2008 AECEN Regional Forum: Decentralization in Environmental Compliance and Enforcement in Asia Grand Hyatt Bali, Nusa D

1. Decentralizing Incentives and Compliance Promotion in West Bengal, India 2008 AECEN Regional Forum: Decentralization in Environmental Compliance and Enforcement in Asia Grand Hyatt Bali, Nusa Dua Bali, Indonesia Mr. Arijit Banerjee Department of Environment Government of West Bengal, India

2. Environmental Legislations in India - all environmental acts and Rules are promulgated by Govt. of India • Water (Prevention and Control of Pollution) Act, 1974 • Water (Prevention and Control of Pollution) Cess Act, 1977 • Air (Prevention and Control of Pollution) Act, 1981 • Environment (Protection) Act, 1986 • Ministry of Environment and Forest (MoEF), Government of India (GoI) is given overriding power to notify various Rules for environmental safeguards - various Rules pertaining to environmental protection and improvement have been subsequently notified by MoEF, GoI Implementation power decentralised For effective enforcement of compliance of different Acts and Rules, the powers of implementation are delegated to State level pollution control agencies within the geographic jurisdiction of the respective states

3. Environmental Authorities at Federal and State Level Ministry of Environment & Forests (MoEF), Govt. of India - Policy making, promulgation of different Acts and Rules and Notification of environmental standards in India • Central Pollution Control Board (CPCB) • Authority for fixation of environmental standards and guidelines at the national level • Operates under the MoEF • Has power under environmental Acts to temporarily supersede SPCBs • Has the power to direct the State Boards Water Act, Air Act and E(P) Act Department of Environment (DoE), State Govt. -State authority for environment protection at State level • State Pollution Control Board (SPCB) – West Bengal • Authority for implementation of environmental statutes at the state level • Enforcement is ensured through Regional centers of the Board headed by competent Environmental Engineers with appropriate power delegation by the Chairman of the Board • Operates under administrative control of DoE

4. Major mandates of SPCBs in India • Planning a comprehensive programme for prevention, control or abatement of pollution in the state • Advising the State Governments in formulating environmental improvement programmes • Collection and dissemination of environmental information • Lay down, modify or annul effluent or emission standards • Encouraging and conducting environmental research activities • Controlling and minimising pollution from point sources through implementation of statutes • Surveillance on pollution sources to ensure regulatory compliance • Restoration and improvement of environmental and ecological conditions • Solving the problem of industrial sectors through negotiation, dialogue, technical assistance • Redressing public grievances against specific environmental problems • Training and generating awareness on environmental problems

5. Enforcement of Compliance of Environmental Legislation • Most of the power is decentralised to State Pollution Control Boards/Agencies • The State Pollution Control Board has decentralised enforcement power to its Regional and Circle Offices • Driving principle: Command and Control • Instrument for ensuring compliance: • -Permit regime • (polluter requires various environmental permits for operation) • - Compliance of environmental standards • - Regulatory actions using Judicial forum • (Lower Court, High Court, Supreme Court) • - Public interest litigations by the affected parties

6. Enforcement of Compliance of Environmental Legislation • Permit Regime (Compliance of environmental statutes are mandated for activity responsible for emission) • Consent to Establishto be obtained • before establishment of any new industry • before expansion or modification of existing industrial process • pollution abatement proposal should be sufficient for containment of environmental pollution within permissible norms • Environmental clearances • only applicable for specific activities mentioned in EIA notification • Consent to Operate to be obtained • for operating any industrial unit • to be renewed periodically • normally granted after the unit complies with environmental norms • Authorisationto be obtained • for management and handling of Hazardous wastes • for management and handling of Biomedical wastes • for management and handling of other classified wastes

7. Enforcement of Compliance of Environmental Legislation • Surveillance and monitoring Programme • (Compliance of environmental standards) • Compliance of liquid effluent discharge standard • - Primarily concentration based standards • - General and industry specific discharge standards • - Load based standards • (in some specific cases like Pulp & Paper, Fertiliser, Oil Refinery etc.) • Compliance of emission standards(primarily particulate matters) • Proper management, treatment and disposal of classified wastes • - Treatment and disposal guidelines are provided in respective Rules

8. Implementation of environmental statutes at State Level State Pollution Control Boards are implementing authority Water Act 1974 U/s. 20 – To direct any person abstracting water from or discharging sewage or trade effluent into any stream or well to give information regarding the same. U/s. 21 – To take water samples (for analysis) from any stream or well or sewage or trade effluent passing from any plant or vessel or any place into any stream or well. U/s. 23 – To inspect at any time any plant, record, register, document or any other material object or for conducting a search of any place for violation of this Act. U/s. 25 – To issue ‘Consent’ for establishment of any industry, operation or process, any treatment and disposal system, use of new or altered outlets for discharge of sewage or discharge effluent from any plant. U/s. 33 – StateBoard may make an application to a court to restrain any person likely to pollute or to dispose of any matter in stream or well or sewer or on land otherwise. U/s. 33A – State Board may issue any directions in writing to any person including closure, prohibition or regulation of any industry, operation or process and/or stoppage or regulation of supply of electricity, water or any other service.

9. Implementation of environmental statutes at State Level Air Act 1981 U/s. 21 – To issue ‘Consent’ for establishment or operation of any industry in air pollution control area. U/s. 22A – StateBoard may make an application to a court to restrain any person operating an industrial plant or otherwise in any air pollution control area for restraining such person from emitting air pollutant. U/s. 25 – To direct any person carrying oil any industry or operating any control equipment or industrial plant to give information regarding types of air pollutants emitted into the atmosphere and level of the emission of such air pollutants. State Board has the right to inspect the premises where such industry, control equipment or industrial plant is being carried on or operated. U/s. 26 – To take air or emission samples (for analysis) from any chimney, flue or duct or any other outlet . U/s. 31A – State Board may issue any directions in writing to any person including closure, prohibition or regulation of any industry, operation or process and/or stoppage or regulation of supply of electricity, water or any other service.

10. Decentralisation of power to enforce environmental compliance • SPCBs within the territorial jurisdiction of States Decentralisation in West Bengal Regional & Circle offices, WBPCB in respective geographic jurisdiction [for issuing ‘Consent’ to all industries] Directorate of Micro, Small & Medium Enterprises, GoWB [for issuing ‘Consent’ to small scale industries] District Land & Land Revenue Officers, GoWB [for issuing ‘Consent’ to Brick manufacturing industries] WBPCB Other lined Departments of GoWB [for ensuring environmental compliance in different types of industries] Local Bodies (Municipality & Panchayets) [for ensuring environmental management at local level] Non-Governmental Organisations [as environmental watchdog]

11. Decentralisation of power to enforce environmental compliance • Lessons of decentralisation in West Bengal • Benefits • Decentralisation of power to Regional and Circle Offices • - Expanding horizon of permit regime • Decentralisation of power to other Govt. Departments • - Expanding horizon of permit regime especially in small scale • industries • Limitations • Decentralised agencies cannot effectively enforce the compliance of emission standards through regulatory action • Misinterpretation of delegated power • Lack of adequate capacity and knowledge

12. Limitation of Command and Control approach • No incentive for industries for self compliance through self monitoring • State agencies has no power take cognizance directly for the recalcitrant industries • Filing of Court cases by State Board is essential for taking penal action against environmental non-compliance as a cognizable offence • Initially the cases can only be filed at Sub-Divisional Courts • Such Court procedures is lengthy and requires presence of engineers/inspectors of the Board during the trial Wise mix of Command and Control approach and appropriate Incentive scheme will be more effective for ensuring environmental compliance

13. Incentives for Compliance under the present regulatory system • National Level • Rebate (25%) in water cess (water taxes) payable to SPCB for • consumption of water • Exemption of Customs and Excise duties on the import of pollution abatement equipment and their accessories • State level • Incentive scheme for installation of pollution abatement system in small scale industries (50% of cost incurred and upto Rs. 5 lakhs i.e. US $ 10,000) • West Bengal Pollution Control Board • Green Ranking through Environment Excellence Award • Providing Financial assistance for environmental compliance

14. Incentives for Compliance – introduced by West Bengal Pollution Control Board Green Ranking through Environment Excellence Award Environment Excellence Award is given to encourage and recognize the efforts of the Industries, Service sector and Non-Governmental Organisations to protect and preserve the environment through pro-active environmental management practices and to move ‘beyond compliance’

15. Incentives for Compliance – introduced by West Bengal Pollution Control Board • Providing Financial assistance for environmental compliance • Stricter emission standard introduced by State Board for small boilers and ceramic kilns within Kolkata • To ensure emission compliance, these industries were directed to convent small energy inefficient coal fired boilers and ceramic kilns to oil or gas fired boilers and ceramic kilns • Financial assistance was provided by the West Bengal Pollution Control Board for fuel conversion and to ensure emission compliance • During the project period (Oct. 2001 – Mar. 2007) total US $ 103 million was disbursed to 173 cases of fuel conversion

16. Incentives for Compliance – introduced by West Bengal Pollution Control Board Regulatory actions are taken for bringing industries, not complying with environmental regulations, to compliance path Show cause notice issued Techno-Legal Hearing Direction issued for achieving compliance within a fixed time Complied and Bank Guarantee released Pollution Cost imposed Bank Guarantee imposed to ensure time bound compliance Non-compliance continued Closure and Disconnection of water and electricity till achieve compliance Complied and Closure order withdrawn Not to face imposition of Bank Guarantee and Pollution Cost is indirect incentive to achieve compliance

17. Incentives for Compliance – introduced by West Bengal Pollution Control Board • Compliance of environmental norms to avoid penal action is an indirect incentive • In India, this mechanism was first introduced by the West Bengal Pollution Control Board • Use of economic instruments (e.g. Bank Guarantee and Pollution Cost) is not included in the environmental regulations • Different Judicial Forum upheld the WBPCB’s approach of using economic instruments for ensuring environmental compliance

18. Requirement for ensuring environmental compliance • Legalising the use of economic instruments coordinated with existing command and control system • (the Board is successfully implementing various legal instruments for improvement of environmental compliance without any legal sanction) • Redefining the role of Pollution Control Boards as Environment Protection Agency rather than Pollution Control Agency • Considering providing legal power to take cognizance of environmental offences to the Pollution Control Boards

19. Difficulty in achieving environmental compliance by the industries • Environment management is considered to be an externality • Environmental compliance is often not included in the official management policy of the industries • Absence of top level management commitment • Identification of environmental problems in absence of qualified personnel • Absence of dedicated environment and safety cells in the industries • Ignorance regarding the legal requirement fro environmental compliance • Non-availability of information on appropriate emission control technology and reliable vendors for installing the same • Difficulty of choosing economic and effective pollution abatement systems for compliance of environmental norms • Absence of properly accredited agencies generally capable of supporting industries in its endeavour to comply environmental norms

20. An independent and reliable Environmental Compliance Assistance Center in West Bengal will be able to provide effective support to industries and other development agencies

21. Current status of ECAC at Kolkata, West Bengal, India • This ECAC in West Bengal will be the first such center in India • A twelve member Steering Committee involving the major stakeholders has been constituted by the State Government for framing policy guidelines for the ECAC • An Action Plan has been prepared for proposed activities of ECAC along with budgetary requirement • The ECAC will provide hand-holding support to the industries and development agencies of the state for • Environmental compliance • Generation of awareness • Providing information regarding the enactment • Advising the entrepreneurs for compliance of environmental norms • Suggesting proper incentive schemes to the State Govt. for encouraging compliance by the industries

22. Thank You