MoEF & CC, GOI notifies new provisions for dealing with violation cases under EIA notification of 2006-Closures, guarantees, forfeitures established

Published 24/03/2017

First Update 22/06/2018

MoEF & CC, GOI notifies new provisions for dealing with violation cases under EIA notification of 2006-Closures, guarantees, forfeitures established  

Dr. Yashpal Singh

Member, Expert Appraisal Committee, MoEF & CC, Govt. of India.

Former-Director, Environment, Government of U.P.

The E.I.A. notification of 2006, as published by the MoEF and CC, Government of India provides that all projects and activities, covered in the schedule therein, will obtain prior environmental clearance for setting up afresh or undertaking expansion or modernization in the existing projects or activities. Projects or activities have been divided into 2 categories. CAT ‘A’ projects which require an appraisal at the Expert Appraisal Committee and grant of E.C. by the Ministry at Delhi and Category ‘B’ projects which require an appraisal at the State Expert Appraisal Committee and grant of clearance by the State Impact Assessment Authority.

Cases were brought to the notice of the MoEF & CC where the construction/physical/operation activities relating to the projects had been started at site without obtaining a clearance. This was considered to be a violation and the procedure for dealing with violation cases was addressed by the MoEF & CC through office Memorandum no. J11013/41/2006-IA II(i) dated 12-12-2012 and J11013/41/2006-IA.II(I) dated 27-06-2013. The procedure involved delisting of such cases and the taking of punitive legal action by the State Government Under section 15 of the EPA and only thereafter taking up the case for grant of Environmental clearance on merits. It was also provided that in such cases, directions under section 5 of the E.P. Act 1986 will be issued by the MoEF in respect of the violations and the compliance of the project proponent obtained to such directions. This included directions for closure or suspension of activities. The key to this process was that the consideration for an Environmental Clearance was deferred till the initiation of legal action and was reopened for consideration only when legal action had been initiated.

The Honourable High Court of Jharkhand passed an order on 28-11-2014 in W.P.CC, No. 2364 of 2014 (Hindustan Copper Limited vs. Union of India) and held that action for violation should be an independent exercise which could not await the initiation of legal proceedings/action against the project proponent. It further held that the proposal for E.C. should be examined on its merits, independent of any proposed action for alleged violation of the environmental laws. The Honourable NGT in its orders dated 07-07-2015 in the matter of OA No. 37 of 2015 and OA No. 213 of 2015 had also held that these office memoranda could not alter or amend the provisions of the EIA notification of 2006 and had quashed the same.

The Ministry was still receiving proposals for Environmental Clearances where work has been started in contravention to the provision of a ‘prior’ environmental clearance. In order to ensure that all entities not complying with the E.I.A. notification of 2006 are made to comply with environmental laws in an expedient way, the Ministry established a process of appraisal for cases of violation through S.O. no. 804(E) dated 14-03-2017. The procedures are intended to deter the violation of provisions of the EIA notification of 2006 and to make such provisions that the costs of violation and damage to environment are adequately compensated for. Such damages are legally provided to be covered under the provisions of the Environment Protection Act 1986, along with the provision of any other directions that may need to be issued by the MoEF & CC under provisions of the E.P. Act of 1986 (Sections 3 and 5).

The following provisions have been made through this notification no.804(E) dated 14-03-2017.

1. All cases of violations will be considered as category ‘A’ projects (even Cat ‘B’ projects, in the event of violation would be regarded as Cat ‘A’) and Environmental Clearance will be considered at Central Level. In cases of violation, action shall be taken by the State/State Board under the Provisions of Section 19 of the E.P. Act 1986 and further no consent to operate or occupancy certificate shall be issued till the project is accorded an Environmental Clearance.
2. The cases of violation will be appraised by the respective Expert Appraisal Committee and it shall be assessed whether the construction of the project at the site is permitted under prevalent regulatory norms and whether the expansion can be run sustainably with adequate environmental safeguards. If the answer is in the negative, closure of the project will be recommended along with other actions under Law.
3. If the Expert Appraisal Committee feels that the project is permissible under prevalent regulatory norms and the expansion can be run sustainably with adequate environmental safeguards, it will provide the related Terms of References for the preparation of the Environmental Impact Assessment Report and preparation of Environment Management Plan. A specific term of reference shall be prescribed for the assessment of ecological damage, remediation plan and natural and community resource augmentation plan which shall be prepared as a separate dedicated chapter in the EIA by the accredited consultants. The collection and analysis of data for the purposes of assessing ecological damage and suggesting remediation plans has been prescribed to done through MoEF, NABL or a CSIR accredited Laboratories working in the field of environment.
4. The implementation of the Environmental Management Plan which includes the remediation plan and natural and community resources augmentation plan, shall be imposed as a condition of environmental clearance.
5. A bank guarantee, equal in amount to the amount in the remediation plan and Natural and Community resource augmentation plans shall be submitted to the Pollution Control Board after the quantification as recommended by the EAC has been approved by the Regulatory authority. This Bank guarantee shall be submitted before the grant of the Environmental clearance to the State Pollution Control Board and shall be released after the recommendation of the Regional office of the Ministry, Expert Appraisal Committee and the approval of the Regulatory Authority.

The procedure prescribed through the notification No. S.O. 804(E) dated 14-03-2017 is applicable only on those projects or activities which are in violation on the 14-03-2017 and the application for environmental clearance for cases of violation (as on 14-03-2017) can only be made within Six months of the notification  of 14-03-2017. The Ministry will therefore not consider any violation cases, if the violation has been committed after 14-03-2017 and if the application is made six months after 14-03-2017.

There do appear certain grey areas in the notification which may need a clarification.

1. What is the procedure for assessing damages in case of projects which are not permitted at site under prevalent regulatory norms and where the expansion cannot be run sustainably with adequate environmental safeguards.
2. Whether the provision of Section 15 will apply and whether a direction u/s 5 of the E.P. Act can be passed by the State Pollution Control Board or action has to be restricted to the provisions of Section 19 of the E.P. Act by morning an application to the Court. (Para 13.3 of notification)
3. How would the State Pollution Control Boards respond to the pending applications for Consents to establish, in case of violation cases.
4. How will the local authorities deal with the applications for seeking ‘Completion Certificates’ in case of violation cases.
5. Which agency shall implement the closure, if recommended by the EAC. Para 13 (4) of notification.
6. What will the procedure for category 8 (a) cases which do not require the submission of Environmental Impact Assessment reports.

S.O. No. 804(E) dated 14-03-2017 had mandated that category ‘B’ violation cases will also be appraised by the Expert Appraisal Committee constituted for examining violation cases at the MoEF and CC and the Environmental clearance will be granted by the Central Government. The Honourable NGT has , on the 27th of November  2017, however, passed directions for consideration of such projects now, at the State level. (O.A. No. 576/2016: 570/2016 and 579/2016). In view of the above, the MoEF and CC has amended the notification dated 14.3.2017 as cited above by another notification no. S.O. 1030(E) dated 08/03/2018 and provided that for category ‘A’ projects the appraisal and approval shall vest with the EAC and the MoEF and CC and for Category ‘B’ projects with the SEAC/SEIAA (Subpara 2).

It has also been provided (Sub para 4) that in case it is observed by the respective committees (EAC and SEAC) that the site is not suitable and the project cannot be run sustainably, the respective committees may recommend closure of the project along with other actions as per Law.

Para ‘5’ of the amended notification provides that in case a project site is appropriate and the committee feels that the project can be run sustainably, it can provide specific terms of reference for the assessment of ecological damage, remediation and community resource augmentation plan which will be prepared as an independent chapter in the EIA report. This should be prepared by accredited consultants and the collection and analysis of data should be  done by MoEF and CC and NABL approved laboratories or a CSIR laboratory.

The implementation plans shall from part of the conditions of clearance to be issued (Para 6)

Para (7) provides submission of a bank guarantee equivalent to the amount to be spent in the remediation and community resource augmentation plan to the State PCB the quantification shall be recommended by the Expert Appraisal Committee or the State Expert Appraisal Committee and finalized by the respective authority (MoEF and CC/SEIAA). The same shall be deposited prior to the grant of environmental clearance and released after successful implementation of the remediation and the natural resource augmentation plan only after recommendations of the Regional Officer of the MoEF and CC, Expert Appraisal Committee or the SEAC and approval of the regulatory authority.

The Ministry has also come out with procedures on the operation of the above notification. An Office Memorandum no Z-11013/22/2017-IA II (M) dated 13-03-2018 lays down that only projects which have been received by 13-09-2017 at the MoEF&CC will be considered and transferred to the respective SEAC/SEIAA’s.

Another O.M. No. Z-11013/22/2017-IA II (M) dated 16-03-2018 provides an extended period of submission in those cases where requests have not been submitted by 13-09-2017. The O.M. stipulates that –

1. The project proponents who have not submitted the proposals within six months window i.e. up to 13^th September 2017 in pursuance of this Ministry’s Notification S.O. 804 (E) dated 14-03-2017 are required to submit the proposals within 30 days, to the EAC for category A projects or the SEAC/SEIAA in the State/Union Territories for Category ‘B’ project.
2. The project proponents who have submitted the proposals on the Ministry Portal after 13^th September, 2017, are also required to submit the proposals a fresh within 30 days to the EAC for Category A project or to the SEAC/SEIAA in the respective states/UT’s for Category ‘B’ projects.
3. The projects/ activities pertaining to all sectors shall be considered as per the directions of the Honorable High Court of Judicature at Madras vide order dated 14-03-2018 in WMP Nos. 3361 and 3362 of 2018 and WMP No. 3721 of 2018 in WP No. 11189 of 2017.
4. The directions issued vide this ministry’s O.M. dated 15^th March 2018 shall continue to apply.

Since the last date of receipt of applications was revised to within 30 days of 16-03-2018, all projects which have not applied for clearance under the violation clause, by this date shall be regarded as being in violation to the EIA notification.