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COMPLIANCES RELATING TO ENVIRONMENTAL LAWS - Deep Gyan®

COMPLIANCES RELATING TO ENVIRONMENTAL LAWS

COMPLIANCES RELATING TO ENVIRONMENTAL LAWS

Article 48A of Indian Constitution, which is a Directive Principles of State Policy, enjoins the State to make endeavour for protection and improvement of the environment and for safeguarding the forest and wildlife of the country. Further, Article 51-A(G) states that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures”.

Environmental Regulations in India
Some of the major environment laws are:

  • Water (Prevention and Control of Pollution) Act, 1974;
  • Water (Prevention and Control of Pollution) Cess Act, 1977;
  • Air (Prevention and Control of Pollution) Act, 1981;
  • Environment (Protection) Act, 1986;
  • The Public Liability Insurance Act, 1991;
  • The Biodiversity Act, 2002;
  • The National Green Tribunal Act, 2010;
  • Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008

Water (Prevention and Control of Pollution) Act, 1974

An Act to provide

  • for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water,
  • for the establishment of Boards (Central Pollution Control Board and State Pollution Control Board) for the prevention and control of water pollution,
  • for conferring on and assigning to such Boards Powers and functions relating thereto and for matters connected therewith.

The Act prohibits the discharge of pollutants into water bodies beyond a given standard, and lays down penalties for non-compliance.

According to Section 19, If the State Government, after consultation with, or on the recommendation of, the State Board, is of opinion that the provisions of this Act need not apply to the entire State,

  • it may, restrict the application of this Act to such area or areas as may be declared as water pollution, prevention and control area or areas

and thereupon the provisions of this Act shall apply only to such area or areas.

Water (Prevention and Control of Pollution) Cess Act, 1977
With a view to enhance the resources of the Central Board and the State Boards for the prevention and control of water pollution, the Water (Prevention and Control of Pollution) Cess Act, 1977 has been brought on the statute book. This Act authorises the levy and collection of a cess on water consumed by person carrying on certain industries and by local authorities. The object of the Act is to ensure that the State or Central Boards are able to raise sufficient finance other than the funds that are being contributed by the Central Government and States and also by way of gifts and donations, in the effective discharge of functions contemplated under the Pollution Control Laws.

Checklist under Water (Prevention and Control of Pollution) Act, 1974 and the Rules therein

Section

Provisions

Compliances

Section 20

A State Board may give directions to any person

  • who in the opinion of State Board
    • is abstracting water from any such stream or well in the area in quantities which are substantial in relation to the flow or volume of that stream or well or
    • is discharging sewage or trade effluent into any such stream or well,
      to give such information as to the abstraction or the discharge at such times and in such form as may be specified in the directions.

Whether any such direction is received by the company?

If yes, whether appropriate information is given or not.

Section 20

A State Board may,

  • with a view to preventing or controlling pollution of water,

give directions to any person in charge of any establishment

where any industry, operation or process, or treatment and disposal system is carried on,

to furnish to it information regarding the construction, installation or operation of such establishment or of any disposal system or of any extension or addition thereto in such establishment and such other particulars as may be prescribed.

Whether any such information is called for? If yes, whether appropriate information is given or not.

Section 21

For the purpose of analysis, a State Board or any officer empowered by it shall have power to take

  • samples of water from any stream or well or
  • samples of any sewage of trade effluent which is passing from any plant or vessel into any such stream or well

It is the duty of the occupier or his agent

  •  to be present at the time of collection,
  • to give access to the officers and
  • to provide full assistance to the concerned officer.

Section 23

Any person empowered by a State Board in this behalf shall have a right at any time to enter, with such assistance as he considers necessary, 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 under this Act or the rules made thereunder has been or is being or is about to be committed and
  • for seizing any such plant, record, register, document or other material object, if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder.

It is the duty of the occupier or his agent to provide full assistance to the concerned officer.

Section 25

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 or an extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land; or
  • bring into use any new or altered outlets for the discharge of sewage; or
  • begin to make any new discharge of sewage;

Whether appropriate consent is taken or not?

Section 25

The consent from the state board shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of 4 months of the making of an application in this behalf complete in all respects to the State Board.

If consent or refusal is not communicated to the company, whether 4 months are expired or not

Section 32

Where it appears to the State Board that any poisonous, noxious or polluting matter is present in any stream or well or on land it may for reasons to be recorded in writing issue orders immediately restraining or prohibiting the persons concerned from discharging any poisonous, noxious or polluting matter into the steam or well or on land or from making insanitary use of the stream or well.

Whether any such order is received or not? If yes, whether appropriate action is taken or not?

Section 33

Court may direct the person who is likely to cause or has caused the pollution of the water, to stop from taking such action as is likely to cause pollution or, as the case may be, to remove from such stream or well, such matter

Whether any such order is received or not? If yes, whether appropriate action is taken or not?

Section 33A

A Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.

The power to issue directions under this section includes the power to direct-

  •  the closure, prohibition or regulation of any industry, operation or process; or
  • the stoppage or regulation of supply of electricity, water or any other service.

Whether any such order is received or not? If yes, whether appropriate action is taken or not?

Air (Prevention and Control of Pollution) Act, 1981

An Act to provide

  • for the prevention, control and abatement of air pollution,
  • for the establishment, with a view to carrying out the aforesaid purposes, of Boards,
  • for conferring on and assigning to such Boards powers and functions relating thereto and
  • for matters connected therewith.

No Boards are established under the Act. Here, Central Board for the Prevention and Control of Water Pollution acts as Central Board and State Board for the Prevention and Control of Water Pollution acts as State Board.

According to Section 19, the State Government may, after consultation with the State Board, declare any area or areas within the State as air pollution control area or areas for the purposes of this Act.

Under the Act, establishing or operating any industrial plant in the pollution control area requires consent from SPCBs.

According to Section 22, no person operating any industrial plant, in any air pollution control area shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the State Board under.

Checklist under Air (Prevention and Control of Pollution) Act 1981 and Rules thereunder:

Sections

Provisions

Compliances

Section 21

No person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area.

Whether appropriate consent is taken or not?

Section 21

Every consent shall be subject to some conditions.

Whether such conditions are complied with or not?

Section 21

Every consent shall be for a specific period. But it shall be open to the State Board to cancel such consent before the expiry of the period for which it is granted or refuse further consent after such expiry if the conditions subject to which such consent has been granted are not fulfilled.

 

Section 21

Every person to whom consent has been granted by the State Board, shall comply with the following conditions, namely:

  1.  the control equipment of such specifications as the State Board may approve in this behalf shall be installed and operated in the premises where the industry is carried on or proposed to be carried on;
  2. the control equipment shall be kept at all times in good running condition;
  3. chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall be erected or re-erected in such premises; .and
  4. such other conditions as may be specified

Whether specified control equipment and chimney, where required, are installed or not?

 

 

Section 21

No control equipment or chimney shall be altered or replaced or, as the case may be, erected or re-created except with the previous approval of the State Board.

Whether approvals, where required, are taken or not?

Section 22A

Court may make an order restraining any person from discharging or causing or permitting to be discharged the emission of any air pollutant

Whether any such order is received or not? If yes, whether appropriate action is taken or not?

Section 23

Person in charge of the premises shall intimate to the Board fact of the emission of any air pollutant into the atmosphere in excess of the standards

Whether intimation is given when required?

 

Whether necessary remedial measure are taken or not?

Section 24

Any person empowered by a State Board in this behalf shall have a right to enter any place for the purpose of

  • examining and testing any control equipment, industrial plant, record, register, document etc. or
  • for conducting a search of any place in which he has reason to believe that an offence under this Act or the rules made has been or is being or is about to be committed

 

Proper assistance shall be given to the concerned officer

Section 26

A State Board or any officer empowered by it in this behalf shall have power to take, for the purpose of analysis, samples of air or emission from any chimney, flue or duct or any other outlet in such manner as may be prescribed.

It is the duty of the occupier or his agent to provide full assistance to the concerned officer.

 

The Environment (Protection) Act, 1986

An Act to provide for the protection and improvement of environment and for matters connected there with.

According to the Act,

  • Environment includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;
  • Environmental pollutant means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment;
  • Environmental pollution means the presence in the environment of any environmental pollutant;

Under the Environment Act, the Central Government is empowered

  • to take measures necessary to protect and improve the quality of environment by setting standards for emissions and discharges of pollution in the atmosphere by any person carrying on an industry or activity;
  • to regulate the location of industries;
  • to regulate the management of hazardous wastes, and
  • to protect the public health and welfare.

According to Section 7, no person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutants in excess of prescribed standards.
According to Section 8, no person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with prescribed safeguards.

Penalty for Contravention of the Provisions of the Act and the Rules, Orders and Directions (Section 15)
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 5 years
  • with fine which may extend to 1 lakh rupees, or
  • with both,

In case the failure or contravention continues,

  • with additional fine which may extend to Rs. 5000 for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

If the failure or contravention continues beyond a period of 1 year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to 7 years.

Checklist under Environment Protection Act, 1986 and Rules thereunder

Sections

Provisions

Compliances

Section 5

Notwithstanding anything contained in any other law, the Central Government may,

  •  issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.

The power to issue directions under this section includes the power to direct–

  • the closure, prohibition or regulation of any industry, operation or process; or
  • stoppage or regulation of the supply of electricity or water or any other service.

Whether any such direction is received by the company? If yes, whether appropriate action is taken or not.

Section 7

No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutants in excess of prescribed standards

Environmental pollutants shall not be emitted in excess of prescribed standards

Section 8

No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with prescribed safeguards.

Comply prescribed procedure and safeguards

Section 9

Where the environmental pollutant is discharged in excess of the prescribed standards, intimation shall be given to the prescribed authorities or agencies

Whether required information is given or not?

Section 9

Where the environmental pollutant is discharged in excess of the prescribed standards, action should be taken to prevent or mitigate the environmental pollution caused as a result of such discharge

Proper action is taken or not?

Section 10

Any person empowered by the Central Government in this behalf shall have a right to enter any place for the purpose of

  • examining and testing any equipment, industrial plant, record, register, etc. or
  • conducting a search of any building in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and
  • for seizing any such equipment, industrial plant, record, register, document or other material object if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder or that such seizure is necessary to prevent or mitigate environmental pollution.

Proper assistance shall be given to the concerned officers

Section 11

The Central Government or any officer empowered by it in this behalf, shall have power to take,

  •  for the purpose of analysis,

samples of air, water, soil or other substance from any factory, premises or other place in such manner as may be prescribed.

Proper assistance shall be given to the concerned officers

Rule 14 of Environment Protection Rules, 1986

Every person carrying on an industry, operation or process requiring

  • consent under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 or
  • consent under section 21 of the Air (Prevention and Control of Pollution) Act, 1981 or
  • authorization under the Hazardous Wastes (Management and Handling) Rules, 1989

shall submit an environmental audit report for the financial year ending the 31st March in Form V to the concerned State Pollution Control Board on or before the 30th day of September every year.

Whether the Report is submitted or not?

Public Liability Insurance Act 1991

An Act to provide the compensation for damages to victims of an accident of handling any hazardous substance or it is also called, to save the owner of production/storage of hazardous substance from hefty penalties. This is done by proving compulsory insurance for third party liability.
Actually the owner shall buy one or more insurance policies before he/she starts handling any hazardous substance. When any accidents come in knowledge of Collector, then he/she verify the occurrence of accident and order for relief as he/she deems fit.

Section 3 (Liability to give relief)

  • Where death or injury to any person (other than a workman) or damage to any property has resulted from an accident, the owner shall-be liable to give such relief for such death, injury or damage.
  • In any claim for relief, the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person.

Injury includes permanent total or permanent partial disability or sickness resulting out of an accident.

Section 4 (Compulsory Insurance)

  • Every owner shall take out, before he starts handling any hazardous substance, one or more insurance policies providing for contracts of insurance thereby he is insured against liability to give relief under this act;
  • Every owner shall get the insurance policy, renewed from time to time before the expiry of the period of validity thereof so that the insurance policies may remain in force throughout the period during which such handling is continued.

No insurance policy taken out by an owner shall be for a amount

  • less than the amount of the paid-up capital of the under taking handling any hazardous substance and owned or controlled by that owner and
  • more than the amount as may be prescribed (not exceeding 50 crore rupees).

Paid-up capital, in the case of an owner not being a company, is the market value of all assets and stocks of the undertaking on the date of contracts of insurance.

Section 7 (Award of Relief)

  1. On receipt of an application for relief, the Collector shall after giving notice of the application to the owner and after giving the parties an opportunity of being heard, hold an inquiry into the claim or, each of the claims, and may make an award determining the amount of relief which appears to him to be just and specifying the person or persons to whom such amount of relief shall be paid.
  2. The Collector shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of 15 days from the date of the award.
  3. When an award is made under this section,-
    • the insurer, who is required to pay any amount in terms of such award shall, within a period of 30 days of the date of announcement of the award, deposit that amount in such manner as the Collector may direct;
    • the Collector shall arrange to pay from the Relief Fund, in terms of such award and in accordance with the scheme made under section 7A, to the person or persons referred to in sub-section (1) such amount in such manner as may be specified in that scheme;
    • the owner shall, within such period, deposit such amount in such manner as the Collector may direct.

A claim for relief in respect of death of, or injury to, any person or damage to any property shall be disposed of as expeditiously as possible and every endeavour shall be made to dispose of such claim within 3 months of the receipt of the application for relief.

National Green Tribunal Act, 2010

INTRODUCTION

  • India is a party to the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972.
  • India also participate ‘The United Nations Conference on Environment and Development’ held at Rio de Janeiro in June, 1992.
  • The right to healthy environment has been construed as a part of the right to life under article 21 of the Constitution in the judicial pronouncement in India.
  • The National Environment Tribunal Act, 1995 was enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to persons, property and the environment.
  • The Central Government has enacted the National Green Tribunal Act, 2010 thereby repealing National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 1997.
  • The National Green Tribunal Act, 2010 intend to provide for the establishment of a National Green Tribunal for
    • the effective and expeditious disposal of cases relating to environmental protection,
    • conservation of forests and other natural resources and
    • enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.
  • NGT mainly deal with civil cases and is not bound to follow the procedural law under Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.
  • It proposed to have five places of sitting with Delhi as its headquarters and others being Bhopal, Pune, Kolkata and Chennai.

Tribunal to settle disputes (Section 14)
The Tribunal shall have the jurisdiction over all civil cases

  • where a substantial question relating to environment is involved and
  • where such question arises out of the implementation of the enactments specified in Schedule I.

No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of 6 months from the date on which the cause of action for such dispute first arose.

  • But Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding 60 days.

Substantial question relating to environment shall include an instance where,—

  1. there is a direct violation of a specific statutory environmental obligation by a person by which,—
    • the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or
    • the gravity of damage to the environment or property is substantial; or
    • the damage to public health is broadly measurable;
  2. the environmental consequences relate to a specific activity or a point source of pollution.

Schedule I specifies following enactments:

  1. The Water (Prevention and Control of Pollution) Act, 1974;
  2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
  3. The Forest (Conservation) Act, 1980;
  4. The Air (Prevention and Control of Pollution) Act, 1981;
  5. The Environment (Protection) Act, 1986;
  6. The Public Liability Insurance Act, 1991
  7. The Biological Diversity Act, 2002

Relief, Compensation and Reconstitution (Section 15)
The Tribunal may, by an order, provide-

  1. relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
  2. for restitution of property damaged;
  3. for restitution of the environment for such area or areas, as the Tribunal may think fit.

The relief and compensation and restitution of property and environment shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991.

No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of 5 years from the date on which the cause for such compensation or relief first arose.

  • But Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding 60 days.

The Tribunal may,

  • having regard to the damage to public health, property and environment,

divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.

Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.

The Schedule II to the Act lists out the following heads under which compensation for damages may be claimed:

  • Death;
  • Permanent, temporary, total or partial disability or other injury or sickness;
  • Loss of wages due to total or partial disability or permanent or temporary disability;
  • Medical expenses incurred for treatment of injuries or sickness;
  • Damage to private property;
  • Expenses incurred by the Government or any local authority in providing relief, aid and rehabilitation to the affected persons;
  • Expenses incurred by Government for any administrative or legal action or to cope with any harm or damage, including compensation for environmental degradation and restoration of the quality of environment;
  • Loss to Government or local authority arising out of, or connected with, the activity causing any damage;
  • Claims on account of any harm, damage or destruction to the fauna;
  • Claims on account of any harm, damage or destruction to flora;
  • Claim including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-system;
  • Loss and destruction of any property other than private property;
  • Loss of business or employment or both;
  • Any other claim arising out of or connected with, any activity of handling of hazardous substance.

Tribunal to have appellate jurisdiction (Section 16)
Any person aggrieved by an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by authorities/board/state government

  • under section 28 of the Water (Prevention and Control of Pollution) Act, 1974;
  • section 29 of the Water (Prevention and Control of Pollution) Act, 1974;
  • under section 33A of the Water (Prevention and Control of Pollution) Act, 1974;
  • under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977;
  • under section 2 of the Forest (Conservation) Act, 1980;
  • under section 31 of the Air (Prevention and Control of Pollution) Act, 1981;
  • under section 5 of the Environment (Protection) Act, 1986;
  • granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986;
  • refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986;
  • under the provisions of the Biological Diversity Act, 2002,

may, within a period of 30 days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal.

  • But Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding 60 days.

Liability to pay relief or compensation in certain cases (Section 17)
Where

  • death of, or
  • injury to,

any person (other than a workman) or

  • damage to any property or environment

has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment specified in Schedule I,

  • the person responsible shall be liable to pay such relief or compensation for such death, injury or damage, under all or any of the heads specified in Schedule II, as may be determined by the Tribunal.

The Tribunal shall, in case of an accident, apply the principle of no fault.

Penalty for failure to comply with orders of Tribunal (Section 26)
Whoever, fails to comply with any order or award or decision of the Tribunal under this Act, he shall be punishable

  • with imprisonment for a term which may extend to 3 years, or
  • with fine which may extend to 10 crore rupees, or
  • with both

and in case the failure or contravention continues,

  • with additional fine which may extend to 25000 for every day during which such failure or contravention continues after conviction for the first such failure or contravention.

Note:

  • In case a company fails to comply with any order or award or a decision of the Tribunal under this Act, such company shall be punishable
    • with fine which may extend to 25 crore rupees, and
    • in case the failure or contravention continues, with additional fine which may extend to one lakh rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention.

Appeal to Supreme Court (Section 22)
Any person aggrieved by any award, decision or order of the Tribunal, may, file an appeal to the Supreme Court, within 90 days from the date of communication of the award, decision or order of the Tribunal, to him.

The Supreme Court may entertain any appeal after the expiry of 90 days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal

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