Some Suggestions for Review of the Functioning of the Ministry of Environment and Forests

 

 

Submitted to

 

 

Shri. T. R. Baalu

Hon'ble Union Minister for Environment and Forests

Government of India

 

 

On the occasion of

 

 

MoEF Regional Offices Meeting

23-24 October 2000

New Delhi

 

 

Submitted by

 

 

Environment Support Group ®

S-3, Rajashree Apartments, 18/57, 1st Main Road, S. R. K. Gardens,

Jayanagar, Bannerghatta Road, Bangalore 560 041. INDIA

Telefax: 91-80-6341977 Fax: 91-80-6723926 (PP)

Email: [email protected]n

 

 

October 2000

 

 

Introduction

 

Environment Support Group is a non-governmental organisation that is involved in working on social and environmental justice issues of concern.  It is an interdisciplinary group involving experts from the areas of environmental law and policy, planning, ecology, basic and social sciences and mathematics.

 

On 12 September 2000, Union Environment Minister Shri. T. R. Baalu visited Bangalore, during which time a team from Environment Support Group met with him.  During the discussions the Hon'ble Minister informed the ESG team of his plans of holding a Regional Offices Meeting to review the environment/forest clearance compliance.  Based on this information, the ESG team voluntarily decided to produce a Note examining the functioning of the Ministry of Environment and Forests and highlighting areas for reform.  The main purpose of this was to provide the officials of the Ministry an external input to an internal  evaluation process. 

 

What we have attempted here is a synoptic view along the following themes:

 

1.     The Forest Clearance Cycle

2.     The Environmental Clearance Cycle

3.     The need for Decentralisation of the Clearance and Review Mechanism

4.     The Emergent need for Scientific and Technical Capacity Building of the MoEF

5.     A Submission of ESG to the Draft Industrial Siting Notification

 

These themes do not obviously comprehend the overall scheme of review and monitoring of environmental and forest clearance cycles.  For the purposes of brevity only pressing Issues of Concern underlining areas for reform are raised.

 

A brief gist of the existing Forest and Environmental Clearance mechanisms are provided as Annexures towards the end of this note, merely for the purpose of quick reference.

 

 

 

 

 

Theme 1:  Forest Clearance Cycles

 

Issues of concern to be addressed:

 

1.       Arbitrary Powers of the DFO:  The DFO of the State Forest Department (SFD) has arbitrary powers, with no checks and balances whatsoever.  Given that the main verification of facts and site of project takes place at this level, there is all possibility of political, administrative and personal impressions forming a pressure lobby.  Quite possible that corrupt practices could be induced at this level, say for instance by the investor, to secure a favourable decision.  It is essential that this level of enquiry is tightened, with public participation involvement, say through Public Hearing Process, and the decision taken should be made public with reasons clearly documented.

2.       Time Targets at State Level of Clearance: There is no defined time set for processing and clearance at the State level.  This is a very weak arrangement as in effect it means that the State can indefinitely delay the process of clearance if it wants to.  This is not good administrative discipline.  There is a need to fix time period for the State Level clearance, with each sub-level of clearance being provided their individual component of time.  For instance it could be 30 days for the DFO, 30 days for the PCCF and 30 days for the DFE to complete the formalities and forward the proposal to Regional CCF/Central Office. In this way not only is the Investor not harrassed, but as well there is a clear understanding of where the decision is being taken at a particular point of time in the clearance cycle.  The only exception to this strict adherence to effective and speedy clearance should be an "Act of God" or similar incidents.

3.       Empowering State Levels of Clearance:  When Project is rejected at the State level, the Proposal is still forwarded to the Centre seeking endorsement of Rejection. It is possible that such a provision may have arisen due to the need to neutralise local political backlash at the State level.  This, however, is a retrograde step as it involves unnecessary administrative expenditure, involving the sparse resources of the MoEF.  Considering the impetus on decentralisation, State Governments should be confident of their stand.

4.       Safeguarding Protected Forests:  The opinion of the Chief Wildlife Warden (CWW) should be binding in cases involving protected forest areas, but are most often not.  In some cases, even when the Chief Wildlife Warden (CWW) has rejected the proposal, the PCCF and the Secretary DFE have recommended the proposal and forwarded the same to the Centre without justification for overruling CWW's decision or providing higher rationale for according approval.  Eg. Temporary mining clearance granted to M/s. Kudremukh Iron Ore Company Ltd.  This approach is a bane to safeguarding the country's fast depleting biodiversity.

5.       Integration of Scientific opinion: There is absolutely no scientific input in the entire process.  When decisions to be taken become increasingly complex given fragmentation of forests at a rapid rate, a multitude of factors will have to be considered before taking a decision.  Whilst there may be hundreds of applications for small scales of forest clearances, there is often a few large projects that in effect involve high levels of impact on the forests.  Whether the scale of forest involved is small or large, the day has arrived when even the tiniest patch is cleared for "development" only after the most careful scrutiny.  Given that, by and large, the DFO or RFO are unable to be up-to-date with the latest understanding of forest systems, most often due to large administrative workloads, it is imperative that a clear scientific input should be integrated at the earliest stage of processing an application.  Not only will it enable the formulation of a very sound decision, but will also prevent the unnecessary administrative burden at higher levels were a project found not worth passing the muster on scientific grounds.

 

6.     Need for Public Involvement:  There is absolutely no public participation.  When the EIA Notification requires Public Hearings to be held for a schedule list of projects, those projects that are not included in this list, yet having high impact, escape public involvement in decision making as the Forest Clearance cycle completely obviates the need for such engagement.  It would be a progressive step to make Public Hearings mandatory for all projects involving forest clearances, thus covering the lacunae of the EIA Notification.  This fundamental precaution is needed keeping in view the various Rights, esp. Rt to Livelihood given the fact that there is a overwhelming dependence of minor forest resources by forest dwelling communities for subsistence living.

 

Theme 2:  Issues of concern in the Environmental Clearance procedure

 

Issues of Concern to be addressed:

 

Weak EIA process

 

1.       Poor Quality of EIAs: Perhaps the most critical area of concern with regard to the clearance procedure is that the quality of information furnished by the project developer as part of the EIA/EMP and DPR is often found wanting in crucial areas of the project impacts. There have been cases where EIAs have been completely fudged (Eg. Ernst and Young REIA for Dandeli Dam), where the data furnished is unrepresentative to the area (Eg.  Air Pollution Modeling conducted by Transoft of France for Tata Consultancy Services REIA of Mangalore Power Company) and quite often there is a lot to be desired even in the fundamental aspects presentation of facts and analysis of impacts.

2.       Weak Technical Competence of Consultants: Given that the EIA is prepared by consultants hired by the developer/investor, in most cases the EIA is viewed as a mechanism of compliance with procedures and information provided is very superficial and often not representative of the ground reality.  This problem has been widely acknowledged as undoing of the very precepts of the EIA Notification.  Despite which there is very little or no verification of facts presented by conducting site visits or ground verification.

3.       Need for empanelling Consultants: Several suggestions have been offered over time to fix such lacunae.  However, a most pressing need is to validate Consultants, thus ensuring that in the very least the information brought is of a quality that is justifiable for initiating the clearance process.  The credentials of the Consultant/Consulting Company/Organisation should be subject to public review as in the case of all companies by way of furnishing Quarterly Report, Annual Reports, etc. 

4.       Need for Independent EIA Authority:  There is also the demand for setting up an independent Environment Impact Assessment Authority headed by a judicial officer and comprising of eminent scientists, technocrats and environmentalists.  Such a step must be considered consciously and with due dispatch.

 

 

Faulty environmental clearances

 

1.       Pressure for Quick Clearance: The regulatory agencies at the State and Central levels are constantly under pressure to accord quick clearance to the project, by a combination of investor induced and bureaucratic and political interferences.  Consequently, clearances are likely to be provided without sufficiently addressing all the issues involved.

2.       Technical Skills of Review:  Additionally, in-house skills of review, from the scientific and legal points of view, have been found wanting in a variety of areas, and exposed repeatedly, especially through the process of Public Interest Litigation in different parts of the country, and in several instances in the recent past, various Courts have struck down final environmental clearances accorded, citing fundamental violations in administrative review, planning and environmental legislation and lack of application of mind on critical areas of environmental concern.

 

 

Rapid EIA and Conditional Clearances

 

1.       Rapid EIA:  With the demand to accord speedy clearances to industrial and infrastructure projects increasing, a mechanism adopted by Pollution Control Boards and Ministry of Environment and Forests has been to accord conditional clearances to projects merely on the basis of Rapid Environment Impact Assessment.  This is based on one season data, which technically implies a 3-month period, but is normally a one-month data.  Again there is no clear procedure to establish whether the data has been collected afresh or collated secondarily.  This effectively provides an impression that some level of scientific work has been undertaken, whereas in real terms the quality of the scientific methodology involved is highly questionable.

2.       Violation of Conditions granted:  Often, conditions are violated blatantly and the violators get away scot-free with the Ministry of Environment and Forests lagging in enforcing penal action against the violators as per law.  The immediate action that needs to be taken for not fulfilling the conditions is that the environmental clearance should be revoked.  This is not done in most cases and a classic example for this is the clearance accorded to the 1,000 MW thermal power plant of Mangalore Power Company proposed to be sited in the Dakshina Kannada region. 

3.       Quality of Conditions Framed:  A quick perusal of clearances granted by MoEF to a variety of projects bring to light the typical terminology used in defining conditions.  Some examples are listed:  "carefully examined", "strict compliance", "adequate facility", "regular monitoring", "sufficient funds", "properly trained", "appropriate measures to improve design and operating practices", etc., etc.  It may easily seen that none of these terms can be considered as clearly defining a particular type action that should be undertaken, which can be reviewed credibly based on existing standards and most importantly can be held per law to penalise non-compliance.  Such conditions reflect a lack of appreciation of the fundamental importance that clearances play in mitigating environmental damage within the concepts of sustainable development.  Were such terms used occasionally, it could have been ascribed to the lack of rigour on a few officers in applying their minds to the task on hand.  However, it is distressing to note that such terms are prevalent, rather than rare, and are seen to be acceptable, than being questioned.  This approach must be fundamentally revamped and clear and specific conditions, even exhaustively describing the compliance per existing standards, manuals, treaties, etc. should be the norm from framing.  The outcome of this will be that monitoring mechanisms would be tightened and violations framed can be easily defended in the Court of Law. 

4.       Monitoring Roles:  Monitoring roles are exceptionally important steps in ensuring that environmental degradation is mitigated, especially in highly polluting industries.  Presently the Regional Office is mainly responsible for monitoring and reporting to the Central Office.  However, the decision is taken at the Central level.  This has time and again proved to be a dis-jointed process as the Officer who has monitored is not empowered in framing the conditions thereof and the officer framing the conditions has no ground knowledge of the impacts.  Quite clearly in environmental compliance issues, there is simply no possibility of critical evaluation based on secondary data and information.  There is thus an immediate need to change this process and empower the investigating officer in formulating follow-up, rather than the existing scenario.  

5.       Compliance Reports:  Presently a 6 monthly report of compliance is to be filed by the project authority.  This is made available to the public on demand.  What action is taken thereafter is not subject to public scrutiny.  It would in the best interest of maintaining local environment that the review and recommendations following monitoring by the MoEF is also brought into the public domain.  This will not only ensure a more benign reflection of the Ministry's creative interest in ensuring transparency, but will also bring in public involvement with technical input for better maintenance of local environment.

6.       Clearance bloopers:  There have been instances where quite a few clearances granted have bloopers of a most interesting nature. The clearance granted to the Almatti dam project is a classic case and contains the following condition:
"3 (vi) Six monthly monitoring reports should be submitted to the Ministry and its Regional Office, Chandigarh for review." And the very next condition reads:
"4. Officials from Regional Office MoEF, Bangalore would be monitoring the implementation of the environmental safeguards….".  It is clear that the former condition may have been an oversight, but quite strangely there are several clearances which are marked by such blatant errors.  Almatti being in Karnataka, how Chandigarh comes into play is an issue that could become legally embarrassing at a later date.  What this reflects is that the such an important task as issuing environmental clearance is often done in a very lackadaisical manner. 

 

 

Public Hearing Process

 

1.       Quality of Information:  The 10th April 1997 Amendment to the EIA Notification makes Public Hearings mandatory for all projects listed in Schedule 1.  The process of calling for the hearing and the conduct of the same is defined.  If effectively utilised, this could empower local populations tremendously in having some control over decision making processes that directly impact them.  However, a critical area of concern remains the quality of information provided, as public has access only to the Executive Summary of the project and that prepared by the developer, giving room for advocating one’s project rather than making an objective statement of potential impacts.  Further, given the low awareness of the processes involved in industrial and infrastructural developments, the Public Hearing process may end up as a mere formality, if no clear initiatives are taken presently.  There is a great role for public interest advocacy agencies to play here and increase the level of awareness of local populations and empower them with such information that would enable them to make rationale choices.

2.       Experience of Recent Hearings:  The experience from recent Public Hearings is that the project developer and the agency conducting the hearing are extremely secretive of the information.  The Executive Summary is often a brochure and contains little quality information.  People participating in the Hearings are becoming disillusioned and often this is breeding conflict, that very thing that Hearings sought to avoid.  Considering the present move to introduce the Right to Information, there is clearly no need to make EIAs and related documents secretive as they absolutely do not impinge on the security of the nation.  An amendment to the Notification is thus needed immediately to allow access to all detailed environmental information on the project to ensure transparency, build public confidence, negate conflicts and develop conditions with public input that is of a high quality.

3.       Capacity Building:  There is also an emergent need to train the length and breath of this country in the conduct of and participation in Public Hearings, including by developing modules and audio-visual programmes for training, so this healthy process is evolved to maximum public interest advantage.

4.       Follow-up:  The follow-up after the Hearing should also be made available to the Public, for instance the report of the Public Hearing panel.  Also Hearings should be held post clearance and post project implementation to ensure proper compliance and develop confidence amongst the local community.  World-wide, such healthy openness and engagement of local communities has brought reputation to regulatory agencies and helped protect the environment.

5.       Widening the Hearings Base:  Public Hearings should also be made applicable to project involving Forest Clearance  and those with high impact that are not presently within the purview of Schedule I.  Eg.:  Massive automobile units are not included, though they have foundries and thus have major impacts.  The Toyota Kirloskar factory at Bidadi near Bangalore was cleared without Public Involvement even when the Special Secretary of the Karnataka Dept of Environment had insisted the need for Public Hearings.

Theme 3:  Decentralisation of the Clearance and Review Mechanism

 

Some Possible Steps that could be adopted:

 

1.       Improving Democratic Involvement content:  Perhaps a most critical feature that needs to be addressed in the environmental clearance cycle is that the entire process is initiated under bureaucratic control and is highly centralised.  The process of conducting “Public Hearing” is the only visible democratic intervention openly accessible to the public.  Apart from a representation of local elected representatives and leading citizens on the panel, there is no proviso for a project and its impacts to be discussed and debated in local elected bodies. 

2.       Integrating Environmental Management with Local Government Involvement:  The involvement of the public and rationalisation of development projects and priorities has been provided for in the Town and Country Planning Legislations, and more recently in the 73rd and 74th Amendments.  These enactments require a very high degree of involvement within the planning processes by local bodies.  However, the set of environmental legislations presently in force do not recognise this need adequately.  Most decisions are left to the interpretation of regulatory agencies with no specific requirements for integration of the local demands and concerns.  The existing mechanisms within the prevailing environmental clearance cycle are largely exclusive of local government interventions and concerns, despite the requirements for the same as per “enabling planning legislations” (eg. Town and Country Planning Act) and those of local self government ( 73rd and 74th Constitutional Amendments).  In recognition of the principles laid down in the 11th and 12th Schedule, therefore, it is essential that local governments be an integral part of the environmental clearance cycle.

3.       Devolving Powers:  Considering that the Ministry has to comply with the letter and spirit of the Constitutional 73rd and 74th Amendments, it would be worthwhile to explore the possibility of evolving a system of Regional Directorates to devolve powers of clearances and monitoring at more local levels than is presently the case.  Such Directorates should cover a range not as extensive as present Regional Offices, but without increasing administrative burden should work with State Regulatory agencies to evolve strong clearance and monitoring discipline.

Theme 4:  Scientific and Technical Capacity Building of the Ministry of Environment and Forests

 

 

Preamble: 

 

The functioning of any administrative setup is effective only when there is a healthy system of monitoring performance and promoting excellence.  Government administrative setups are constantly attempting to meet such standards.  The Tiwari Committee Report of  1980 envisaged a Technical Department of Environment akin to the US EPA that would consist of technical staff with the capacity to respond to the challenges of environmental pollution, and natural resource management.  The enclosed article from Economic Times (published during 1997) analyses how far the Ministry has achieved these goals.

 

The Ministry's functioning today is in the least governed by the rationale set out by the Tiwari Committee, and functions more along the dynamics between the four major cadres of officers that man it.  These are the Civil Services, Forest Services, Secretarial Services and Scientific Services.  For instance the top decision making rung of the Ministry ranging from the Secretary to the level of Under Secretaries include about 25 officers from Civil Services, 25 officers from Forest Services, 50 officers from the Scientific Services and rest are from Secretarial Services in a total number of 150.  It may appear that the Scientific Services are considerable in number.  However, the reality is somewhat different as the key decision making officers are either from Civil Services or Forest Services.  Scientific opinion is by and large advisory in nature and subservient to the compulsions placed by the Administrators.  For instance the constitution of the National Coastal Zone Management Authority is a good case in point. 

 

 

Performance Review System:

 

In reviewing the functioning of the Ministry, what is effectively in place is the "Confidential Reporting" system, which forms the only basis of monitoring progress and as well granting promotions.  Here again there is problem in building the confidence of the Ministry officials in their technical achievements as their review is essentially effected by bureaucrats who have no significant background or capacity to review the specialised skills and competence.  Thus there is the tendency to underestimate the technical import of the tasks on hand, and present the functioning of the Ministry in administrative terms (say for instance number of clearances granted) than to evaluate the quality of the functioning (that is to analyse whether the existence of the Ministry has helped improve environmental quality in the country).

 

Presently Governments undertakes review of performance based on a five-point scale.  This is essentially based on an archaic process that has been by and large abandoned world-over, including in most progressive government establishments, both in the developing countries and developed nations as well. 

 

The present process of reviewing the Candidate's performance by Reviewing Officer is based on the Reporting Officer's comments, and not on the basis of personal interaction or interview with the Candidate. Further, it is only a file transfer mechanism and there is no joint interaction between the three officers.  Fundamentally it must be noted that the Reporting Officer who is mainly involved with Candidate whose performance is being reviewed has absolutely no role in grading.  This is a crucial gap as s/he is best suited to evaluate the candidate having been interacting with him/her day in and day out.  Thus, to provide no power of grading to this Reporting Officer gives rise to a variety of complex problems.  Some of them are listed below:

 

1.       Lack of Interaction during Review:  The Reviewing Officer who has the power to grade operates in a vacuum, and has to rely either on the Reporting Officer's entry in the CR or his/her own opinion formed based on hearsay.  This would have been alright were the Reviewing Officer closely interacting with the Candidate. However, it is not clear if such interaction is taking place through regular personal meetings.

2.       Lobbying of Better Grading:  In such a setup, there is tendency on part of the candidates to please the Reviewing Officer and thus the Reporting Officer could be sidelined, despite having the best knowledge on candidate's performance.  In cases of candidates who would not resort to such questionable steps of influence, the possibility of their review being attended to fairly will be marginal.  Further, there is a major possibility of unhealthy influences operating on the Reviewing Officer, and given the vacuous situation in which s/he has to grade the candidate, it is very much possible due to this systemic deficiency that the Grading is not necessarily reflective of the reality.

3.       Inter-cadre inconsistencies:  There has also been a convention in the Ministry that Reviewing Officer has normally been from the Civil Services.  There could be the possibility of the Reviewing Officer being biased by inter-cadre disagreements leading to inconsistencies in evaluation and reviews.  Thereby leading to a most unhealthy process that destroys administrative discipline, develops cynicism and brings down the morale of the officers.  A combination of these factors work to inhibit the possibility of high levels of performances from officers.

4.       Technical Competence Review:  There is very poor review of technical competence of Candidates.  Considering that all Secretary level positions have been occupied from the Civil Services (including Indian Administrative Service, Indian Postal Service, Indian Railway Traffic Service, Indian Railway Accounting Service, Indian Audit Accounting Service and Indian Revenue Service), the system of reviewing performance of Technical Staff of the MoEF is thus left to Reviewing Officers who have no qualifications for the same.  Apparently, civil service officers enter into the Ministry on the basis of having had a background in science/engineering in their basic education.  Certainly such knowledge basis, that has over years become dated, must not form the basis for reviewing technical skills in the apex body of the Government of India dealing with environment and forest issues.  In a country where industrial operations are increasingly complex, industrial disasters frequent, and natural disasters rampant, high technical skills are an essential prerequisite.  It is only when technical officers are reviewed by technically competent people, even if exterior, that the Ministry will be able to guage whether it has the wherewithal to deal with the complex task of monitoring, regulating and mitigating environmental pollution or avoiding damage altogether.  It may be worthwhile to examine the possibility of establishing clear standards verifying the technical and scientific competence growth areas of the candidate.

5.       Poor Documentation:  The Proforma for documenting performance requires overhaul as it does not provide the scope or capacity for comprehensive evaluation of the candidate.  It is merely a technical fix that is presently in place, and enables quick entries lacking depth of review.  Several of the items forming the basis of the present evaluation proforma are undefined and in some cases irrelevant.

6.       Feedback of Review:  There is no feedback to the candidate providing details of assessment in order to encourage higher levels of performance. Such a process is often a fundamental norm of any evaluation.  To have completely steered clear of this requirement develops an attitude of deference to higher authorities rather than a climate of healthy criticism that is essential in a technical Ministry.  A windows open approach enables the candidate to identify strengths and weaknesses, provides a clearer understanding to the Senior Officer to position the Division's performance more appropriately and works together to build a Ministry that is competent and responsive to the public need. 

 

 

Capacity Building:

 

1.       There is an acute need to develop curricula, varying levels of training and evolve modules for conducting periodic refresher courses with specialised topics to bring the Officers of the Ministry on par with latest scientific understanding of environment and pollution control technology.  Such refresher courses should also involve administrative management aspects and environmental law and policy awareness. 

 

2.       The World Bank loan granted to Environmental Capacity Building project is unfortunately not been utilised to develop such capacities, even when there have separate categories to develop capabilities of Regional Offices and Environmental Law, for instance.

 

 

 

 

Theme 5: Submissions vide MoEF Notification dated 21 June 1999 w.r.t. Siting of Industrial Projects

 

                                                                                                Submitted: 20 August, 1999

 

Process of Review of Industrial Siting Applications, suggested for inclusion:

 

1.       Establishment of new industrial units or expansion of existing units covered under Annexure I and III of the notification, should be based on a comprehensive review by the appropriate District Planning Committee (DPC), constituted per the Constitutional (74th Amendement) Act, within whose jurisdiction the investor proposes to locate the plant.  All information pertaining to the project should be made available for review by the DPC.

 

(Explanation:  Annexure 12 of the Constitution details a list of items that provide local governments with review powers with regard to Urban planning, regulation of land-use, water supply for industries, infrastructure development, protection of environment and promotion of ecological aspects, etc.  The District Planning Committee is proposed with the primary purpose of evolving planned development and integrating local socio-economic developmental objectives in a politically participatory and environmentally sustainable manner.  As major industrial developments do influence local development in a very significant manner, the most appropriate forum of judging the advantages and disadvantages of a particular industrial investment would be the DPC.  Importantly, it would provide impetus for decentralised decision making, that which is advocated by the Panchayat Raj and Nagarpalika Acts.)

 

2.       In formulating its opinion, the DPC shall be assisted by an interdisciplinary panel of experts constituted in consultation with the State Department of Environment.  The range of expertise to be involved in the Expert Panel may follow the pattern of the Site Appraisal Committee illustrated in Sec. 41 A of the Factories Act and also include a Urban and Regional Planner, Social Scientist and Economist.  The opinion formulated by the DPC must be recorded in detail and without any exception whatsoever.  The same shall be achieved prior to the designate Environmental Public Hearing on the project called per the EIA Notification.

 

(Explanation:  As such industrial ventures involve highly complex decisions, a progressive interaction amongst the various tiers of governance is highly desirable.  Considering that the range is too large for the Union Ministry of Environment to be involved directly in each and every siting decision, a process of empowering Local and State Governments in the decision making cycle is desirable.  This would not only lighten the burden of critically evaluating each project at the central level, but would also increase chances for evolving a decision that is locally acceptable.  Considering that such decisions would most necessarily require positive political and local community responses, that which is secure in scientific rationale, the Expert Panel would be an effective instrument of support.  The review by this forum prior to the Environmental Public Hearing will enable a more informed debate in the Public Hearing, and as well enable a more focussed discussion of critical concerns.)

 

3.       The DPC’s opinion on the project siting shall be placed for public comment and review, along with all other detailed information on the project for the purpose of conducting the designate Environmental Public Hearing.  Public comments placed during or prior to the hearing, should be documented without exception.

 

(Explanation:  Enables transparency in decision making, helps develop the quality of the decision, provides scope for conflict resolution at local levels and prepares ground for progressive engagement between the investor, local community, parastatal bodies, and the various tiers of governance.)

 

4.       A Draft Final Report of the DPC pertaining to siting considerations shall be prepared on the basis of the Public Hearing and shall contain clear and qualified opinion with regard to the siting. The Final Report should once more be placed for public review and a Public Hearing called to debate/discuss the opinion produced.  Necessary corrections may be integrated, and further Hearings called if needed.   Based on the evolved consensus, a final decision with regard to the siting may be taken by the requisite authorities.

 

(Explanation:  This would further build confidence and help in completely resolving resident doubts.  It would guarantee transparency in decision making and thus probably limit need for litigation.)

 

5.       All documents pertaining to the project should be available on demand for public review at the offices of the local Panchayat/Nagarpalika.  Only such information that directly compromises proprietary interests may be excluded from public review.

 

(Explanation:  Right to Information will be enabled and accurate documentation will develop public confidence in such review processes.  This would heighten chances for reduced conflicts on locational aspects.)

 


Siting Criteria:

 

6.       Industrial Siting criteria should be in compliance with Part III of the National Building Code of India pertaining to Development Control Rules and such other standards evolved in the Code as may be relevant to the project in question. 

 

(Explanation:  This voluminous text of standards, endorsed by the Bureau of Indian Standards Act, would enable a great many decisions pertaining to industrial locations.  Such symbiotic arrangements would help evolve a sense of planned development, and avoid repetitive legislation.)

 

7.       Industrial Siting must fully comply with local Town and Country Planning laws.

 

(Explanation: For the simple reason that industrial location is primarily a question of land use planning.  Further, it would limit chances for unplanned corridor development, occurrence of unplanned industrial estate development, and improve chances for a coordinated development of industrial townships.)

 

8.       No application for siting of industry included in Annexure I and III of this notification should be considered in ecologically sensitive areas.  Such areas must be defined on the basis of the findings of the Expert Committee appointed by the Ministry vide its office memorandum Dated 6.4.99 for identification of ecologically sensitive areas which has been specifically empowered to detail:
1. Parameters for the identification of ecologically sensitive areas;
2. List ecologically sensitive areas; and,
3. Identify type of activities that may be allowed in such areas.
In view of such review in process, and based on the criteria evolved, State and Local Governments must be directed to prepare a Register of Wetlands of Importance and ecologically sensitive areas, in and around which there should not be any industrial development allowed.  Such preparation may be done with constant engagement of local educational and research institutions and the public at large.

 

(Explanation:  Since it is an ongoing process of the Ministry, it would be best to await the final report of this committee so there is unity of thought between the proposed Annexure II items and those that will be proposed by the aforementioned committee.  Given the extent of this country it would be an impossible task to prepare such a list in short time.  Thus the process has to be ongoing, and can best be achieved if and only if local and state Governments are involved in the exercise.  A Register will help standardise information toward constantly identifying sensitive habitats, and involvement of local expertise will enable broad-basing of this extraordinary exercise.)

 

9.       The Advisory Committees of the Ministry pertaining to Industry, Infrastructure and Thermal Power Plants must annually review Annexures I and III from the point of view of expanding, restructuring and making the lists more comprehensive and reflective of on-ground demands.

 

(Explanation:  This would enable the Ministry to be responsive to the latest evidence available on industrial location risks, enable the evolution of planned development and most importantly, reflect a constantly improving mechanism.)

 

 

Exclusion Zones:

 

 

10.   The exclusion zones that are proposed on the basis of avoiding locations proximal to dense human settlements, sites of archaeological importance and ecologically sensitive areas needs to be revised.  

 

(Explanation:  For instance, if we were to assume that a city with a population of 1 million were to be protected from industrial proximity, 25 kms. from city limits as proposed, then how would we consider a city with 900,000 population.  Would there be any exclusion limits at all?  By the proposed notification, it would not be unlawful to have major industrial locations just outside of such a city.  Such criterion creates a range of problems across the country.  A more appropriate mechanism would be to develop standards for creating exclusion zones based on population density and extent of city area.   This way even small towns and cities would be protected. 

 

With regard to the sites of archaeological importance, it would be best to declare a exclusion zone for all new units around all ASI sites.  Not only would this shift the responsibility on the ASI to constantly update its lists, but would make the notification reasonably accurate.  For instance, several sites of ASI importance have been ignored in Annexure IV, and too many errors have occurred in listing sites.  Eg.:  The famous Vijayanagar ruins at Hampi are shown as located in Bijapur district, when in fact there are near Hospet in Bellary district of Karnataka.  The famous Hoysala creations of Belur and Halebid do not find mention at all.  Simply put, too many exclusions, and too many errors that could have been easily avoided with just a simple statement that “a 7 kms exclusion zone is declared for all new units around ASI monuments”, or something to that effect.)

 

 

 

Annexure A:  Clearance Mechanism per Forest (Conservation) Act

 

The existing process of clearance of a Proposal brought forward by an investor requiring clearance under the FC Act involves the following steps:

 

State Level:

 

Investor presents a proposal to the State Government seeking clearance, by informally contacting the District Forest Officer (DFO) of the State Forest Dept.  The DFO verifies the facts through his/her subordinate (often Range Forest Officer - RFO).  The file is then dispatched to the Principal Chief Conservator of Forests (PCCF) for scrutiny.  Should the application involve clearance under Wildlife Act, the PCCF seeks the opinion of the Chief Wildlife Warden.

 

Central Level:

 

The PCCF then sends the proposal to the State Department of Environment and Forests (DFE).  The DFE forwards the Proposal with file to the Union Ministry of Environment and Forests (MoEF), accompanied by a Resolution of the local Gram Panchayat/Sabha.  A copy is marked to the Regional Office of MoEF.   The Central Office of the MoEF also marks a copy to the Regional Office.  The Regional Office inspects the site and files a report with Central office of MoEF. 

 

Communication of Decision:

 

The Central Office communicates its decision to the State DFE, which in turn forwards the decision to the PCCF, who in turn informs the concerned DFO to inform the investor of the decision taken.

 

Conditions:

 

·         A 90 day period for according final clearance commences only when the MoEF receives proposal.  There is no such provision for the State Level.

·         There is no provision for deemed clearance.

 

Project Scales and Clearance Levels:

 

For project involving forest clearance upto 20 ha., powers have been vested with the Regional CCF, and there is no need for assent of Central office of MoEF.  For projects where clearance for upto 5 ha of forest land is involved all powers are vested with the CCF.  However, for areas between 5-20 has. the CCF will have to take a decision in concurrence with the State Government.  The process for this is as follows:

 

The State Government through the DFE appoints a State Advisory Group (SAG) with the Chairperson being the Regional CCF, Member Secretary being the Nodal Officer of the State Forest Dept. (usually Conservator of Forests rank) and 2 Members drawn from related departments.  The SAG's  decision is communicated by the Regional CCF to the Addl. IG of Forests at MoEF who in turn forwards the decision for comments to the IGF and finally with the approval of the Union Minister the decision is communicated back through this very loop to the Regional CCF, who then issues an appropriate order to the State DFE to be communicated to the investor.

 

Only in the case of mining and encroachment regularisation is the file sent to the Addl. IGF irrespective of area involved.

Annexure B:  Environmental Clearance Procedures

 

The EIA Notification issued by the Ministry of Environment and Forests in 1994 formally ushered in the requirement of an Environment Impact Assessment/Environment Management Plan to be submitted along with the application for environmental clearance. It may be observed, at the outset, that there is absolutely no involvement of the local governments, be it urban or rural.  The lowest rung of governance involved is the State Government, and its subordinate, the State Pollution Control Board.  Such a clearance procedure was considered adequate by the Ministry of Environment and Forests which issued the Environment Impact Assessment Notification in 1994.

 

The broad features of the EIA notification include:

 

1.       Application of this notification for all projects listed in Schedule 1 of the notification.

2.       Mandatory Public Hearings have to be held by the State Pollution Control Board prior to processing the project for according no-objection certificate (NOC), per Water and Air Acts.  This proviso was included by an amendment to the notification on 10th April 1997. Projects with investment over Rs. 500 million must obtain environmental clearance from the Ministry of Environment and Forests before commencing the project.

3.       Site specific projects, identified in the notification, must obtain site clearance from an Expert Committee constituted by the Ministry.

4.       Deemed clearance provided if the project is not verified within ninety days of submission.

5.       Conditional clearance provided on the submission of Rapid EIA at the discretion of the Ministry of Environment and Forests.

6.       By an amendment of the CRZ Notification on 9th July 1997, the Ministry of Environment and Forests has relaxed clearance conditions for certain types of activities requiring sea fronts (including single point mooring and single buoy mooring), and enables the Ministry of Surface Transport to clear these projects directly.

 

The review of the project commences with the investor submitting an application along with the EIA/EMP, DPR and 20 sets of the Project Summary in English and the local language to the State Pollution Control Board seeking No-objection Certificate from the Water and Air Acts point of view.  The State Pollution Control Board then issues a 30 day public notice in at least two widely circulated newspapers of the local area, one of which has to be in the vernacular language.  The affected public and any public interest group can have access to the Project Summary only at any of the Centres mentioned in the Notification.

 

The Public Hearing is held by a panel constituting of members drawn as follows:

 

(i)      Representatives of the State pollution Control Board;

(ii)     District Collector or his nominee;

(iii)   Representative of the State Government dealing with the subject;

(iv)   Representative of the State Government dealing with the Environment;

(v)    Not more than three representatives of the local bodies such as Municipalities or Panchayats;

(vi)   Not more than three senior citizens  of the area nominated by the District Collector;

 

Following the public hearing, the State Pollution Control Board can accord NOC to the project based on a technical review of the criteria involved from the Water and Air Acts and considering the issues that have been raised during the Public Hearing process.  It then submits the project documents, along with the NOC and recommendations of the Public Hearing panel to the State Department of Forests, Environment and Ecology. 

 

If the project falls within the hazardous projects listed in Schedule I of the Factories Act, then the State Government prior to granting permission will have to appoint a Site Appraisal Committee comprising of such experts as delineated in Section 41 of the Factories Act.  They include:

 

1.       The Chief Inspector of Factories and Boilers of the State as the Committee Chairman

2.       Two representatives of the Central Pollution Control Board to cover aspects of air and water pollution

3.       Two representatives of the State Pollution Control Board to cover aspects of air and water pollution

4.       One representative of the State Department of Environment

5.       One representative of the Meteorological Department of Government of India

6.       An expert in the field of Occupational Health

7.       A representative of the State Town Planning Department

8.       Not more than five nominees of the State including:

·         A scientist having specialised knowledge of the hazardous process which will be involved in the factory

·         A representative of the local authority within whose jurisdiction the factory is to be established

·         Not more than three persons as deemed fit by the State Government

 

The Site Appraisal Committee on perusal of documents and assessment of the site make its recommendations to the State Government within ninety days[1] of receipt of the application in the prescribed form. This process is initiated in parallel to the review by the State Pollution Control Board.  This is because with the appointment of the Site Appraisal Committee, the Factories Act empowers the State Government to completely bypass the need for further review by either the State or Central Pollution Control Boards.  In the light of the April 97 Amendment to the EIA Notification it is not as yet clear if this would mean by-passing the mandatory public hearing, as most Schedule 1 projects per EIA notification are also hazardous by Factories Act.[2] 

 

On obtaining the clearance of the State Government, the project is reviewed by the Ministry of Environment and Forests for according final environmental clearance.  This normally involves appraisal by an Environment Appraisal Committee/Impact Assessment Agency (EAC/IAA) (and usually the Ministry of Environment and Forests clears the project on the basis of the NOC with few additional conditions.  For site specific project, the Ministry is required by the EIA Notification to conduct the evaluation and assessment of development project at the Central (or State level?) by constituting an Expert Committee comprising of experts, not exceeding 15 members, in the areas of

 

1)       Eco-system management

2)       Air/Water Pollution control

3)       Water Resource Management

4)       Flora/Fauna conservation Management

5)       Land Use Planning

6)       Social Sciences/Rehabilitation

7)       Project Appraisal

8)       Ecology

9)       Environmental Health

10)   Subject Area Specialists

11)   Representatives of NGOs/persons concerned with the environmental issues.

12)   The Chairman will be an outstanding and experienced ecologist or environmentalist or technical, professional or with managerial experience in the relevant development sector.

13)   The representatives of Impact Assessment Agency/Central/State will act as a Member Secretary.

14)   Chairman and Members will serve in their individual capacities except those specially nominated as representatives.

 

The EAC/IAA on the basis of NOC accorded, technical review by the State Government and Expert Reviews if any, makes recommendations to the Ministry of Environment and Forests to accord final clearance to the project.  The summary of the recommendation is available to the public on request.  The Secretary of  Ministry of Environment and Forests then grants the project final clearance which is valid for a period of five years for the declared location and capacity.  The developer is expected to file compliance reports half yearly, which again is a public document.

 

Amendment to the EIA Notification to enable quick clearance of thermal power plants

 

With the initiation of the New Economic Policy, the Government of India liberalised the Indian Economy and threw open the power generation and transmission sector for investment by the private sector, in order to offset the widening demand-supply gap.  Environmental clearance mechanisms were considered time consuming and cumbersome and there was pressure on the Ministry of Environment and Forests to accord quick environmental clearance to the tens of power projects that were proposed to be set up all over the country.  Consequently., it was decided by the Government of India that environmental clearance for certain types of thermal power plants could be accorded at the State Government itself, completely doing away with the requirement of the central clearance.  This despite serious concerns raised within the Ministry that the State Governments were not equipped to deal with the technical import of these decisions.  The scale of projects that can therefore be cleared at the state level consequent to the 10th April 1997 amendment of the EIA Notification include:

 

Cogeneration Captive Plants

 

(i)      Cogeneration Captive plants:  All cogeneration captive plants irrespective of the installed capacities.

(ii)    Captive Power Plants:  Upto 250 MW (both coaland gas/naphtha based) coming up separately and not along the main industry.

 

Utility Project:”

 

(i)      Coal based plants upto 500 MW using fluidized bed technology subject to sensitive areas restrictions.

(ii)    Coal based power plants upto 250 MW using conventional technologies.

(iii)  Gas/Naphtha based plants upto 500 MW.

 

For any project proposed to be located within the radius of twenty  five Km boundary of reserved forests, ecologically sensitive areas which may include National Parks, Sanctuaries, Biosphere Reserves, critically polluted area and within fifty Kms of inter-state boundary environmental clearance from the Central Government will be required.

 

 

Levels at which project can be rejected

 

As per this environmental clearance cycle, the project can be rejected on a variety of grounds including:

1)       Wrong submission of facts

2)       Incomplete application and submission of details

3)       Wrong recommendations, etc.

 

On such basis and review at various levels the project can be rejected, by the Pollution Control Board either before or after holding of the Public Hearing, by the State Government on the basis of evidence provided by the Site Appraisal Committee or any other evidence that questions the veracity of the NOC granted by the Board, by the Ministry of Environment and Forests on the basis of the recommendations of the EAC or Expert Committee as the case may be.  If rejected the projected can be re-submitted after suitable modifications only once, and if it fails a second time the application is summarily rejected.


[1] To avoid time lag leading to deemed clearance if not reviewed withing ninety days, an administrative trick normally adopted for all projects is to make some technical query, or request additional information, so as not to allow for deemed clearance.

[2] Such an instance has already occured in the Dakshina Kannada district, with the Case Study 3 in Section B of the report, that of the establishment of the Engelhard Highland Dyes Manufacturing Unit, falling fully in this territory.  Since the process involve manufacture of pigments, as per the Factories Act the industry is considered hazardous, and the siting should have been cleared only on the recommendations of the Site Appraisal Committee.  However, the factory started construction even prior to obtaining the NOC from the Pollution Control Board, and only after public agitation from the affected population was a Committee of experts constituted to look into the siting aspects, that when the project construction is nearing completion.  The report of the Committee headed by the Secretary to the Dept. Of Environment is awaited.