Legal Challenges faced by Importers in Obtaining Environment Clearance Certificates: Lawyers Advice
The import of raw materials from foreign countries is an essential aspect of business processes. Several businesses rely on the import of raw materials from other countries in order to meet their needs. The World Bank has identified Iraq, United Arab Emirates, Saudi Arabia, Iran and Australia to be the counties from which entities in India import the most amount of raw material from.
The process of importing raw materials or products, especially those that are considered to be hazardous in nature, comes with its own enviro – legal requirements and the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (the Rules) is the applicable law in this regard. Schedule 2 of the rules list out the materials that are considered to be hazardous.
• Obtaining prior informed consent from the Ministry of Environment, Forest and Climate Change – In India the import of hazardous material is completely prohibited unless the material is used for the process of recycling, recovery, reuse, re-utilisation and co – processing. The import of such material is only permitted with the prior informed consent of the Ministry. If the prior consent is not obtained, the import will be considered to be illegal.
In Research Foundation for Science v. Union of India ((2005) 3 CompLJ 193 SC), the Supreme Court of India declared that is hazardous waste oil is imported under the garb of another material, without the consent of the authorities, it will have to be re – exported or incinerated under the supervision of the State Pollution Control Board.
• Duty of the importer to set up control mechanisms – Rule 4 of the Rules expressly state that the responsibility of the importer to 1) contain the contaminants, prevent accidents and limit the consequences that would ensue to humans and the environment and 2) to provide personnel entrusted with handling the material with information, training and equipment.
• Obtaining a Test Certificate – when materials such as plastic or other hazardous materials are to be imported, one of the mandatory requirements is to obtain a test certificate from a government authorised laboratory. The Government of India through Notification No. 50/2015-2020 of the Directorate General of Foreign Trade, has made product testing of IT products mandatory under the Bureau of Indian Standards.
The Hazardous Material (Management, Handling and Transboundary Movement) Rules, 2016, provide that in the case where testing of the hazardous material is not carried out, the importer has to re – export the material within 90 days from the date of arrival to the importing country. Therefore, it will serve the importer well to make all the necessary arrangements for the testing of the product/ material well in advance.
Once the pollution control board has given the requisite comments, the permission of the Ministry to import the material has to be obtained. The Ministry is obliged to consider and grant the permission to import within a period of 60 days.
• Obtaining comments and observations of the concerned Pollution Control Boards – The Hazardous Waste (Management and Transboundary Movement) Rules, 2016 provide for the procedures involved in import of hazardous material. A careful perusal of these rules is of utmost importance to the importer. There are several documents that are to be sent to the Pollution Control Department for their approval. These documents include the import permit application, bill of lading, Basel import permit and other relevant supporting documents. These have to be sent simultaneously to the Central Government and the concerned State Pollution Control Boards.
• Obtaining permission of The Ministry of Environment and Forests (the Ministry) – If an importer wishes to import material which is included in Part A of Schedule 3 of the Rules. Another challenge that the importer will have to overcome, is the insuring of the consignment. This a requirement under the Rules. Once the consignment is imported, the importer is required to inform and maintain a record with the Ministry of the same.
• Ensuring that the import is not illegal traffic – there are several circumstances that are mentioned in the rules where an import is considered to be illegal traffic. The importer must make sure that these situations are avoided and must comply with the following – 1) Obtaining the prior permission of the Central Government; 2) Procuring permission without falsification, misrepresentation or fraud; 3) Conforming to shipping details; 4) No deliberate contravention of International law.
• Avoiding liability – The rules lay down that all damages that are caused to the environment due to improper handling shall be borne by the importer. In order to avoid liability, the importer should take all the necessary steps to ensure that there is no leakage of or damage caused by the material. It the case that there is an accident during handling, it has to be immediately intimated to the State Pollution Control Board by phone or email.
If the importer wishes to import hazardous chemicals, note should be taken of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. These rules lay down several requirements that the import will have to comply with before starting business. They are as follows –
• Notification of site of business – A detailed report about the industry has to be given to the authorities at least 3 months before the commencement of the activity. This has to be done in accordance with Schedule 7 of the Rules.
• Safety report – A safety report has to be prepared before the industry starts functioning containing the information required under schedule 8 at least 90 days before the commencement of the industry.
• Preparation of an on – site emergency plan – This plan has to furnish details of how a major accident on the site will be dealt with and has to be drawn up in accordance with Rule 13.
If the above mentioned procedures are followed, the entrepreneur can be assured that their business does not encounter any regulatory hurdles.
Authored By: Adv. Anant Sharma & Vismay G.R.N.