Procedures for appraisal of cases of violation. S.O. No. 804 (E) dated 14-03-2017

Dear Sir,

This is to draw your kind attention to S.O. No. 804 (E) dated 14-03-2017 issued by the MoEF and CC regarding procedures to be adopted in dealing with violation cases. The contents of the notification, while being in the interests of sustainable development, good governance and a deterrent to violation of the EIA notification of 2006, may in my opinion need to address to some important issues which the Ministry may like to examine and take necessary action on. I therefore, most humbly seek your permission to draw your attention to the following:

  1. It has been provided at paragraph 13 (3) of the notification no. 804 (E) dated 14-03-2017 that in case of violation, action will be taken against the project proponent by the respective State or the State Pollution Control Board under provisions of section 19 of the E.P. Act 1986. Section 19 of the E.P. Act 1986, you would appreciate is a clause relating to cognizance of offences in case application are made to courts. What may need to be examined here is whether the State and the State Board are also empowered through this notification of 14-03-2016 to administer the provisions of Section 5 of the E.P. Act 1986 for the specific violations or will the action by these agencies be restricted to only moving an application to the courts under provisions of section 19 of the E.P. Act for the period for which violation has taken place. It may also need to be clarified as to which legal provision should be taken recourse to while moving an application under section 19. The earlier O.M. of 12-12-12 had prescribed that the ‘State Government concerned will need to initiate credible action on violation by invoking powers under section 19 of the E.P. (Act) 1986 for taking necessary legal action under section 15 of the Act for the period for which violation has taken place.”

It is most humbly suggested that the procedures could make a provision to include that in cases of violation action will be taken against the project proponent by the respective State or State Pollution Control Board under provisions of Section 5 of the E.P. Act 1986 and also under provisions of section 19 of the Environment (Protection) Act 1986 for taking legal action under section 15 of the Act for the period for which violation has taken place. This in my opinion will give the powers to the State Government and State Boards to immediately restrain further violation and would also provide for punitive action for the past violation thus adding to the deterrent.

  1. Para 13 (3) also provides that in cases of violation, no consent to operate or an occupancy certificate will be issued prior to grant of Environmental clearance. Giving a consent to operate just after the receipt of the E.C., which the provision implies, may not be able to ensure compliance to conditions. Consent to operate and occupancy certificate could therefore only be considered to be given after satisfactory compliance to the E.C. conditions. Necessary orders/provisions may need to be issued in this regards.

  1. The procedures also need to address to as to how the State Pollution Control Boards would respond to the applications for consent to establish in case of violation. These are filed independent of the applications for Environmental Clearance. It may also need to be addressed to as to how will the local authorities deal with the applications for seeking ‘Completion Certificates’ in case of violation cases. Ideally, I would suggest that the consent to establish should be withheld till the E.C. is not granted and the ‘Consent to operate’ and the ‘Completion and Occupancy, Certificates granted only after ensuring satisfactory compliance to the conditions of the Environmental Clearance and consent to establish.

  1. Para 13 (3) recommends that in case of violation, action will be taken against the project proponent by the State/State Pollution Control Board. Since applications for E.C. are made at the MoEF&CC/ SEIAA therefore the State/State Board may not be aware of a violation unless a reference is made to it. A mechanism therefore may need to be developed to inform the State/State Board about the violation.

  1. Para 13 (4) makes a provision for the EAC to make a recommendation regarding closure orders to the projects in case of violations. It however, does not make a mention of who will implement this closure. Since the MoEF&CC, the State Government, the CPCB and the State Board, are all involved in administration of the Acts, therefore it would be appropriate if the procedure also makes a mention of the authority to which the EAC should submit its recommendations for implementation. My suggestion in this regards would be that since para 13 (3) empowers the State/State Boards to take action against violation, the recommendations of the EAC could be sent to the State Government by the MoEF&CC for taking necessary action against the violation.

  1. Para 13 (5) provides for the procedures to be followed by the EAC in case a project is assessed to be permissible at the site under prevalent laws and can be run sustainably with adequate safeguards. This procedure only addresses to cases which need to prepare an E.I.A. and EMP and which can be prescribed the appropriate Terms of Reference. Since category 8(b) projects and B2 category projects (7i1) do not require to prepare an Environmental Impact Assessment report, therefore there may appear to be a need to prescribe a procedure for category 8(b) and B2 violations also.

  1. Development of Master and other city/urban/rural development plans are covered under area development projects and need an Environmental clearance under the EIA notification both for the initial plan and also for deviations in the plans. Frequent land use changes to accommodate for commercial activities within residential areas, frequent changes in the FAR, large scale dewatering in the construction of basements, development of residential sectors/educational institutions in industrial areas etc. may all have serious repercussions on urban infrastructure, the carrying capacity of roads, density of population, waste generation and assimilation capacity of cities and the quality of life for its residents. It is requested that the MoEF&CC may also, if it thinks proper, write to the State Governments to ensure that there is no violation in the provisions as they relate to ‘Area Development Projects’ and the Authorities and other local bodies have the necessary clearance for ‘Area Development Projects and any modifications in the existing land use pattern or building by laws.

  1. While it is broadly accepted that the notification no. S.O. 1533 dated 14-09-2006 relates to Environmental clearance and Environment Impact Assessment, it has not been titled as the EIA notification of 2006. Under these circumstances it may be considered if the notification no. S.O. 1533 dated 14-09-2006 could be titled as the ‘Environment Impact Assessment Notification of 2006 and notified accordingly. This appears significant because the same has been referred to as the E.I.A. notification 2006 in this S.O. 804 (E) dated 14-03-2017 and possibly at many other places. The nomenclature may have some advantages where titles play important roles in establishing applicability in Courts of Law.

  1. I am fully aware that these suggestions, that I have taken liberty to give as above, are grossly mistimed and the suggestions should have been made at the draft stage, but I was not aware of the draft notification. I am sorry for the same. In this connection I would also wish to suggest that the Ministry has a rich and diverse association with a great number of experts who assist it as Members of the Expert Appraisal and other Committees. I am sure that many of these experts would have meaningful contributions to make in the finalization of draft notifications. I wonder if the Ministry may like to lay draw a procedure to make the draft notifications available to these experts, as dedicated references for their comments and suggestions also.

Thanking You,

Yours Faithfully,

(Dr. Yashpal Singh)

Filed in: To The Regulator (India)

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