laws and to give powers and authority to the municipalities to function as institutions of self-government. The powers and responsibilities include preparation of schemes relating to public health, sanitation conservancy and solid waste management. Besides this, urban forestry, protection of environment and promotion of ecological aspects is also incorporated in the Twelfth Schedule.

Ø Legislative Developments

For effective management of Environment, anti-Pollution Laws were made, reviewed, systematized and strengthened by the Parliament. The major legislative measures brought about in India are:

w Water (Prevention and Control of Pollution) Act, 1974.

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w Water (Prevention and Control of Pollution) Cess Act, 1977.

w Air (Prevention and Control of Pollution) Act, 1981.

w Environment (Protection) Act, 1986.

w Public Liability Insurance Act 1991

w The National Environment Tribunal Act 1995

w The National Environment Appellate Authority Act 1997

Major set of Rules/Notifications issued under the Environment (Protection)Act, 1986.

* The Manufacture Storage and Import of Hazardous Chemicals Rules,

1989

* The Hazardous Wastes (Management & Handling) Rules, 1989

* The Manufacture, Use, Import, Export and Storage of Hazardous

Micro Organisms/Genetically Engineered Organisms or cells Rules,

1989

* Coastal Regulation Zone Notification of 1991.

* Environment (Protection) Amended Rules, 1993.

(Environmental Statement - (Audit))

* Environment Impact Assessment Notification September 14, 2006

*The Chemical Accidents (Emergency, Planning, Preparedness and

Response) Rules, 1996.

* The Bio-Medical Waste (Management & Handling) Rules, 1998

* National & State Coastal Zone Management Authority Order

dtd. 26.11.1998

* The Recycled Plastics Manufacture & Usage Rules, 1999

*The Noise Pollution (Regulation & Control) Rules, 2000

* The Ozone Depleting Substances (Regulation) Rules, 2000

* The Municipal Solid Waste (Management & Handling) Rules, 2000.

The Batteries (Management & Handling) Rules 2001.

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Ø ENFORCEMENT INSTITUTIONS

The Water Act, 1974 and Air Act, 1981 centre on effective prevention, control and abatement of pollution. These statutes stimulated the constitution of Central and State Pollution Control Boards. Most of the State Governments have developed independent Environment Departments and State Environment Councils. The Boards are required to perform various functions which include laying down standards, dissemination of information, research and development activities, regulation of pollutants through consent, inspection and monitoring, location clearance, development of economical methods for treatment and disposal, organizing training and to plan comprehensive programme for prevention, abatement and control of pollution.

Ø ENVIRONMENT (PROTECTION) ACT, 1986

On May 23, 1986 the Environment (Protection) Act, 1986 was brought into force to provide for protection and improvement of environment and the matter connected therewith. One of the important features was management of hazardous substances. It was under this Act that various sets of Rules were framed to regulate handling of hazardous chemicals, hazardous wastes, municipal & bio-medical wastes etc.

Ø HAZARDOUS WASTE (MANAGEMENT & HANDLING) RULES,1989

Industrialization has had the effect of generation of huge quantities of hazardous wastes, which required proper control and handling. We became conscious of the fact of hazardous waste management in our country not long back. Although rules were framed and Basel convention was in place in 1992, the status of implementation remained extremely poor.

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The Hazardous Waste (Management & Handling) Rules, 1989 empowers the state Pollution Control Boards to grant authorization for collection, transfer, treatment, reception, storage and disposal of hazardous wastes. Bases on the experience gathered, the Rules were amended from time to time, major amendments made on January 6, 2000 and May 20, 2003. The envisage systematic treatment & disposal of hazardous waste and except the occupier, Associations of occupiers, State Governments to jointly identify suitable sites for common facility for treatment and disposal of hazardous waste in the State. Operation of common facility in an environmentally sound manner is the overall responsibility of the occupier.

The Rules do not permit import & export of hazardous wastes for dumping or disposal. However import for processing or reuse as raw material is permissible after following due process. The term hazardous waste is defined in a more clear terms, with more trust on manufacturing processes and concentration limits.

§ Supreme Court on Hazardous Wastes

Research Foundation for Science, Technology & National Resource Policy, a non-governmental organization filed a Public Interest Litigation in the Apex Court (Writ Petition No.657/1995) regarding illegal import and improper management of hazardous waste. The Apex Court directed all the State Governments, Central Pollution Control Board & State Pollution Control Boards to identify the problem areas, extent of waste, availability of disposal sites and various other aspects relevant to minimizing the generation, handling & disposal with a view to safeguard the environment degradation.

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§ Constitution of High Powered Committee

The Apex Court by an order dated October 13, 1997 appointed a High Powered Committee with Prof.M.G.K. Menon as its Chairman, to examine all matters in depth relating to hazardous waste and give report & recommendations. The Court stipulated fourteen terms of reference, which included examination of hazardous waste, which are required to be banned, changes required in the laws, adequacy of existing facilities, prerequisite for issuance of authorization , process of grant of authorization, publication of inventory of hazardous waste stock lying in Ports / Docks, decontamination of ships before entering Indian water etc.

The High Powered Committee, which comprised of experts from different disciplines, submitted a comprehensive report on April 20, 1998. Based on the recommendations, the Apex Court issued various directions to be complied with by regulators and those handling hazardous waste.

The Apex Court by a detailed order dated October 14, 2003 issued directions to be complied in a time bound manner by Ministry of Environment & Forests, Govt. of India, State Pollution Control Boards / Pollution Control Committees. One of the important directions was closure of units operating without authorization and in violation of conditions of authorization issued under Hazardous Waste (Management & Handling) Rules, 1989, as amended. The authorities were directed to submit Action Taken Reports (ATR’s) from time to time.

§ Constitution of Supreme Court Monitoring Committee (SCMC)

In order to monitor the compliance of directions issued by the Supreme Court, a committee was constituted under the Chairmanship of Dr.G. Thayagarajan and was asked to submit

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Quarterly reports. The SCMC visited all major hotspots and issued directions to various authorities and succeeded in securing compliance. The cases where non-compliance persisted were reported to the Court for issuance of appropriate directions.

§ Status of Compliance in Maharashtra.

Maharashtra being major generator of hazardous waste in the country took lot of initiatives. As a first step, Maharashtra Pollution Control Board organized series of meetings with all major Industries Associations and conveyed the seriousness of the issue. Similarly, a review of the working of Common Effluent Treatment Plants (CETPs), a major generator of hazardous waste was undertaken and directions were issued for proper operation & maintenance of CETP and disposal of hazardous waste at Common Hazardous Waste Treatment & Disposal Facility (CHWTSDF). The unauthorized dumping sites were identified and the hazardous waste lying at such places was disposed either at common facility or proper scientific measures were taken on the site itself.

A proper inventorisation is prepared with the help of experts. The Board also invoked the provisions contained in rule 16 of Hazardous Waste (Management & Handling) Rules, 1989, as amended and penalized units violating the rules and the directions issued by the Supreme Court. Besides this, many units were directed to stop manufacturing activities and their electricity & water supply was disconnected. These actions gave the desired result. The wastes lying in most of the industrial premises was lifted and disposed at CHWTSDF. Industries obtained membership of common facility and started submitting compliance reports on regular basis.

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The Board has submitted Action Taken Reports on regular basis in the Supreme Court and placed the same on official website of the Board, giving details of actions taken and the status of compliance of directions issued by the Supreme Court. Because of continuous follow-up, the Board has been able to achieve substantial compliance, which has been acknowledged by the SCMC from time to time.

Strategies for Environmental Compliance :

v CONSENT TO ESTABLISH AND OPERATE :

Entrepreneurs/local bodies before taking steps to establish any industry, operation or process or outlet are required to obtain consent to establish / authorization to establish, followed by consent / authorization to operate the activities. It places responsibility on the ‘PERSON’ to take effective steps for environment protection before starting operational process. This provision enables the enforcing agencies to consider and examine all factors such as location, probable pollutants, facilities proposed for treatment and disposal of pollutants membership in CHWTSDF CETP and overall environment management system at the initial stage itself.

v CENTRAL ACTION PLAN AND COPORATE REAPONSIBILITY FOR ENVIRONMENT PROTECTION:

As a part of monitoring ‘High Pollution potential Industries’, a ‘Central Action Plan’ (CAP) was devised by the Central Government, which is being implemented with the assistance of State Boards. Periodical review of compliance and action against willful defaulters is taken by the Board. The corporate responsibility towards environment protection is also conveyed to major industrial units and is being monitored through the consent management tool.

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v CLEAN TECHNOLOGIES

There is a growing realization that it is far cheaper to prevent pollution than to clean it up. Adoption of Clean technologies, minimisation of waste generation, resource conservation is some of the new strategies adopted by the enforcing agencies. Fiscal incentives are provided under different taxing statutes.

v ENVIRONMENT STATEMENT (AUDIT)

The concept of self-assessment and monitoring by carrying out regular Environmental Audits was introduced. The idea behind ‘Environmental

Statement’ (Audit) is to allow an ‘industry’ to take a comprehensive look at its industrial operations and facilities and also to focus on waste reduction, resource conservations, recycling and regeneration from waste to save input cost.

v STIFF PENALTIES AND CLOSURE :

Directions have been issued to all State Boards to initiate legal action against willful defaulters including Local bodies. Violators of environmental Laws are learning that willful-defaulters will not only be prosecuted but disregard may cause significant harm including closure of their units. As a result of increased penalties, both in terms of fines and imprisonment as well as closure of units most of the units are concluding that they cannot afford to ignore environmental consequences of their actions and are taking remedial measures.

v PUBLIC AWARENESS AND PARTICIPATION :

An important feature of these new and amended statutes is their strong emphasis on public participation. This has been achieved by providing for public involvement and by creating ‘right of action’ by individuals against polluters. An individual can file a criminal complaint

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against a polluter after giving sixty days notice to the authorities, under the environmental legislations. The authorities are duty bound

to provide necessary information/documents to the complainant. In response to these opportunities for participation, there has been a tremendous growth in the number of Non-Governmental Organizations (NGO’s). These organizations have developed their own expertise and have become actively involved in the development and implementation of Environmental Laws. The Right to Information Act, 2005 has provided easy access to information to a common man. ‘Right of information has been made fundamental right by the Apex Court.’

v JUDICIAL PROCESS

The High Courts and Supreme Court of India are responsible to a large extent for adding both dignity and respectability to the Environmental jurisprudence evolved in India so far. Environment could be protected and preserved due to timely intervention of the judiciary. Shifting of hazardous industries from residential areas in Delhi, ban on import of hazardous wastes, directives to set up sewage treatment plants, regulating vehicular pollution, protection of coastal zone, municipal solid waste and hazardous waste management etc. are few examples of judicial activism. The Supreme Court of India in many landmark judgements accepted and also evolved various environmental law principles, such as

· Principle of Absolute liability

· Principle of Inter-Generational Equity

· Precautionary Principle

· Polluter Pays Principle

· Doctrine of Public Trust

v CONCULSION

The Central and State Boards constituted under Water Act, 1974 and Air Act, 1981 were primarily responsible for prevention, control and

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abatement of pollution. However, the enforcement workload generated by the amendments as well as introduction of Environment (Protection) Act, 1986 and various rules made there under is enormous and is beyond the resources available at State level. Besides this, the explosion of environmental consciousness has put tremendous pressure on the enforcement agencies. It is high time to consolidate Environment programme under one agency giving more resources and infrastructural facilities.

Another aspect is to improve the ability of Government officials by imparting training and forcing them to acquire higher qualifications in

Environmental subjects. This will help the officials to update their knowledge, which can be utilized for evolving new and economical methods of treatment and disposal of wastes. It is one of the important functions of the State Boards to encourage, conduct and participate in investigation and research activities. However, in many Boards R & D Departments are not yet developed.

Environment (Protection) Act, 1986 envisages a Central authority for effective implementation of the Act. Though the Ministry of Environment & Forests, Government of India has constituted some authorities to address specific issues, no separate authority is yet constituted to implement the provisions of this Umbrella Enactment. Powers and functions are entrusted to many authorities under different sections of the Act; which creates confusion. For example, the District Collectors have been empowered to file a criminal complaint against defaulters under this Act. How many District Collectors are aware of this provision? It is, therefore, necessary to avoid multiplicity and constitute a single effective body for environment protection.

The last but not the least is to educate the common man about the importance of environment protection and preservation.

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