Construction Materials & Environmental Law… An Overview
India is the first country in the world, which has provided for constitutional safeguards for the protection and preservation of the environment. In the constitution of India , specific provisions for the protection of environment have been incorporated by the Constitution (42 amendment) Act, 1976. Now, it is an obligatory duty of the State and every citizen to protect and improve the environment.
The Directive Principles of State Policy contain specific provisions enunciating the State commitment for protecting the environment. "The State shall endeavour to protect and improve the environment and to safeguard forests and wildlife of the country".
Furthermore, duties of the citizens towards environment are contained in Article 51A (g), This Article says, "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".
The constitutional provisions are implemented through environmental protection laws of the country. India has a large body of laws and regulations governing the environment. These include laws enacted by Central and State Governments as well as an increasing body of judicial decision's affecting industrial activities that generate pollution. Further, there are more than 200 statutes that have a bearing on environmental matters in India . However, the major legal provisions made in the last twenty years are summarised below:
- The Wildlife (Protection) Act, 1972, amended in 1983, 1986 & 1991
- The Water (Prevention and Control of Pollution) Act, 1974, amended in 1988
- The Water Cess Act, 1977, amended in 1991
- The Forest (Conservation) Act, 1980, amended in 1988
- The Air (Prevention & Control of Pollution) Act, 1981, amended in 1987
- The Environment (Protection) Act, 1986
- The Motor Vehicles Act, 1938, amended in 1988
- The Hazardous Waste (Management & Handling) Rules, 1989, amended in 2000
- The Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989, amended in 2000.
- The Manufacture, use, import, export and storage of Hazardous Micro-organisms or Cells Rules, 1989.
- The Public Liability Insurance Act, 1991
- A notification of Environmental Statement, 1993
- A notification on Environmental Clarence, 1994
- A notification on Environmental Clearance, 1994
- The National Environmental Tribunal Act, 1995
i) The Water (Prevention and Control of Pollution) Act, 1974, (amended in 1978 and 1988)
The existing laws and regulations on environmental pollution which are administered by the Ministry of Environment and Forests are
ii) The Water (Prevention and Control of Pollution) Cess, .Act, 1977
iii) The Air (Prevention and Control of Pollution) Act, 1981 amended in 1987
iv) The Environment (Protection) Act, 1986
v) The Public Liability Insurance Act, 1991
vi) The National Environment Tribunal Act, 1995
The main provisions under these Acts are given here.
The Water (Prevention and Control of Pollution) Act, 1974 (As Amended In 1978 And 1988)
(A) The functions of the Central Board at the national level are to:
The Water Act is a comprehensive legislation providing for the Prevention and Control of Water Pollution and for maintaining or restoring the wholesomeness of water in streams or wells. The Act provides for the establishment of the Central Pollution Control Board at the Centre and State Pollution Control Boards in the respective States.
i) Advise the Central Govt. on matters relating to prevention and control of water pollution
ii) Coordinate the activities of the State Board and resolve disputes among them
iii) Provide technical assistance and guidance to the State Boards
iv) Carry out and sponsor research and investigation in the problems of water pollution
v) Set the standards for streams and wells
vi) Create environmental awareness and
vii) To act as State Board for the Union Territories
(B) State Board has executive and territorial functions, which include:
i) Planning for prevention, control or abatement of pollution of streams and wells
ii) Advice the State Govt. on matters relating to water pollution
iii) Inspection of sewage or industrial effluent, including municipal wastewater treatment plants for the treatment of sewage or trade effluents
iv) Setting standards for the sewage and industrial effluents discharge.
There is a provision of joint boards for two or more contiguous States. In case of dispute between two State Boards, the Central Board has authority to arbitrate.
Important provisions in the Water (Prevention and Control of Pollution) Act, 1974 (As amended In 1978 And 1988) are:
Pollution Control Board (PCB) has the right.
To obtain any information regarding the construction, installation or operation of an industrial establishment or treatment and disposal system.
To take samples of trade effluent for the purpose of analysis in the prescribed manner.
To enter and inspect any industrial establishment, record, register, document or any other material object.
To prohibit use of stream or sewer or land for disposal system without prior consent of the PCB.
Restriction on establishment and the operation of any industry process or any treatment and disposal system without prior consent of the PCB.
PCB's right to refuse or withdraw consent, for discharge of effluents.
Industry to comply with the conditions stipulated in the consent.
PCB's to grant consent within four months after the date of receipt of the application complete in
Industry to appeal to the Appellate Authority, in case of grievances against the order passed by
the PCB regarding grant, refusal or withdrawal of the consent within the specified time in the prescribed manner.
Industry to furnish information to the PCB and other specified agency(ies) in case of discharge of poisonous, noxious or polluting matter into a stream, sewer or land, occurred or likely to occur resulting in pollution due to an accident or any other unforeseen event.
PCB's right to issue orders restraining or prohibiting an industry from discharging any poisonous, noxious or polluting matter in case of emergencies, warranting immediate action.
PCB's have power to make an application to the court for restraining likely disposal of polluting matter in a stream or on land.
Bar of jurisdiction in civil court in respect of any matter under purview of the Appellate Authority constituted under the Act and no grant of injunction in respect of any action taken or proposed in pursuance of the Act.
Bar on filing of any suit or legal proceedings against the Government or Board officials, for action taken in good faith in pursuance of the Act.
PCB's to make inquiries, in the prescribed manner, for grant of consent for discharge of effluents.
PCB's power to issue directions for ---
i) The closure, prohibition or regulation of any industry, operation or process or,
ii) The stoppage or regulation of supply electricity, water or any other service to industry in the prescribed manner.
Industry to comply with the directions of the PCB within the specified time.
PCB's to maintain a consent register containing particulars of the consent issued and to provide access to industry at all reasonable hours.
The Water (Prevention and Control of Pollution) Cess Act, 1977 (Amended in 1991)
The Water Cess Act provides for the levy of a cess on water consumed by persons carrying on specified industries given in Schedule-I of the Act and also local authorities entrusted with the duty of supplying water under the laws by or under which they are constituted at the rates specified in Schedule-II of the Act.
The Cess is levied and collected by the State Government concerned and credited to the consolidated Fund of India. An industry, which installs and operates its effluent treatment plant is entitled to a rebate of 25% on the cess payable.
The cess has been introduced mainly to augment the resources of the Central and the State Pollution
The Air (Prevention and Control of Pollution) Act, 1981 (Amended in 1987)
The Act provides for the setting up of Central / State Boards for prevention and control of Air Pollution, however, Section 4 of the Act stipulates that in any State in which the Water (Prevention and Control of Pollution) Act, 1974 is in force and the State Government has constituted a State Pollution Control Board, that State Board shall be deemed to be the State Board for the prevention and control of air pollution. For Union Territories the Central Pollution Control Board is empowered to perform the functions of a State Pollution Control Board under the Act. The State Governments. in consultation with their respective State Boards are empowered to declare air pollution control areas. As per the provisions of the Air Act no person can establish or operate any industrial plant in an air pollution control area without obtaining the consent from the concerned State Board.
The Environment (Protection) Act, 1986
The provisions under this Act are:
- Take all necessary measures for protecting the quality of environment
- Plan and execute a nationwide programme for the prevention, control and abatement of environmental pollution
- Lay down standards for discharge of environmental pollutants
- Empower any persons to enter, inspect, take samples and test
- Establish or recognise environmental laboratories
- Appoint or recognise government analysts
- Lay down standards for the quality of environment
- Restrict areas in which any industries, operations, processes may not be carried out or shall be carried out subject to certain safeguards
- Lay down safeguards for prevention of accidents and take remedial measures in case of such accidents
- Lay down procedures and safeguards for handling hazardous substances
- Constitute an authority or authorities for exercising its powers
- Issue directions to any person, officer or authority including the power to direct closure, prohibition or regulation of any industry, operation or process or stoppage or regulation of supply of electricity, water or any other service
It confers powers on persons to complain to the courts regarding any violation of the provisions of the Act, after a notice of 60 days to the prescribed authorities.
The Central Government is empowered to take action under the provision of the Environment (Protection) Act, 1986. Powers under Section 5 of the Environment (Protection) Act 1986 have been delegated by the Central Government to States and Union Territories . Rules have been framed and agencies/authorities have been notified under specific sections for carrying out specific functions. These include:
All those carrying on an industry, operation or process requiring consent under Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) and/or under Air (Prevention and Control of Pollution) Act, 1981 (84 of 1981) and or authorization under the Hazardous Waste (Management & Handling) Rules, 1989, are required to submit the Environmental Statement in prescribed 'Form V', for the Financial Year ending 31st March to the concerned State Pollution Control Boards/Pollution Control Committees in the Union Territories on or before 30th September every year.
Hazardous Waste (Management & Handling) Rules, 1989
The Hazardous Wastes (Management and Handling) Rules, 1989, provide for an effective inventory and controlled handling and disposal of hazardous wastes. Under the rules 18, categories of hazardous waste are identified along with their regulatory quantity Industries generating any of these waste beyond the regulatory quantity are required to seek authorization from the concerned State Pollution Control Board for its temporary storage in the premises and their disposal. Possibility, of common treatment facilities including landfill, is envisaged. The operator of such facility is also required to obtain authorization from the Board. The Boards are expected to specify conditions on safe handling and disposal of the waste in the authorization. Treatment of the waste at the premises before disposal could also be specified. Import of hazardous waste for processing has to be got approved by the Central Government.
Manufacture, Storage & Import of Hazardous Chemical Rules 1989
The principal objective of the regulation is the prevention of major accidents arising from industrial activity, the limitation of the effects of such accidents both on humans and the environment and the harmonization of the various control measures and the agencies to prevent and limit major accidents. The industrial activities covered by the regulation are defined in terms of process and storage methods involving specified hazardous chemicals.
An important feature of the regulation is that the storage of hazardous chemicals not associated with the process is treated differently from those coming under process use for which a different list of hazardous chemicals and their manufacture and storage procedures applies. Under the provisions isolated storage / cover sites are to be separate tank farms or warehouses. The Central Pollution Control Board and the State Pollution Control Board, as the case may be, are the enforcement agency for these storages.
A safety report is required to be prepared as per Rule 10 in this Act. It involves identification of the nature and use of hazardous chemicals at the installation. The report will also give account of arrangements for safe operation of an installation including control of any serious deviation that could lead to a major accident and for emergency preparedness at the site. The report will identify the type, and the relative likelihood of consequences for any major accident that might occur. It will also demonstrate that the manufacturer or the occupier has identified the major potential accidents from the activity and has provided appropriate controls.
The Public Liability Insurance Act, 1991
This is an Act to provide for Liability Insurance for the purpose of providing immediate relief to the persons affected by accidents occurring while handling hazardous substances. The Act casts on the person, who has control over handling any hazardous substance, the liability to give the relief specified in the Act to all the victims of any accident, which occurs while handling such substance. It would be the duty of every owner to take necessary insurance policies to discharge his liabilities.
National Environmental Tribunal Act-1995
This is an Act 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. This was enacted with a view to giving relief and compensation for damages to persons, property and the environment and for matters connected therewith or incidental thereto.
Standards for effluent and emissions from industries have been notified and the industries have been directed to adopt action programs leading to compliance with these standards on a time bound basis. The Central and the state government are playing a more active role in enforcing these environmental standards. Many polluting units in the country face shifting / closure orders from the courts. It is to be noted that with increasing awareness on environment related issues in the country, the public is becoming more active in highlighting polluting industries and there is an increasing number of Public Interest Litigations in the court.