The Environment Impact Assessment Notification, 2006 (“Notification”) requires new projects or existing projects requiring expansion, modernisation or any change in the product mix or raw material mix, as covered under the Schedule to the Notification, to take prior environmental clearance (“EC”) before undertaking any activity related to the project.
In relation to existing projects, Para 7(ii)(a) of the Notification provides that the application for prior EC for existing projects requiring: (a) expansion with increase in the production capacity beyond the capacity prescribed in prior EC; (b) expansion with increase in lease area or production capacity in mining projects; or (c) modernisation with increase in the total production capacity beyond the specified threshold limit through change in process, technology or change in the product –mix, shall be considered by the appropriate authority. Such authority would also decide on the requirements for considering such applications including preparation of Environment Impact Assessment (“EIA”) / Environment Management Plan (“EMP”) reports, public consultation, etc.
The Ministry of Environment, Forests and Climate Change (“MoEFCC”), to ensure uniformity, has issued an office memorandum on 11 April, 2022 prescribing requirements for considering such cases covered under Para 7(ii)(a). It provides that the application for expansion of an existing project up to 50% of its capacity (as mentioned in existing EC) in minimum three phases will be considered as follows:
|Project of modernisation / change of product mix / expansion||Requirement for revised EIA/EMP report||Requirement for Certified Compliance Report||Requirement of fresh Public Consultation||Reference to Expert Appraisal Committee|
|Projects with modernisation /change in product mix without increase in production capacity but with increase in pollution load
(Projects with increase in production capacity will be considered as per points mentioned below)
|Upto 20% based on environmental safeguard conditions||Yes||Yes||No||Yes|
|Upto 40% based on successful compliance of previous environmental safeguards related to expansion of 20%||Yes||Yes||No||Yes|
|More than 40% but less than 50% based on successful compliance of previous environmental safeguards related to expansion of 40%||Yes||Yes||Yes||Yes|
These requirements are subject to certain conditions specified in the guidelines. Some of these conditions are: (a) existing project should have gone through the public hearing process, if applicable, at least once for its existing capacity; (b) category of project should not change from ‘B2′ to ‘B1′ or ‘A’ due to the proposed change; (c) no additional land acquisition or forest land diversion is required for the proposed project; (d) proposed expansion shall not be more than 50% of the capacity (specified in existing EC) and is proposed in minimum three phases; (e) public consultation (if required as per the table above) will be done by obtaining response in writing as per the Notification; and (f) compliance with existing EC conditions has been ensured.
The projects covered under these guidelines are required to apply through the PARIVESH portal along with the required documents. The remaining projects, however, will continue to be considered as per the existing provisions of the Notification.
As per the MoEFCC, projects covered under this memorandum will hereafter be considered by the authorities as per these guidelines. Such projects have also been exempted from the public hearing requirement provided it has been undertaken at least once in the past for the projects’ existing capacity. Where the public consultation has been prescribed for one category of projects, it will be done by obtaining response in writing and not by hearing the public at a physical gathering. The intent of these guidelines is to ensure uniformity and consistency in consideration of cases for expansion or modernisation of existing projects within the same project area. Its implementation would however be the key to assess whether the notification helps in making the clearance process less complicated or is used to circumvent scrutiny in any manner.
This article was originally published in Mondaq on 4 May 2022 Co-written by: Nawneet Vibhaw, Partner; Himanshu Pabrej, Associate. Click here for original article
Contributed by: Nawneet Vibhaw, Partner; Himanshu Pabreja, Associate
This is intended for general information purposes only. The views and opinions expressed in this article are those of the author/authors and does not necessarily reflect the views of the firm.
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