Report on Environmental Compliance and Enforcement in India (December 2005)


REPORT ON

ENVIRONMENTAL COMPfJANCB AND HNFORCHMRNT

IN
INDIA

PREPARED BY

THE UNITED STATES 1 • N VI RON MENTAL PROTECTION AGIiNCY

DECEMBER 2005

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TABLE OF CONTENTS

SUMMARY OE RECOMMENDATIONS

INTRODUCTION

CHAPTER 1, BACKGROUND

I.	ENVIRONMENI \i 1 \WS

Water (Prevention and Control ofPollution) Act of 1974 (the Water Act)
Air (Prevention and Control of Pollution) Act of 1981 (the Air Act)
Eitvmminent (Protccisun) Act of 1986 (the HP Act)

II.	f.t )\'I:KJSMI'N I' INS I It l'> 1'IONAL S i R1 '(TURE

III.	JUDICIAL Sl"RUC"l URE

IV.	RESOT :RCES

i Vntral t ioverament
StiiK* Gowmmem

Case Examples-

VUhasushtra SPCB
Kaimttaka SPCB

1V-i. COMPARATIVH INFORMATION PROM O'lilHR t 'Ol'NTR1HS
(PA

United States State Governments
Other Commies

V.	S( JORCIiS OP REVENUE FOR STATE PROGRAMS

VI.	RECOMMENDATION 1

CHAPTER MOM FOR INC. COMF1 IANCE
I. PROGRAM POLICY AND GUIDANCE

I ! COMPAR A FIVE INFORMA HON FROM O I'l iER COt INI RIES

I listed States
I -2. RECOMMENDATION 2

II PROCESS OVERVIEW

Centiul Government
State (Jovcrnnu'nt

Case Studies;

Kartiatuka SPCB
Maharashtra SPCB

HE SEI F- MONITORING, SFT.F-RECORDKET.PING, AND SITE REPORTING

III-1,	COMPARATi\ E INFORMA 1 i< !N 1-ROM 011 IER 11 »UN 1 RIES
III 1 RECOMMENDA! ION 3

IV.	S PACK TESTS

IV-	E COMPARATIVE INFORMATION I-ROM OTHER COUN1 RIES
IV-?.. RECOMMENDATION 4

V.	CEil/.EN COMPLAINTS

VI

AREA MONITORING

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VII. INSPECTOR TRAINING	49

VIM, COMPARATIVE INFORMATION I-ROM	OTHER COl ;N FRIES 51
Tinted States

Europe

¥1-2. RECOMMENDATION 5	. 52

CHAPTER 3; RESPONSE TO VIOLATIONS	55

I,	ENFORCEMENT PROCESS _	55
The CPCil Enforcement Process

The SPCB Enforcement Process

II,	ENFORCKMENT Aid UORITlIiS	62

III,	BANK l i I'A RAN'I iiliS	63

III-l.	RECOMMENDATION 6	64

IV,	CIVIL ADMINISTRATIVE AUTHORITY	65

IV-1.	('()MPARA 11VF INFORMATION FROM	() I'HFR COUNTRIES 66

I	'nitcd States

IV 2 RECOMMENDATION?	68

CHAPTER 4: COMPLIANCE PROMOTION	70

f. COMPLIANCE ASSISI ANCi*	70

1-1. Rl:COMM!-Ni>A! ION X	70

II. VOLUNTARY PROGRAMS -	71

CHAP I HR 5: MEASURES Ob SUCCESS AND COMPLIANCET.NTORCEMEN 1' DA 1'A	72

I. MhA.SCRING SUCCESS	72

I-1.	RK'OMMFNIJATION 9	73

IT. DATA REQt fIRFMI:NTS AND RFI'C )RTINC,	74

Data Rt\jti(!cmcnls
Rcponinii

IH, CuMPARAISVIi INFORM Ai ION FROM	Ol HER COUN'l RlhS 76

II	ruled States

II-2	Ili-C X)M\!IiN!)A HON 10	77

ClIAFIERtr COMMUXICA1 ION N F.I WORK	79

I. COMMUNICATION	79

1-1. COMPARATIVE 1NFORMAUON FROM	OTIIFR COtJN'l HII S 79
I Tnitctl Stales

1-2, KFCOMMFNDATION 11	81

AT 1ACHMENT 1	1.1
INSPECTION III: MICO

INSPECTION «: C1PLA

ATTACHMENT 2

LIST OF RIT'RTSENTA 1IVii STATE ORGAN I/A I IONS

1.6

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SUMMARY OF Rf;COMMEN!)ATiONS

Recommendation 1: Advocate for more resources, and streamline current practices to maximize
currently available resources.

Recommendation 2: Develop policies and implementing guidance to assist the zonal offices and
SPCBs in implementing compliance and enforcement programs. As these policies and guidance
are developed, effective organization will necessitate that a system for cataloguing and distributing
the guidance in a timely maimer also be developed.

Recommendation 3: Establish the authority to use self-monitoring, self-recorclkeeping, aid self-
reporting as direct e\ idence of a violation in the courts (ant! administratively should such a process
be established); develop and distribute the necessary policies and implementing guidance; and

provide (raining to SPCBs,

Recommendation 4: Establish opacity standards and test methods for emissions from stacks;
develop implementing policies and guidance; and establish the necessary training infrastructure.

Recommendation 5: Develop national guidance on minimum inspector training requirements;

develop and fund a compliance and enforcement training program to implement the requirements;
and ensure that all SPCBs are aware of the program and the schedule of courses,

Recommendation. .6: Develop a policy and provide implementing guidance that requires regulated
industries to provide bank guarantees for negotiated compliance-schedules incorporated in
directives issued by the Boards,

Recommendation 7: Utilize current statutory provisions to establish civil administrative authority;
establish the infrastructure for managing administrative cases; develop the necessary enforcement

response and penalty policies; and provide training for the states.

Recommendation 8; Develop educational materials and compliance assistance tools for the
regulated community, especially small businesses, and distribute the materials to all regulated
sources.

Recommendation 9; Develop measures of success for the compliance and enforcement program
utilizing a variety of parameters, and communicate these measures and the rationale for why they

are needed, to SPCBs, the regulated community, and the public.

Recoiittnendatifin 111: Develop a uniform computerized system for collecting, maintaining and
utilizing compliance tad enforcement date at tie national, as well as tie state level; develop the
necessary implementing policies and guidance; and ensure that the SPCBs are aware of them.

Recommendation 1.1; Establish a support organization to facilitate communication among SPCBs
on important environmental compliance and enforcement issues, and between CPCB and the
Boards.

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If implemented, ail of the recommendations would greatly improve compliance with
India's environmental statutes, regulations, and permit conditions, However, two
recommendations. Recommendations 3 and ?„ would have the most significant, immediate, and
far reaching effect if implemented. The recommendations may be implemented independent of
each other, hut the success of Recommendation 3 would be substantially enhanced by the
implementation of Recommendation 7.

Recommendation 3 focuses on the establishment of authority to use self-monitoring, self-
recordkeeping, and self-reporting as direct evidence of a violation in the courts (and
administratively should such a process be established). Currently, India requires industry to
monitor some compliance parameters, but uses the information only as an indicator of
compliance. The government does not utilize it as direct evidence of a violation in the courts.
Instead the government relies solely on legal samples that are resource-intensive and time-
consuming to collect; are frequently challenged for procedural deficiencies; and olten arc not
representative of a facility's compliance status. Shilling the burden of compliance monitoring
away from the government to the regulated community would enable the government to evaluate
and determine compliance for a larger number of regulated sources on a more frequent basis in a
more cost-effective manner, tt would eliminate many of the procedural challenges because the
information is gathered by the source. It also v, ould provide information of a facility's
compliance on an on-going basis; thus, providing information on continuous compliance. This
approach has the added bene 111 that industry compliance rates improve merely as a result of
industry's increased focus on their operational practices to ensure that they are operating in
compliance. Concerns with the accuracy and reliability of the data can be addressed with
currently available criminal sanctions for falsification of data.

Recommendation 7 focuses on the utilization of current statutory provisions to establish
civil administrative authority. The ability to address violations and assess penalties
administratively without resorting to the courts would enable the government to address
violations in a more timely, cost-effective manner. An immediate and predictable enforcement
response by the Government would have a significant deterrent effect on the regulated
community. This approach also would reduce the environmental workload of the courts and
enable them to focus on the most egregious violations and repeat violators.

-ii-

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INTRODUCTION

On January 16, 201)1, the United States Environmental Protection Agency (HPAl and the
India Ministry of I:nvironment and Forests (MoEF) signed a memorandum of Understanding that

provided a framework for policy and technical cooperation between the two agencies. One of the
areas of cooperation is environmental governance, which includes activities such as
strengthening environment.il law regimes; assuring compliance with environmental
requirements; and providing public access to environmental information. As part of litis
bilateral relationship, the HP A has been working with the India Central Pollution Control Board
(C'PC'B) Qn var;ous cfforts to enhance the capacity of the Indian environmental compliance and
enforcement program. In January 2003, the EPA and CPCB jointly agreed it would be valuable
for EPA with assistance from the CPCB to conduct a holistic review of the Indian compliance
and enforcement program at both the national and stale levels of government to determine where
improvements could he made, and long-term projects initiated.

The institutional analysis was initiated in November 2003. A EPA team accompanied by
representatives from the CPCB and United States Asia Environmental Program (USAEP) visited
various environmental organizations in India to develop a more comprehensive understanding of
the Indian environmental compliance and enforcement program, and compile information to
support the development of recommendations for a long-term program. Specifically, the team
met with representatives from CPCB headquarters in Delhi and three of the six CPCB zonal
offices, seven state pollution control boards (SPCBs), and other government officials with
responsibility for environmental programs in India. ! he meetings were based on approximately
150 questions that were prepared in advance and revised as information was gathered,

to the Western Zone, the team met with the Maharashtra and Gujarat SPCBs, and the
Deputy Commissioner of Transport for Maharashtra. Following that meeting, they conducted a
site visit and met with representatives from the Ihane-Belapir Common Effluent Treatment
Plant in Mumbai. In addition, the team met with representatives of the Thane-Belapur Industries

Association to view a hazardous waste treatment facility and discuss issues associated with it.
Based on a prior visit to India. EPA already had baseline mformation on the Tamil Nadu SPCB
compliance and enforcement program.

In the Southern Zone, the leant met with the Karnataka and Andhra Pradesh SPCBs.

They also met with the Principal Secretary of Ecology and Environment, Government of
Karnataka in Bangalore, and the Principal Secretary of the Government of Andhra Pradesh in
Hyderabad. In addition, they accompanied staff on two inspections in Bangalore. The
opportunity to observe inspections enabled the team to witness legal sampling, and assess the
conduct of inspectors as they evaluated facility compliance with environmental requirements.

In the Pastern Zone, the team met with the West Bengal, Bihar and Orissa SPCBs. They
also met with the United States Consul General in Kolkata to discuss the compliance and

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enforcement component of the MOC and obtain his perspective on program needs and
opportunities for collaboration. In addition, they met with the US South Asia Environment
Advisor from the US Embassy in Kulhmandu, Nepal and discussed regional environmental
issues.

Following the meetings with key managers and staff in CfCB headquarters, tie team met
with the Chairman and the Member Secretary to discuss the prior meetings, and their preliminatj
findings and recommendations.

During the November 2003 trip, tie team also had the opportunity to gather pertinent
compliance and enforcement information as part of the effort to evaluate potential training
institutes. Specifically, the team met with representatives from the following organizations:

*	Centre for Environmental Science & Engineering, Indian Institute of Technology (ITT),

Mnmbai

*	National Environmental Engineering Research Institute (NEERI), Mumbai

*	Gujarat linvironmental Management Institute (GEM!), Vadodara

*	Center lbr Environmental Education (CF.E), Ahmedabud

*	Environmental Management and Policy Research Institute (EMPRi), Bangalore

*	National l.aw School of India University, Bangalore

*	Administrative Staff College of India (ASCI), 1 iydcrahad

*	Environment Protection Training and Research Institute (EPTR1), Hyderabad

*	Environmental Management Center, Indian Chamber of Commerce (ICC), Kolkata

*	Centre for Development and Environment Policy, Indian Institute of Management

(1IM) Kolkata

*	National Productivity Council (NPC). Delhi

Supplemental information was collected via Internet searches, as well as more traditional
literature searches, and through ongoing dialogue with colleagues in India and. the United States,
Based upon these initial efforts, EPA developed the draft report, Recommendations to Improve
India's Compliance and Enforcement Program" and submitted it to MoEF mid tit© CPCB in May
2004.

During subsequent \ isits to India, EPA continue to gather information and solicit
feedback on the draft 11 tidings. As part of these efforts, EPA was able to meet with
representatives from Goa, and the SPCBs for Madhya Pradesh, and Kerala. EPA also had an
opportunity to accompany inspectors from the Maharashtra SPCB on site visits to content plants
and thermal power plants in the State. In addition, EPA was able to meet with former staff of the
Maharashtra SPCB to discuss the structure, implementation, and enforcement of prior local
requirements regulating visible emissions from certain types of stacks.

This report reflects all of the information gathered during these visits, as well as
comments received on the draft recommendations. It provides an overview of the Indian

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compliance and enforcement program, and identifies areas where improvements or changes can
he made that will increase the efficiency and effectiveness of India's efforts in this area. This
report does not comment on the national environmental goals established by India or the
stringency of their requirements, but instead focuses on the functions and tools necessary to
ensure that existing goals are achieved and current environmental requirements are met.

This report was developed utilizing international principles for ensuring compliance with
environmental requirements, as well as the environmental lessons learned over the past thirty
years in the United States. Reliance on the United States experience is appropriate because India
is similar to the United States in many ways. Namely, both countries have:

* Large populations and diverse, geographic areas.

* Diverse industrial bases.

* Similar legal systems that stein from the British common law.

* Environmental laws that are established primarily at the federal level, but may be
supplemented by independent slate requirements.

* Environmental statutes and requirements that are established primarily at the national
level, but arc implemented primarily at the state level.

* Enforcement at both the federal and state levels of government, but primacy at the state
level.

* A large number of independent states with diverse economies, environmental
challenges, and environmental capabilities.

* Democratic systems that recogni/.e the importance of public awareness and
involvement.

The differences between the United States and India relate more to the relative maturity
of their environmental programs, and thus the type and extent of the environmental challenges
that each faces. The differences also relate to the economic resources that are available to
address such challenges. However, these differences do not affect the legal structures and tools
that would be useful in addressing environmental problems, hut which tools arc selected, how
and when the tools are used, ami how long before change can he expected,

for the purpose of the institutional evaluation, EPA segregated India's environmental

compliance and enforcement program into three distinct groups of regulated entities - municipal
facilities, small industrial facilities, and medium-to-large industrial facilities.

Municipal facilities place a significant burden on the environment. ! fowever, pollution
from these types of facilities is not easily addressed through traditional compliance and
enforcement programs. Municipal facilities are subject to tlie same environmental statutes and
requirements as other industry categories, and technology is available for them to comply with
those requirements. However, many of the non-compliance problems stein from infrastructure
problems and the need to install expensive environmental controls that require significant public
financial investments before measurable reductions in pollution can be realized. Many state

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governments simply lack the resources to address the problems, Furthermore. traditional
enforcement approaches such as shutting down a facility arc not viable options. Municipal
facilities pro\ido essential services that can not be interrupted. As a result, the Indian
government lias focused thus far primarily on providing compliance assistance for municipal
facilities.

Small scale industries (SSI) have been addressed through a combination of compliance
strategies. Many of the smaller, more polluting facilities that were marginally profitable have
beea shut down by government action. Others have been grouped, and co-located in industrial
centers with shared common effluent treatment systems. This approach has reduced the
economic burden of complying with environmental requirements, while at the same time it has
significantly reduced pollution from these previously uncontrolled sources. Finally;, compliance
assistance has been provided to these facilities to educate them on environmental requirements
and assist them in selecting appropriate controls.

The mcdium-to-largc industrial facilities have been the prim;try foe us of governmental
efforts to reduce pollution in recent years. Through a series of Supreme Court actions and
regulatory efforts by both national and state pollution control hoards, the number of mediuin-lo <
large facilities with no environmental controls or inadequate treatment has been dramatically
reduced. Some were shut down, but the majority installed control equipment. Compliance
assistance was provided to many to assist them in the selection of appropriate controls. The
remaining few facilities that continue to pollute because of lack of controls are before the courts.
Attention is now beginning to shift to changes and environmental improvements that "go beyond
compliance".

In spite of the advances that have been made, medium-to-large facilities continue to
release harmful pollutants into the environment. Although they have generally demonstrated an
ability to comply with environmental requirements, they have not demonstrated the ability to
"continuously' comply.

Control of pollution in any country moves in evolutionary phases. The first is the
adoption of laws. The second is the awareness or acceptance that these laws should be
implemented. During this phase, significant progress is made in the reduction of pollution by
aggressively forcing facilities to install controls. India is in this phase, especially as if relates to
medium-to-large industrial sources of pollution, The next evolutionary phase for these sources is
ensuring "continuous compliance" w ith environmental requirements. India is at the point where
actions need to be taken to move into this next phase if further pollutant reductions are to be
realized.

From an environmental management perspective, continuous compliance should not be
viewed as merely the desire to have perfection in the system. Instead it should viewed as a

means for ensuring that environmental goals and anticipated pollutant reductions are met and
maintained over time. Even marginal deviations from environmental requirements can result in

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significant environmental insults. For example, a control device that is designed and expected to
reduce pollution by ')9 5 percent, but malfunctions or is not operated an average of one day a
month, is in reality reducing pollution by only 96 percent, Wliile a facility may argue that this
deviation of 3 percent is acceptable given the array of operational variables it must continually
address, the insult to the human health and the environment is significant.

This report focuses primarily on the medium4o-large facilities; however, the
recommendations can be used to address the small industrial facilities as well, and ultimately as

resources allow, municipal facilities.

For the purposes of this report, L-PA also focused on the air and water environmental
compliance and enforcement programs. Implementation of the hazardous waste program is not
as advanced as the air and water programs, and thus, does not provide the same opportunity for
an in-depth analysis. Nevertheless, the recommendations in this report can be applied to
compliance ami enforcement of the hazardous waste requirements equally.

Any questions concerning this report should be directed to Mamie R. Miller of the HPA.
She may be reached via telephone at 202-564-7011, or written inquiries can be sent electronically
to miller, mnmie'^epa.gov or to EPA at the following address:

Mamie R. Miller

Oftke of Compliance (2223 A)

Office of liiiforeement and Compliance Assurance
U.S. FPA

1200 Pennsylvania Avenue, N.W.

Washington, D.C., 20460

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CHAPTER 1: BACKGROUND

i, KNVIRONMFNT-\L LAW S

By agreement, tlie EPA evaluation focused on compliance and enforcement issues
associated with the implementation of the Water (Prevention and Control of Pollution) Act of
1974; the Air (Prevention and Control of Pollution) Act of 1981; and the Environment
(Protection) Act of 1986, The framework of all three aets is similar. Authority to implement
them is vested in both the Central Government as well as the States, They are administered
primarily through cess collection and a fee-based system, with extensive authority to collect
information, monitor activities, and inspect facilities. Facilities can he closed for failure to
comply with the Aets, and violations can be addressed criminally with lines assessed and
individuals imprisoned. A brief summary of each Act with an emphasis on the provisions related
to compliance and enforcement is provided beiow;

Water (Prevention and Control of Pollution) Act of 1974 (the Water Act}

Water is a subject in the State List under the Indian Constitution; hence, only state
governments can enact water pollution legislation. Howev er. Article 252 of the Indian
Constitution empowers Parliament to enact laws on state subjects for two or more slates, where
the State legislatures have consented to such legislation, Tims, the Water Act was passed by
Parliament pursuant to enabling resolutions by twelve states.

The Water Act vests regulatory authority in Stale Boards and empowers these Boards to
establish and enforce effluent standards for factories discharging pollutants into bodies of water
(Section 17). Pursuant to Section 2A of the Environment Protection Act {HP Act), the Central
Government has published Environment Protection Rules (F.PR) establishing general and
industry-based standards for certain types of cflluent discharge (Schedules I and VI, BPR).

These standards take precedence.

The Boards control sewage and industrial effluent discharges through a comprehensive
permitting system where the Boards can approve, reject, or condition applications for consents to
discharge (Section 25). The Water Act empowers State Boards, upon 30 day notice, to execute
any work required under a consent order which has not been executed, and recover expenses for
such work from the facility (Section 30). There is no requirement for community consultation or
transparency in the review and issuance of consents to operate; however, the courts have
intervened on tills issue to allow for such consultations, and some Stale Boards now pro\ ide an
opportunity for the public to comment.

The Boards are empowered to utilize a variety of tools to enforce the Water Act. They
have broad authority to collect information either directly themselves or front facilities {'Section
20); take water samples for analysis (Section 21); and enter and conduct inspections at any time

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(Section 23). The Boards may lake emergency measures if they determine that an accident or
other unforsecn event has polluted a stream or well (Section 32). These measures include
removing the pollutants, mitigating the damage, and issuing orders to the polluter prohibiting
effluent discharges. They can make applications to the courts to restrain pollution (Section 33).
They may issue directions to close facilities, or withdraw their supply of power or water by an
administrative order (Section 33A), failure to comply can be prosecuted criminally, and is
punishable by tines and imprisonment (Sections 41. 42, 43, 44, 45,45 A). 1 he sanctions vary
depending on the nature and duration of the violation, as well as the existence of previous
offenses. Both the company and the individual responsible for the offense can he held liable and
subject to sanctions; however, individuals may raise the defense that the violation was committed
without their knowledge or that they exercised all due diligence to prevent the offense (Section
47). The names of offenders can be published (Section 46),

In addition to the enforcement authority vested in the Boards, the Water Act authorizes
citizens to brine legal action and gives them the authority to sue State Boards for the release of

relevant information and reports (Section 49).

A Central Board performs the same functions for Union Territories, in addition, among
other responsibilities, it coordinates activities among the states; advises the Central Government
on water pollution issues; and develops a comprehensive plan for the control and prevention of
water pollution (Section 16). if a State Board fails to comply with a Central Board direction, and
because of this failure, an emergency arises, the Central Board may he directed by the Central
Government to perform the functions of the State Board (Section IS).

A separate, but important. Act to note is the Water Prevention and Control of Pollution
Cess Act of 1977 (Water Cess Act). It was enacted to provide the Boards with a source of
revenue to implement the Water Act. It creates economic incentives for pollution control
through a differential tax structure, and requires local authorities and specified industries to pay a
cess (tax) for water consumption. The Central Government, after deducting collection expenses,
allocates the monies among the Central Board and the states to implement the Water Act. It also
creates economic incentives through rebates on the applicable cess when effluent treatment
equipment is installed and the facility is meeting the applicable norms.

Air (Prevention and Control of Pollutionl Act of 1981 (the Air Act)

Under Article 253 of the Indian Constitution, Parliament is authorized to make laws to

implement decisions taken at international conferences. Parliament used this authority to enact
the Air Act as a result of the 1972 United Nations Conference on the Human Environment in
Stockholm, Sweden.

Under the Air Act, the State Boards are given the authority to designate air pollution
control areas (Section 19), and neither the Boards nor state governments can exempt a polluter
from the Air Act if they fall within a designated area. See K. Muniswamy (hnvdn v State of

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Karnataka 19l)8 (3) Kar.OI ..1.594. All industries operating within these designated areas must
obtain a consent to operate from the State Boards (Section 21). As with the Water Act, there is
no requirement for community consultation or transparency in the review and issuance of
consents to operate; however, some State Boards now provide an opportunity for the public to
comment. Polluters outside those areas can not be prosecuted by the State Boards.

The Air Act empowers State Boards to prescribe emission standards for industry after
consulting with the Central Board and noting their ambient air quality standards (Section 17(g)).
This authority overlaps wit It the EP Act, whiefi empowers the Central Government to establish
emission standards. Norms established pursuant to the Environment Protection Rules (EPR) lake
precedence; thus, most State Boards re-notify the HPR standards under the Air Act. The rules
framed under the HP Act prescribe emission norms for specific industries (Schedule I, HPR), and
general emission standards which are concentration-based, equipment-based, and Ioad/mass-
hased (Part D, Schedule VI, EPR), The general standards apply in the absence of industry-
specific norms (Rule 3). lit addition to the emission norms. National Ambient Air Quality
Standards (NAAQS) arc notified for industrial, residential and rural areas and sensitive regions
(Schedule Vll, HPR). The NAAQS are established at levels intended to protect public health,
vegetation, and property with a margin of safety.

State Boards are empowered to utilize a variety of tools similar to those available under
the Water Act to enforce the Air Act. They have authority to issue directions to facilities on the
use of their facility (Section 21). They have broad authority to collect information either directly
themselves or from facilities (Section 25); take air samples for analysis (Section 26); arid enter
and conduct inspections at any time (Section 24). The Boards may take emergency measures if
they determine that an accident or other unforsecn event has resulted in air pollution (Section
23). These measures include removing the pollutants, mitigating the damage, and issuing orders
to the polluter prohibiting the emission of air pollutants into the atmosphere. They can make
applications to the courts to restrain pollution {Suction 22A). They may issue directions to close
facilities, or withdraw their supply of power or w ater by an administrative order (Section 31 A).
Failure to comply can be prosecuted criminally, and is punishable by lines and imprisonment
| Sections 37, 38. 39). The sanctions vary depending on the nature and duration of the violation,
as well as the existence of previous offenses. Both the company and the individual responsible
for the offense can be held liable and subject to sanctions; however, individuals may raise the
defense that the violation was committed without their knowledge or that they exercised all due
diligence to prevent the offense (Section 40).

In. addition to the enforcement authority vested in the Boards, the Air Act authorizes
citizens to sue industry directly, and gives them the authority to site State Boards for information
and reports relevant for developing a ease (Section 43).

A Central Board performs the same functions for I 'nion Territories. In addition, among
other responsibilities, it coordinates activities among the slates; advises the Central Government
on air pollution issues; and develops a comprehensive plan for the control and prevention of air

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pollution (Section 1ft), If a State Board fails to comply with a Central Board direction, and
because of this failure, an emergency arises, the Central Board may be directed by the Central
Government to perform the functions of the State Board (Section 18).

Environment (Protection) Aci of 1986 (the HP Act}

The EP Aci was enacted under Article 253 of the Indian Constitution, and stems from the
1972 United Nations Conference on the Human Environment in Stockholm, Sweden. It is
umbrella legislation designed to provide a framework for the Central Government to coordinate
the activities of the various centra! and state authorities established under previous laws, such as
the Water and Air Acts, it is also enabling legislation which articulates India's basic legislative
policy on environmental protection, and delegates extensive powers to the executive branch to
develop implementing rules and regulations. Implementation of the HP Act can be delegated to
the States.

The scope of the HP Act is broad. Section 3( 1) empowers the Central Government to
"take all such measures as it deems necessary or expedient for the purpose of protecting and
improving the quality of the environment and preventing, controlling and abating environmental
pollution." Specifically, the Central Government is authorized to set new national standards for
the qualify of the environment (ambient) as well as standards for controlling emissions and
effluent discharges; to regulate industrial locations; to prescribe procedures for managing
hazardous substances; to establish safeguards for preventing accidents; and to collect and
disseminate information regarding environmental pollution. These authorities can be delegated
(Section 23). Pursuant to Section 24, the HP Act and subordinate rates or orders issued under
Sections 6 and 25 override all other laws.

Enforcement of the HP Act is similar to that of the Water and Air Acts. The Central
Government is given the authority to collect information; take samples for analysts; and enter and
conduct inspections at any time (SectionsHI 11, 20). ft also may take emergency measures if a
determination is made that an accident or other unforsecn event has resulted in the discharge of
environmental pollution (Section 9). The Centra! Government may issue directions to close
facilities, or withdraw their supply of power or water by an administrative order (Section 5).
Failure to comply can be prosecuted criminally, and is punishable by fines and imprisonment
(Section 15). The sanctions vary depending on the nature and duration of the violation, as well
as the existence of previous offenses. Both the company and the individual responsible for the
offense can be held liable and subject to sanctions; however, individuals may raise the defense
thai the violation was committed without their knowledge or that they exercised all due diligence
to prevent the offense (Section 16). If any act or omission constitutes an offense punishable
under the EP Act as well as another law, the offender is liable under the other law and not the liP
Act (Section 24).

As with the Water and Air Acts, the EP Act authorizes citizens to enforce the Act
directly, (Section 19). They must provide the Central Government with 60 days advance notice

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of their intention to file a complaint; thus, providing the government with an opportunity to take
appropriate remedial action.

II GOVERNMENT INSTITUTIONAL STRUCTURE

At the national level, the responsibility for developing ami managing a nation-wide
environmental program resides with the Ministry of Environment and Forests (MoEF). The
Ministry, in turn, established the Central Pollution Control Board (CPCB) as the primary
organization responsible for developing, implementing, enforcing environmental regulations and
programs. Environmentalists, non-governmental organizations and academics have
recommended that the two organizations be merged into an autonomous agency, similar to the
EPA, but there is no indieation that sneh a pioposal is actively being considered by the
Government.

The MoEF is the political ami of India's environmental organization at the national level
and is responsible for representing environmental needs to elected bodies, They are authorized to
establish autonomous Boards to implement the environmental program.

One sueh Board is the CPCB. Board members are appointed by Mo EE and the Board
consists of a full-time Chairman and a Member Secretary, as well as representatives from the
Central Government, State Boards, private sector interests, and government owned corporations.
This Board serves as India's national environmental agency, and has primary responsibility for
implementing and enforcing environmental statutes and laws. The Chairman and the Member
Secretary have dual responsibilities. They sit on the Board, and serve as the head of the
environmental agency. The CPCB has a central ofliee in Delhi, and six zonal offices located in
Vadovara, Bangalore, Caleite, Bhopal. fvanpur, and Shi long. The CPCB is primarily focused on
developing national strategies and technical guidance; compiling information about
environmental compliance for both the public and government use; determining if violations and
alleged violations will be addressed by CPCB or the appropriate State Board; directing
government prosecutions; providing technical assistance injudicial eases; and monitoring
implementation of judicial decisions.

Within the CPCB central office in Delhi, the following have responsibilities related to
compliance and enforcement:

* The Chairman and the Member Secretary. All CPCB decision-making powers are

vested in these two positions.

# Pollution. Assessment, Monitoring & Survey Division: Conduct sampling to support

matters before the courts.

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* Pollution Control Planning Division: Coordinate activities with the State Pollution
Control Boards (SPCBs) and address mutters relating to Parliament.

* Policy, Law & Small Scale Industries Division: Develop a program for improving the
compliance of small scale industries, and provide limited legal support.

* Pollution Control Implementation Divisions (three separate divisions are organized
around significant industrial sectors): Develop sector-specific rules and standards;
develop eomplianee and enforcement policies/strategies; and review enforcement related
matters for alleged violations or potential court actions.

* Information Management Division: Develop compliance and enforcement data systems
and provide related guidance to SPCBs,

* Infrastructure & Laboratories Division: Manage the certification of laboratories that are
recognized to perform legal sampling activities.

The CPCB zonal offices are the primary implementing arm. They conduct inspections
and detailed technical investigations; provide technical assistance to the regulated community;
develop recommendations for enforcement actions; and respond to CPCB and Court-issued
directions.

The State structure parallels that of the national level with responsibility divided between
state ministries of environment, and SPCBs. The cabinet-level ministries have wide-ranging
responsibilities which include addressing the political and policy aspects of environmental
management and appointing the State Board. Generally, they have very small staffs, and thus do
not manage the day-to-day implementation of the environmental statutes and regulations.

1 he day-to-day management of environmental programs is the responsibility of SPCBs.
Like the CPCB, each SPCB has a Chairman and a Member Secretary. The size of each SPCB is
determined by the State Government, but it is also influenced by the amount of fees and cess
collected. Most SPCBs have a central office with responsibilities similar to the CPCB central
office. These responsibilities include developing state guidance, policies, and strategies;
reviewing and addressing major violations; and providing information to CPCB. Many SPCBs
have established regional offices (called zonal offices in .some states), and in the larger states,
sub-regional offices have been established. This sub-division is necessitated by the total number
of regulated facilities; the prescribed inspection frequencies; and the geographic areas and
distances that must be covered when evaluating compliance. This reduces the response time to
address complaints and provides a local presence for the SPCB.

Responsibilities of the regional and sub-regional offices vary from slate-to-state, and
depend greatly on which activities the central office feels can be delegated to these offices. As
the primary field component of the SPCB, these offices conduct the majority of the inspections;

-------
take legal samples; review compliance with SPCR directions; and may take lesser enforcement
actions. A major difference between the CPCR zonal offices and the SPC13 regional and sub-
regional offices is that slate subordinate offices are delegated more responsibilities to enforce
against smaller and less polluting facilities than the zonal offices.

111. JUDICIAL STRUCT! IRK

The basis for the judicial activism in the environmental arena lies with the fact that both
the Supreme Court and the High Courts have concurrent jurisdictions for the enforcement of
fundamental rights; thus, a complainant may seek redress in cither. The right to a clean
environment is considered a fundamental right, and the Supreme Court and the High Courts have
exercised power on a wide range of environmental issues under Articles 32 ant! 226, respectively.
If the High Court is approached first, and the petition for relief is dismissed on its merits, a
further petition to the Supreme Court is precluded under the principle of res judicata, However,
the petitioner nuy still appeal under Article 133, or obtain special leave to appeal under
Article 13(>.

The Supreme Court and High Courts have incorporated the following fundamental
principles in their decisions:

* The polluter pays principle where the violator is liable to make good the loss caused by
his/her actions regardless of whether he/she took reasonable care,

* Absolute liability for cases dealing with hazardous substances where fault need not be
established.

* Precautionary principle where it is better to err on the side of caution in the absence of
information.

* Prevention principle to address polluters who would continue polluting the environment
because it is cheaper to pay for the pollution than prevent it.

* New burden of proof principle where the "onus of proof is on the individual to show
that his/her action is environmentally benign.

* Sustainable development where the right to development must be met so as to equitably
meet the developmental and environmental needs of present and future generations.

* Public trust doctrine where the State is holding natural resources as a trustee and can
not commit breach of trust.

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* Inter-generational equity where the present generation is a trustee and guardian of the

environment for succeeding generations.

In addition to the superior courts, the subordinate civil courts exercise powers with regard
to public and private nuisances. Sec the Code of Civil Procedure, 190S, Sections 9 and 91.
Criminal courts exercise powers under various sections of the Indian Penal Code (IPC) dealing
with offenses related to the environment. For example, under Chapter XIV, Section 277 of the
IPC, it is a crime to foul the water of a public spring or reservoir, and under Section 278, it is a
erinie to make the atmosphere noxious to public health. Chapter It) of the Code of Criminal
Procedures, W3, contains provisions for enforcement of various provisions of substantive law.

Offenses ereated by Sections 41-50 of the Water Act, Sections 37-46 of the Air Act, and
Sections 15-17 of the EP Act are tried in the criminal courts. The appropriate criminal court is
identified on the basis of territorial jurisdiction, and is dependent on its power to impose
sentences of imprisonment to any person. The appeals on the eriminal side are governed by the
laws relating to criminal procedure.

In addition to the civil and criminal courts, appellate powers have been established by the
various environmental acts, for example, the Water Act contains provisions for appeals to an
appellate authority, to be constituted by the slate government to deal with appeals by persons
aggrieved by orders of the State Board. See Sections 26 and 26. The Air Act has similar
provisions (See Section 31), as does the BP Act (Sections 3(3) and 25). Various slates, such as
Maharashtra, Madliya Pradesh, Andhra Pradesh, Haryatia, and the Delhi Administration have
established such bodies. Generally, the appeals lie with various officers or Departments of the
government, and do not consist of a Judicial Member.

Environment Tribunals have been established pursuant to the National Environmental
Tribunal Act of 1995 and the National Appellate Authority Act of 1997. However, neither is
currently functional. The first Tribunal had jurisdiction to award compensation, but never came
into existence. The second did not have the jurisdiction to award compensation, but did come
into existence. Unfortunately, no new Chairman was appointed after the first Chairman's three-
year term ended.

The Supreme Court also has been effective in convincing the High Courts in certain slates
to devote a greater share of judicial resources to environmental cages. For example, the High
Courts in Mumbai, Caicite, Chennai and Gujarat have designated a "green bench" to hear
environmental cases.

Regardless of whether the offenses are heard in a civil or criminal court, environmental
cases are not given priority oxer other cases before the court, and final resolution of an
environmental case often takes a very long time. As a result, India is evaluating the need for
specialized environmental courts with exclusive jurisdiction with regards to environmental

13

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cases.1 Such courts arc deemed advantageous because they allow the courts to address cases
immediately, monitor them over lime, and ultimately resolve them in, a more expeditious i mi s
than the current system. They also allow the courts to access independent expert advise on

environmental matters, and not be forced to rely upon evidence adduced by the parties.

IV. RESOURCES

Obtaining the information necessary to document and evaluate the adequacy of resources
at both the national and state level to implement India's environmental laws proved insuperably
difficult. Piecemeal information was provided during meetings with CPCB each of the CPCB
zonal offices, and individual SPCBs, However, information on the total resources available at
both the national and state level to implement the environmental laws was not available, nor was
more specific information on the resources devoted to compliance and enforcement activities.

Central ijpxssmmi

There are approximately 800 individuals within the MoEF associated with environmental
pollution control. There are only about 500 individuals within the CPCB.

The 500 CPCB employees are distributed among the Headquarters office in New Delhi,
the six zonal offices, and the national laboratory. Approximately 300 of the 500 can be
classified generally as providing managerial or administrative support. The remaining 200 are
classified as technical or scientific. Approximately 80 of the 200 tcchnical/scicuti fie personnel
are assigned to manage ambient monitoring and infrastructure activities, including laboratory
work. The remaining 320 tcchnical/scientilie individuals are associated with environmental
pollution control, and have some functions that relate to compliance and enforcement. However,
they have a broad range of responsibilities that extend beyond the traditional compliance and
enforcement activities such as the development of regulations; the review of technologies; and
the development of technical reports and strategies. Thus, their time is divided among the
functions, and the work hours actually available for compliance and enforcement activities at the
national level is less than 120 individuals. Approximately 40 of the individuals are located in the
Headquarters office, and are assigned primarily to the four sector-specific divisions and the
Policy, Legal and Small Sector Division (PI S). The remaining 80 individuals are distributed
among the six zonal offices.

The Headquarters compliance and enforcement staff arc responsible for developing
national strategies to address groups of major polluters and monitoring implementation by
SPCBs. Examples of such plans are the (ianga Action Plan to address "Grossly Polluting

1 The status of such a proposal is unclear. 1 fowever, for more information on the issue,
see the One Hundred Eighty Sixth Report on Proposal to Constitute Environment Courts, Law
Commission of India, September 2003.

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Industries" on the Ganga River; the list of I ? industrial categories with a high pollution potential
for air, wafer and/or hazardous waste categories; and the Charter on Corporate Responsibility for
Environmental Protection (CRKP).

Headquarters staff also are responsible for developing annual action plans and reports on
activities and success; developing technical assistance documents; reviewing zonal office
recommendations for resolving violations and advising the Member Secretary and the Chairman
on the appropriate enforcement response; providing administrative support and technical
assistance on parliamentary concerns; responding to public complaints; and providing technical
assistance to the courts and implementing and monitoring court-ordered environmental
directives.

The few direct enforcement actions taken by the CPCB arc generally done by the zona!
offices, Table 1-1 shows the staff breakdown in three of the larger zonal offices that HP A
visited.

The head of the zonal office is usually a Senior Environmental Engineer who performs
technical (asks in addition to providing overall office leadership. The technical staff are
primarily engineers and focus their compliance activities on the review of facility operations.
Generally, the individuals classified as scientists collect and analyze the compliance monitoring
samples.

Table 1-1 CPCB Zonal Office Staff

[

Southern

Eastern

1

||t^

4

5



1 Scientific

1

1

1

| Legal

| attorneys are contracted as needed and if resources are available

Administrative

12

10

16 (10)

Total

29

29

18(28)

(

:



(#) includes contracted stal

Since primary enforcement responsibility is entrusted to the States, the CPCB zonal
offices focus their attention on the larger, more problematic facilities with known significant
violations. Since SPCBs have responsibility for conducting routine inspections, the CPCB zona:
offices have the ability to conduct more in-depth investigations which arc much more resource
intensive requiring multiple inspectors over several days. They also focus their inspection
resources on facilities that are or recently have been the focus of an enforcement action. The
number conducted by each zonal office varies depending on the number of states in the zonal

1*>

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area; the number, type and complexity of sources; and the available resources. For example, the
geographic region covered by the Southern Zonal Office is highly industrialized. Table 1-2
provides the number of inspections by Stale conducted by the Southern Zonal Office from 1999-
2003, Assuming that the technical staff have primary responsibility for conducting inspections,
each of the four inspectors conducted 19 inspections in 2002-2003.

Table 1-2 CPCB Southern Zonal Office Inspections Conducted

By State

State

[ W-2(HK>

12WO-2t nil

2001-2002

2002-20

Andhra Pradesh

Karnataka

Kerala

I Pondicheny

Tamil Nait

Tote

73 |

Unlike many countries, India does not have individuals who are employed solely to
monitor and enforce the environmental laws/regulations. All individuals perform many diverse
functions. This is especially true in the CPCB zonal offices where staffing is so limited that
individuals arc required to be familiar with environmental pollution from many industrial types,
and across all environmental media (air, water, waste, etc.). For example, the Eastern Zonal
Office reported the following responsibilities for environmental engineers.

* Coordinate with SPCBs.

* Conduct surprise inspections of polluting industries.

* Conduct surveillance of Water & Air Quality Monitoring Stations.

* follow-up on CRHP commitments, problem area action plans, public complaints, and

court directives,

* Update pollution source inventories.

* Conduct performance evaluations of pollution control measures in selective industries.

* Conduct pollution assessments and monitor non-industrial sources such as vehicular

pollution and leachates from solid waste sites.

* Conduct case studies on noise pollution.

* Review and monitor bio-medical, hazardous and solid waste management practices.

Completing all the responsibilities assigned to a zonal office is challenging and any
unplanned, additional work creates difficulties completing the necessary work in a timely

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manner. While the official work week is 40 hours, senior officers arc required to work extra
hours without compensation as part of their normal responsibilities, and junior officers work
additional hours for compensatory time. Although all zonal offices visited by EPA expressed the
need for more manpower at all levels, they stated that their most critical need was for additional
trained engineers and scientists, not additional administrative support. The CPCB protocol
requires that statutory reviews be conducted by individuals at a "senior engineer" grade level, and
that they can not be performed by an individual at an "engineer" or "assistant engineer" level.
The CPCB hiring practices require that new technical hires must have a masters in engineering or
science, and start at the assistant environmental engineer level Advancing to a senior level
position can take many years and such advancement is often limited by the need to ensure a mix
of levels and a quota on the number of senior level individuals that an office or division can
have. Furthermore, promotion of individuals to senior levels is controlled by the senior political
level. Promotions from Assistant Environmental Engineer to Environmental Engineer must be
approved by the Chairman of CPCB and promotion from Environmental Engineer to Senior
Environmental Engineer must be approved by the Minister of MoEF. Such personnel
requirements do not make the most effective use of existing staff and adversely affect morale.

In addition to the technical/scientific staff, the CPCB has four attorneys in the
Headquarters office. Again, these individuals have responsibilities beyond those associated with
compliance and enforcement activities (e.g., reviewing/analyzing draft statutes and new
regulations), and thus, the work years actually total less than four. As a result, few direct
enforcement actions are taken by CPCB, with most of those taken managed by the zonal offices
with the assistance of contract attorneys.

Beyond the technical/scientific staff, there are no professionals with specialized education
and/or experience to address critical compliance and enforcement activities beyond those directly
tied to inspections, and sampling and analysis. For example, there are no policy analysts or
statisticians to develop strategic compliance plans with identifiable goals and measures of
success; analyze statutes, regulations and compliance and enforcement issues to develop national
policies; or evaluate the effectiveness of delegated state programs. There are no training
specialists to develop and deliver compliance monitoring training materials. ~ There are no
computer experts to design compliance and enforcement data bases and develop systems to
manage the flow, analysis, and use of the data. There are no communication specialists to
facilitate communication between CPCB and SPCBs or among SPCBs. As a result, activities in
these areas arc minimal or non-existent at the national level.

The CPCB has the ability to use contracted services. As mentioned above, outside
attorneys are hired to serve as counsel in preparing legal documents and representing the CPCB
in court. However, in many substantive areas where manpower shortages are the most critical,
contractors are not allowed to perform "inherently government functions". For example,
contractors can not be used to collect a sample from an industrial outfall if that sample has the
potential to be used in a court proceeding.

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State Government

As the primary implementing authority for India's environmental programs. Stales have a
broad range of responsibilities such as: participating in the development and implementation of
national Initiatives; providing information to CPCB oh programs and activities; establishing
control programs for the State and issuing slate-specific regulations as necessary; developing
state policies and strategies; developing state data bases to manage ami track activities; mnnagmj'
the consent to establish (CPii) and consent to operate (CFG) processes; developing facility-
specific pollution inventories; establishing facility-specific norms; monitoring facility
compliance according to established frequencies; providing compliance assistance; monitoring
compliance with state or court directives; directing facility-specific environmental
improvements; addressing complaints; meeting with the public to discuss environmental issues;
initiating enforcement actions; and providing technical assistance in enforcement actions initiated
by both the State as well as citizens.

Of these listed activities, a disproportionate amount of time is spent on the consent
process-issuing consents and periodically renewing them. There is significant pressure on the
State Boards from the regulated community to receive consents within the mandated time frame.
The time for processing consents is relatively tight, and is exacerbated by the large number of
facilities requiring consents and/or renewals within any given time period. This pressure often
translates into political pressure from elected officials to expedite the consent process for
individual facilities. There is also internal monetary pressure to issue consents as quickly and as
efficiently as possible since the fees associated with the program represent a significant portion
of the operating budget of many State Boards. As a result of this emphasis, tiiere is limited time
to address traditional compliance and enforcement activities such as compliance inspections.

The resources available at the state level vary greatly depending upon the size of the
regulated community, the fees collected, and perhaps more importantly, the emphasis thai a
particular State places on environmental issues. Reportedly, some States have a limited staff of
only a dozen, while other States have staffs with over 600 individuals. Some states do not have
the resources necessary to purchase and maintain an adequate fleet of government vehicles to
travel to and front inspections. Resources are also insufficient in some states to ensure that
inspectors have monies for meals and board such that they are not forced to accept the hospitality
of the regulated facility they are inspecting. This creates, at a minimum, the appearance of a
conflict of interest.

As stated above, many SPCBs have established regional offices (called zonal offices in
some states), and in the larger states, sub-regional offices have been established. This sub-
division is necessitated by the total number of regulated facilities; the prescribed inspection
frequencies; am! the geographic areas and distances that must be covered w hen evaluating
compliance. This reduces the response time to address complaints and prov ides a local presence
for SPCBs.

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RespoiisiMiii.es of the regional and sub-regional offices vaiy from stite-to-state, til
depend greatly on which activities the central office believes can be delegated to these offices.
As the primary .field component of SPCBs, these offices conduct the majority of the inspections;
take legal samples; review compliance with SPCB and court directions; and may take lesser
enforcement actions, especially those involving the smaller and less polluting facilities.

Although local offices cam he beneficial, they can Increase overall operating expenses;
exacerbate communication problems; spread the available expertise to the extent it is rendered
ineffective; and resi.lt in inconsistent application aid enforcement of environmental laws and
regulations.

Case Examples:

The following two examples provide summary information on the resources available in
two of the larger State Boards, and the major compliance and enforcement accomplishments in
those states. They are illustrative of the workload challenges faced by SPCBs, They highlight
the problem SPCBs face in addressing all regulated soirees, aid raise questions-as to the
thoroughness of the inspections, and whether compliance is being accurately assessed and
addressed.

Maharashtra SPCB

The Maharashtra SPCB has 11 regional and 42 sub-regional offices throughout the State
with the central office located in Mumbai. The staffing information for this SPCB is presented in
Table 1-3.

Table 1 -3 ^Maharashtra SI C6 Staffing

Sanctioi

Filled

l ,

| Vacancies

[ Dissolve

#**•
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These 656 individuals arc responsible for addressing the 49,927 regulated facilities in the
State of Maharashtra. Of these 656, the 220 technical are available for inspections, with the
scientific staff providing analytical support. The facilities are classified as follows:

Red (high potential to pollute): S,892

Orange (medium potential to pollute): 9,008

Green (low potential to pollute): 32,027

These facilities are them further categorized by the size of the capital investment:

Large (LSI)-" - Rs50(),000

Medium (MSI)- Rsl0,000-Rs500,000

Sinai! (SSI)- Rs 10,000

The Maharashtra policy for inspection frequency varies with color and size
categorization, hut ail sources (49,927) have to be inspected at leas! once even' three years. The
policy for Large Red facilities is at least once per month, hut not less than once per year. There
are 1,031 Large Reel facilities, in addition to inspections to evaluate compliance, the state
conducts inspections as pari of the consent renewal process. The national policy requires Red
facilities to renew their permits annually.

In operational year 2U02-2003, the Maharashtra SPCB conducted 13,298 inspections to
determine compliance. If you multiply this number by three, that would equal 39,894
inspections. That number is approximately 10,000 short of the total number of inspections that
would be required if all 49,927 facilities were inspected every three years as required by the
Maharashtra guidance on inspection frequency.

During this same period, the SPCB also reviewed 678 complaints. They processed 9,264
CFlis, CFO, and renewals with 60 per cent of them being done by the regional or sub-regional
offices. As part of the renewal process, the SPCB conducted 5,920 field inspections. Sampling
activities included 13,540 effluent samples, 89 "legal" effluent samples, 1,608 stack tests, and
2,118 samples of hazardous waste. A total of 19,218 inspections were conducted during this
time period. The average number of inspections per technical staff was 87 inspections per year.

The Maharashtra SPCB has recently been modifying its policies to cope with the
workload demand. The SPCB has simplified the permit renewal process for certain categories of
sources, and extended the life of the permits. The fees for processing the permit application have
been increased to offset the reduction in s enewal frequency. The Board also has reduced the
workload burden on the senior level staffby delegating sonic decision-making responsibilities to
regional and sub-regional offices. This delegation is differential, and based on both the size and
potential to-pollute categorization of the sources.

-------
The Kamataka SPCB has 27 regional offices in addition to the central office and
laboratories. Bangalore is home for the central office and seYen of the regional offices. Table
1 -4 provides a summary of the staffing level for the Board,

As can be seen in the above Table, the SPCB is operating significantly below the
sanctioned level. It does not have the authority to hire to the sanctioned level. In spite of this
reduced staffing level, the Board is required to address 19,866 regulated sources, which are

categorized as follows:

Red: 7,066
Orange; 3,349
Green: 9,441

In operational year 2001-2002, they conducted 1,705 inspections at Large sources, 1,528
inspections at Medium sources, 8,418 inspections at Small sources, and 1,134 other inspections.
During the same period, 595 complaints were investigated. A total of 12,785 inspections were
conducted during this time period. The average number of inspections per technical staff was
101 inspections per year, and tliis inspection rate has increased by approximately 10% per year.

In an attempt to raise revenue, the Board recently started charging industry for the cost of

compliance monitoring that it conducts. This, however, does not address the inability of the
Board to hire additional staff.

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IV-1. COMPARATIVE INFORMATION FROM OTHERCOUNTRIES

The following data from the United States provides some basis for comparison, and is
appropriate given that the two countries arc similarly structured with a national program which
includes regional/zonal offices, and slate programs with further subdivisions within the state or
delegations to local governments. Like India, the United States has other limited special
authorities outside of the formal environmental bureaucracy that have partial responsibility for
environmental programs such as fire departments for emergency releases or agricultural
departments for issues dealing with pesticides usage and application. All numbers are
approximate.

The EPA has a total of 18,000 employees located in the Headquarters office in
Washington, D.C., the ten regional offices, and numerous laboratories and installations. Half of
the employees are assigned to the ten regional offices. In FY 2004, EPA had 3,470 Full Time
Equivalencies if IE)2 allocated to the compliance assurance goal which include administrative
overhead, as well as environmental targeting; development of national strategies and policies;
development and delivery of training; compliance monitoring; compliance assistance; data
management; enforcement; and oversight and evaluation of state programs. In the United States,
permitting activities are not included as part of the traditional compliance and enforcement
program unless compliance and enforcement personnel review the permit for enforceability, or
conduct a permit inspection. The EPA conducts relatively few permit inspections because this
responsibility has been delegated to the slates. Of the total 3»4?§ PTE assigned to compliance
and enforcement programs, ^00 are located in EPA Headquarters, and the remaining 2,570 FTE
are in the regional offices.

1,200 individuals conduct compliance evaluations as pari of their job, However, these
1,200 individuals are not full-time inspectors since they have other responsibilities. 350 FTE are
budgeted for conducting inspections. In addition, there are another 100 FTE who conduct
compliance investigations, but do not go into the field, and another 200 FTE that work as
criminal enforcement agents.

The rip A has authority to supplement its inspection workforce with contractors and
grantees in some programs such as tmdergroimd storage tanks, mobile sources, and hazardous
waste. There are over 100 such inspectors and they have authority in these programs to collect

samples and evaluate compliance.

• Please note: if there are 100 FTE ailocated to a function, it docs not necessarily in can
that 100 individuals are assigned to that function. It con id mean that 200 individuals perform this
function on a half-time basis.

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The EPA conducts approximately 18,000 inspections per year, which averages 33
inspections per year per PTE, This total includes multi-day team inspections of large sources, as
well as single inspector inspections of smaller sources. These inspections arc media-specific as a
rule unlike the Indian inspections which are multi media. For planning purposes, EPA estimates
220 work days per year. Under normal circumstances, it takes approximately one week in the
United States to conduct a thorough inspection at medium-to-large sources. In addition to the
site visit, this time includes targeting efforts; preparation time prior to the site visit to review past
compliance history; and required compliance monitoring reports and records; evaluate similar
facilities; prepare an inspection report; and provide assistance in any follow-up enforcement
actions.

Of the total 3,470 FTE, 600 FTE are classified as attorneys, with 200 in Headquarters and
the remaining 400 FTE in the Regions. They develop enforcement cases and resolve the majority
of them through civil administrative procedures without involving the courts in the negotiations.
An additional 12 PTE arc assigned to staff the administrative appeals process.

Based on the national compliance and enforcement data bases, the stales conducted
84,400 inspections in FY 2004. The average number of inspections per inspector could not be
calculated because EPA docs not collect state data on FTE devoted to the environmental
program. There is no data available on total local agency activities, but some larger local
agencies conduct over 1,000 inspections per year.

Other Countries

After exhaustive literature searches via the Internet and discussions with colleagues, EPA
was unable to locate data to evaluate and compare India's staff level with other countries.
However, the Organisation for Economic Co-Operation and Development provides methodology
for calculating total personnel needs according to the following steps:3

* Dividing facilities into categories according to their risk and precisely indicating how
many facilities belong in each category (the division in India is available, but the overall
numbers do not seem to be).

* Establishing the normal frequency of inspection per year (the national recommended
standards are available, but may be too ambitious for the size of the available workforce).

* Estimating the regulatory effort per category, in hours or days spent at a certain type of
facility (SPCB estimates vary, but are available in the larger states).

3 "Funding Environmental Compliance Assurance, Lessons Learned from International
Experience" OHCD, 2005, p, 42.

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* Assessing the total time on inspection (this should include all of ihe activities
discussed in the description of the EPA program),

* Assessing how much time (days) is spent annually on other tasks, annual leave, sick
leave, meetings, etc.

* Calculating the effective time for inspection (days per year).

* Dividing the total time of inspection by effective time to evaluate the number of
inspectors required (but not their profile, which is done separately),

V, SOURCES OF REVTNl 'li FOR STATK PROGRAMS

Very littie of the operating budgets for Stale Boards comes directly from the Central
Government, arid the monies they do receive generally are not for compliance and enforcement
activities.

They also receive very little from their respective state governments. As a general rule,
the majority of resources are self-generated through fees. State Boards can receive up to 100 per
cent of the tees collected for processing permit applications (CFHs, CFOs, and renewals), and up

to SO per cent of the CESS fees collected for water usage. However, the actual amount received
may he less since this money is transferred to the SPCBs through the general state budget
process. Nol all SPCBs reportedly receive back the full amount. SPCBs also charge industry for
laboratory analysis. However, the fees collected for this analysis may not he sufficient to cover
the cost of the work. Currently, a national study is being conducted to evaluate the actual cost of
providing sampling analysis and support to companies. In sonic states, such as West Bengal,
State Boards are authorized to use monies forfeited through hank guarantee programs. Again,
such monies area relatively small source of revenue for the Board.

VL RECOMMENDATION

The following recommendation is in direct response to the background information
reflected in this Chapter, but it incorporates findings and recommendations discussed in
subsequent Chapters.

Recommendation 1: Ad\ oeate for more resources, and streamline current practices to maximize
currently available resources.

The CPCB needs to continue to actively advocate for more positions for environmental
compliance and enforcement programs at both CPCB and SPCBs. Successfully advocating for
additional resources will require Boards to provide the appropriate authorities with more timely.

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reliable date on compliance and enforcement activities, and develop quantifiable measures of
success utilizing both output and outcome measures.

In the absence of a significant increase in resources, it is critical that the CPCB aid
SPCBs identify and develop ways to streamline current practices and processes to maximize
currently available resources. Opportunities are discussed in the subsequent chapters and
recommendations of this report, and include for example;

* Reassessing the balance between administrative and technical staff and fill vacancies
with more technically competent individuals.

* Hiring and developing expertise beyond the traditional technical and scientific series to
include attorneys, program, analysts, computer experts, communication specialists,
training experts, statisticians, etc.

* Establishing an inspector training program, and revising the personnel process to
redefine and expand the responsibility of junior technical/scientific staff, and streamline

the promotion process,

* Providing more independence to subordinate offices (e.g., CPCB zonal offices and
SPCB regional offices) through delegation of added responsibilities,

* Developing standardized national policies and procedures for compliance and
enforcement programs to avoid inconsistencies and duplication of effort by SPCBs.

* Developing better communication mechanisms to gather and distribute compliance and
enforcement information, and thereby, avoid duplication of effort by SPCBs.

* Computerizing more of the compliance and enforcement information gathered and
nnaly/.ed by staff

* Shifting the focus of inspections so that more of the burden is placed on the regulated
community to monitor compliance, and utilizing this self-monitored and self-reported

data to enforce against violators,

* Developing civil administrative penalty authority by utilizing current statutory
provisions to eliminate the need to initiate costly, resource-intensive and time-consuming
judicial actions in the criminal courts.

* Conducting a comprehensive evaluation of cost recovery mechanisms, and the
adequacy and allocation of current fees, and adjusting them accordingly.

* Evaluating potential new sources of revenue (e,g. penalties, bank guarantees).

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Rationale

As stated previously, obtaining the information necessary to document and evaluate the
adequacy of resources at both the national and state level to implement India's environmental
laws proved difficult. Piecemeal information was provided during meetings with CPCB, each of
the CPCB zonal offices, and individual SPCBs, However, information on the total resources
available at both the national and state level to implement the environmental laws was not
available, nor was more specific information on the resources devoted to compliance and
enforcement activities.

In spite of this deficiency in information, it is apparent thai there are not sufficient
resources at any level of government to adequately manage and implement the Indian
environmental compliance and enforcement programs.

There are a number of factors that currently place a strain on the capacity of CPCB and
SPCBs to fully implement their responsibilities and improve their infrastructure.

* The size of the country and the difficulty of travel have caused SPCBs to establish
numerous regional and sub-regional offices. This allows for a quicker response to
environmental problems and emergencies, and provides a visible presence of
governmental authorities in local communities, Some states have more than 25 regional
and sub-regional offices, plus separate laboratories. 1 fowever, such a fragmented
bureaucracy places monetary and structural strains on the Boards. This also places a
strain on timely communication among the different offices which results in inconsistent
implementation of regulations and interpretation of programs, and often times,
duplication of effort. This can affect the perception of industry in siting and enforcement
decisions. This very decentralized office structure is unique to India. In the United
States, the only state that is similarly structured is the State of California.

* India has an aggressive environmental agenda. While this is desirable for protecting

¦ the environment and serving the public interest, it also places an implementing strain on
the Boards, in the past few years, new programs have been introduced under the EP Act
(e.g., hazardous waste management, bio-waste management, and control of plastics and
used batteries) thai have significant start-up needs and have added to the existing resource
burdens without a comparable increase in resources.

* Because of the limited number of staff and the decentralized nature of SPCBs,
technical staff necessarily have vcty broad responsibilities. While the technical staff are
well-educated, dedicated, and hard working, the range of their responsibilities and the
diversity of the regulated community makes it challenging to address the regulated
universe and develop expertise in any given area.

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* Although they arc well-educated and generally competent, junior level staff are not
able to conduct the full range of compliance activities. For example, in some SPCBs,
they are not allowed to lead inspections and make compliance determinations, except in
very rare situations. This minimizes Iheir effectiveness, and increases the workload on
senior level staff who usually work more than 40 hours per week without compensation
to accomplish their assignments.

* Staff are generally hired at the entrance level and work their way into a senior position
over lime. Progress is hampered, however, by the relatively few senior level positions in
both CPCB and SPCBs and the seemingly low turn-over rate. Furthermore, promotions
are at the discretion of high level officials rather than those working most closely with the
staff. For example, in CPCB, promotion to the senior level requires approval of the
Chairman of MoEP, While this provides consistency, il adversely impacts morale and
can be a disincentive for choosing public service as a career.

* Some SPCBs reported that they have not been able to hire up to their authorized staff
targets due to budget restrictions and/or authorization constraints. Although the Boards
can hire contractors to supplement their permanent staff, these contractors can not be used
for work that is inherently governmental in nature (e.g., taking a legal sample).

* The unusually large number of sources combined with the aggressive environmental
agenda generate a significant amount of paperwork. Most SPCBs lack the resources to
develop the necessary computer systems to manage information flow and to track
activities. As a result, a large amount of time is spent on administrative activities instead
of actions that reduce pollution.

* Certain functions such as collecting CESS fees and fees to process CFfis and CFES are
a significant source of revenue and comprise a large portion of the operating budgets for
SPCBs. Thus, these functions arc often given priority over other responsibilities that
directly reduce pollutant loadings. In spite of the priority these activities receive, the
Boards still fait to collect all the fees to which they are entitled (e.g., local bodies).

* Regulated facilities gather and maintain a significant ainouat of compliance and
enforcement data at the direction of the Boards, but the infoimation is not used, as direct
evidence of a violation.. The perceived need to collect legal samples for all enforcement
actions creates a burden and significantly reduces the ability of SPCBs to effectively
monitor tie continuing compliance status of regulated sources.

* The regulated community is encouraged to challenge the authority of the Boards
because there is an extensive backlog of cases, and a number of courts are reluctant lo
hold industry accountable for environmental violations when there would be significant
economic consequences. This further adds to the overall workload of the Boards.

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* The Supreme Court and High Courts arc very active in environmental management,
Although this activity has advanced India's environmental agenda and brought about
environmental improvements, it has resulted in more work for the Boards because of the
court- ordered directives. This unplanned work adversely affects the ability of the
government to systematically address priority programs.

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CHAPTER 2: MONITORING COMPLIANCE

Monitoring compliance Is critical to delect and correct violations; provide evidence to
support enforcement actions; and evaluate program success. There are four potential sources of
compliance infonnation: (1) inspections conducted by program inspectors; (2) self-monitoring
and self-reporting by the regulated community; (3) citizen complaints; and (4) monitoring
environmental conditions near a facility.

Inspections arc the backbone of most programs. They provide the most relevant and
reliable information, but they can be very resource intensive and time-consuming, and require
careful planning to be efficient and effective. Standardi/ed procedures are required to ensure that
all facilities are treated equally, and thai all necessary information is gathered.

Self-monitoring and self-reporting provides more extensive mfonnation on compliance,
and shirts the burden of monitoring to the regulated community. It also increases the level of
management attention devoted to compliance within a facility. However, it relies on the integrity
and capability of the facility to provide reliable, accurate data, and significantly increases the
facility's monitoring burden and paperwork.

Citizen complaints can detect violations that are not detected by inspections or reported
by industry through their self-monitoring activities. However, this type of monitoring is sporadic
and the government can not control the amount, frequency or quality of the information received.

Area monitoring is useful in delecting potential violations without entering the facility,
1 lowever, it can be difficult to demonstrate a connection between the pollution detected and the
speci lie source. It also Is difficult or impossible to obtain precise information.

Additional information may be available from other sources such as government agencies
with related functions (e.g., health departments), or environmental audits by third parties.
Regardless of the source of information, a computerized system to store, access, and analyze the
information is essential.

I. PROGRAM POLICY AND GUIDANCE

CPCB asserted that they develop policies and implementing guidance as needed for the
compliance and enforcement program. CPCB has developed national strategics to address groups
of major polluters. Examples of such plans are the Ganga Action Plan4 to address "Grossly

4 Initially, 264 industrial facilities were identified by the states of l.'tar Pradesh, Bihar,
and West Bengal through which the Ganga River flows. Sixty-eight of these facilities were
classified as GPS. Through the Action Plan, the three SPCBs, with coordination and support

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Polluting Industries^tjPlf on the Ganga River; the list of 17 industrial categories6 with a high
pollution potential for air, water and/or hazardous waste;7 and the Charter on Corporate
Responsibility for Environmental Protection (CREP)S. Each of these strategies identified goals,
and provided implementation strategies and time lines for meeting those goals.

from CPCB, focused on increasing compliance monitoring of the targeted facilities; directing
either the shutdown of a facility or the installation of new or upgraded effluent treatment plants;
and bringing eourt aetion. By 1995, all 68 facilities reportedly had cither shut down or had new
or upgraded effluent treatment plants. The success of this initial program led to the classification
of an additional 119 facilities along the Ganga River as CiPI in 1997. By 2000, all but one
facility reportedly had either installed an effluent treatment plant or been shutdown.

Following the success of the Ganga Action Plan, attention was directed in 199? to
address all CJPi facilities that were discharging to rivers and lakes throughout India. Under this
subsequent strategy, S51 faeihties were identified for increased SPCB attention with coordination
by CPCB, The strategy railed for additional inspections, directives ordering compliance by
specific dates, and actions brought against defaidters. Reportedly, as of 2000, 228 were closed,
5S9 installed the required effluent treatment, and only 34 facilities had not yet complied with the
directives.

* A "Grossly Polluting Industry or GPI is defined as a facility thai discharges 100 kg/day
or more of BOD and does not have an adequate effluent treatment.

6 Aluminum, Cement, Chlor-Alkali, Copper, Distillery, Dyes & Dye intermediates.
Fertilizer, Iron & Steel, Oil Refineries, Pesticides, Petrochemicals, Pharmaceuticals, Pulp &
Paper, Sugar, Turnery, Thermal Power Plants, and Zinc,

1 The SPCBs identified 1551 non complying facilities within these i 7 categories.

Initially, the strategy was similar to the Ganga Action Plan with an increased number of targeted
inspections; directives; restrictions on consent renewals; and bringing court actions. However, in
1996, the Central Government tinder the HP Act began to take direct action against non-
complying facilities. Out of the initial 1551 non-complying facilities, 1351 facilities reportedly
have installed the necessary control equipment to achieve compliance; 178 have been shutdown;
and legal action has been taken against the remaining 22 defaulting facilities. See the 2002-2003
Ministry of Environment and Forests Annual Report.

* The CKliP was released in March 2003, and is applicable to 2098 units in 17 categories
of major polluting industries, It is a voluntary initiative by the participating units to ensure
compliance with pollution control norms and standards. Voluntary measures include
modernization of equipment and technology upgrades of productions processes; changing to new
technologies; minimizing waste through the reduced use of raw materials and the recycling of
wastes; improving housekeeping practices; and furnishing of hank guarantees by the defaulting
industries until compliance is achieved.

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The only implementing guidance referenced by the CPCB or any of the SPCBs was
guidance associated with the classification of industries {Red, Orange. Green, and Large,
Medium, Small), and the recommended inspection frequencies for facilities within each category,
EPA was unable to obtain a copy of the guidance from either the CPCB or any of the individual
SPCBs. Furthermore, individual states seemed to have differing interpretations of the guidance,
and diil not agree with the CPCB on the binding effect of the guidance since most have adopted
different categories and inspection frequencies as discussed earlier. No other implementing
guidance dealing with important issues such as the definition of an inspection; a definition of
compliance; minimum consent requirements; the time frames for issuing directives; minimum
data requirements; reporting requirements including schedules, content, and format; enforcement
response plans; arid regulatory interpretations were identified. In comparison to the technical
documents developed and widely distributed by CPCB, there is no list of available compliance
and enforcement-related documents, nor a central repository for this type of information

M. COMPARATIVE INFORMATION FROM OTHER COUNTRIES

United States

1:PA has traditionally been very active in developing national implementing guidance for
each of the media-specific programs, and issuing statutory/regulatory interpretations for industry
sectors in general and for individual facilities. Initially, the Agency did not have a unifonn
system for cataloguing and distributing these policies, and implementing decisions. This lack of
organization adversely affected implementation of the program. To address the problems that
arose, I:PA established a formal docket system with hard copies of all policies and guidance
documents issued by the Agency, and subsequently made them available via the Internet to all
interested parties. In addition, EPA developed media-specific, publicly available, computerized
systems to index Agency regulatory interpretations and applicability determinations. For
example, under the air program, the Clean Air Act Applicability Determination Index (AD!) was
developed for all decisions issued since the 1970s pursuant to the stationary source regulations.
Currently, the ADI stores approximately 2,500 separate determinations and is available to the
public on the EPA website. This significantly reduced the staff time needed to respond to
regulatory* questions and hail the added benefit of placing industry on notice of EPA's position on
implementation issues. This public notice and the precedence established in the process have
enabled EPA to settle more cases without court involvement, and when court action is required,
EPA has a stronger argument.

1-2. RECOMMENDATION

Recommendation 2: Develop policies and implementing guidance to assist the zonal offices and
SPCBs in implementing compliance and enforcement programs. As these policies and guidance

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arc developed, clTcciivc organization will necessitate that a system for cataloguing and
distributing the guidance in a timely manner also be developed.

In addition to policies and guidance developed by the CPCB, this effort should include
any major decisions or statutory/regulatory interpretations made by the CPCB or SPCBs that
establish precedent, or have a national or nuilti- state impact. A computerized database of these
documents would he the most efficient method of distribution, but is not necessary presided
there are oilier recognized means of publication thai are known and readily available to the nil
State Boards, the regulated community, and the public,

MoMs

There is very little national implementing guidance for the compliance and enforcement
program. As a result, SPCBs are forced to interpret statutes/regulations and design implementing
programs on an ad hoe basis as they see fit. National guidance and a system for distributing this
guidance and associated regional interpretations will:

* Enable SPCBs to make more efficient use of limited resources since staff will not have
to analyze issues anew if CPCB or another Board has already addressed the issue.

* Enable SPCBs to implement programs in a fair, consistent and predictable manner.

II PROCESS OVERVIEW
Central Goveinment

Within the CPCB, the zonal offices conduct the majority of inspections. Experts from the
CPCB 1 Icadquarters and/or the SPCBs maybe used to supplement the zonal staff on certain in-
depth studies of industry and special investigations

For the CPCB zonal offices, much of the targeting is done through the annual action plan.
The plan, which is prepared by CPCB Headquarters in consultation with the zona! offices,
identifies the number and types of inspections each zonal office should accomplish during the
year. These inspections may be associated with a national strategy, a special project within the
zonal area, the Environmental Surveillance Squad (ESS) program, or a court obligation.
Inspections that are not covered in the annual action plan include public complaints of a
significant nature, political inquiries, requests from SPCBs, or unplanned requests from CPCB
that do not fall within the scope of national strategies.

As an example of the types of inspections that are conducted at the zonal level, Table 2-1

provides a breakdown of inspections by ptiipose for the Eastern. Zonal Office. The Table covers
inspections from 1998-2003 in that zonal area.

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Table 2-1 CPCB Eastern Zonal (
Inspections Conducted By Purj

3ffice

JOSC

Purpose

1998-99

1999-00

2000-01

2001-02
36

2002-03

1 ¦¦

Total

R&D

1
1

I "

Hazardous Waste

Court Directives and
Public Complaints

Total

128

112

451

Zonal office inspections are usually more extensive than SPCB inspections and often take
several days to complete. They not only collect samples, but review the process and control
equipment as well As a result, they believe that their compliance inspections generally identify
more violations at a given facility than the compliance monitoring activities of SPCBs. If the
zonal office intends to collect a legal sample to determine compliance, they are required to give
the facility advance notice; however, notice can be given at the time of arrival at the facility.
Generally, more advance notice is given if a stack test is required, which almost guarantees that
the results will not be indicative of normal operating procedures. Usually, the zonal office
monitors the facility's operations during a test to ensure that the facility does not manipulate the
process during the actual testing. Inspections by the zonal offices are often attended by
inspectors from the relevant SPCB, but they are not required to be present, Such inspections
serve as a training opportunity for new state inspectors, and also provide the zonal office with an
opportunity to obtain unbiased, more in-depth information about a facility from the state
inspector who generally is more familiar with the facility.

As stated above, the zonal offices, in conjunction with experts from CPCB Headquarters
and SPCBs, also conduct special investigations of industrial sectors to evaluate industry practices
and the efficiency, accuracy and reliability of specific types of controls. These investigative
studies provide a well-documented analysis of the industry, and are useful in understanding
industrial processes, environmental controls, regulatory requirements, and identifying
opportunities for more efficient, cost-effective controls and pollution prevention opportunities.
These studies usually are published and made available to industry and the public for a nominal
fee.

State Government

As discussed earlier, the CPCB developed an industrial classification system relating to
both the potential-to-pol lute and the size of capital investment as a means to facilitate the
administration of India's pollution abatement and control program. This classification system

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drives the compliance monitoring activities of SPCBs, and is the primary tool for targeting state
inspections.

With respect lo potentia!-to~pollute, facilities are categorized as Red, Orange, or Green as
described in Chapter 1. There is a total of 64 types of industries nationally that have been
categorized as Red on the basis that they have a significant potential to pollute or generate
hazardous waste. There are 25 tspes of categories categorized as Orange, and an illustrative list

of 55 categorized as Green.

With respect to the size of capital investment, facilities are categorized as Large,

Medium, or Small as also described in Chapter 1,

CPCB developed guidance on national inspection frequencies and permit renewal cycles
for each category, but none of the State Boards had copies of the guidance. In spile of this
guidance, the frequencies varied among the States, with each asserting that their frequencies were
consistent with the national policy. The Boards altered the guidance to meet their unique State
needs and priorities, as well as to take into consideration the available resources. One approach
has been to re-define the categories. For example, the West Bengal SPCB further classifies Red
facilities as "Special Red" and "Ordinary Red", Another approach has been to modify the
number and types of facilities in a given category. For example, the Andhra Pradesh SPCB
includes a total of 95 types of industry in their Red category instead of the national standard of
64. The Gujarat SPCB has included 54 types due to the industry composition in that State. Yet
another approach has been to change the inspection frequencies. These frequencies are
influenced by the number of facilities in a given category, and the resources available to address
the category. Table 2-2 reflects some of this variation.

Table 2-2 'Inspection Frequencies

State

Gujarat
(10,000
total

facilities)

once per month

once every 6 months

once a year

Andhra

Pradesh

once every 2 years
(1,114 facil.)

once every 3 years

(3,608 facil)

once every 5 years
(625 facil.)

West

Bengal

once every 2 years
(6,103 facil)

once every 3 years

(7,474 facil) |

! once every 5 years

The state of Orissa further refines the frequency by overlaying the size of the facility on
the potential to pollute category. Table 2-3 summarizes Orissa's frequency:

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1" Fable 2 -3 Orissa SPCB Policy on Frequency of Inspections

Given the available resources, many of these established evaluation frequencies do not

appear to be realistic. Regardless of the frequency used, State Boards have difficulty in meeting
them, and often the quality of the inspection suffers in order to attempt to meet the mandated
frequencies. Less time is allocated per inspection, and thus the reported inspection is not as
thorough or as comprehensive as perhaps it should be. Since there is no standardized definition

of an Inspection, it is difficult to assess whether the inspections are adequate, or to compare the
level of activity from state-to-state.

Fiie SPCBs arc viewed under the laws as the primary compliance monitoring entities in
India, Therefore, (hey conduct a tremendous number of inspections per year, and a significantly
larger number of inspections than CPCB, No nation-wide statistics were available, nor was state
information uniformly available for the same time periods. However the following information
from different time periods is illustrative of the number of inspections being conducted annually.
For example, in 2001-2002, Kamataka had 70 available individuals who conducted 13,3SO
inspections, In comparison, the Southern Zona! Office conducted only 25 inspections in
Kamataka during this same lime frame. In 2002-2003, the Maharashtra SPCB conducted 13,208
compliance inspections with approximately 220 individuals, In 2002-2003, Orissa CPCB
eondaeted 2,260 inspections with approximately 43 available techniea! staff. In 2003-2004,
Andhra Pradesh committed to 8,800 inspections with approximately 140 individuals available to
conduct inspections.

The level of inspection activity in any state is influenced heavily by the type and level of
other compliance monitoring activities that are undertaken in a given year, and the resources
available to conduct these activities. For example, Maharashtra was responsible in 2002-2003
for conducting a range of activities as illustrated in Table 2-4 below.

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Tab; tarashtra SPCB 20-

5»92<

Compliance Inspections

13,2'

Effluent Samples

Law Evidence Effluent Samples
(for court action)

«. . - .

I Hazardous waste samples

~"J"""

These activities arc illustrative of the activities of other stales; however, the actual
numbers vary. For example, the Karnataka 5PCB responded to 672 complaints in 2001-2002 in
addition to lite 13,380 inspections they conducted during, that time frame. The Orissa SPCB
took 1,400 effluent samples and conducted 340 stack tests in addition to the 2,260 inspections
conducted in 20412-2003,

Notice of an inspection is required, but it can be given upon arrival at a facility,
Inspections at die state level are multi-media inspections which address air, water and hazardous
waste requirements. As such, they require inspectors to have in-depth knowledge of each of the
environmental slatutcs and implementing regulations. Many of the state inspection programs
focus primarily on collecting legal samples in each of these media to determine compliance, and
due to a variety of factors, many of these programs are further limited to the collection of legal
water samples. Water samples are relatively easy to obtain, and can be collected relatively
quickly with minimal effort and time. Sampling points are delined in the CFOs, and generally do
not require special equipment or tools to collect. The sampling procedures are straight-forward
and well-publicized. Facilities are accustomed to this type of routine sampling, and are prepared
to provide such a sample. Furthermore, this type of sampling provides a source of fees to
SPCBs, although the lees may not be sufficient to cover the cost of the sampling and analysis by
the state.

In contrast, few legal air samples are collected. Often the legal sample must be collected
through a stack test. Generally such tests require advance notice before the day of the inspection;
thus, providing the facility an opportunity to ensure that they pass the test and can demonstrate
compliance with the air standards. Such tests are very resource intensive, require specialized
instrumentation, and require training that most inspectors have not had. Sampling procedures are
not well-defined or understood by the inspector or industry; access points are not delined in the
CFCs; sampling ports may not be accessible, or if accessible, unsafe; and inspectors are not
covered by stale-sponsored insurance in the event of an accident. Given that these tests usually

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are not representative of a source's operation, few legal tests of compliance with air standards are
conducted.

Sampling and analysis of hazardous waste suffers from similar problems. Sampling
procedures arc not well-defined or understood and sampling points are not defined. Hence, there
is often disagreement between, the SPCB and the regulated facility on the results of any such tests

and whether they demonstrate non-compliance with the standards.

During inspections, state inspectors also have responsibility for evaluating facility
compliance with other programs that are not directly related to emission requirements, such as
recycling and reuse programs, and "greening" programs. For example, they evaluate the number

of trees (hat have been planted and survived within a given time frame to determine whether
India is meeting its overall goal to reforest the country. They evaluate whether the wafer used to
irrigate these trees is wastewater from the facility, and use that information as an indication of

whether the facility is meeting effluent standards.

Inspections generally can be conducted only by senior staff. Junior personnel arc
precluded from conducting separate inspections even at smaller, less polluting facilities. They
may, however, collect legal samples at smaller facilities in some states. This approach does not
make efficient use of capable, well-educated (masters degree) individuals, and significantly
reduces the number of personnel available for conducting inspections. Furthermore, there are
limited opportunities for advancement to the more responsible senior levels and interesting work
which adversely affects morale.

The amount of time to complete an inspection is a function of the complexity of the
facility; the type of inspection that is being conducted (e.g.. whether an effluent sample or stack
test is being conducted, or whether it is simply a walk through to see if anything has changed
since the last inspection); the size of the inspection team (e.g., Andhra Pradesh uses an inspection

team at larger, more complex facilities consisting of a senior environmental engineer, and an
assistant or junior engineer, and a driver); the experience of the lead inspector; and the proximity
of the facilities to one another (i.e., the closer together, the less traveling time). Estimates ranged
significantly from state-to-state. One inspector indicated he could conduct inspections at two
large facilities in one day. Another indicated that he could do a total of seven inspections at large
and medium facilities in one day. Another indicated tli.it lie could conduct 20-30 inspections at
small facilities in one day.

Regardless of the size of facility, there is tremendous pressure to complete inspections as
quickly as possible. There are a number of reasons for this, fhe primary reason is the
oven*, helming workload of inspectors. They have a tremendous number of facilities to visit, and
compliance inspections are only a part of their overall responsibilities which extend beyond those
traditionally associated with compliance and enforcement such as issuing (T'Os. Furthermore,
greater priority is placed on issuing consents as quickly as possible in part because they are a
primary source of funds in SPCB operating budgets. Another reason is that the inspection is not

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considered complete until an inspection report is filed incorporating the checklist results and
notes taken during the site visit. In addition to the inspection report, the}* must send follow up
letters to the facility to confirm agreements reached and tasks to he performed; and process any
samples that were collected. These efforts can be quite time-consuming. Remote locations and
the travel time between sites are additional factors that add pressure to complete inspections as
quickly as possible.

Many inspectors have a great deal of knowledge of facilities based on prior inspections,
and the more detailed consent renewal visits. This mitigates the need for detailed inspections on
every visit, ! Jowever, the limited scope of many inspections, the time spent on activities not
directly related to compliance, and the average amount of time spent on a given inspection raises
questions as to the adequacy of the inspections in evaluating compliance; the accuracy and
reliability of published compliance rates; am! whether India is meeting its pollution reduction
goals.

Some SPCBs have developed special teams to supplement their regular inspection
resources. However, these teams are for targeted activities and provide minimal assistance in
alleviating the overall inspection burden. For example, the Andhra Pradesh SPCB has
established three fask Force Inspection Teams that report directly to the Member Secretary.

They are used primarily to investigate complaints throughout the state as opposed to conducting
routine compliance inspections.

Seseral SPCBs indicated that they rotate their inspectors within their state to prevent
them from becoming too "friendly" with industry. The Karnataka SPCB rotates its inspectors
every three years. While this approach does reduce familiarity with industry and the
opportunities for corruption, it is very disruptive to the personal lives of inspectors who often are
forced to live separate from their families. It is difficult to relocate families, especially those
with school-age children, every three years, and it is expensive to maintain two households on
the government salary. This reduces morale within the inspector workforce; discourages
qualified individuals from pursuing careers with the slate government; and provides an incentive
for good inspectors to leave the workforce for more desirable jobs in industry.

Rotation of inspectors undoubtedly reduces familiarity between inspectors and facilities,
and minimizes the opportunities for corruption. However, it does not entirely solve the problem.
Due to scarce government resources, and the remote location of facilities with no publicly
available overnight accommodations, inspectors accept meals prepared by regulated facilities,
and stay overnight at facility guest houses when conducting inspections of the facilities. This
creates, at a minimum, the appearance of a conflict of interest.

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fiMtJldie:

Karnataka SPCB

During the visit to the Karnataka SPCB, EPA accompanied the SPCB personnel on two

inspections to observe the procedures ami process used by inspectors. Both inspections were
considered to he routine inspections of complex facilities. The hPA observations of the
inspections are ineiuded as Attachment 1,

The first inspection was contlueted at the MICH) plant. This plant manufactures fuel
injection equipment for diesel engines, and employs approximately 5,000 individuals. As a
1 arge REP facility, it is normally visited onee a month when legal samples are taken and routine
(non-legal) sampling of effluents is done. A deputy environmental officer for the Karnataka
SPCB with 16 years of inspection experience led the inspection, lie had responsibility for the
southern portion of the city of Bangalore, which includes 165 major facilities. Consistent with
state practice, he routinely inspects the same facilities and had been to M1CO on numerous
occasions. The inspection team consisted of the deputy environmental officer and an assistant
who collected the effluent samples. They were accompanied by a driver. A representative from
the facility accompanied the team at all times. The on-site inspection took approximately three
hours.

The second inspection was conducted at Cipfa, a large pharmaceutical operation. It too
was eategori/ed as a Targe Red facility. The inspection was led by a different, but equally
qualified and experienced, deputy environmental officer for the Karnataka SPCB. The team
consisted of the senior inspector, an assistant inspector, and a sampling assistant. They were
accompanied by a driver. A representative from the facility accompanied the team at all times.
The on-site inspection took approximately three hours.

The lead inspectors for both inspections conducted and documented their inspections in
different ways, but overall, they were well-qualified (educated and experienced); and very
knowledgeable of the individual facilities, the applicable environmental requirements, and the
procedural requirements and norms. Both commanded the respect of the facility management
based on this knowledge and experience. They had reviewed facility files prior to the inspection,
and were aware of previous compliance problems and the directions that were given to address
theirs. 'They were alert to changes in operation and physical conditions since their last visit and
quick to question them. Both reviewed on-site, self-monitoring records and asked questions
about the records, but viewed them only as an indicator of compliance since they did not believe
that the data from such records could be used for enforcement, nor did they trust the accuracy of
the data. Exit interviews with facility personnel were conducted and a detailed description of the
inspectors* findings were provided. Inspection reports were prepared immediately following the
inspections and letters with directions were sent to the facilities.

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Maharashtra. SPCB

The positive experience with the Karnataka SPCB was replicated when EPA
accompanied inspectors from the Maharashtra SPCB on site visits to cement plants and 'henna!
power plants in the State. The inspectors were well qualified, and very knowledgeable of the
individual facilities, the applicable environmental requirements, and the procedural requirements
and norms. As a result, they too comtnaiuied the respect of the facility management based on
this knowledge and experience. During the site visits, the inspectors noted changes in operation
since their last visit and cheeked progress on directives issued by the State as a result of previous
inspections. Although the purpose of the visits was educational as opposed to evaluating
compliance, the inspectors noted on-going particulate matter (PM) violations at one facility hayed
on a review of continuous monitoring data.

The PM violations were identified at an extremely large government-owned thermal
power plant, and highlighted the difficulty faced by State Boards in effectively addressing such
violations. The State could initiate an enforcement action in the courts, but the action would be

time-consuming and it would be years before the violations were addressed and the matter
resolved. Furthermore, the inspectors did not believe that the self-monitoring data required by
the State (continuous emission monitors documented emissions well above the standard over an
extended period of time) could be used as direct evidence of a violation, and that a legal sample
obtained through stack testing would be required to document the violations. The State could
threaten closure, but this action is unrealistic given thai India has critical energy needs that must
be met, and shutting down one of the largest powers plants and thus power to major portions of
the country is not a viable option. No penalties could be levied by the Stale Board for continuing
non-compliance since the Board does not believe it lias this authority. Hence, the only option is
to negotiate a compliance schedule to resolve the underlying violation. Given the lack of real
enforcement options available to the Slate Board, the Board is at a distinct disadvantage in any
negotiations and has no real leverage to compel the facility to comply with the norms as quickly
as possible. A citizen suit was deemed the best approach for obtaining compliance in a timely
manner.

ill. SKI ,F-MONITORING, Si-1JP-RECOR! JKEEPINCi. AND ShLF-Ri-iPORTlNG

The Government requires sources via regulation and through CFOs to self-monitor,
maintain records, and self-report specific pollutants and parameters in both the air and water
program. For example, in the air program, it requires facilities 1o monitor pollutants such as
sulfur dioxide, carbon monoxide, nitrogen oxides, particulate, and metals. In the water program,
facilities monitor parameters such as total coliform, turbidity, pH, color, odor, taste, and
pollutants such as phenolic compounds, pesticides, metals, fluoride, nitrate, chlorides, and
sulphate. The monitoring frequency and methodology varies for each. Facilities are required to
maintain records and report the information periodically to the Government.

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In spile of the wealth of information being gathered and maintained by individual
facilities on compliance, the Government docs not use any of this information to document a
violation, anil initiate an enforcement action in the courts. They may, however, use the
information as an indicator of compliance, and sonic may issue directives, or in rare instances,
threaten closure to motivate a voluntary change and avoid having to take a "legal sample". The
rationale for this approach lies in the interpretation of pertinent sections of the Water, (Section
21) Air, (Section 26), and HP (Section 11) Acts dealing with the taking of samples. They have
been interpreted to require legal samples as evidence in any enforcement actions brought to the
courts,

if the Government takes a sample for use as evidence in court under any of the major
environmental statutes of India, the Government staff collecting and analyzing the data must be
delegated and certified to conduct the (ask and follow procedures established in the laws and
regulations. The sampling procedures to create a legal sample are time consuming and provide a
number of opportunities for procedural error. Several SPCRs reported that the main reason the
courts (especially the lower courts) have ruled against the Government is due to sampling
prucedure defiesencies.

ill-l. COMPARATIVE INFORMATION FROM OT11HR COUNTRIES

Increasingly, self-monitoring, -recordkeeping and -reporting are being recognized as
providing essential data to supplement and support inspections. This approach is welt-
established and accepted in addressing environmental compliance and enforcement problems.

Countries such as the Netherlands, Germany, the United Kingdom, and the United States make
full use of this information, and others snc.li as Thailand, Mexico, Hungary and Japan are

expanding the use of this in formation.® The European. Union (EU) has stated:16

Because of its benefits, self-monitoring is likely to develop into an important requirement
of HI I environmental legislation. Integrated Pollution Prevention and Control (IPPC)
already provides for self-monitoring to be introduced in permits. However, Criminal Law
is the responsibility of member states and is beyond the scope of KU powers. It is
important, therefore, that national legal systems:

41 provide the competent authorities with appropriate powers to impose
requirements for self-monitoring on the operator;

9 &£ the NIECE Report, "International Comparison of Source Self-Monitoring,
Reporting, and Recordkeeping Requirements" 1996,

10 Se the IMPEL report, "Operator Self-Monitoring" February 1999.

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* allow self-monitoring data to be used for enforcement action against companies
and do not consider it inadmissible on the grounds of self-incrimination.

In the United Slates, data gathered through self monitoring, -recordkeeping, ami
-reporting are relied upon extensively to determine compliance and take enforcement actions,
For example, the requirements for effluent discharges were established in the 1972 Clean Water
Act (CWA) Amendments, and were implemented through si discharge permitting program, the
National Pollution Discharge Elimination System (NPDES). The NPDKS program forms the
primary basis for monitoring compliance of both municipal and industrial effluents.
Implementation of this program is generally delegated to the states. Kach facility with a NPDHS
permit is required to monitor pollutants (frequency and required methodology arc prescribed in
the permit); report all monitoring results to the slate environmental agencies (ItPA, where not
delegated) at least annually; maintain records for inspection by the Government; and report
violations monthly. Virtually no supplemental sampling of effluents is conducted by the
Government. Up until the early 1090s, CWA enforcement actions by both EPA and state
agencies were driven by this self-monitoring and self-reporting approach, and approximately 90
per cent of al! water enforcement actions, including administrative and civil judicial, were based
on self-monitoring data as the prima facie evidence of a violation. Subsequent to that time and as
a result of significant improvement in NPDES compliance rates, water enforcement activities
have shifted to other programs where self-monitoring is not required or in some instances, noi
feasible.

Based upon the success in the water program, the United States amended the Clean Air
Act {('A A) in 1990 to require more self monitoring and self-reporting in air regulations and
permits. The most sophisticated self-monitoring program is the acid deposition program which
requires continuous emission monitors, and electronic reporting of data to the Government.

Most programs however are not as sophisticated. They require facilities to monitor, maintain
records, and report on facility-specific operating parameters and process conditions, pollutant
emissions, and work practices. Certain upset conditions must be reported immediately, with
other information required on a monthly, quarterly, semiannual, and/or annual basis. To ensure
the integrity of the data, EPA requires facilities to self-certify their compliance annually and
makes al! of the underlying information publically available. Senior company officials are
personally liable for false reporting. Falsification of data is considered one of the most serious
offenses in the United States, and may be prosecuted criminally. Sanctions involving substantia!
penalties and imprisonment are available. This criminal authority and the actual use of it by the
Agency lias reinforced the importance of self-monitoring and -reporting requirements, and
ensures the accuracy and reliability of the data.

As a result of the changes to the CAA, the number of cases basal on self-monitoring and
self-reported information has increased, and currently accounts for 10-15 percent of the
enforcement actions taken.

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11-2. R FCOMM FNDAXIOM

Recommendation 3: Establish the authority to use self-monitoring, self-recordkeeping, and self-
reporting as direct evidence of a violation in the courts (and administratively should such a
process he established); develop and distribute the necessary policies and implementing
guidance; and provide training to SiVBs.

Based upon a review of India's environmental statutes and regulations, it can be argued
India has the authority to implement such an approach.

* Hach of the major environmental statutes imposes a general requirement on sources to
comply with environmental standards, for example. Chapter III, Section 7 of the hi' Act
states: "No person carrying on any industry, operation or process shall discharge or emit
or permit to he discharged or emitted any environmental pollutants in excess of such

standards m may be prescribed,"

* Hach of the major statutes has provisions pertaining to the collection of legal samples
by the Government or "any officer empowered by it in tills behalf1 and the specific steps
that must be taken for the collected information to be admissible as evidence in any legal
proceeding. These provisions, however, are in a dedicated section that relates only to
taking and analyzing samples by the Government. They do not require that a Segal sample
be taken in all instances, nor do they extend to situations where information other than a
legal sample (e.g., self-monitored data on temperature and pressure drop in a baghouse) is
being obtained.

* The argument that a legal sample is not required in all circumstances is supported by
provisions that allow the Government lo seize all records and documents that may furnish
e\ idence of an offense (e.g., self monitored and self-reported information required
pursuant to existing regulations and OFHs and CFOs conditions),

* It follows that if the Government can seize information, it can utilize the seized

in format ion to take an enforcement action and prove a violation in court. Each of the
statutes authorizes the Government to take action where "it is apprehended" that pollution
has occurred or is likely to occur. In its common, everyday usage, the term "apprehend1"
means "to take hold of mentally; perceive; understand." Hence, the Government does not
need to have a legal sample before taking legal action, but can rely upon a mere
understanding that a violation has occurred or may occur. This "understanding" can be
acquired through analysis of self-monitoied and self-reported data.

There is support for this approach of utilizing self monitoring data to demonstrate non-
compliance, An audit report on the State Government of Kerala by the Comptroller and Auditor
General (CAG) of India for the year ending March 31, 2001, documents the understanding of
certain governmental representatives that self-monitoring data is useful for proving an
environmental offense. The CAG determined that the 8PCB did not conduct a sufficient amount

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of stack tests for consented units under its authority. In the absence of the monitoring data that
could have been collected by such tests, the t AG noted thai the Board was therefore dependent
upon the self-monitoring reports that the consented units were required to submit at fixed dates.
However, not all self-monitoring reports were submitted as directed. As a result, "monitoring of
emissions of industries was inadequate, in the absence of proper monitoring, eases exceeding
emission standards were not detected and legal provisions against the defaulting units not
invoked,"

Assuring the integrity of the data is critical for the success of any self-monitoring or
reporting program. India has sufficient enforcement authorities to ensure data integrity, for
example, the Government can shut down a source or seek criminal penalties in court for
falsifying information.

Critical to {he success of this recommendation is the need to address violations in a timely
manner without necessarily having to involve the judiciary. Hence, India should pursue civil
administrative authority using current statutory provisions, which is discussed in detail in
Chapter 3, and Recommendation 7.

IV. STACK 'TESTS

Air pollutant emissions from stacks arc a significant source of pollution in India. In
recent years, the Government lias successfully required industry to install pollution control
equipment to comply with environmental requirements. However, continuous operation and
maintenance of these systems is an on-going problem. In addition, emissions are adversely
affected by process rates and variations in process materials. This is especially true with
combustion sources where periodic, proper tuning and maintenance of the boilers can affect
compliance.

The time and costs associated with a stack test do not allow for "instantaneous"
determination of compliance when the Government suspects a violation or responds to a
complaint. Conducting a stack test usually requires significant lead-time to gather the necessary
equipment and staff, coordinate activities with the source, and ensure site preparation. For many
companies, this lead-time provides them with an opportunity to correct equipment deficiencies,
modify the process or fuels, and generally, prepare to present themselves in the best light. As a
result, these tests often are not representative of normal operating conditions or pollutant levels,
and it frequently is difficult to document a violation through a stack test. In addition, as stated
previously, sampling procedures are not well-defined or understood; sampling ports may not be
accessible, or if accessible, unsafe; and inspectors generally do not have the requisite training to
conduct stack tests. Given these problems, lew legal tests of compliance with air standards are
conducted.

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Opacity (visible emission) standards could address some of the inherent short falls of

slack tests. Opacity is the measurement of the amount of light thai is obscured by the presence of
pollutants in the plume, ft is not a pollutant per se, but a characteristic of air pollution, in the
same way that pi 1 or turbidity is not a water pollutant, hut a characteristic of water pollution
found in discharges and streams. If therefore measures the presence of other regulated pollutants.

Opacity standards have the following advantages:

* Opacity monitoring is far less costly and time consuming then stack testing, so more
compliance monitoring can be conducted.

* Opacity monitoring requires no special equipment. I fence, an inspector can react
immediately to a suspected violation. The level of effort is similar to an inspector in
India carrying a plastic water sampling bottle so that, if desired, he/she can quickly collect

a grab sample from a discharge pipe.

* Training is necessary, hut requires less technical proficiency than stack testing, and can
be provided to facility representatives, concerned citizens., or Noii-govemnieiitai
Organizations (NtiOs) in the community who can assist SPCBs in monitoring
compliance.

* ft provides a record of observed "normal" operations versus the operations during the
more extensive stack tests.

* Opacity levels can be tailored to meet the desired conditions of most types of
operations.

Opacity standards also could reduce mass emissions and respiiable particulate
significantly. Based on EPA observations, many facilities are not meeting the standards for
particulate matter on a continuous basis, ami have significant visible emissions even when
meeting the standards. For example, during the HPA visit to the Chandrapur Super Thermal
Power Station, EPA found that mass particulate matter emissions fas measured and recorded by
the in~stack monitor) fluctuated around the standard of 150 mg/NMJ, Although a formal VEO
was not conducted, a trained EPA smoke reader observed that the opacity from associated slacks
was SO-100 percent opacity. Based on the US experience, it is reasonable to assume that if this
plant were required to meet a 20 percent opacity standard, the mass emissions would have been
significantly lower than 150 mg/NM\ In addition, the smaller more harmful respirablc
particulate emissions would have also been significantly lower.

Some state governments have regulated visible emissions from stacks. For example, the
Maharashtra SPCB utilized local authority to regulate emissions from "furnaces". Based on
discussions with former staff responsible for the program, the Maharashtra program was
structured, implemented, and enforced similar to the United States approach and
recommendation discussed below, ft however applied to a smaller universe.

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IV4, COMPARATIVE INFORMATION FROM OTl 1I-R COUNTRIES

Opacity standards are a regulatory ami compliance tool used extensively in the I Iniled
States to determine whether emission controls ami processes are operating at or near the design
for controlling designated pollutants, such as particulate matter. Under this approach, opacity
standards are established in individual regulations, and are distinct from emission standards.

They are separately enforceable. Specific test methods are promulgated and referenced in
individual standards to ensure the proper collection and accuracy of the data. Under the test
methods, inspectors are trained and certified to use their "calibrated eye" to observe and measure
the opacity of smoke emitted from a stack at defined intervals over a specified period of time.
The observations are recorded on an official form, which is used to document and determine
compliance. This form, in conjunction with the inspector's testimony, may he used as the sole
evidence of a violation in a court proceeding. Since KPA first adopted this approach in 1971, it
has been challenged in the courts and upheld.

A number of countries besides the f 'nited States have established opacity standards for air
pollution. This regulatory concept began over one hundred years ayo in England where the
hunting of coal in large cities was a serious health problem. The first requirements related only
to black smoke and measured the density of smoke as compared to a five scale chart where *11"
was considered completely clear and "5" was totally black. Since that time, the reading of smoke
has been greatly re lined. Today a trained observer can read the opacity, or the amount oflight
obscured, in five percent increments from "0" percent to "100" percent.11

IV-2. RECOMMENDATION

Recommendation 4: Establish opacity standards and test methods for emissions from stacks;
develop implementing policies and guidance; and establish the necessary training infrastructure.

To successfully develop and implement opacity standards in India, the following
activities are critical for either CPCB or individual SPCBs:

* Conduct a legal analysis of existing authorities (national and/or local) and establish a
legal basis for opacity standards,

* Define the scope and level of control For example, does the (iovcrnment want to
address all regulated industries emitting particulate matter, or focus initially on a subset
of regulated industries based on factors such as size classification or whether it is a

l! For black plumes, 100 percent of the sets of observations were read with a positive
eixor of 7.5 percent opacity, and 99 percent of the sets were read with a positive error of 5 percent
opacity. EPA document, "Method 9 - Visual Determination of the Opacity of Emissions from
Stationary Sources" October 25,1990, T.MTiC TM-0G9.

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priority industry? In addition, the Government needs to determine the appropriate level
of control. For example, in the US, opacity standards are generally 20% opacity or less.

* Establish methods for determining compliance with the standards. Compliance with
opacity standards can be determined easily and directly either through the use of

Continuous Opacity Monitors (COMS) or by means of Visible Emissions Observations
(VHOl C 'O.VIS provide information ofeompiiance on a continuous basis, regardless of
time of day or weather conditions. As noted during the EPA visit to Chandrapur, many
large power plants currently have particulate matter continuous monitors. Although they
are referred to as "opacity" monitors in India, they do no! actually measure opacity, hut
mass particulate matter. They however could be used to evaluate compliance with an
opacity limit, and It PA could assist the Government in developing a protocol on how the
data would be used to determine compliance and serve as direct evidence of a violation.

VEO are particularly useful in two situations: (1) to verify and increase the confidence in
the self-monitored and reported data obtained through COMS; and (2) to determine
compliance at medium and small facilities which often can not afford to install COMS.
EPA could woik with the Government to develop a test method for VLO to ensure the
proper collection and accuracy of the data. Under the EPA test method (FPA Method *)),
individuals are trained, certified, and periodically rc-ccrtified to use their "calibrated eye"
to make VHO to measure the opacity of smoke emitted from a stack at defined intervals
over a specified period of time. These VEG are recorded on an official form, which is
used to document and determine compliance, and may be used as the sole evidence of a
violation of the opacity standard in an administrative or judicial proceeding. A similar
approach could be used in India.

If deemed necessary under the Air Act. the legal government sampling process could be
structured in the following manner:

* A certified laboratory trains, tests, and certifies the inspector to conduct this
type of sampling.

* The inspector goes to a source and presents a sampling notice.

* The sampling (i.e., requisite observations) is conducted using the lest protocol
established by CPCB. The protocol would include requirements to: record all
data on a multi-copy standardized form; obtain signatures of both the inspector
and the source; provide the source with one copy of the form; seal the other copies
of the form in an envelope and transmit it to the certified laboratory, A third copy
of the form would satisfy "third party" needs.

* The laboratory reviews the form for adherence to the required test protocol;
checks its records to ensure that the inspector is currently certified to conduct
opacity tests; and calculates the opacity observed against the standard.

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• The laboratory then certifies the les! and sends a report to the CPCB aid/or
SPCB.

* Tsiablish a smoke school. To ensure that VEO arc accurate, reliable, anil defensible,
the Board would .have to establish a smoke school to train, certify ami re certify smoke
readers. This would require the Government to purchase a smoke generator; receive
training on how to operate and maintain the smoke generator; and receive training on how
to conduct VhO,

Critical to the success of this recommendation is the need to address violations in a timely
manner without necessarily having to involve the judiciary. Hence, India should pursue civil
administrative authority using current statutory provisions, which is discussed in detail in
Chapter 3, and Recommendation 7.

Rationale

Opacity standards would enable the Indian government to more effectively monitor air
emissions on a continuous basis and respond in a more timely manner to eiti/en complaints.

They could significantly reduce pollutant loadings, especially the more hazardous respiraWe
particulate matter. They are cost-effective, and could be structured so thai She Government can
leverage community as well as facility resources to assist them in monitoring compliance.

V. CITIZEN COMPLAINTS

Citizen complaints are a good source of information on violations that take place in
remote locations, and illegal activities within an organization. As discussed above in the
description of the inspection process, India receives and responds to many complaints provided
by citizens. There was no data on how many of these complaints resulted in a violation being
detected and an enforcement action taken.

As discussed above, citizens and NGOs could be trained to conduct VEO to supplement
the government's efforts if Recommendation 4 was adopted.

VI. AREA MONITORING

Ambient monitoring includes any monitoring to detect pollutants in the ambient air,
ground, or surface waters near a facility. India has an established ambient monitoring network to
monitor compliance with national standards. However, most of the monitors are not situated
such that they ptuvide facility-specific information. Facility-specific information can be
provided only when the facility is the only significant polluter in an area, or the facility has
emission characteristics that serve as a fingerprint for the facility. In response to citizen

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complaints of strong odors or visible plumes, some of the larger SPCBs have mobile monitoring
equipment to monitor the problem, and attempt to identify the pollutant and concentration levels.
Due to the large number of sources, the time to reach a site once a complaint has been received,
and the difficulty in tracing the pollution back to a particular source, this type of monitoring
generally is not useful for compliance purposes. It is useful in providing the public with
information on potential pollutant exposures. No instances of remote sensing were identified.

Vil. INSPECTOR TRAINING AND DEVELOPMENT

Knowledgeable, well-trained inspectors are critical to the success of any compliance and
enforcement program. To effectively carry out their responsibilities, they need training in a wide
range of skills; legal, technical, administrative, and communication. They need to be
knowledgeable of environmental statutes and regulations; PCB policies; industry operations and
processes, environmental controls, and monitoring equipment. They need to be proficient in
obtaining facts, and collecting and preserving evidence. They need to be skilled in managing
projects and data, analyzing information, and working on a team. They also need to be able to
effectively communicate with a variety of individuals from entry-level staff to company
management on complex issues. In addition, they need to understand the legal process and be
able to serve as a government witness injudicial actions.

Inspectors in India are uniformly well-educated. However, their educational background
does riot cover the procedural and technical knowledge that is specific to their responsibilities as
inspectors. Formal compliance and enforcement training is virtually non-existent, but some
related training was identified:

* New engineers from the SPCB zona! offices and SPCBs attend a 5-day general training
session which addresses some compliance and enforcement issues.

* The Maharashtra SPCB conducted a one week training program for new inspectors in
1997. It covered issues such as field work and procedures associated with environmental
requirements.

* New employees at the West Bengal SPCB attend a basic course on compliance and
enforcement.

* Hie Karnataka SPCB provided training 2001-2002 for 73 staff members at the
Environmental Management and Policy Research institute. The training included a
course on environmental auditing.

* The Karnataka CPCB provided 24 employees with a 90 hour course on basic computer
proficiency when they first developed their compliance and enforcement data base.

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In (he absence of formal training, SPCBs rely upon informal on thc-job training (C)JT) to
provide inspectors witli the necessary knowledge, skills, and abilities to implement their job.
While OJT is a useful training mechanism, it is highly dependent on the skill and experience of
the senior inspector, and can vary as information is passed from one individual 10 another. Oil'
is an important supplement, not substitute, to formal training.

Several SPCBs identified inspector training as a critical need to improve the quality of
inspections. The following points were noted during the institutional evaluation with regard to
formal training:'"1

~ No national minimum training or field experience requirements exist. Individual CPCB

zonal offices and stiles have the ability to establish their own requirements.

* Few states have established their own minimum requirements. Those that have done

so, have required only limited training and field experience. There is no consistency from

one state to another.

* The number of courses designed specifically for compliance and enforcement issues is
extremely limited. While all SPCBs expressed a concern with regard to the lack of
compliance and enforcement training materials and availability of training, the SPCBs in
West Bengal. Karnataka, and Gujarat were particularly concerned with this issue. They
recommended that: (!) more industry specific inspection manuals be developed; (25 the
manuals be developed by those SPCBs that were most knowledgeable of a given industry;
(3) the manuals be widely distributed for use by all Boards; and (4) training be delivered
either by the Boards themselves, or by the state institutes.

* information on available training is not easily obtained. There are no centralized
directories or web sites that list upcoming training throughout India in this area.

* Much of the training that has been developed was done initially in response to specific
requests and is not routinely offered as part of any particular training program.

* Hvert if training were readily available, many inspectors would not be able to travel to
the training. Training resources arc scarce; travel logistics arc difficult since many
inspectors are not able to travel except by train which can be very time-consuming; and
many inspectors do not have the time to participate in training at distant locations because
they can not afford to take the time away from their inspection schedule. In addition,
many SPCBs have established their own centers of training, and have policies that
strongly encourage staff to support these locally funded institutions, even if they do not
offer the needed training.

12 For more detailed information on available compliance and enforcement training and
related training institutes, see the EPA document entitled, "Environmental Compliance and
Enforcement Training Institutions in India and Training Recommendations" 2005.

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* Inspectors evaluate a wide variety of industries in a very decentralized office structure.

Inspectors generally do not speeiali/e in an industry, but focus on geographic areas and
all of the sources in their assigned area. Therefore, in-depth, industry-specific courses
would not he as advantageous to the inspection workforce as a whole, unless a priority
industry affecting a significant number of inspectors is identified.

* Sonic of the larger SPCBs have assisted efforts to establish educational institutes that
provide instructional opportunities and technical services for their staff, as well as
training for industry, NGOs, and other groups. Most of these institutes were initially
established with foreign aid, but arc now becoming self-sustaining, They offer a wide-
range of training relating to the technical aspects of environmental management, but only
offer a very limited number of courses pertaining to compliance monitoring and
enforcement. Furthermore, the training that has been developed and offered is generally
not well-known outside the specific organization or state. There is very little
coordination among the institutes, which work independently In securing work and
developing training materials.

* Limited training resources are often focused on providing training opportunities for
senior management versus the technical/scientific staff. For example, the Maharashtra
SPCB Officers received 37 training experiences during 201)2-2003. The Karnalaka SPCB
reported that its Board attended 22 training experiences in India and seven abroad in
2001-2002, Also, as members of the Indian Administrative Staff, the Chairmen and the
Member Secretaries attend additional training provided by organizations such as the
Administrative Staff College of India.

VIM, COMPARATIVE INFORMATION FROM OTHER COUNTRIES
United States

The EPA has an Inspector Training Order, Order 3500.1, that defines the minimum
training required to lead an inspection. Pursuant to this Order, all inspectors are required to
complete annua! training on health and safely issues. Beyond that, the requirements vary
depending upon the media (e.g., air, water, hazardous waste, pesticides); the complexity of the
regulated industry and thus the inspections of that industry; and the specialization of the
inspector. For example, in the air program, an inspector specializing in petroleum refining is
required to receive training beyond thai which is expected of someone specializing in a less
complex area such as stone crushers. The air program requirements arc organized around the
knowledge, skills, and abilities necessary to conduct an inspection, and identify required specific
course work, recommended reading, and OJT requirements. The formal training requirements
may be satisfied through independent study, or structured classes. To minimize travel costs and
ensure that individuals can obtain the training on an as-needed basis that is convenient to their
work schedule, much of the training is available in a variety7 of formats hard copy manuals, CDs,
DVDS, and web based training. Increased emphasis is being placed on web-based training.

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As in India, Ihc United States regulates and inspects a diverse universe of industry
sectors. To facilitate inspections in some of the more complex industry sectors, EPA develops its
own specialized inspection materials that provide information on issues such as industry
processes, regulatory requirements, common violations, and opportunities for pollution
prevention. Again, these materials are available in a variety of formats.

The EPA training materials are available to state agencies, but some states have their own
training systems. One of the major systems is the California Air Resources Board (('ARB)
Institute located in California and is available to anyone, including other states and EPA. This
institute is a "virtual" institute without permanent classrooms. Courses arc requested by
individual states or state organizations; the logistics are managed by the training institute in
conjunction with the requesting state or organization; and are usually taught in a classroom
located in the requesting state. The CARB Institute has a small cadre of instructors, but relies
heavily on contracted experts. Costs for the training are borne by the individual states or slate
organization requesting the training, and supported in part through federal grants.

Europe

The European Union Network for the implementation and Enforcement of Environmental
Law (IMPEL) conducted an evaluation and prepared a report on the training and qualification
requirements for environmental inspectors in their member states, and developed guidance on
best practices.13 This report summarized the current requirements of each member state, and
provided a framework that addresses initial, continued, and specialized training. The report does
not provide specific courses for each level of training in the framework; however, it does suggest
what factors should be considered as each country develops its training plan.

V1I-2. RECOMMENDATION

Recommendation 5: Develop national guidance on minimum inspector training requirements;
develop and fund a compliance and enforcement training program to implement the
requirements; and ensure that all SPCBs are aware of the program and the schedule of courses.

As a first priority, it is critical for the CPCB in conjunction with the states to develop
national guidance on the minimum training requirements for inspectors, At a minimum, all
inspectors should be required to complete health and safety training. Annual refresher courses
should be required thereafter. The Government should provide the necessary funds to implement
this requirement. Beyond that, CPCB should:

u See IMPEL report, "Best Practices Concerning Training and Qualification for
Environmental Inspectors". It is available on their website at
http://curopa.cu.mL,conmi/cnvironment/impe!

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* Develop a comprehensive inventory of all available environmental compliance and
enforcement-related training, and provide basic information on the delivery

dates/frequency, content, cost, delivery formats and mechanisms, and contact person for
cadi course included in the inventory.

* Compare the minimum training requirements against the iist of available courses to
identify training needs, assign priorities, and select the appropriate institutions to develop
and deliver those courses.

* Develop training materials to address the training needs identified beyond that currently
available. These materials could he developed and delivered by CPCB » as well as some
of the larger, more experienced ant! diverse SPCBs that have eonsiderable industry-
specific knowledge and experience.

The training program should be designed to meet the needs of both CPCB and SPCBs. In
developing a compliance and enforcement training program for inspectors. India should build
upon the extensive network of existing national and stale institutes to develop and deliver
materials. The existing network has already invested in developing and maintaining the
infrastructure necessary to develop and deliver technical training in the environmental arena.
They could utilize this existing structure and expand upon it as appropriate to incorporate
compliance and enforcement courses, and include individuals with specific experience and
expertise in compliance and enforcement issues in a cost-effective manner. They are distributed
across India and provide access for all SPCBs. They already have mechanisms for advertising
their current training programs, which could be expanded fo include the additional courses. The
institutes could be electronically linked so course so that advertisements are comprehensive and
up-to-date.

Rationale

Having well-qualified, trained inspectors with the requisite knowledge, skills, and
abilities to identify violations and determine compliance with environmental requirements is
critical for a successful, well-managed environmental program. Inspectors have a vital role in
protecting the environment and safeguarding the public from pollution, and provide the
foundation for resource-intensive, time-consuming, costly legal actions that maybe brought by
the Government.

Minimum training requirements would provide greater uniformity across India in the
inspector workforce; enhance their ability to identify violations; and improve their ability to
provide the technical support in enforcement actions. It also would reduce the number of legal
challenges and subsequent case dismissals based on procedural errors caused by the lack of
training.

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The proposed approach maximizes existing investments at the slate level. 1 also
addresses problems associated with resource and travel constraints; the decentralized
organizational structure ofSPCBs; and the diversity of requirements and regulated communities.

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CHAPTER 3: RESPONSE TO VIOLATIONS

1, ENFORCEMENT PROCESS

As previously slated, the Water and Air Acts initially established the SPCBs as the
primary enforcement authorities in India. Under these two Acts, CPCB is only authorized to
enforce against violators in Union Territories and in a state where the SPCB has been declared by
MoHE to have defaulted on its responsibilities'4. However, under the EP Acs, enforcement
authority was vested in the Centra! Government. Nevertheless, section 23 of that Act allows
enforcement against violators to he delegated "to any officer, State Government, or other
authority."

The India environmental enforcement process lias developed into a multi-level approach
with SPCBs having primary enforcement responsibility, and the CPCB having back-up
enforcement responsibilities and the authority to conduct special enforcement initiatives. The
SPCBs have further delegated certain enforcement authorities down to their regional and sub-

regional offices for smaller facilities.

The lb" lowing discussion provides a summary of the enforcement process at both the
national and state levels. Generally, every effort is made to resolve violations without involving
the courts. Any actions brought by the Government are defined as criminal violations and thus
must he heard in eourts with criminal jurisdiction. If the court finds that a violation occurred, it
east assess penalties and/or imprison responsible parties. It is believed that the Government has
no independent penalty authority. However, current statutory authority eould be utilized to
develop a civil judicial administrative penalty authority.

IteCPCBiife£fiflimlProcess

The CPCB process is typically initialed in the CPCB zona! office. 1 lowever, the CPCB
central office provides overall management and oversight, and has sole responsibility for
conducting any formal enforcement actions. Inspections and investigations are scheduled by the
zonal offices according to the commitments in the Annual Action Plans; or as a result of a
significant complaint, request from a State Board, unplanned requests from CPCB. political
inquiry, or a new court directive. The facility is usually known or suspected to be in violation

14 Section 1S(2) of both the Water and Air Acts states that "Where the Central
Government is of the opinion that any State Board has defaulted in complying with any

directions given by the Central Board under sub-section (1 it may. by order, direct the Central
Board to perform any of the functions of the State Board in relation to such area for such period
and for such purposes, as may be specified in the order."

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when the facility is targeted. Random compliance inspections are not done by CPCB. The
CPCB process is carried out according to the following steps:

* The zonal office inspects the facility, takes samples, and gathers other information to
determine the extent of possible violations.

* Legal samples are analyzed by a ccrti Tied laboratory,

* "The zonal office inspector writes the report on the inspection, identifies any potential
violations, and makes recommendations.

* The head of zonal office reviews the recommendations and signs the report. The report
is referred to the central office of CPCB.

* The referral is usually forwarded to the appropriate sector-based Pollution Control
Division for review and concurrence. The report with recommendations are sent to the
Member Secretary and/or the Chairman of CPCB.

* The Member Secretary or the Chairman provides the final decision in resolving the
matter and may choose among several alternatives. He or she can direct CPCB to
proceed with the recommended action; refer the case to the SPCB for action; send the
case back to the zonal office for further investigation or additional supporting
information; or take no action.

* Referring the matter to the appropriate SPCB can be done either informally or
with a directive under Section 5 of the EP Act or Section 18 of either the Water or
Air Acts. Typically, formal referral to the SPCB is done under the EP Act.
However, if the SPCB is not complying with Section 5 of the EP Act, Section 18
of the Water or Air Acts will be used. If CPCB does refer the matter to the SPCB,
the CPCB zonal office will monitor the progress of the SPCB.

Table 3-1 and Table 3-2 indicate the number of directives that were referred to
SPCBs and Pollution Control Commissions (PCC) of the Union Territories under
Section 1 S(I)(b) of the Air (for 1991-1993 and 2001) and Water (for 1991-1993,
1997-1998, and 2000-2003) Acts in the Western Zonal Area.

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Table 3-1 Directives issued by CPCB in Western Zona! Area under Section
18{!)(b) of the Air Act 1981 (as of 3-31-2003)

Directives issued to

No. of Directives issued

1991

All SPCBs/PCCs

All SPCBs/PCC

199:

All SPCBs/]

All SPCBs/PCC

Total

186

Table 3-2 Directives issued by CPCB in Western Zonal Area tinder Section.
18(l)(b) of the Water Act 1974 (as of 3-31-2003)

YEAR

Directives issued to

No. of Directives issued

1991

All SPCBs/PCCs

1992

All SPCBs/PCCs

199:

All SPCBs/PCCs

1997

All SPCBs/PCCs

199!

1 " : ""

3 !

2000

Gujarat and Maharashtra

2001

Maharashtra

2002

All SPCBs/PCCs

2003

Gujarat

316

* If CPCB decides to proceed with the mailer instead of referring to an SPCS,
CPCB sends a formal notice of violation to the facility, and the alleged violator is
provided, an opportunity for a hearing with CPCB.

If the alleged violator can prove that it has returned to compliance or that the
violation did not occur, the CPCB action ends.

After the hearing, if CPCB believes that the violations are continuing, a directive
signed by the Member Secretary or the Chairman is issued to the violating entity.

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Directives arc usually issued under the authority of Section 5 of the EP Act.
'However, for water violations, directives can be issued under 33 A of the Water
Act in Union Territories or under Section 18(1 )(b) if the SPCB has been formally
declared to have defaulted.

Table 3-3 indicates the number of directives issued to non-complying facilities in
. the Western Zonal Area under Section 5 of the HP Act, The large number of
directives issued in the i 996/1997 period was driven in large part by public
pressure through Public Interest Litigation.

Table 3-3 Directives issued by CPCB in the Western Zona! Area under section
5 of Environment Act 1986 (as of 4-25-2003)

YEAR

Maharashtra

Gujarat

1996

199?

1998

1999

2000

2001

2002

2003

Total

* The zonal office tracks the activities of the violator to ensure compliance with the
directive.

* If the violator complies with the directive, the matter is closed.

* If the violator does not comply with the directive, the Member Secretary or the
Chairman may refer the matter to the court. However, a time extension maybe granted in
order to comply with the original directive before the matter is referred.

* Once a decision is made to refer the matter, the complaint is prepared by a contacted
outside attorney with technical support provided by CPCB.

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* Under the HP Act, the complaint is referred to the High Court of the state in which the
violator is located. The contracted attorney presents the case to the court with CPCB

personnel appearing before the court as witnesses.

* If the court decides in favor of the Government, it will issue a directive to the violating
company and assess penalties and/or imprison the responsible individuals.

The SPCB Enforcement Process

While there are slight variations, the typical enforcement process among the individual
SPCBs is similar. I Ising the Kamataka SPCB as a model, the process is as follows:

* The SPCB inspects the facility, takes samples, and gathers other information to
determine facility compliance.

* Legal samples are analyzed by a certified laboratory.

* The inspector writes the report on the inspection, identifies potential violations, and
makes recommendations.

* Upon discovery of {he alleged violation, the SPCB issues a "show cause" notice based
upon the field observations, legal sample, or other evidence of violations. In Kamataka,
the "show cause" notice has been delegated to all regional offices for all source
categories.

* The alleged violating facility is provided an opportunity to respond to the show cause
notice and present evidence in its defense.

* The relevant SPCB regional office verifies the information provided by the alleged
violating facility, and determines if a violation exists.

* If they believe that the violation is continuing, the SPCB regional office would take a

legal sample, and have it analyzed by a certified laboratory,

* The SPCB issues a legal notice of violation based upon the legal sample and any oilier
evidence. To issue a legal notice of violation, the Kamataka SPCB asserts that a legal
sample1"5 proving a violation is necessary for a formal notice of violation to be issued.
The legal sample must be collected in accordance with the underlying Act (Section 21 of
the Water Act, Section 26 of the Air Act, and Section 11 of the HP Act). The notice is

15 Section 11(2) of the EP Act slates; "The results of any analysis of a sample of any
taken under sub-section (IJ shall not be admissible in evidence in any legal proceeding unless the
provisions of the sub-sections (3) and (4)f pertaining to sampling procedures] are complied with,"
The Water and Air Acts have similar provisions.

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generally issued by the central office of the SPCB and is only delegated to the regional
offices for a limited number of facilities.

* The violating facility is given an opportunity for a hearing with the Chairman of {he
SPCB. At iliis hearing, the facility can present evidence to demonstrate compliance, or
other information that may affect the issuance of a directive.

* Any materia! submitted by the violating facility is reviewed by the SPCB central office
with the regional or sub-regional office,

* The SPCB Chairman issues a notice of proposed directive. This notice may include a
proposal for facility closure and/or a control program.

* The violating facility has 15 days from the date of the notice to file an objection with
the SPCB Chairman.

* After review of any objection submitted by the violator, a final directive is issued by
the SPCB Chairman.

* The violating facility can appeal the final directive to the Appellate Court.

* Once the appeal process is exhausted, the regional or sub-regional office monitors the
violator's activities under the directive.

* If the facility does not comply with the directive, prosecution, for violating the directive
may commence.

* Before initiating a court action, the directive may be modified to extend the Glial
compliance date. In Karnataka, the decision to file an action with the court to commence
prosecution is often delegated to the regional office.

* A contracted outside attorney prepares and presents the complaint before the court.
Complaints are usually filed with a lower court,56 and brought under the Water Act for
water violations and under the Air Act for air violations.

* Some states have a court known as a "Greer! Bench" to address alleged violations of
the environmental laws.

,h Section 33{ I) of the Water Act and section 22A(1) of the Air Act slate "...the Board
may make an application to a court, not inferior to that of a Metropolitan Magistrate or Judicial
Magistrate of the first class...."

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* If the court rules in favor of the Government, the court can issue a directive ami
penalize the violator with a monetary penalty and/or imprisonment of responsible
company representatives.

* The regional or sub-regional office will track any court directive that is issued to the
violator, while the central office will implement any court directives addressed to the
SPCB.

Table 3-4 summarizes the court actions in Kamataka under the Water and Air Acts since
their inception. Table 3-5 provides information on the court actions associated with
Closure Orders issued by the Kamataka SPCB.

Tabic 3-4 Total Court Actions in State of Kamataka since issuance of the Water and

Air Acts

Total Cases filed by the State Pollution Control Board (227)

Total (227)

Water Act (154)

Air Act (73)

Pending Cases

Criminal Cases

Criminal Misc.

Total Disposed Cases (80)

Disposed Cases in favor of

Government

Criminal Cases

Criminal Misc.

Disposed Cases against the

Government

Criminal Cases

Criminal Misc.

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Table 3-5 Total Court Actions as a Result of Closure Orders issued in State of

Kaiiintaka

Total No. of Closure

Water Act

Air Act

Orders

112

134

246

Writ Petitions Filed

Witter Act

Air Act

Against Closure Orders

XI)

Fending Cases against

Water Act

Air Act

Closure Orders

Some SPCBs have developed variations or supplemental components to the typical

enforcement process. For example, the West Bengal SPCB lias initiated a process to address
public complaints against facilities (of any size) whose act(s) are allegedly causing an,
environmental violation. Every Saturday, a grievance hearing is held in Kolicata, and chaired by
a senior legal officer. The citizen complainant and individuals from the company that is allegedly
causing the public nuisance appear before the senior legal officer. Normally, the parties agree to
a resolution. However, if they can not reach an agreement, the legal officer will make a
recommendation to the Member Secretary who will issue a final decision. The company can
appeal this decision to an appellate authority constituted by the State Government under the EP
Act. The appellate authority is comprised of a retired judge and two technical individuals,

II, F.NFORCIiMHNT AUTHORITIES

The Government has a wide range of enforcement authorities available for enforcing
environmental statutes and regulations. They can take remedial actions, require additional
information, and/or impose sanctions. For example, they can:

* Impose a schedule of compliance

* Temporarily or permanently shut down a facility, or some portion thereof

* Deny or revoke a CFO

* Require a facility to clean up the environment

* I 'tili/e emergency powers to enter and correct immediate dangers

* Seek compensation for damage caused by the violation

* Require sped lied testing and reporting

* Require self-monitoring, -recordkeeping and -reporting

* Require information on industrial processes

* Require specialized training of industry staff

* Require facilities to conduct self-audits

* Seek penalties or imprisonment from the courts

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* Seek reimbursement for government costs

* Direct the facility to provide a service or community work to benefit the community.

CPCB has not developed a national enforcement policy describing how {heir various
authorities should be used to respond to the many different types of violations and violation
situations. No state policies were identified either,

111. BANK GUARANTEES

1» addition to the authorities listed above, several states have initiated hank guarantee
programs as a means of ensuring compliance with directives issued hy SPCBs. State Boards are
authorized to issue directives that place a violating source on a schedule to comply with statutory
and regulatory requirements by a date certain. Many of these directives are issued after a hearing
where the source has had an opportunity to present pertinent information on the feasibility,
availability and costs of controls; economic conditions of the facility; the amount of time
necessary to install or upgrade controls; and an)' other constraints the facility may face in
achieving compliance. These factors arc taken into consideration by the Boards and usually are
reflected in the final directives. Typically, the directives incorporate compliance schedules as
opposed to requiring the source to shut down because of the potential impact of such a closure on
local economies. However, sources often do not meet their compliance schedules and the
directives are subsequently revised to extend the compliance deadlines. Some Boards even allow
multiple extensions on a routine basis. Court action for non-compliance with directives is
pursued only after sources continue to miss the deadlines and violate the directives.

Industry is cognizant of this situation and often stretches the compliance schedule beyond
what is necessary to achieve compliance; thus, wasting staff time in addressing recalcitrant
sources and unnecessarily extending the environmental insult. The use of bank guarantees can
provide a tangible incentive to abide with compliance schedules in directives.

As a result, several SPCBs have developed bank guarantee programs. For example, when
the West Bengal SPCB discovers a violation, it will invite the violating company to negotiate a
control program and compliance schedule. The Si'OB will then require the company to post a
bank guarantee to ensure that the company installs the pollution controls in accordance with the
compliance schedule. Normally, 10% of the final compliance cost is required for the bank
guarantee. An inspection, with legal samples, is mandated to determine whether the violator has
met the compliance schedule and implemented the control program.

If the violating company fails to meet the compliance schedule, a portion of the bank
guarantee is forfeited and given to the SPCB for its discretionary use. The amount of the
forfeiture is decided by the Chairman and the Member Secretary, as there is no set procedure for '
determining the specific amount. The West Bengal SPCB provided two examples of forfeiture
for failure to meet the compliance schedule. A refinery forfeited 5 lakh of a l6 lakh hank
guarantee that had been posted, and a steel mill forfeited 5 lakh of its 20 lakh bank guarantee.

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The forfeiture places a financial penalty on the non-complying company, and also causes
embarrassment which is a significant deterrent to future non -compliance.

In 2003, CPCB, after consultation with industry representatives and SPCBs, expanded the
use of state bank guarantee programs such as that in West Bengal SPCB. CPCB adopted the
Charter on Corporate Responsibility for Environmental Protection (CREP). While the CREP
focuses environmental improvement beyond compliance, it recognized that some of the "17
category" sources had not complied with existing requirements, and provided new industry
sector-specific compliance dates. To receive compliance extensions for existing requirements,
non-complying sources were required to submit bank guarantees with their individual action
plans.'

Although CPCB has endorsed the concept of bank guarantees in the CRBP, there is no
national guidance addressing issues such as the circumstances trader which guarantees are
appropriate; how the guarantee should be calculated; the optimum level of guarantee to ensure
thai negotiated compliance schedules are met; what percentage of the monies should be held as
collateral; what is acceptable collateral; how forfeitures should be calculated; and the procedures
for collecting forfeitures and utilizing the monies. Reportedly, some bank guarantees have been
structured such that the guarantees were not sufficient to provide a deterrence, and the facilities
defaulted. In some instances, forfeitures were not collected upon default, nor was additional
collateral required when compliance schedules were extended. Also, in some cases, the
collateral posted was against bank accounts with no funds.

III-l. RECOMMENDATION:

Recommendation 6; Develop a policy and provide implementing guidance that requires
regulated industries to provide bank guarantees for negotiated compliance schedules incorporated
in directives issued by the Boards.

Rationale

Directives with compliance schedules provide a formal, but temporary variance to the
underlying regulatory requirements, and offer a legal defense from further enforcement action for
the life of the compliance schedule. For this substantial benefit that industry receives, the
Government should have tangible assurances that the negotiated actions and associated schedules
will be achieved in the required time frame. The amount of the bank guarantee should be
sufficiently high to ensure compliance with the source-specific schedules. It also should serve as
a deterrent so that other sources with negotiated compliance schedules understand the
ramifications of not complying and do not default on their agreements.

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IV. CIVIL ADMINISTRATIVE AUTHORITY

As indicated above, the Government has a wide range of enforcement authorities to
address environmental violations, and one of these authorities is the authority to seek penalties
through the criminal judicial system for violations of environmental laws. As discussed
previously, the Government addresses few violations through the criminal judicial process. Only
7,357 cases had been filed by the government as of 3-31-2003.17

Seeking redress in the courts is time-consuming and resource-intensive, and further
strains scarce government resources. In addition, the cases are often unsuccessful, with 977 of
7,357 eases being dismissed by the courts or ultimately withdrawn by the Government. Although
courts have ruled in favor of the Government in a slim majority of eases (approximately 56
per cent, or 2,319 of 4,170 cases decided), this varies considerably from slate-to-state. For
example, the courts have ruled in favor of the Gujnrat SPCB only 19 per cent of the time, while
they have ruled in favor of the Andhra Pradesh SPCB 100 per cent of the time. This reportedly
has led to sources making siting decisions on the basis of where they can obtain favorable court
decisions.

Also, courts have been unwilling to impose penalties or imprisonment in most cases
where they find in favor of the Government. Of the total 2,319 cases decided in favor of the
Government, only 293 included fines, and only 24E included imprisonment. This is 13 per cent
and 11 per cent, respectively.

In addition, due to crowded court dockets, it takes an extremely long period time to
resolve cases brought by the Government, in many states, the percent of cases pending versus ail
cases filed under the Air and Water Acts is greater than 50 per cent.

Sources realize that it is unlikely that they will be taken to court for violations. These
statistics reinforce the perception that it is cheaper to violate the law than comply, and enables
industry to delay the cost of compliance. As a result, justice is delayed, and the pollution and
attendant environmental harm is allowed to continue. The resulting message to many is that it
pays to pollute.

Similarly, threats to close a facility or cut off supplies are reserved for only the most
egregious violations given the attendant impact oil local economics; and bank guarantees are
effective only in those instances where a substantial capital investment is involved. Directives in
CfOs and direct technical assistance arc of limited value and generally arc not effective when
dealing with less cooperative, recalcitrant sources that are not environmentally conscience.

India does not have an effective enforcement tool to compel facilities to continuously
comply with environmental requirements, especially those requirements that do not have an

17 AH statistics are based on the report, "CPCB, Status of Court Cases As On
31.03.2003".

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immediate, direct impact on the environment, hut may actually involve significant emission
reductions. For example, failure to report or late reporting may conceal facility operations thai
resulted in an emissions violations. Threats to close the facility for failure to report are not
realistic, nor are bank guarantees. Directives to report have no impact since the source was
already required to report pursuant to a regulation or directive, and failed to eoniply. There is no
formal tool to compel the facility to change its behavior In the situation described above or
similar scenarios.

IV-1. COMPARATIVE INFORMATION FROM OTlifdl COUNTRIES

United States

The HP A utilizes both criminal and civil judicial enforcement authorities to implement
environmental laws. The vast majority of actions are civil versus criminal.

Criminal actions are the most serious ami include penalties and imprisonment. Thus, they
create the most significant deterrence since it personally affects the lives of those who are
prosecuted and carries with it a significant social stigma, They also hear the greatest burden of
proof of wrongdoing, and thus require resource-intensive, time-consuming investigation and ease
development. In FY 2005, 195 cases were charged, and 170 cases sentenced. Please note that the
cases sentenced in all likelihood were charged prior to FY 2005, For the cases sentenced, the
fines and restitution totaled approximately $100,000,000; incarceration totaled approximately 1()0
years; and probation totaled approximately 550 years.

Civil actions may be either administratise (i.e., directly imposed by the enforcement
program), or judicial (i.e., imposed by a court or other judicial authority).

Civil judicial actions are formal lawsuits brought before the courts. Although not as
resource-intensive and expensive as eriniinal actions, they can be costly, require considerable staff
time, and may take several years to complete. Civil judicial enforcement is perceived to have
greater significance than administrative actions. As a result, civil judicial actions have more
power to deter potential violations, and set legal precedents. Also, the courts are uniquely
empowered to require action to reduce immediate threats to human health and the environment.
Thus, it is most useful in situations dealing with the more serious or recalcitrant violators: where
precedents are needed; or where prompt action is important to shut down an operation or slop an
activity. In FY 2005. 259 civil cases were initiated, and 157 cases were concluded,

$127,205,897 in penalties were assessed.

Civil administrative orders can be issued by EPA to resolve a case administratively
without resorting to the courts. Civil administrative orders arc legal, independently enforceable
orders issued directly by enforcement program officials within EPA that define the violation,
provide evidence of the violation, and require the recipient to take corrective action within a
specified time period. Penalties may be assessed, but the total penalty assessed in any case is

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governed by statute. Supplementary Environmental Projects (SEPs) can he established in
administrative orders.

The administrative process is similar to the judicial process; however, it has several
advantages. It docs not require coordination with a separate judicial system, and the
administrative law judges handling the cases arc more knowledgeable of environmental issues
because they are dedicated to addressing environmental problems. Most appeals are handled
through the same Agency process, with very few brought to the courts. Thus, administrative
actions can be resolved more quickly, and require less time and expense than judicial actions.

This is beneficial to the regulated community, as well as to the Government. Administrative
orders are not self-enforcing. If the order is not complied with, further enforcement action
through the judicial system is necessary.

Where available, administrative enforcement is generally preferred as a first response, with
sonic exceptions as described above. Generally, this authority is best suited to situations that are
of short duration, and do not require injunctive relief, or significant time or resources to resolve
the violation. It works best, for example, for violations of procedural requirements, and record-
keeping and reporting requirements. Years of implementation have proven the success of this
approach. In FY 2005, 1,916 administrative compliance orders were filed, 2,229 administrative
penalty complaints were filed, and 2,273 administrative penalty orders were settled. $26,731,150
in penalties were assessed.

The Agency has developed media-specific enforcement policies to describe how their
various authorities will be used to respond to the many different types of violations and violation
situations. Such policies are important to ensure fairness, which is particularly important when
assessing monetary penalties. The perception and fact of fairness is critical to the credibility of an
enforcement program, and assists staff in making decisions that reflect the government's resolve
to enforce environmental requirements. The policies address issues such as;

* when a criminal, civil judicial, or administrative response should be used

* when a sanction should be imposed

* what type of sanctions should be used

* how sanctions should be applied to government-owned or operated facilities.

The Agency also has developed media-specific penalty policies that provide guidance on
what factors should be taken into consideration when calculating penalties to ensure consistency,
fairness and predictability. For example, factors under the air program include:

* the size of the business

* the economic impact of the penalty on business

* the violator's full compliance history and good faith efforts to comply

* the duration of the violation as established by any credible evidence (including evidence
- other than the applicable test method)

* payment by the violator of penalties previously assessed for the same violation

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• economic benefit of noncompliance

* the seriousness of the violation.

la the United States, all federally-collected penalties must go to the United States
Treasury, and are not available to specifically address environmental issues. However,, many
stale-collected administrative penalties can be directed into the environmental agency's operating
budget or used to fund special environmental studies, public awareness programs, or compliance
assistance activities.

IV-2. RECOMMENDATION'

Recommendation 7: Utilize current statutory provisions to establish civil administrative
authority; establish the infrastructure for managing administrative cases; develop the necessary

enforcement response and penalty policies; and provide training for the states.

Rationale

Civil administrative authority would allow the Government to address violations in a more
timely, cost-effective manner, and enable the Government to ensure facilities are in continuing
compliance with environmental requirements. Such authority would reduce the environmental
workload of the courts; thereby, enabling them to focus on the most egregious violations and
repeat violators.

Based upon a review of India's environmental statutes and regulations, it can be argued
that India has the statutory authority to develop a chil penalty program through regulations
utilizing current authorities such as Chapter II, section 3( 1) of the EP Act. It provides:

Subject to the provisions of this Act, the Central Government, shall have the power to take
all such measures as it deems necessary or expedient for the purpose protecting and
improving the quality of the environment and preventing controlling and abating
environmental pollution.

Chapter II, section 3( 1 )(xiv) provides:

such other matters as the Central Government deems necessary or expedient for the
purpose of securing the effective implementation of the provisions of this Act.

The Air and Water Acts provide similar authorities. For example. Chapter 111, section
17( I }(a) and (j) of the Air Act authorizes the State Boards:

to plan a comprehensive programme for the prevention, control or abatement of air

pollution and to secure the execution thereof-.

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to do such other things and to perform such other acts as it may think necessary for the
proper discharge of its functions and generally for the purpose of carrying into effect the
purposes of this Act.

Chapter IV, section 16(h) of the Water Act authorizes the Centra] Board to:

plan and cause to be executed a nation-wide programme for the prevention,, control or
abatement of water pollution...

Chapter IV, section 17(a) of the Water Act authorizes the State Board:

¦ So plan a comprehensive programme for the prevention, control or abatement of pollution
of streams and wells in the State and to secure the execution thereof...

The CPCB and SPCBs may want to explore the possibility of utilizing any administrative
penalties collected as an additional source of income. Currently, the regulated community bears

some of the costs of program implementation such as: CHSS fees for water usage; consent fees
for new and existing facilities; and laboratory analysis of samples. Legal enforcement could be
recognized as an agency cost that should be home by the regulated community. Concerns raised
by the CPOB and SPCBs with the potential for bribery would need to be addressed, but India has
the necessary criminal enforcement authorities to address this issue.

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CHAPTER 4: COMF1 JANCB PROMOTION

Most effective compliance and enforcement programs utilize a variety of tools to promote
compliance within the regulated community. Enforcement alone is not as effective as
enforcement combined with compliance promotion. Compliance promotion is any activity that
encourages voluntary compliance with environmental requirements, and is effective only when it
is used in combination with a strong, active enforcement program. Under this scenario, it is
particularly effective where the size of the regulated community exceeds enforcement resources,
and there are numerous small regulated sources. Two examples of compliance promotion are
providing compliance assistance and establishing voluntary incentive programs,

I COMPLIANCE ASSISTANCE

As discussed in previous chapters, the CPCB provides technical assistance to the regulated
community by developing and distributing industry-specific technical documents for major
industries. These documents provide information such as industry descriptions, best practices,
and opportunities for pollution prevention and waste minimization. These documents are well-
rceeived by industry. However, most are too technically oriented to he of significant value to the
public. The CPCB also provides some faciIity-spccilie technical assistance to a limited number of
facilities each year. They assist non complying facilities in identifying the reasons for non-
compliance and work with them to develop solutions. Some of the large SPCBs provide similar
assistance to individual facilities, but generally, SPCBs do not provide this type of technical
assistance. 1 hey do not have the necessary resources.

None of the technical documents specifically focus on providing the regulated community
with summary information on regulatory requirements, compliance provisions, or compliance
deadlines. None of the documents are designed to provide the regulated community with
protocols for conducting self-audits to determine whether they are in compliance with regulatory
requirements.

1-1. RHCOMMhNDAIlON

Recommendatjon. 8: Develop educational materials and compliance assistance tools for the
regulated comniiimty, especially small businesses, aad distribute the materials to all regulated
sources.

Rationale

Combined, the CPCB and SPCBs do not have the resources necessary to inspect all
regulated facilities, especially small regulated facilities. There is a significant number of small
regulated facilities in India. The likelihood that they will be inspected is minimal, and if they are
inspected and a violation identified, there are no real enforcement consequences for their non-
compliance. Hence the traditional enforcement program (iocs not provide any real deterrence.

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However, a subset of these facilities may be willing to comply with the regulatory requirements,
but are either unaware of them, or do not understand them. Compliance assistance for this group
of regulated facilities would be beneficial in promoting compliance and reducing pollution. Basic
information on the following would be useful:

* The regulated univci sc.

* The requirements and compliance deadlines.

* Why the requirements are important.

* What changes (e.g., technical, work practice) must be made to comply with the

requirements.

* Any assistance (e.g., financial or technical) that may be available to assist facilities in

making the changes.

* The consequences of not complying.

Based on the United States experience, wide distribution of this information to the
regulated universe, followed by targeted inspections, and publicized enforcement actions for
violations has a significant deterrent effect on those facilities that continued to ignore the
regulatory requirements.

11 VOLUNTARY PROGRAMS

The (TUB has worked with SPCBs and the regulated communily to develop voluntary
programs with incentives to comply with regulatory requirements, and in some instances go
beyond compliance. One such program is the CRHP, which was discussed previously.

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CHAPTER 5. MHASt :RFS OF SUCCKSS AND C O M P1 i A N C F / F N F O R C F M F N T DATA

CPCB is legally mandated under the laws to coordinate the actions of SPCBs, and plan
and execute nation-wide programs for she prevention, control and abatement of environmental
pollution. Transparency and public access to information is essential in developing such
programs, and having the public and regulated community accept their validity. It is also
important that the Government provide all interested parties with information on the progress
being made by the Government in achieving compliance u ith environmental laws.

To successfully meet these goals of implementing environmental programs to reduce
pollution, and providing transparency and public access to information, the Government must
collect and maintain data on compliance and enforcement activities at both the national and state
levels. The data must he consistently reported, accurate, reliable, and timely. The need for such
data has been explicitly recognized in environmental statutes such as the Air Act which states:

l he Central Board shall, in relation to its functions under this Act, furnish to the Central
Government, and a State Board shall, in relation to its functions under the Act, furnish to
the State Government and to the Central Board such reports, statistics, accounts, and other
information as that Government or, as in the case may he, the Central Board may, from
time to time, require. Section 45.

The Act also requires SPCBs to maintain a publicly available register of all consents
issued, the standards established in each consent, and "such other particulars as maybe
prescribed,"

!, MEASURING SUCCESS

Many parameters can be used to evaluate program effectiveness. For example, some
parameters measure results such as an improvement in environmental quality anil rates of
compliance, and a reduction in pollutant releases. These parameters are the ultimate goal of any
compliance and enforcement program, but are often difficult to establish and calculate. There can
be a significant lag time between the compliance or enforcement activity and the resulting
environmental improvement. It is hard to link changes in the environmental quality to specific
sources or specific compliance actions. Other factors such as economic conditions can affect
environmental quality and therefore the accuracy of the measure. Finally, compliance with some
requirements do not result in measurable improvements to the environment.

Compliance rates rely on the thoroughness and frequency of inspections, and if the data is
lacking in this area, the rates will not be reliable. I.ow compliance rates may mean that the
program is doing a good job of detecting violations. High rates could mean that the program is
not doing a good job of detecting violations, or that industry is complying with the requirements,
Defining compliance is often difficult. For example, does compliance mean compliance with all

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regulatory requirements, or just the most significant ones? Does it mean all the time, or a
significant period of lime? How should facilities with unknown compliance be treated?

Some parameters measure activity levels such as the number of inspections conducted and
enforcement actions taken. The number of inspections conducted is easy to track and measure,
;iml does provide some measure of program accountability, but it does not provide information on
whether environmental goals are being met. The number of enforcement actions also is easy to
track and measure, ami in a good measure of program accountability, and the public can easily
understand the measure. However, it does not provide information on whether facilities are being
returned to compliance in a timely manner, and thus whether environmental goals are being met.

Other parameters provide qualitative assessments of program performance such as
progress in returning significant violators to compliance and the timeliness of enforcement
responses. These measures are good measures of a program's efficiency, and provide some
indication as to whether environmental goals are being met.

There is no consensus within CBCP or among the SPCBs on how to establish
accountability and measure success in the compliance and enforcement program. Some CPCB
reports included information on activity levels, hut most attempted to measure program progress
against a few critical environmental indicators such as ambient air quality, water quality, etc.
I lowever, there was no underlying data to support the causal link between the compliance and
enforcement activities and the improvements in the environment.

1 1. R F,COMMENI)AT 1 ON:

Recommendation 9: Develop measures of success for the compliance and enforcement program
utilizing a variety of parameters, and communicate these measures and the rationale for why they
are needed, to SPCBs, the regulated community, and the public.

Rationale

Well-defined measures utilizing a mix of activity (output) and results (outcome) indicators
will enable the Government to document its performaii.ee and provide program accountability;
conduct performance analyses to evaluate the effectiveness of tools and strategies in achieving
desired environmental goals; and take corrective actions as appropriate to more effectively utilize
its resources.

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II DA 1'A RHQUIRHMEN 1'S AND REPORTING

Melaiiaffliili

Consistent with the lack of consensus on how to establish accountability and measure
progress, the CPCB lias not established national minimum data requirements for the information

that the zonal offices and states must collect and provide upon request to CPCB.

As part of the institutional analysis, EPA requested national baseline information on
program parameters such as: the total number of regulated facilities; the number of facilities
within given priority industry sectors; the number and types of facilities by classification
categories (e.g.. Large Red); the number of inspections conducted; the number and types of
violations identified; the number of sources deemed out of compliance; the number and types of
enforcement actions taken; the types and amounts of pollutants reduced; and the penalties
assessed, HPA also asked the CPCB to provide a breakdown of this information by state.

Much of this data was not considered essential by C "PCB to evaluate the level of effort and
progress being made in the compliance and enforcement program as they were more interested in
measuring progress against environmental indicators such air and water quality As a result, all of
the statistical information on the compliance and enforcement program that was available for
review during the institutional evaluation was:

* Limited in scope.

* Inconsistent in the time periods covered and included dated information (e.g., a chart on

the status of court cases across India as of 3-31-2003 presented data that was received at

very different times, which ranged front 4-7-1W7 to 4-22-201)3).

* Incomplete with some states and Union Territories not included in national reports.

These deficiencies adversely affect the ability of the Government and other interested
parties to evaluate the effectiveness of program strategies; hold program personnel accountable for
the implementation and effectiveness of programs; or initiate corrections as needed. 1'he
Government also loses the benefit of the deterrent effect periodic reporting has when it increases
awareness within the regulated community that there is a good chance violations will be identified
and enforcement taken.

Reporting

1 he CPCB zonal offices provide monthly reports to CPCB Headquarters on the CPCB
Annual Action Plan, and other priority programs such as the CRKP, and the 17 Categories of
Polluting Industries. The zonal offices also serve as an informal conduit of information front
SPCBs to CPCB Headquarters as they communicate with them regularly. However, these

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informal commiinications are generally focused on specific slate investigations, not the
compliance and enforcement program as a w hole.

Currently, CPCB relies upon SPCBs to submit most environmental data directly to ("PCB
Headquarters through quarterly and annual reports. However, CPCB sloes not receive information
from all SPCBs, nor is the information submitted in a consistent format and address all data
requests. Many SPCBs Jail to provide the data within the requested time frame, and CPCB spends
a considerable amount of time trying to convince the Boards to submit the information. In
instances where these efforts also fail CPCB hiss frequently opted to spend scarce CPCB
resources to generate the data, or it has chosen to exclude a SPCB from the national report.

Analysis of the submitted compliance and enforcement data by CPCB is minimal. For
example, they do not analyze the information to determine whether states are meeting inspection
frequencies; conducting quality inspections; identifying and addressing violations in a timely
manner; or focusing thesr limited resources on the most environmentally significant activities and
facilities. The CPCB provides only limited feedback to the zonal offices or individual SPCBs on
the quality and content of reports. Criticism by the CPCB of the inconsistency and lack of
completeness of data is muted because they have not developed any national guidance to
standardize the content and format of periodic reports, nor do they have plans to do so. The
CPCB lias no ability to take action against a SPCB if it fails to provide requested information.
Thus, those SPCBs that do comply with the requests for information question the overall value of
the effort and whether it is necessary for them to continue providing information if not all States
are held to the same standards and requirements.

Beyond the needs of the national government, a few individual SPCBs collect, analyze,
and present data on compliance and enforcement activities for their own purposes. Although they
have the raw data to analyze the data and present a more complete and accurate picture of
compliance, the individual state analyses vary considerably in scope and quality. One reason lor
the wide variations is that many SPCBs have revised key national definitions to suit their own
state needs, for example, many have changed the list of industry categories that arc classified as
Rid). Thus, they arc each tracking and evaluating universes of sources that are not directly
comparable. Also, as independent bodies, they each have a different perception of what
information is critical to collect and report, and on what frequency the information should be
made available.

However, many SPCBs, especially the smaller ones, do not have the expertise or resources
to even attempt to collect and present the data. Very few SPCBs have computerized data systems
to store the information; thus, many have to rely on paper files and resource intensive efforts to
cull through those files for pertinent information. Individual files generally do not have any
uniformity in structure and content, and often are physically located in different places due to the
large number of regulated facilities. Even where some of the information is computerized, not all
staff have computers, and those that do, utilize them for individual projects and word processing.
Also, very few of the computers are linked together in a network so that data can be shared.

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Furthermore, because reporting is periodic, most states have not established routines for data
collection, and analysis,

India is al a critical juncture in the computerization of compliance and enforcement data.
Some states are moving towards computerization of facility data, including compliance ant!
enforcement information. For example, the Andhra Pradesh SPCB has developed a sophisticated
computerized system which includes facility-specific, as well as ambient data, it is: oracle-based
and includes GIS linkages. During the t-PA visit to the State Board, they provided a
demonstration of their computerized tracking system. The system: links facility information with
sampling analysis, inspections, and enforcement actions; tracks upcoming consent and direction
requirements for facilities; tracks fee payments; automatically flags facilities with unpaid fees,
delinquent actions, or on-going violations; and links complete inspection reports, consents,
enforcement actions, and laboratory reports to the facility data. In late 2003, the Andhra Pradesh
SPCB had shifted away from paper files and was inputting all new data directly into the computer
system, and was working to eliminate the backlog of older data. A few SPCBs have reportedly
approached the Andhra Pradesh SPCB to discuss its computerized system, hut none have
committed to using the Andhra Pradesh system, or developing a similar one.

The Gujuraf SPCB is developing a Microsoft access program for storing facility related
information, including inspections, and is developing the ability to receive consent applications
electronically on-line. The Karnataka SPCB is developing an on-line facility database system that
will link its regional offices with the central office.

As additional SPCBs develop their own systems, there is a strong likelihood that the
systems will not he compatible with one another. One such example of incompatibility that
already exists involves the new hospital waste tracking system established by CPCB. The system
is not oracle-based; thus, the Andhra Pradesh SPCB is forced to enter data twice once in its
system and again in the CPCB system. Duplicate entry of information is a waste of valuable
resources that could be utilized to address other environmental issues.

II-1, COMPARATIVE INFORMATION FROM OTHER COUNTRIES '

United Slates

The EPA experience in defining national data requirements and developing national data
systems for compliance and enforcement programs is pertinent to India, even though India's
environmental programs arc not structured by media (e.g., air, water, hazardous waste) as is the
case in the United States.

.EPA. developed separate data requirements for each media program, and designed
separate, media-specific data, systems consistent with the different data requirements. Thus, etch,
system uses unique terms and definitions based on the underlying statutes, which makes multi-
media comparisons and integration difficult.

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At the same time that EPA was developing its own data systems, the states were
developing their own parallel media-specific systems, They each designed their own unique
system to reflect their state-specific needs. They used different computer platforms, defined terms
differently, focused on a different subset of information, identified sources in different ways, and
developed different reporting frequencies.

As HP A matured, it recognized the need to aggregate the state information into a cohesive
national system for each media program. This proved to be an extremely difficult task because of
the large number of systems that had been developed by each individual state and local agency,
Kaeh state had invested heavily in its own system and refused to change. Although some systems
could be linked electronically to a media-specific national system, most were incompatible with
each other and the national system. To address this problem, EPA was forced to expend
considerable resources to design new national systems that could better accommodate data entered
am! maintained in independent state systems. This required extensive negotiations with states on
issues such as common definitions, reporting time frames, and frequency. All of the media-
specific problems were compounded further when the Agency attempted to integrate systems
across the different media, The problem of incomparability remains, and PPA continues to
struggle with integrating information and ensuring consistent, timely reporting.

11-2. RECOMMENDATION

Recommendation It): Develop a uniform computerized system for collecting, maintaining and
utilizing compliance and enforcement data at the national as well as the state level; develop the
necessary implementing policies and guidance; and ensure that the SPCBs are aware of them.

Specifically, as part of this effort, CPCB needs to:

* Develop policies and implementing guidance to define the national minimum data
requirements; provide definitions for critical terms; define timely reporting; and provide

standardized formats.

* Develop national data requirements that provide sufficient data to enable the
Government to utilize a variety of output and outcome performance measures to ensure
accountability, improve management, and increase program effectiveness.

* Survey SPCBs to develop an understanding of how information is collected, stored, and
used to manage programs; what progress to date has been achieved in computerization of
compliance and enforcement data; and what additional information may he needed.

* Evaluate current data systems such as the Andhra Pradesh SPCB system to assist in the
design of a national framework that also can accommodate state-specific needs and are
compatible with existing states systems.

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* Evaluate whether the CPCB system currently under development to monitor and track;
environmental quality should be expanded to include compliance and enforcement
information.

* Evaluate how information collected and maintained within the national system can be
made publicly available.

Standardized performance measures and an integrated data system to collect and maintain
nationally important data will:

* Reduee the cost of inputting, retrieving, and analyzing data.

* Provide the Government with the ability to more effectively argue for resources and
needed authorizations.

* Enable the Government to better analyze and improve program performance and
compare stale programs.

* Improve transparency in Government aetions by enabling the public access to the
information.

* Improve data quality.

* Reduce the opportunities for corruption since facility data will be more visible and

readily available.

* Avoid future costs associated with the re-design of systems developed by SPCBs prior to
the development of national requirements.

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CHAPTER 6: COMMl JNKWTfON NETWORK

I. COMMUNICATION

During the institutional evaluation, the majority of state officials voiced a desire to better
understand and learn how other SPCBs were addressing common environmental issues.
Knowledge of programs, activities and tools developed by other SPCBs was minima!,-* During
the evaluation, several examples highlighted this problem:

* Most SPCBs were not familiar with the training Centre in other states and related
compliance and enforcement training courses that had been developed. As a result, .states
arc investing in research institutions and training that is potentially duplicative ant) an
unnecessary expenditure given resource constraints.

* Most SPCBs were unfamiliar with court decisions made in other areas of the country and
the potential implications for their own compliance and enforcement programs.

* Several SPCBs indicated that they were the only state agency using bank guarantees as a
means of ensuring compliance with directives. They were not aware that other Boards
were using this tool.

* Several SJPGBs indicated that they were developing computerized data systems to
manage their compliance and enforcement programs and were more advanced than other
SPCBs. la this instance, they had some knowledge of the efforts being undertaken, in other
nearby states. However, most had no real working knowledge of the other systems and
their design, capabilities. The resulting systems most likely will not be compatible with
each other and consistent in the infbnnation collected; thus, it will continue to be difficult
for the Cl'CB to collect data nationally.

i-1. COMPARATIVE INFORMATION I ROM OTHER COUNTRIES
States

Because the United States and Indian environmental programs are similar in structure, the
relationship between federal and state programs also is similar. Both EPA and the CPCB develop
national strategies; monitor state activities associated with priority sources; provide guidance to
the states on implementation issues; interact with stales during the development of priority

18 For more detailed information, see the EPA document, "Report on India's
Environmental Compliance and Enforcement Training institutions and Training
Recommendations'1. It provides more information on a recommendation to establish a
communication organization in India.

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programs; and meet periodically with the states on issues of common concern. The success of the
national program is largely defined by the success of state organizations that have primary
responsibility for implementation. Both HPA and the CPCB must assume responsibility should

the states default

There also arc several differences in how we interact with states. The HPA tends to
interact with states on a daily basis, on media-specilic issues, and at multiple organizational
levels. The interactions arc conducted in both formal and informal meetings. These interactions
supplement the more structured communications that occur during national meetings, which arc
primarily driven by the EPA national agenda.

Another difference is that numerous outside state organizations have been established lo
foster communications between HPA and the states, and represent state interests in interactions
with HPA, These organizations stem from the fact thai routine communications between HPA and
the states alone do not meet all of the needs of Stales for coordination and program development.
These organizations vary significantly in:

* Their mission (e.g., develop a uniform, cohesive state or regional position on an EPA

issue, or merely provide a forum for ali states to provide comment).

* The breadth of their responsibilities (e.g., national versus regional).

» The scope of their responsibilities (e.g., air versus water, Superfund requirements, or all
environmental matters).

* yhe specific issues of concern (e.g., data quality, ambient monitoring, compliance and

enforcement, or all environmental management issues).

* Their structure ( e.g., project oriented, geographical representation).

* 1 ,cvel of interaction (e.g., political directors versus senior agency managers).

* Size.

These factors affect how such organizations interact with EPA. The interactions range
from EPA being a formal voting member of the organization and attending all meetings and
sharing responsibility for developing agendas to being an invited guest only.

Attachment 2 is a list of some of the state organizations with winch HPA regularly
communicates, along with their web sites for a detailed discussion of their mission, structure,
responsibilities, and contacts. They represent a variety of approaches, but generally share the
following similarities:

* They are governed by an elected board of state officials.

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* They have an executive director who carries out the directions of the Board.

* They have committees or workgroups that are comprised of state staff that develop and

work issues determined by the Board.

* The stales are free to join the organization,

EPA strives to be responsive to state concerns and support their activities, but the Agency
often finis it difficult because EPA cannot fully understand their unique perspective which eta
only be acquired by managing a state agency, The types of state organizations discussed above
have assisted in this area.

These organizations also assist in the development and delivery of training; sharing of
state management practices and data for reducing costs or increasing revenue; sharing of technical
expertise; and acting as a clearinghouse for slate related environmental information.

1-2. RHCOMMENDATION

Recommendation 11: Establish a support organization to facilitate communication among SPCBs
on, important environmental compliance and enforcement issues, and between CPCB and the
Boards.

Rationale:

The establishment of a support organization to facilitate this desired communication
would enhance the overall effectiveness of India's environmental compliance and enforcement
program; improve consistency; and provide greater certainty to the regulated community. It also
would enable CPCB to better implement its coordination responsibilities without requiring
additional staff.

Such an organization would, for example, allow the Boards to learn from each other by
sharing their successes and failures; maximize limited resources by combining them to address
common priority issues; avoid duplication of effort by sharing and utilizing compliance
monitoring tools, technical expertise, specialized instrumentation, unique laboratory capabilities,
and computerized data systems; develop consensus on national issues; and distribute information
of national significance.

Funding for the network could be shared among all of the Boards so that no one
organization had to bear the cost.

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ATTACHMENT 1

INSPECTION#!; M1CO

EPA observations of the inspection:

* During the visit to the industrial effluent system, the inspector obtained self-monitoring
information to review during his inspection. He initialed the self-monitoring book before

returning it,

* The inspector asked the plant environmental manager questions concerning a unit of
effluent control equipment that was not in operation. He also asked questions of the
effluent plant operators,

* The inspector looked at all of the different pieces of industrial effluent control
equipment and recorded readings from various control gauges in his inspection notebook.

* The inspector brought the office tile of the facility with him and periodically reviewed
it during the inspection. He asked questions based on the file to ensure that the
operations of pollution control equipment hud not changed. He did not make any
observations of any of the process sources of the pollution. The only air pollution source
visited during this inspection was a waste incinerator.

* The inspector informed the plant em irotimental manager that the Slate would be
collecting a legai sample of the industrial effluent. The sample was collected by his
assistant from the diluent outfall; checked for proper level in the plastic sampling
container; and a label was affixed. The label information included a sample number, plant
name, where the sample was taken, and date and time the sample was taken.

* The inspector also had a sample taken of the municipal wastewater.

* During the exit interview, the inspector discussed his observations with the
environmental manager and reviewed the paperwork. The sampling forms were prepared
in the presence of the environmental manager. Both the intent to sample form and the

sample forms were signed by both the State and the facility personnel. All paperwork
was signed by a witness for the company and the inspector's assistant. Before the sample
was sealed, the inspector and the environmental manger checked the odor of the sample.
The sample was sealed by the assistant and the signed paperwork was sealed in a pouch
that was attached to the sample. The last step in the process was for the assistant to affix
and stamp a wax sea! to the samples.

1.1

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* At the hazardous waste storage facility, the inspector checked the material for storage
conditions, and asked that labeling be displayed on the storage cells. He indicated that
this part of the operation will be inspected every 3-6 months,

* The inspector observed the operation of a waste material incinerator to sec if it was still
being operated and checked the general condition of the operation. He asked questions
about the installation of a new incinerator. 1 le indicated that the company was under a
directive to shut down this particular incinerator which was considered to be in violation,
and replace it with a new one.

After the inspection, the inspector informed I* PA that;

* If he lias a doubt or question about anything that lie is told during the inspection, he
will look at the pollution control equipment.

* If he is taking samples at a facility that is not cooperative or he feels may challenge the
inspection results, he will have the facility representative sign the sampling form
indicating that a legal sample was collected.

* Occasionally, an outside complainant representing the public will accompany him on an
inspection. In these situations, the inspector will ask both the company representative and
the complainant questions; record their answers along with his own observations; and
have them both, sign the document.

* He had recently been transferred to Bangalore from a n»re rural section of the state. In
rural areas, transportation to and from an inspection can be especially time-consuming
and can affect the number of inspections that can be conducted in a given day. Because
of the pressure to complete a certain number of inspections within a given time period,
some inspections may not be as comprehensive as they should be.

* It takes approximately one-half day for an experienced inspector to conduct an
inspection at a large facility, and that in one day, he can conduct approximately 10
inspections of medium facilities, or 20-30 inspections of small facilities.

* Sometimes, his assistant will go out alone to take samples at small facilities.

The inspection report was prepared the next day. In the report, the inspector recorded his
observations and also indicated that results of a wastewater sample collected on previous
inspections had indicated a violation of the standards. The inspector recommended that a notice
be issued for this violation.

1.2

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INSPECTION *2: CIPl A

EPA observations of the inspection:

* The inspector noted that work was being conducted on an effluent pollution control
lank and asked it'the facility had notified the Kurnataka Cl'CB that the lank would he out
of service for repair work. The facility representative produced a letter sent to the
Karnataka CPCR

* The inspector reviewed the log book of the operation of ihe effluent treatment plan!,
asked questions of various facility personnel, and recorded their responses.

* The inspector cheeked the incinerator for the solids from the eflluent plant and noted
that the construction of the stack testing platform and ladder was not completed. He

asked for information on when it would be installed.

* The inspector was given a copy of a report on the fish tissue analysis of fish from the
adjoining lake. He asked if there were any discharges that had occurred from the effluent
plant to the lake and made observations of the lake bank,

* The inspector made on-the-spot suggestions (o the facility representative to cover a
waste storage area in the effluent plant; asked for a time commitment for completing the
work; and asked that the company send a letter confirming the action.

* The inspector used an inspection notebook to record his notes during the inspection.

* The eflluent from the treatment plant was discharged into a cement holding pond,
which was reportedly used as irrigation water on the plant property. A legal sample was
taken of the discharge to the pond by the assistant.

* After noticing that water was being used on a grassy area of the plant, the inspector had
the assistant take a sample of this water to confirm that it was representative of the
effluent to the holding pond.

* The inspector was told by the company representative that rainwater also was collected
and stored for use on the plant property. The inspector asked about storage capacity and
what happens if storage capacity was exceeded.

1.3

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* The inspector reviewed the hazardous waste storage area. When he noticed old
abandoned equipment battery, he informed the company reprcsentati¥e about new
requirements for disposal of batteries,

* The inspector conducted an exit interview with company representatives. He reviewed
the fish tissue report against what was potentially coining from the plant He askeii. about
the status of the scrubber for the 1-2 area and the ladder/platform for the stack testing
equipment, He asked for commitments and time frames,

* The inspector asked questions related to pollution changes in one area of the plant
based on his review of the official file he had with him,

* The inspector gave the facility feedback on his observations and requested information
on any new plans the company had for reducing pollution at the facility,

* The inspector asked about community outreach activities and reviewed pictures of a
project thai the facility had conducted. He suggested additional outreach for the facility to
consider.

* The inspector asked about training of facility personnel and attendance at upcoming
EMPRI training courses.

* The inspector asked, about any planned production changes,

* At the end of the exit interview, the inspector gave a summary of the company
commitments made in response to the inspection,

After the inspection, the inspector informed EPA that:

* He conducts 60-70 inspections per month, including tip to seven large and medium
inspections per day. He had been to the Cipla facility 12-15 times,

* Inspections are generally not announced and can be done on off-hours such as. evenings
and weekends. As an example, the inspector noted an inspection of Cipla that was
conducted on a Sunday at 10:30pm. At that time, the inspector noticed that water was
being discharged to a neighboring field, and the team took a sample and pictures. The
next morning, the team came back and took a legal sample. This discharge was not part
of the facility's Consent to Operate, After the inspector identified the problem to the
facility management, the company fired the supervisor that authorized the illegal
discharge, and the Karnataka CPCB required additional training of employees.

1.4

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* While there were multiple Karnataka CPCB personnel on this inspection, the number
of people on the inspection team depends on the complexity of the inspection.
Sometimes, only the senior inspector and a driver form the team,

* Hie inspection report is generally completed within seven dap of the inspection, but
the sampling analysis may take longer,

* While there is no standard formal for the inspection report, he indicated thai lie knows
what information must be included in the report,

* During his first inspection to a facility, he will spend more lime going through the
complete process to develop an understanding of the operation, and this type of review
may take a lull day.

* Field assistants can only accompany an inspector and can not conduct inspections on
their own. They, however, can collect samples at smaller facilities on their own
according to the inspector at MIC'O.

* Every year, each employee does a self-evaluation including training needs and goes
over this evaluation with the senior engineer in the office.

* Inspectors can be transferred from cue district of the stale to another eveiy 3-5 yeas to
prevent them from becoming too close to the industry that they monitor.

The day after the inspection, the inspector prepared a written report and a letter to the
company summarizing his observations; detailing the directions that were provided during the

inspection; and requesting a written response to the directions.

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ATTACHMENT 2
LIST OF REPRESENTATIVE STATE ORGANIZATIONS

* Environmental Council of the States

http://www.sso.org/ecos

* State and Territorial Air Pollution Program Administrator & Association of Local Air
Pollution Control Officials

http://www.4cleanair.org

* Association of State and Interstate Water Pollution Control Administrators

http://www.usiwpca.org

* Association of State and Territorial Solid Waste Management Officials

http://www.astswmo.org

* Association of Slate Drinking Water Administrators

http://www.asdwa.org

* Association of American Pesticide Control Officials

http ://aapco .ceris.purd ue. ed u

* American Water Works Association

http ://w ww. awwa.org

* Form on State and Tribal Toxic Action

no direct website, but information is available on the EPA website at http://www.epa.gov

* State F1FRA (Pesticides) Issue Research and Evaluation Group

http://aapco.ceris.purdue.edu

* Mid-Atlantic Regional Air Management Association

http://www.marama.org

* Mctro-4/Southeastern States Air Resource Managers

http://www.iiietro4-sesami.org

1.6

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