Study finds major lacunae in environmental impact assessment (EIA) rules, suggests necessary amendments

sustainBased on its ground-level experience, Paryavaran Mitra has suggested major major in the existing environmental impact assessment (EIA) rules.  EIA rules need to be more in tune with the needs and aspirations of the people, and sustainable development, it argues. A report based on Paryavaran Mitra study:

Top Gujarat-based environmental NGO Paryavaran Mitra, in a recent study, has found major lacunae and discrepancies in the Environmental Impact Assessment (EIA) rules, promulgated from time to time by the Government of India, in order to gauge whether a particular project can be taken up or allowed and if it will harm overall environmental concerns of the area where it is being sought to be implemented. These lacunae need to be resolved because, the study says, EIA is an instrument of reconciliation, seeks to examine “the consequences of projects, plans or policies at different levels, and predicts future changes in environment”, and is a “multidisciplinary process for resolving disputes among wide-ranging and conflicting interests in society.” It adds, EIA becomes necessary when it is found in a preliminary study that a project may significantly adversely impact environment”, hence would need to be either “modified or abandoned.”

The study, titled “A Prologue to Environmental Impact Assessment”, still in its draft stage, says that the Paryavaran Mitra’s involvement with the people affected by different projects has clearly shown that “the determining criteria for inclusion of projects or activities requiring prior environmental clearance (EC) as listed in the schedule of the EIA notification, 2006 and its subsequent amendments are not very well defined and are not available in public domain”. While this needs “clarification”, the study specifically wonders why certain sectors are not part of the EIA notification. These sectors “are very energy and water intensive” and include textiles, dairy, pharma formulations, starch production etc.”, and have “reasonably high air pollution potential, apart from the fact that they are the biggest consumers of water — and in most of the cases ground water.”

By way of example of the type of discrepancy that exists in EIA notification, the study says, “The effluent level discharged from the ‘A’ textile industrial is measured at 100mg per liter of chemical oxygen demand (COD), and the it releases is approximately 500 kiloliters (KL) per day. Its total per day discharge of COD would be approximately 50 kg.” On the other hand, “the ‘B’ chemical industrial unit discharges approximately with a COD level of 10,000 mg per litre, but the total release of effluents is 5 KL per day. This would make the total per day discharge of COD of the chemical industry at approximately 50 kg, equal to the textile unit ‘A’.”

Despite this, the study says, “Unit ‘A’ has the double benefit of being considered as a complying unit, while the textile unit does not require EC. In fact, in terms of resource consumption (water), the textile unit is a much bigger culprit than the chemical unit. The unit ‘B’ is considered a defaulter because its COD level in discharge is higher than the norm, and it requires EC by virtue of falling in the schedule of the EIA notification, 2006, though its pollution potential is the same as that of the textile unit.”

The study is based on direct or indirect involvement of the Paryavaran Mitra in different aspects of EIA in Gujarat, including during different stages of implementation of projects like Swan Energy Ltd’s proposed gas-based power plant at Pipavav,  proposed Nirma cement project in Mahua, proposed nuclear power plant near Mithi Virdi, shopping malls in Ahmedabad, Mahatma Mandir in Gandhinagar, SEZ project in Mundra; Salaya-Mathura pipeline project in four districts of North Gujarat, the Sabarmati Riverfront project in Ahmedabad, and so on. IEA issues also cropped during the Paryavaran Mitra’s fight against pollution, for instance, in Kharicut canal in Ahmedabad.

The study found major discrepancies in some other areas too. It says, these exist in air pollution potential of industries which are covered under the EIA notification and industries which are not covered under the EIA notification.  It comment, “Our illustration proves that selection criteria for projects requiring EC are based more on the perceived pollution potential of the project rather than their overall resource consumption potential and impact on various attributes of environment, i.e. water, land, air, flora-fauna, socio-economic aspect, noise etc.“

Another important and unfulfilled agenda found in the study is that the EIA notification, 2006 states “appropriate guidelines for categorization of projects into B1 and B2 category” would be issued by Ministry of Environment and Forests (MoEF). However, “this is still pending and thus causing a major bottleneck for the effective implementation of the EIA mandate.“

Then, at present under the existing EIA notification, EC is granted on the basis of the nature of the pollution potential of a unit, i.e. whether it is polluting or highly polluting etc., and also based on the measures proposed by it to tackle its pollution problems. The study emphasizes, “We need to depart from this traditional approach and look at the US’ EC model for EIA, where load-based approach is adopted and the total carbon footprint of the project or industry is assessed holistically.”

Highlighting yet another discrepancy, the study says, in category 7(d) of the 2006 EIA notification, “Common E-waste Management Facility has not been included because the law for the e-waste management was passed in May 2012. It says, “It is important to note that if one needs to start a common hazardous waste facility (called hazardous waste transportation and disposal services or TSDF), or common effluent treatment plant (CETP) for collective treatment of liquid effluents, EC is mandatory.” As against this, “if anyone needs to start a similar facility for the e-waste disposal, then no EC is needed”.

The study comments, “There is dichotomy in the law. E-waste is considered inherently hazardous in nature and potentially environmentally hazardous, thus needs safe disposal. Exemption from EC for e-waste disposal facility is against the very spirit and objective of the EIA norms and its precautionary approach.” EIA notification would therefore need to be “amended and the term common e-waste management facility should be expressed specifically in Category 7(d) of schedule of EIA notification” There should be “clear and stringent instructions for safe disposal of e-waste without any exemption from EC.”

An important violation of the existing EIA notification observed in the study is for projects under the category of 8(a), building and construction projects, and category 8(b), townships and area development projects. “Since, this category concerns the realty development in society, which is the most aggressive sector of our socio-economic developmental regime, often the EC is strategically avoided to take shortcuts”, the study says, adding, “We need to adopt a different model for such realty development projects and carry-out the EIA inclusive of the following parameters for  holistic assessment: (i) land use pattern, (ii) water and resources consumption and utilization pattern, and (iii) energy consumption and use.

In yet another anomaly in the EIA notification, the study notes, “There is no clarity between primary metallurgical Industry and secondary metallurgical industry under category 3(a) of the notification. “Thus, often interpretation differs for various metallurgical operations causing violation of law and creating escape routes for industries.“

The study, based on Paryavaran Mitra experience of over a decade in the field of EIA, believes that there exists lack of technical and legal knowledge among various executives operating on behalf of the state. Thus, there is an urgent need to develop specialized training modules for such officials and also conduct periodical upgradation training programmes.” Similarly, to make the exercise of environmental public hearing (EPH) and EC more effective, the study points out, “We need to adopt a more professional approach towards selecting the members and experts needed to be appointed in the state-level expert appraisal committee (SEAC), the expert assessment committee (EAC), and the State Environment Impact Assessment Authority (SEIAA). The whole issue is at present dealt with a very unprofessional approach, which jeopardizes the very objective of the EIA exercise. Thus, the selection of these members must be done keeping in mind the role they need to play, relevant qualifications, age, and expertise as well. We also need to inculcate the sense of legal obligation and transparency in their functioning. “

In this context, referring to environmental public hearing (EPH), the study says, “it has often been found that representative nominated by the district magistrate/ district collector to conduct EPH is below the rank of additional district magistrate, which is violation of the provisions of the EIA notification and it adversely affects effective conduct of EPH.”

The study objects to the “Interpretation of the term ‘plausible stakeholders’”, which it insists “needs to be reviewed”, because with every passing day “the policy holders seek to restrict local activists and NGOs from representing the cause of the locals.” Hence, taking inspiration from the “National Green Tribunal’s stand, this term needs to be liberal in the interest of the environmental justice as enshrined under the Constitution of India.” In fact, “the original position under the EIA Notification, 1997 – where NGO participation in EPH was allowed — needs to be reincorporated within the scope of the existing notification to further strengthen its functioning.”

On public notice for an EPH, the study says, “Through our vast experience, we have observed that there are variations in the text of these notices. We must remember that this notice is a means to inform to all the public, so any discrepancy in the text may jeopardize its very purpose. Thus, it is high time that a model draft format of the said notice is circulated by the MoEF to all state pollution control boards (SPCBs) to avoid such discrepancies in implementation of the mandate of EIA Notification.“

The study also raises issues of transparency during EPH. It says, “The draft EIA report is uploaded for public information in the official website of the SPCB concerned so that any interested person can file an objection if he/ she want to. But the most surprising fact is that after the EPH is over, the final EIA report incorporating any suggestion / recommendation / issues raised during EPH and as submitted to MoEF or SEAC for final appraisal (as the case may be) is never made available in public domain.”

It adds, there is also “linguistic barrier due to regional diversity in India” which causes “hurdle in the smooth functioning of the EIA process.” The study says, “We have often observed that the main EIA report is prepared in English but rest of the supporting documents remain in the respective regional language. In case of any project having a critical EC issue, lack of interpretation of these supporting documents may affect the understanding and decision making process before granting the final EC.”

Finally, the study insists on determining “periodical revival of the existing law.” It says, “It had been observed that the most of the laws especially operating in the field of mining, whose shelf life of 30 years. In contrast, other laws are only for a period for five years. We need to see if the factors affecting any existing laws change significantly, whether changes in laws are made to keep up the dynamic nature of the law. The executive and the legislator must remain vigilant to take up review of law systematically and periodically suo motu.”

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