Govt proposes ‘trust-based’ rules for industrial pollution; experts wary

State Pollution Control Boards and Pollution Control Committees ensure that exempted units do not carry out activities other than those intimated.

The Union environment ministry has introduced several draft notifications to implement the Jan Vishwas (Amendment of the Provisions) Act, 2023 with provisions the government has said is meant to promote “enhanced trust-based governance, ease of living and ease of doing business”.

The notifications also propose to introduce a new trust-based regime for monitoring industries’ environmental impact. (HT Photo)

The provisions propose to amend the Air Act, 1981 and the Water Act, 1974 and will bring in a new framework that will allow some industries to be exempted, such as those considered non-polluting or those being assessed for environment impact assessment from needing mandatory consent of central or state pollution control boards.

The draft notifications also propose to introduce a new trust-based regime for monitoring industries’ environmental impact by appointing adjudicating officers to preside over environmental offences.

Experts have expressed concerns about these changes, saying that such provisions could make it easy for businesses to pollute without consequences and state pollution control boards might lose some of their power to monitor industries.

A draft notification dated July 19 states that the ministry and Central Pollution Control Board “have received representation on consent mechanism adopted across the states and union territories in respect of high consent fees, non-uniformity in fee structure across States/UTs, time taken in grant of consent, duplication of procedures etc.”

The notification on the Air Act adds: “Subsequently, an amendment of certain provisions of the Air (Prevention and Control of Pollution) Act, 1981 has been made and proviso to Section 21 is inserted to enable Central Government to exempt certain industries/activities from Consent Mechanism for enhanced trust-based governance, ease of living and ease of doing business.” A similar draft notification has been issued for the Water Act.

“White” industries exemption

Under both notifications, industries categorised as “White” by the Central Pollution Control Board (CPCB) are exempt from mandatory clearances by pollution control boards. These units will only need to self-declare their operations to state pollution control boards, complying with all prevalent rules and regulations without paying any consent fee.

State Pollution Control Boards (SPCBs) and Pollution Control Committees (PCCs) are tasked with ensuring that exempted units do not carry out activities other than those intimated.

Also, projects requiring prior environmental clearance as per the Environmental Impact Assessment notification, 2006, are exempted from obtaining consent to establish (CTE). In such cases, CTE will be integrated with the Environmental Clearance (EC), with any necessary CTE conditions incorporated into the EC conditions.

Expert raise concerns

Public policy expert Narasimha Reddy Donthi and retired scientist K Babu Rao have raised concerns about these exemptions in a letter to the ministry of environment, forest and climate change (MoEFCC).

They wrote, “We have serious objection to this notification which amalgamates different regulatory actions, in the name of enhancing trust-based governance, ease of living, and ease of doing business. Trust-based governance is a misnomer and wrongly applied in the case of approvals for projects that can be harmful to the environment and nature. The Principle of Precaution should have been the guiding force for regulations.”

The letter further stated, “MoEFCC should consider EC as a regulatory measure to assess the impact of industry on the local environment, while CTE and CTO (consent to operate) are tools to monitor the performance of industry focusing on its potential for pollution of air, water, soil, and environment. CTE establishes the baseline tool, while CTO is a monitoring tool, which puts the industry on leash in its releases, of air, water, and solid wastes.”

However, senior officials clarified that “EC is a more rigorous process. Moreover, pollution control boards will still have to keep a watch on white category industries.”

White industries include bio-fertiliser and bio-pesticides production, diesel pump repairing and servicing, lamp and bulb manufacturing, solar power generation through solar photovoltaic cells, wind power and mini hydel power (less than 25 MW), among others.

Adjudicating officers and penalties

The Jan Vishwas (Amendment of Provisions) Act, 2023, decriminalised various offences under the Environment Protection Act, Air and Water Acts. Instead of prosecution, the Act introduced a system of adjudicating officers imposing fines or penalties for these offences.

For instance, the Jan Vishwas Act stipulates that if any person contravenes provisions of section 7 (violation of emission standard) or section 8 (safeguards for handling hazardous substances) or related rules, they shall be liable to a penalty ranging from ₹1lakh to ₹15 lakh.

MoEFCC’s draft notification outlines the process for appointing adjudicating officers to determine penalties for these offences. The secretary in charge of the Environment Department of the State/Union Territory Administration (or any other officer not below the rank of Secretary to the State Government nominated by the State Government and Union Territory Administration) shall be the ex-officio adjudicating officer. The central government will also appoint adjudicating officers at a central level.

Penalties will be determined based on factors such as the project’s location and size, industry category, and type of contravention or violation.

A senior official explained, “Penalties can be levied for all kinds of offences. The prosecution route was very slow and complicated. There were very few punishments also. Now these penalties will act as deterrents. Have you noticed how challans are very effective in traffic offences? This will be a similar process where action is immediate.”

B Sengupta, former member secretary of CPCB, expressed concerns about the new provisions: “The power of the state pollution control boards will be reduced now. Also, important to note adjudicating officials are non-technical members. These new provisions favour industries in a big way. The officials will act like a court to decide on penalties. Water is a state subject so states can choose not to implement these provisions. Rajasthan and Himachal Pradesh have agreed to implement them so far. But in case of air-related offences, the provisions will apply across the country. State pollution control boards have lost all autonomy.”

Vidhi Centre for Legal Policy had previously critiqued the provisions of the Jan Vishwas bill for environmental laws. In its March 2023 analysis, it stated: “As mentioned in our previous submission, imprisonment may not be the best punishment for all environmental offences. However, the blanket removal of imprisonment provision might also remove the deterrence effect of the environmental legislation, especially for large corporations profiteering from the offence. Such removal also goes against the original spirit of the Environment Protection Act.”