Recent changes in the environment clearance process for India’s most polluting industries will allow them to expand their capacity and change their raw materials without seeking the central environment ministry’s approval. This dilution of rules may not only worsen India’s high pollution load but also result in lethal industrial disasters, experts warn.
The March 2021 amendment to the Environment Impact Assessment notification of 2006 reduces the scrutiny of habitually polluting units such as petrochemical, cement and fertiliser factories wishing to undertake critical changes in capacity and product mix. Earlier, these units could increase their capacity only up to 50% without a fresh clearance from the Ministry of Environment, Forest and Climate Change. Now, they only need to secure a “no increase in pollution load” certification by a government-empanelled auditor or institution. And there is no longer a limit on the expansion.
This dilution in rules shows an abdication of responsibility on the environment ministry’s part, said experts. Not only do Indian industries have a weak track record of compliance with pollution control rules but also systems put in place to allow relaxed scrutiny – such as the Online Continuous Emissions Monitoring System – have been patchily implemented, as we explain.
Also, the limited scrutiny of a unit’s expansion, while ignoring the impact of associated activities such as road building, power supply and waste treatment, underestimates the environmental risk, experts said.
The highly lethal gas leak at the LG Polymers factory in Visakhapatnam on May 7, 2020, may have been “indirectly caused” by the unit’s poorly scrutinised expansion carried out without the requisite environmental clearance, said the report of the panel that investigated the disaster.
Rameshwar Prasad Gupta, secretary, the environment ministry defended the move on the grounds that prior approvals are not a fail-proof fix for polluting industries though he admitted to the problem of compliance. “Laws and prior approvals are no substitute for good compliance. We are also working on this issue,” he said, “Having prior approvals does not solve our problems, our compliance will have to increase irrespective of whether we have prior approvals or not.”
We discuss some such steps to improve compliance, such as the installation of the Online Continuous Emissions Monitoring System, later in the story.
‘No lessons learnt’
The leak of styrene gas from one of the storage tanks at the chemical plant of LG Polymers India in Visakhapatnam in coastal Andhra Pradesh killed 12 people and made hundreds ill. This was one of the worst gas leaks since the 1984 Bhopal gas tragedy that killed over 5,000 people and left lingering side-effects on over half a million.
LG Polymers had expanded its polystyrene production without a valid environmental clearance from the Union environment ministry and this may have indirectly led to the accident, concluded the high-power committee constituted by the Andhra government to probe the disaster. It reported that the company had expanded operations six times (production went up from 235 tonnes per day to 313 tonnes per day) between 2004 and 2018 on the basis of just approvals from the state pollution control board. As per the EIA notification of 2006, this clearance should have come from the environment ministry.
An appraisal of the project’s expansion by the Union environment ministry would have involved stricter scrutiny on two counts: It would have taken into account the project’s potential impact on human health and natural and human-made resources. This would have been done by the relevant sectoral Expert Appraisal Committee based on an Environment Impact Assessment report. An EIA report, among other things, includes baseline data on pollution and natural resources.
Second, the project would have been subject to a public hearing and consultation under the EIA notification of 2006, which allows citizens living around the project site the legal space to voice their concerns over suspected risks from a project to themselves and their communities.
“In case the LG Polymers had made an application on time, perhaps the terms of reference would have addressed the possibility of leakage of vapours/gas from the storage tanks/processes,” the probe report said.
Former bureaucrat and Vishakapatnam-based social activist EAS Sarma criticised the manner in which the LG Polymers issue was handled. The fact that similar accidents happened in other plants in the area subsequently showed that no lessons had been learned from the disaster, he said. In its report, the probe panel said that LG Polymers bears “absolute liability” as a polluter but in its concluding remarks, it only offered administrative and regulatory suggestions to the state pollution control board.
Sarma said that at the time of clearing successive expansions at LG Polymers, the state pollution board had been aware that the unit had not secured the prescribed environmental clearance but ignored the fact. “The Union environment ministry which is required to ensure that no industrial unit functions without an environment clearance never cared to monitor and enforce the same,” he added.
The unit was set up when the population around it was small. As the population density increased, Sarma explained, the risk factor increased. “When an expansion takes place in a densely populated area, it can have widespread and long-term environmental and health implications. The two laws for preventing air and water pollution, under which pollution control boards are created, require them to make an assessment of the location of an expansion from that point of view but the Andhra Pradesh Pollution Control Board ignored it in the case of LG,” Sarma said.
The operations at LG Polymers have ceased and all its permits, licenses and consents were withdrawn after the incident, an LG spokesperson told IndiaSpend over email. The National Green Tribunal took suo motu cognisance of the gas leak and ordered the company to pay Rs 50 crore as interim compensation to the victims of the gas leak and for the restoration of the environment. The company had moved the Supreme Court against a few other directions of the NGT in this regard and the matter is pending.
Industries get exemptions
The March 2021 notification will apply to only those units which had obtained an environmental clearance while originally commencing operations. But highly polluting industries involving hazardous processes – those making pesticides, fertilisers, petrochemicals, cement, soda ash, asbestos and pulp and paper – as well as distilleries and coal washeries, among others – will benefit from it.
The industrial processes and product use covers greenhouse gas emissions that occur during industrial processes. These emissions can be caused by industrial activity, the use of greenhouse gases in products, and from the non-energy use of fossil fuel carbon, as per the guidelines of the Intergovernmental Panel on Climate Change. These are industries that transform raw material by chemical and physical means.
In 2016, India’s industrial processes and product use emitted 2,26,407 gigagram of carbon dioxide equivalent greenhouse gas, accounting for 8% of the country’s total emissions, as per India’s Third Biennial Update Report to the United Nations Framework Convention on Climate Change. A carbon dioxide equivalent is the metric used to compare emissions from various greenhouse gases on their global warming potential.
In this category, cement production is the largest emission source in India, accounting for about 47% of total industrial processes and product use sector emissions, the report said. Industries under this category need the Centre’s environmental clearance because of the significant impact their operations have on human health and resources, environmentalists say.
Now, as per the new notification, once certified by auditors, the certification for “no increase in pollution load” would be examined only by the State Pollution Control Board.
Along with certification, the industries also need to install and implement the Online Continuous Emissions Monitoring System and have it connected to the servers of the Central Pollution Control Board and State Pollution Control Board, the notification said. Industries would have to apply for an environmental clearance if the State Pollution Control Board concerned holds that the expansion or changes in raw materials will result in an increase in the pollution load.
Using existing data
Under the amended law, the pollution load of companies that have expanded operations will have to be checked based on the estimated emissions, effluents and discharge figures provided by them to the environment ministry when they obtained their initial environmental clearance.
Environmental lawyer Ritwick Dutta questioned this move. Why cannot the pollution data generated through online continuous emissions/effluent monitoring systems be checked to verify this pollution load, he asked. In February 2014, the Central Pollution Control Board had issued directions to 17 categories of highly polluting industries to install online continuous emissions/effluent monitoring systems to help to track emissions and discharge of pollution. “Instead of the auditors, the pollution control board should be checking if there is no increase in pollution load,” said Dutta.
This online continuous emissions/effluent monitoring systems system provides real-time data to Central Pollution Control Board and State Pollution Control Boards, the central and state-level pollution watchdogs. All the industries covered under the new notification were also covered under the Central Pollution Control Board’s directions. However, the system has taken off in fits and starts and remains non-functional in many places.
Continuous monitoring
The online continuous emissions/effluent monitoring systems were intended to increase self-regulation and help strengthen the monitoring regime. While the Central Pollution Control Board first directed 17 categories of industries to install the emissions monitoring system in 2014, the Supreme Court went one step ahead. In its February 22, 2017, judgment, it directed all states and Union Territories to make provisions for online, real-time, continuous monitoring systems to display emission levels, in the public domain, on the portal of the state pollution control board concerned.
However, of the 32 State Pollution Control Boards required to install the online continuous emissions/effluent monitoring systems as per the Supreme Court order, only 50% had complied with the judgment, revealed a 2020 analysis done by non-profit organisation Legal Initiative for Forest and Environment.
As many as 50% of the industries that required installation of online continuous emissions/effluent monitoring systems had not created the necessary portal. Of the 16 states and Union Territories that complied with the judgment, only six (38%) allowed users to assess historical data, five displayed data going back to 30 days and the remaining only current pollution levels.
In March this year, the NGT admitted a petition challenging non-compliance of the SC order on the installation of online continuous emissions/effluent monitoring systems. It directed State Pollution Control Boards and the Central Pollution Control Board to act against truant units and directed states to respond on whether pollution data was being made available publicly.
Dutta also pointed out that the expansion of industries and changes in product mix does not entail an increase in pollution load only via the main project unit but also through allied activities. The EIA notification of 2006, Dutta said, talks about the “potential for cumulative impacts”, which include the development of supporting infrastructure such as roads, power supply, waste treatment, housing, supply and after-use of the site.
“Production might be more efficient even after expansion due to the use of new technology,” Dutta said. “But increased production will be accompanied by an increase in transport, ferrying of supplies and such allied activities.”
Shortage of experts
Other experts said that the new notification will further weaken an already weak enforcement and compliance mechanism, as was also found by the Comptroller and Auditor General of India in 2017.
The new notification is in line with the overhaul of environmental regulations as suggested in 2014 by a high-level committee that was headed by former cabinet secretary TSR Subramanian, Kanchi Kohli, senior researcher at Delhi-based think-tank, the Centre for Policy Research, said. “The ministry’s high-level committee had introduced the concept of ‘utmost good faith’ as central to its recommendations. What has been rolled out through the introduction of ‘no increase in pollution load’ certification is the enforcement of the high-level committee’s suggestion,” she said.
The high-level committee was constituted in 2014 to review all major environmental laws and regulations of the country. The parliamentary standing committee on Science and Technology, Environment, Forests and Climate Change had, however, rejected this committee’s report.
Kohli said that companies that fail to comply with conditions set by the environment ministry while granting them clearances must not be given permissions to expand operations without due scrutiny. Also, public hearings must be held before a company is allowed to expand production or change its product mix, she added.
Between early 2015 and late 2017, State Pollution Control Boards had exempted 146 of 206 classes of polluting industries from routine inspections and allowed them to self-certify their compliance, IndiaSpend reported in January 2020.
The Central Pollution Control Board and State Pollution Control Board are also facing an acute shortage of technical experts, which is weakening their efforts to enforce air quality standards, we had reported in 2020.
“Public hearings prior to the grant of expansions were one opportunity where several unresolved impacts could be flagged and addressed,” Kohli added. “Moreover, impacts that were never disclosed as part of the impact assessment process can be officially recognised and steps taken to mitigate risks both for project-affected people and project operations. Therefore, it is crucial that there is a periodic review of all the promises and commitments made by project operators.”
This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.