India Publishes Draft Rules on Remediation of Contaminated Sites

India’s Ministry of Environment, Forest and Climate Change (MoEFCC) has published the draft Remediation of Contaminated Sites Rules, 2024 under the Environment Protection Act, 1986 on 21 August 2024, and is inviting comments for 60 days. The draft set out the responsibilities of the Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCBs), state governments, local bodies, and “responsible person” including companies responsible for causing the pollution, for the remediation of land designated as a “contaminated site“. The standards for designation as a contaminated site is expected to be issued separately by the CPCB at a later date.

Legislation on remediation in India such as the Public Liability Insurance Act, 1991, requires companies that handles with hazardous substances to take out insurance, where part of the insurance costs are being paid for the ‘Environment Relief Fund’, which was set up to remediate contaminated sites. The draft now provides more clearly for liability for polluters, and future land remediation regulations will be regulated by these two.

Definitions

• “Responsible person” means one or more persons jointly or severally responsible for contamination of site and thus for remediation of such contaminated sites including the remediation cost and other related claims.
• “Person” includes: an individual, a company, a firm, an association of persons or a body of individuals, whether incorporated or not, trustee of a trust, a local authority, and every artificial juridical person.

Liabilities of the Responsible Person

The responsible person shall be liable for all damages caused to the environment or third party due to confirmed contaminated site, and shall be liable to the costs of remediation. The remediation cost associated with (but not limited to) the following:

• Engaging third parties including reference organization, contractors, consultants, specialists, experts, lawyers, laboratories, research institutes and public authorities
• investigation, survey, assessment, sampling, laboratory analysis, preparation, management, supervision, verification, reporting, review, approval, evaluation, corrective measures, project management, permitting, licensing, tendering and insurance
• remediation and post remediation measures including but not limited to site access measures, establishing project offices, excavation, removal, transport, filling, treatment, paving, repaving, replanting, boring, digging, pumping, operation, maintenance, supplies, utilities, equipment, material and vehicles
• temporary or permanent relocation and rehabilitation of affected persons
• demolishing, repairing or rebuilding of any building and structure at the confirmed contaminated site
• compensation for environmental damage and restoration of equality of environment

A responsible person shall also not be exempted from its liability on account of the following factors:

• whether the activity causing contamination and effects of contamination occurred at different points in time, including before coming of the Environment Protection Act, 1986
• whether the requirement of a site investigation was neither mandatory nor expected as part of normal business practice and the person cannot be expected to carry out such investigations or examinations
• whether the contaminants were not notified prior to the commencement of Hazardous and Other Waste (Management and Transboundary Movement) Rules, 2016, Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 or Hazardous Wastes (Management and Handling) Rules, 1989 or were caused by substances that were not notified as hazardous substances

Transfer of Ownership of Contaminated Site

Permission granted by the authorities is required for the following activities:

• change the land use of a probable or confirmed contaminated site
• transfer or change in the ownership of any portion or all of land or building of a probable or confirmed contaminated site
• transfer or change in the ownership of any facility at probable or confirmed contaminated site including any transfer or change in ownership of the company that owns such facility at probable or confirmed contaminated site
• carry out any activity or cease an activity on probable or confirmed contaminated site including transfer or transport of any material to or from the site

Reporting of Accidents

Where an accident occurs at the contaminated site or the facility on the contaminated site or during transport of any material to or from the site, the owner or occupier or responsible person or the transporter shall immediately intimate the SPCB about the accident and subsequently send a report in Form 5 and publish it on the online portal (to be developed).

Download the draft regulations here:
https://egazette.gov.in/writeReadData/2024/256547.pdf

Reference
Public Liability Insurance Act, 1991
https://www.indiacode.nic.in/bitstream/123456789/1960/5/A1991-06.pdf