Expansion and other proposed changes in existing industries without any further increase in Pollution Load – A case for Exemption from Consent to Establish under the Water and Air Acts

Expansion and other proposed changes in existing industries without any further increase in Pollution Load – A case for Exemption from Consent to Establish under the Water and Air Acts.

By Dr. Yashpal Singh, Chairman, The Wealthy Waste School India

Abstract

This paper examines some provisions of the Environmental Clearance Mechanism under the Environmental Protection Act 1986 and the ‘Consent’ mechanism under the Water (Prevention and Control of Pollution) Act 1974 and the Air (Prevention and Control of Pollution) Act 1981 in India. An existing provision for exemption from environmental clearance to Projects proposing changes in existing operations not involving any incremental pollution has been discussed along with the provisions of integration of Environmental Clearance procedures with the Consent to Establish, as prescribed by the MoEF & CC.  The possibility of a similar exemption from Consent to establish, under the Water and Air Acts, is examined. It is suggested that if an Industry covered at S. Nos. 2,3,4 and 5 of the Schedule to the  EIA notification of 2006, wishes to propose changes in the existing operations and the changes do not involve any additional pollution, it may be exempted from obtaining/ not require a consent to establish for its expansion proposals. A prior Environmental Clearance and valid Consents to operate under the Air and Water Acts for the existing operations and No Increase in Pollution Load Certificate from the competent agencies on the proposed changes may be prerequisites. The author has also made some recommendations on possible guidelines to safeguard the interest of Environment.

Introduction

1. The MoEF & CC, Govt. of India notification no. 1533 of 2006 has prescribed that, new projects or activities or the expansion of or modernization of existing projects or activities listed in the schedule to the notification entailing capacity addition with change in process or technology and or product mix shall be undertaken in any part of India, only after obtaining prior Environmental Clearance from the Central Government.
2. In respect of Existing projects (having prior environmental clearance) with no increase in pollution load the Central Government through its notification of 2^nd March, 2021 has prescribed that: “Any increase in production capacity in respect of processing or production or manufacturing sectors (listed against item number 2,3,4, and 5 in the schedule to the notification) with or without any change in (i) raw material-mix or (ii) product mix or (ii) quantities within products or (ii) number of products including new products falling in the same category or (iv) configuration of the plant or process or operations in existing area or in areas contiguous to the existing area (for which prior E.C. has been granted) shall be exempt from the requirement of Prior Environmental Clearance provided there is no increase in pollution load (derived on the basis of such Prior Environmental Clearance). Thus, under the E.I.A. notification of 2006, Primary processing industries including coal washeries, Mineral beneficiation, Metallurgical industries, Cement Plants, Petroleum refining, Coke oven plants, Asbestos milling and asbestos based products, Chlor-alkali Industry, Soda Ash Industry, Leather/Skin/Hide processing industry, Chemical fertilizers, Pesticides industry and Pesticide specific intermediates, Petrochemical complex, Manmade fiber industry, Petrochemical based processing, Synthetic organic chemicals Industry, Distilleries, Integrated  Paint industry, Pulp and Paper Industry and Sugar Industry wishing to expand their capacities, irrespective of changes in raw material mix, product mix, quantities within products, number of products including new products in the same category or configuration of the plant or process or operations shall be exempt from obtaining a prior Environmental Clearance provided there is no increase in pollution load.

3. Section 25 of the Water Act provides that, 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 any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or on land or bring into use any new or altered outlet for the discharge of sewage or begin to make any new discharge of sewage. The State Pollution Control Board through the provision as above and through the conditions of consent regulates the point of discharge, use of outlets, nature and composition of discharge, temperature, volume and rate of discharge. The emphasis under this section appears to be any activity that is likely to discharge sewage or trade effluents. In terms of expansions cases, the provisions of consent to establish under the Water Act, as above will therefore apply to all those industries, operations or process which are likely to discharge sewage or trade effluent into a stream, river well or land. Vice versa, if an industry/operation or process or an expansion, addition is not likely to discharge any additional sewage or trade effluents, the same would be exempt from the provision of consent to establish.
4. Similarly, section 21 of the Air Act 1981, prescribes that no person shall establish or operate any industrial plant in an Air Pollution Control Area without the consent of the State Pollution Control Board. The Act (Section 3k) defines an industrial plant to include any plant used for any industrial or trade purposes and emitting any air pollutant will the atmosphere. The applicability of Section 21, in terms of consent to establish for expansion cases appears limited to the permission to establish any additional plant that emits air pollutant and therefore viceversa would not require such consent if the plant being established through the expansion is not likely to emit any air pollutants.
5. The E.I.A. notification of 1994 under provision at para 5(b)iii of the explanatory note regarding the Impact Assessment notification had provided that a NOC from the State Pollution Control Board is a prerequisite to site clearance/project clearance.
6. The notification of 2006 has no such provision but at para 8(v) prescribes that, clearances from other regulatory bodies or authorities shall not be required unless any of the clearance stages (screening, scoping, appraisal, decision) is sequentially dependent on such clearance. Consent to establish, therefore is not a prior requirement for grant of Environmental Clearance. However, in the case of expansion projects ,no increase in pollution load certificate has become a prerequisite and has to be submitted on the MoEF and CC portal.
7. The CPCB vide its letter dated 2-2-2017 had prescribed that “All the projects requiring environmental clearance may be exempted from obtaining the consent to establish. Such projects may be directly granted consent to operate subject to EC and installation of Pollution Control Devices”. These orders have been stayed by the High court of Delhi.
8. A one step process for CTE and EC has been introduced by the Ministry through its O.M. No. F.No. 3-3/2019-I.A. III dated 05-02-2020 where the application for Consent to Establish has to be made simultaneously with the application for EC through the MoEF& CC’s , Parivesh portal, forwarded to the concerning Pollution Control Board/ U.T. Pollution Control Committee by the Ministry and in the event of the application being rejected by the Pollution Control Board, the decision for rejection of the application for CTE is to be communicated to the MoEF and CC before the Expert Appraisal Committees appraises the proposals for Environmental Clearance.In the case of the State Board agreeing to grant the CTE, the recommendations have not to be sent to the EAC, but the CTE has to be issued within one month of the recommendation of the EAC. This Office Memorandum fails to address to the time period of 04 months provided to the Boards/ Committees for the diligent appraisal of the applications for consent and what happens if the appraisal for EC is considered by the EAC within these 04 months of application and the State Board/ UTPCC has not taken a decision but is well within the provided time of 04 months. The O.M. also goes on to provide that if the EC is granted by the Regulatory Authority despite the SPCB/UTPCC communicating its rejection of the Consent to establish, the SPCB/UTPCC will reconsider its decision on the Consent to establish within 30 days of grant of the Environmental Clearance and communicate grant or rejection within the next 30 days failing which the CTE would be deemed to be granted. The O.M. also fails to address to the fate of the Environmental Clearance issued on the proposal if the concerned Board or the Union Territory administration still rejects the application after reconsideration. It is not clear if the Ministry wants to suggest that the E.C. would prevail even if the consent to establish is rejected.This may need further consideration by the Ministry.

CTE and its applicability under no increase in Pollution

An understanding of the provisions as above would indicate that CTE is a provision which has to be administered as per law and there is no provision for exemption of polluting processes from CTE. The High Court of Delhi has also struck down the earlier arrangements for exemption introduced by the MoEF and CC. Also, the E.I.A. notification has been amended in March 2021 to include that all expansion which do not involve any increase in pollution load shall be exempted from obtaining an E.C. but will have to submit a ‘No Increase in Pollution Load’ certificate through competent agencies empaneled by the State Pollution Control Board or CPCB or MoEF and CC.

However, it is also understood that Sections 25/26 of the Water Act and section 21 of the Air Act would apply only if the capacity enhancement by itself involves discharge of effluents or emissions and that if there are no effluents or emission involved from the expanded capacity, a CTE may not be required. There is an existing system of integrating CTE to the Environmental clearance.

 Authors Recommendations

Under the circumstances as above if an existing industry going in for expansion, irrespective of product mix has been earlier granted an Environmental Clearance and has a valid consent to operate under the Air and Water Acts and a No Increase in Pollution Certificate it may be exempted from obtaining/ not require a consent to establish for expansion proposals. However, to safeguard the interests of Environment the following could be considered.

1. The exemption could apply to projects covered under the provisions of para 7.c(ii) of the E.I.A. notification which state that, any increase in production capacity in respect of processing or production or manufacturing sectors(listed against item numbers 2,3, 4 and 5 in the Schedule to the EIA notification of 2006) with or without any change in (i) raw material-mix or (ii) product-mix or (ii) quantities within products or (ii) number ofproducts including new products falling in the same category or (iv) configuration of the plant orprocess or operations in existing area or in areas contiguous to the existing area (for which priorenvironmental clearance has been granted) shall be exempt from the requirement of Prior Environmental Clearance provided that there is no increase in pollution load (derived on the basis of such Prior Environmental Clearance)
2. The project proponent could obtain a No increase in Pollution Load certificate from the environmental auditor or reputed institution empaneled by the State Pollution Control Board or Union Territory Pollution Control Committee or CPCB or MoEF and CC as put on the website of the State Pollution Control Board/ U.T. Committee.
3. The project proponent will upload a copy of the proposals as submitted to the Empaneled Auditor and the No increase in Pollution Load Certificate on the Parivesh Portal for the MoEF and CC. (Also, a prerequisite for seeking exemption from Environmental Clearance)
4. Simultaneously the project proponent could inform the State Pollution Control Board/Pollution Control Committee in the specified formatalong with the following information.
   • Online system generated acknowledgement of uploading of intimation on the Parivesh Portal
   • Instructions received from the MoEF and CC with respect to such submission from time to time.
   • A copy of the proposals submitted to the empaneled expert along with a copy of the No Increase in Pollution Load report duly authenticated by the Auditor.
   • A copy of the earlier E.C. granted along with a copy of the certified compliance report of not more than 12 months prior to the date of intimation as certified by the Regional Office of The MoEF&CC.
   • A compliance report on the conditions of consent under the Air and Water Act.
   • A compliance report on the conditions of authorization received under the Hazardous and other Waste (Management and Handling) Rules 2016 and under the Plastics (Waste Management) Rules of 2016.
5. The information so submitted by the project proponent could be examined by the concerned State Pollution Control Board/ Committee,within a specified period of submission, who  could ensure that the project proposals are strictly in conformance to the provisions of Sections 25/26 of the Water Act and Section 21 of the Air Act and that the proposed expansion in itself would not involve any discharge of additional effluents or operation of any industrial plant which emits air pollutants in excess of the loads and limits prescribed in the Environmental Clearance and the consent to operate granted to the existing unit under the Air and Water Acts.
6. If on verification it is found that the proposal may cause an increase in pollution or the provisions of Section 25/26 of the Water Act or Section 21 of the Air Act or other statutory provisions are being violated and that the expansion is liable to add to the pollution, the State Pollution Control Boards/Pollution Control Committee could take necessary punitive action as per law and also inform the MoEF and CC.
7. Under these circumstances, the exemption claimed may not be regarded as valid.
8. The State Pollution Control Boards /U.T. committee and the MoEF and CC will provide an opportunity to be heard before taking any action.
9. The project proponent shall be responsible to satisfy itself about “No increase in Pollution Load” before physically implementing/undertaking the changes or expansion or modernization. If such changes involve increase in pollution load, the project proponent shall be held responsible for the violation and invite action against the relevant laws as prescribed.
10. If the concerned State Board/Committee does not send its comments to the MoEF and CC within the specified period of the submission being made to it by the Project proponent it could be assumed that there are no specific comments/objections of the State Pollution Control Boards /U.T. Committee and the project proponent may proceed as though covered under the provisions of Rule 7 C(ii) of the E.I.A. notification as amended (02-03-2021) and exempt from the provisions of E.C. as above and also exempt from CTE under the Water Act 1974 and Air Act 1981. The above would however be subject to any instructions/directions that the MoEF and CC issues to the project proponents/ Boards/ U.T. Committees with respect to the submissions made to it in the portal.