India: Environmental Liability and Contamination RegulationsMar 6th, 2011 | By Ravi Costa and Sanjay Sampath | Category: Environmental Management, India
Despite the absence of a concise environmental regulatory framework with respect to soil and groundwater contamination in India, progress in protecting the environment has been made through application and expansion of existing environmental laws, use of proactive concepts including the polluter pays principle and the precautionary principle, and aggressive use of public interest litigation (PIL). This article summarizes our current understanding of environmental liability and contamination regulations in India.
Public Interest Litigation
Public Interest Litigation has had a profound effect on the development of environmental law in India. PIL allows any bona fide person to take a matter of public interest to the higher judiciary, even when the person who is supporting the cause is not personally or directly affected by the interest that is being brought to the courts. These PILs have given the judiciary enormous scope for intervening in environmental matters. Indian courts have been categorical in their adoption of the values of sustainable development and the “precautionary principle,” which asserts that a lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation where there are threats of serious and irreversible damage if the action is not taken.
The kinds of environmental issues that have been brought to the courts under PILs in the past include
- Riverine pollution by tanneries, industrial effluents, and untreated sewage;
- Soil and groundwater pollution;
- Indiscriminate mining;
- Protection of forests;
- Fencing of parks and sanctuaries;
- Preservation of monuments of archaeological and historical significance and their protection from vandalism and industrial pollutants; and
- Automobile pollution.
The judicial prescriptions have included
- Remedial measures offered by cleanup technologies;
- Liability measures based on application of the “polluter pays principle”;
- Monetary penalties; and
- Revised environmental standards.
The following sections provide further insight into the actual legislation prevailing under the various Indian acts and rules, the way the Indian judiciary has adjudicated some of the cases, and some case examples.
Legal Status of Contamination-Related Liability
Although India does not have specific soil or groundwater contamination standards, there have been many instances where companies have been penalized and held liable for soil and groundwater contamination. Contamination is identified and evaluated subjectively based on actual impact, potential impact, or risk to natural resources (soil quality and productivity, surface water, groundwater, etc.) and human health.
Applicable environmental laws concerning the cleanup of contaminated property follow the polluter pays principle and impose liability on property owners and operators. The penalties imposed have included site closure and recovery of the cost of remediation from the responsible companies.
Liability typically extends to individuals who have operational control, executive powers, or individual or joint ownership of assets. Since a board of directors has executive powers, statutory liability extends to all board members who are declared as Directors of the Company with the Registrar of Companies. Liability may also extend to senior officials who are not board members if they fulfill the above criteria.
Relevant Soil and Groundwater Laws
Under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Environmental (Protection) Act, 1986, it is a criminal offence to cause or knowingly permit any poisonous, noxious, or polluting matter to enter into the rivers, streams, groundwater, and coastal waters. The occupier of a facility has “strict liability” in this regard and the regulators (in this case the state or central pollution control board) need only prove that the pollutants originated from the concerned facility for the liability to be imposed.
Seepage of contaminants into a neighboring property causing damage to that property may also result in legal liability through modes of judicial activism. The remedy sought may lead to injunction through the Public Interest Litigation Act, 1991. The claim for cost of correction may be combined with a claim for direct and indirect damages.
A significant legal reference to contamination-related liability is in the Hazardous Wastes (Management and Handling) Rules, 1989, as amended in 2003. Section 16 of these rules mentions that the occupier of a facility shall be liable for damages to the environment resulting from the improper handling and disposal of hazardous waste listed in Schedules 1, 2, and 3. The liability extends to remedial costs (costs to “reinstate or restore damaged or destroyed elements of the environment”), which are payable in advance to the SPCBs, and also any fine that may be levied by relevant authorities.
Rule 25 of these rules states that
The occupier . . . of the facility shall be liable for all damages caused to the environment or third party due to improper handling of the hazardous waste or disposal of the hazardous wastes. The occupier . . . of the facility shall be liable to pay financial penalties as levied for any violation of the provisions under these rules by the State Pollution Control Board with the prior approval of the Central Pollution Control Board.
Public grievances, community complaints, and environmental activism by nongovernmental organizations most often take the form of PILs filed in courts by those who perceive themselves to be directly or indirectly impacted by contamination caused by industry. The liability in such cases may extend to remedial costs (costs to “reinstate or restore damaged or destroyed elements of the environment”), which are payable in advance to the SPCBs. Compensation for direct and indirect damages and punitive fines levied by the authorities may also be required.
Case laws refer to imposition of “strict and absolute liability” in contamination cases. A significant judgment may result in imposition of severe liability irrespective of the financial capacity of the polluter. In another litigation, it was ruled that the environmental liability is not limited by the asset value of the polluting facility and extends to the owners and top executives of the polluting facilities, unless “the person(s) concerned was able to prove that the offence was committed without his/her knowledge or that he/she exercised all diligence to prevent the offence.”
Disclosure of Environmental Contamination
Disclosure in the event of environmental contamination may be a regulatory requirement in India. The Water (Prevention and Control of Pollution) Act, 1974, states that “forthwith information” is to be given to the pollution control board in cases of discharge (or apprehension of discharge) of any poisonous, noxious, or polluting matter into a stream, well, sewer, or land. The duty to disclose is the responsibility of the person who is in charge of the facility that caused the pollution.
Soil and Ground Water Monitoring
Annual soil and groundwater monitoring reports are required to be submitted to the state pollution control boards (SPCBs) if a facility falls within the purview of the Hazardous Wastes (Management & Handling) Amendment Rules, 2003.
Although the courts in India follow the polluter pays principle, the precise scope of this principle and its implications for those involved in past polluting or potentially polluting activities remains to be settled. In any case, applicable case laws clearly indicate that the onus of proof regarding the origin of contamination lies with the property occupier.
Environmental Case Law Examples
The “right to a healthy environment” as a fundamental right of Indian citizens has emerged from PIL-based judicial action. Some of the salient principles and norms evolved by the judiciary to assess environmental liability situations include
- Absolute liability of hazardous industries;
- Polluter pays principle;
- Precautionary principle; and
- Constitutional “Right to Safe Environment.”
Absolute Liability for Hazardous Industry
The right to compensation in environmental cases has been traditionally linked to strict liability as enunciated in Rylands v Fletcher. A portion of the ruling provides that
A person who for his own purposes, brings onto his land and collects and keeps there anything likely to mischief if it escapes, must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape.
Following the Bhopal gas leak tragedy, the Indian Supreme Court found this rule inadequate to deal with situations where the masses do not have the resources to enter into litigation against a powerful industrial company. In the Delhi gas leak case, therefore, the Supreme Court laid down a new judicial norm of “absolute liability” for a hazardous and inherently dangerous industry to pay compensation.
The new rule of absolute liability developed by the court was enunciated as follows:
The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm, and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part . . .
If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards.
Polluter Pays Principle
The principle of absolute liability in cases of environmental injury has further found judicial validation in the polluter pays principle, which has become the law of the land through Supreme Court judgments.
In the Bicchri case, while imposing the cost of remediation on the polluter, the Supreme Court held
Where an enterprise is engaged in a hazardous or inherently dangerous activity and causes harm to any one on account of an accident, the enterprise is strictly and absolutely liable to compensate all those who are effected by the accident and such liability is not subject to any of the exceptions as laid down in tortuous principles of strict liability under the rule laid down in Rylands Versus Flecher.
The Supreme Court further held
The ‘Polluter Pays’ principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution, Under the principle it is not the role of Government, to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.
Further, in the Vellore tanneries pollution case, the Supreme Court has elaborated on the polluter pays principle as follows:
The ‘Polluter Pays Principle’ as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of ‘Sustainable Development’ and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost reversing the damaged ecology.
In the Vellore tanneries pollution case, the court has deemed the international norm of the precautionary principle as part of Indian law and considered its application mandatory in the interest of sustainable development.
As held by the Supreme Court in the Vellore tanneries pollution case:
We are however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development.” The “Precautionary Principle” – in the context of the law – means:
- Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
- The “onus of proof” is on the actor or the developer/industrialist to show that his action is/was environmentally benign.
- We have no hesitation in holding that the precautionary principle and the Polluter Pays Principle are part of the Environmental Law of the Country.
Right to Life in Article 21 Includes Right to Safe Environment
Article 21 of the Indian Constitution guarantees: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This article has proved a fertile source of judicial innovation and interpretation to expand the scope of meaning of substantive constitutional rights and invest them with the force of justiciability. The right to live in a healthy environment has emerged as an inherent and implied right to life enshrined in Article 21 of the Constitution through judicial interpretation.
Therefore, under Article 32 of the Indian Constitution (Protection of Fundamental Rights), any citizen or concerned group can initiate a PIL with the Supreme Court of India in case a threat of (or occurrence of) environmental degradation or contamination is perceived. In such cases, the “onus of proof” may still lie with the actor or with the developer or industrialist to show that the action is or was environmentally benign or that the entity exercised all diligence to prevent the degradation or contamination.
Fines and Closure Notices
The following examples illustrate the application of financial penalties and closure notices on industrial facilities in India.
Manufacturer of potassium and sodium bichromate (Gujarat)
Numerous government and nongovernmental agencies had alleged that a manufacturer of potassium and sodium bichromate in the state of Gujarat dumped thousands of tons of toxic waste in and around its facility. Since 1999, a Gujarat-based environment and health group and the People’s Union of Civil Liberties have continued to highlight the grave risks to workers and the public at large through letters and phone calls to the SPCB, the Ministry of Environment and Forests, the Central Pollution Control Board, and the Central Vigilance Commission.
On account of the public activism and PILs, in 2004 the Supreme Court’s Monitoring Committee (SCMC) directed the company to inspect the site where it had illegally dumped more than 45,000 tonnes of extremely hazardous waste. The order directed the company to have the waste removed by an expert body. It instructed the National Institute of Occupational Health (NIOH) to conduct a medical study to evaluate the impact of unattended waste on the health of people living at the site, with a view to awarding damages. The court also ordered the company to deposit US$ 3.7 million towards the initial remediation work.
Dyeing units located in Tirupur, Tamil Nadu
The Tamil Nadu Pollution Control Board (TNPCB) ordered closure of 10 dyeing units in the Tirupur knitwear cluster that failed to comply with the Supreme Court order pertaining to pollution caused by the dyeing units on the Noyyal River. The power and water supply to these units was also disconnected. Closure orders have been issued under the Water (Prevention and Control of Pollution) Act, 1974.
A large number of dyeing units are located upstream in and around Tirupur. They discharge their chemical and toxic effluents either directly
or indirectly into the Noyyal River. As a result, all the irrigation wells along the river and in the downstream villages have been polluted, and the ecosystem has been adversely affected by the seepage and percolation of water stored in the Orathapalayam Dam.
The local communities, through various organizations, filed a PIL against the polluters in the Supreme Court to direct TNPCB to regulate against the dyeing and bleaching units causing pollution in the Tirupur area. The Supreme Court based its ruling on the precautionary principle and the polluter pays principle to extend its statement to the dyeing units to compensate the victims of the pollution along the Noyyal River and also to bear the cost of restoring the environmental degradation. The Supreme Court directed the dyeing units to deposit US$ 11.6 million to clean up the Orathapalayam Dam.
Steel manufacturing facility, Kalmeshwar, Maharastra
The Maharashtra Pollution Control Board (MPCB) recently served a notice on a steel manufacturing facility. The MPCB charged the facility with dumping untreated chemicals and waste in the open, leading to contamination of groundwater and soil. The MPCB has also asked the facility to suspend production and warned that essential services like power and water may be cut if appropriate actions are not undertaken with immediate effect.
Manufacturing facility located in Aurangabad
Acting on the Hazardous Wastes (Management and Handling) Rules, 1989 (amended), the local pollution control board issued a notice to the company for removing waste and disposing of the same within 24 hours. The board also cut off the power and water supply to the factory and directed the company to stop manufacturing activities forthwith. The pollution control board also fined the company and ordered it to bear the cost of evaluating its environmental management system and preparing a comprehensive eco-management plan through an expert agency appointed by the board.
Despite the absence of a concise regulatory framework to deal with polluted sites in India, PILs have given the judiciary enormous scope for intervening in environmental matters and passing severe penalties against companies that have been found guilty. However, much still needs to be done by the government in this arena. As a result, the government has recently launched special courts for environmental issues, such as the National Green Tribunal, and is soliciting comments for setting up a National Environmental Assessment and Monitoring Authority (NEAMA).
These developments have also generated interest among insurance companies in India, who are offering coverage to industries that include damages due to environmental pollution. Many more changes appear to be on the horizon in India regarding the way that pollution sources are regulated, liability is assigned, and companies achieve and verify environmental compliance.
About the Authors
This article was prepared by members of the Mumbai and Delhi, India offices of Environmental Resources Management (ERM).
Ravi Costa is a principal consultant in ERM’s Mumbai office, where he is the head of ERM’s Contaminated Site Management group. He also worked for seven years as a contractor to the United States Environmental Protection Agency Groundwater and Ecosystem Research Division in Ada, Oklahoma and has worked on various sites where new technologies were being tested. He has also been involved in laboratory work setting up new methods for analysis of various contaminants.
Sanjay Sampath is a principal consultant in the Mumbai, India office of ERM. He was previously in Houston, Texas, U.S.A. for nine years, most recently in the role of a senior project manager in the field of air quality compliance with Sage Environmental Consulting, where he also served as the head of Indian operations.
Masood Mallick is currently the Managing Director and Head of ERM in India and is based in New Delhi. Masood works closely with industries, venture capital groups, and their legal counsel to evaluate and manage the environmental, health, and safety risks of transactions over the investment life cycle. His achievements include development of an internationally patented system for hazardous material destruction and vitrification and three proprietary remediation techniques. Masood has a Masters degree in Environmental Science and Technology and a Diploma in Environmental Law.
Samrat Basak is a senior consultant with the Contaminated Site Management group in ERM’s Delhi office. Samrat has more than 7 years of work experience in undertaking hydrogeological investigation and groundwater assessments, groundwater fate and contaminant transport modeling, and site investigation and remediation for green field and brown field sites across India, Sri Lanka, and Bangladesh. His present responsibilities include execution and management of contaminated site investigations and remediation for a range of clients at brown field sites in India.
Photograph: Abstract by Asif Akbar, Mumbai, India.
- The Water Act (Prevention and Control of Pollution) 1974
- Hazardous Wastes (Management & Handling) Amendment Rules, 2003
- “India turns into a green pasture for pollution insurers”
Read the EHS Journal article, India: Environmental Management and Environmental Regulation, by Sanjay Sampath and Rakhee Kulkarni.