Enviro Legal Challenges faced by Entrepreneurs before launching their Product in India: Lawyers Advice on Corporate Laws of India | Corporate Law Firm in Delhi NCR | Corporate Lawyer in Delhi NCR | Corporate Law Attorney in India
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India is one of the fastest growing economies in the world. Initiatives such as Make in India, Start – Up India Action Plan, E- Biz Project, etc., have served as an impetus to the growth of business activities within the country. There have been several efforts that have been taken by the authorities in order to streamline the process of obtaining environmental clearances, but in spite of these measures there still exist difficulties in the implementation of compliance measures by officers within the businesses.
This article will help to highlight the nuances of environmental regulation and the challenges that ensue and will help in avoiding unnecessary liabilities. The most common violations will be highlighted to ensure that these common slip – ups can be wholly avoided.
Basis of Environmental Regulation in India
The Constitution of India contains in it provisions which pertain to the protection of the environment. It is the ground norm on which all other environmental regulation is enacted and enforced. The Supreme Court of India, in the case of Subhash Kumar v. State of Bihar 1991 AIR 420, held that Article 21 of the Constitution “includes the right of enjoyment of pollution free water and air for the full enjoyment of life.” Since this judgement, the right to a livable environment is recognised under Indian law. The liberalisation of locus standi by the Apex Court has also enable an increasing number of cases of environmental significance being brough to the Court. The first Public Interest Litigation on an environmental issue was filed in the case of Rural Litigation and Entitlement Kendra v. State of U.P. (1985 AIR 653) and forms the legal basis for environmental regulation in India.
Common Legal Compliance which are overlooked by Entrepreneurs
• Obtaining environmental permits – There are several permits that are required for the operation of a business. These permits include Environmental Clearances (EC), Consent to Operate (CTO) certificates, Consent to Establish (CTE) certificates, etc. If hazardous materials are being dealt with by the entrepreneur, then hazardous waste authorisations and bio – medical authorisation permits are required. Sometimes, despite initially complying with the requirements, the permits are not renewed when they expire which lead to unnecessary hassles. It is also imperative that the approvals from the concerned State Pollution Control Boards (SPCB) is obtained which can be a tedious process.
• Providing details of site operations to the concerned authorities – details of site operations for records, returns and permits are require to be given to the concerned authorities in the form of Water Cess Returns, Annual hazardous Waste Returns, Annual Report under the Bio – Medical Waste Rules, 1998, Hazardous Waste Labels, Hazardous Waste Manifests, Returns under Batteries Rules, 2001, Annual Environment Statement and Records under E- Waste Rules, 2011.
• Waste Management – The regulations stipulate that there have to be adequate steps taken to segregate waste, documenting and recording the waste generated, have appropriate storage areas, and documenting information on the final fate of the waste products. These are areas where compliance gaps are generally observed. Having spill response plans and equipment in place – the maintenance of spill response plans and equipment is provided for in the General Duty clauses of the Factories Act, 1948, the Manufacture, Storage & Import of Hazardous Chemicals Rules, 2000 (MHIC Rules) and the Hazardous Wastes (Management, Handling & Transboundary Movement) Rules 2008 (Hazardous Waste Rules) These requirements are usually overlooked.
• Appropriately training, information and equipment to workers – If adequate training is not given to the workers, it will endanger their safety and also be a violation of the General Duty clauses of the MHIC Rules, Hazardous Waste Rules and the Factories Act.
• Discharging effluents only after prior treatment – If an industry is to discharge effluents into water bodies without treating them, they would be in violation of Section 7 of the Environment Protection Act and Section 24 of the Water (Prevention and Control of Pollution) Act, 1974. Such discharge could attract liability to clean up the water body and to restore the water body to its original state.
Steps to be taken to curb regulatory non–compliance
These common reasons for noncompliance with the applicable regulations have to be avoided.
• Proper commitment from the management – Entrepreneurs and businesses ought to keep in mind that environmental regulations are not additional expenses to their business processes. They should be committed and consider environmental compliance as an integral part of their decision making.
• Adequate knowledge of applicable regulations – it is important that personnel that are aware of all the regulation requirements are hired by businesses. Apart from the regulations given by the Ministry of Environment, Forests and Climate Change, ministries such as the Ministry for Water Resources and the Ministry of Petroleum & Natural Gas also lay down environmental regulations which an entrepreneur needs to be mindful of.
• Not having a culture of casual compliance – the attitude of an organisation has to be a positive one towards environmental compliance. If it is the belief of the management that environmental compliance is all about managing the regulators, then compliance gaps are inevitable.
• Having adequate financial and human resources – It is essential that adequate financial and human resources are allocated towards environmental compliance. This can be achieved by not having a casual approach towards environmental compliance by the management.
In order to be efficient with regard to environmental compliance, it would be advisable to maintain comprehensive regulatory registers, keep a track of all the required regulatory compliances and have periodic assessment of regulations. If this is done, the major enviro – legal challenges that exist can be navigated with ease.
Authored By: Adv. Anant Sharma & Vismay G.R.N.