The evolution of legislative framework for water pollution in India
The United Nations Conference on the Human Environment at Stockholm in 1972 led to a new era of environmental conservation in India and a slew of legislations to protect the environment were introduced in the country. The United States had already established the United States Environmental Protection Agency (USEPA) in 1970 followed by legislation and rewriting of Clean Water Act in 1972.
The USEPA and Clean Water Act had a significant influence on many developing countries, who adopted the regulatory framework and standards of the United States. The Indian parliament also took lead and passed the Water (Prevention and Control of Pollution) Act in 1974. Since water was a state subject, the Act was further approved by the legislature of 12 Indian states to meet the constitutional requirements.
The Water Act, 1974
The Water (Prevention and Control of Pollution) Act in 1974 (also referred to as the 1974 Water Act) provided for the establishment of the Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCB) and defined the functions and powers of these bodies. Prior approval from SPCB was made mandatory for any industry operations and functions.
Section 16 of the Act defined the power of CPCB to lay down, modify or annul in consultation with the state governments concerned, the standards for streams and wells. Section 17 of the 1974 Water Act provided for SPCB to lay down, modify or annul effluent standards for the sewage and trade effluents, but only for intra state streams.
However, neither the central governments nor the state governments ever notified the rules on fixing of these discharge standards. Consequently, there was a regulatory vacuum on fixing of discharge standards in the country.
Environmental Protection Act, 1986
The Bhopal Gas Tragedy in December 1984 nudged the Government of India to strengthen the regulatory regime around pollution. Although the Water (Prevention and Control of Pollution) Act of 1974 and Air (Prevention and Control of Pollution) Act of 1981 were already legislated, the parliament enacted the Environment Protection Act (EPA), 1986 to cover the gaps in these laws and strengthen the regulatory mechanisms.
The Act also laid down that the effluent discharge standards for air, water and soil would be notified by the Government of India through publication in the official gazette. The Act also mandated that the SPCB could not relax the effluent standards laid down by the Government of India. However, the SPCBs could adopt stricter effluent standards for specific industries or locations. In case the SPCB adopted stricter standards for any location and industry, a written justification was to be provided for the same. Section 26 of the Act also provided that every rule made under this Act shall be approved by the parliament providing for a legislative approval of the rules notified under the Act.
Hence, both the EPA act and EPA rules were approved by the Indian parliament providing them the supreme legislative legitimacy in the country. The approval of rules of EPA from the parliament on process of notification of effluent discharge standards also addressed the existing regulatory void on the discharge standards in the Water (Prevention and Control of Pollution Act) 1974. Consequent to the enactment of EPA 1986, the Government of India notified the discharge standards for various types of effluents in the official gazette.
Institutional overreach and confusion all around
The Bureau of Indian Standards (BIS) had notified a set of effluent standards for sewage in 1973-74. However, no national standards for discharge of sewage effluents in the country were notified by the government. The general effluent standards notified in 1986 after the passing of EPA guided the effluent conditions for STPs and no separate standards were promulgated for STPs. Sewage treatment was often the responsibility of the government and strict adherence to standards put one wing of government in clash with the other.
The first recommendation for the setting up the STP standards was made by CPHEEO in 2013. CPHEEO recommended sewage discharge standards for waterbodies, which were to be used as a source of drinking water. For this, Biochemical Oxygen Demand (BOD), Total Nitrogen and Total Suspended Solids (TSS) standards were fixed at less than 10mg/L, of which the standards for Total Nitrogen and Total Suspended Solids were at par with the global standards for drinking water. The treated water of this standard was even suitable for potable usage after minimal treatment.
The CPHEEO, thus used the strict standards of drinking water for wastewater treatment which was felt to be unnecessary. Following this, the CPHEEO passed the responsibility of fixing the effluent standards on the MOEF&CC and State PCBs and the matter remained unresolved. Interestingly, this was also the same time in 2012 when the US EPA had refused to adopt tertiary level treatment due to its exorbitant costs.
Table 1: Recommended guidelines for treated sewage discharged in surface water to be used as source of drinking water
*General Standards, Environmental Protection Rule, 1986
(Table Source: MoUD, CPHEEO and JICA (2013) Manual on Sewerage and Sewage Treatment Systems)
The draft notification of CPCB in 2015
The next major development in the fixing of standards for the STPs came in April 2015 when CPCB directed the State PCBs on fixing of effluent standards for STPs. However, it is necessary to examine the legality of the directives. The draft notification mentioned Section 18 of the Water (Prevention and Control of Pollution) Act, 1974 wherein CPCB had the authority to direct SPCBs for better coordination and improvement of the rivers and water bodies. CPCB also directed state governments to adopt the mentioned standards under the power of SPCB defined under Section 17 of the same act.
This draft notification was a gross example of executive outreach. While CPCB quoted Water (Prevention and Control of Pollution) Act, 1974 to lay down the discharge standards, the rules for doing so were never notified by the Government of India, and various state governments. In fact, this legislative vacuum about notification of the effluent standards was later addressed by the Indian parliament in the Environment Protection Act (EPA) 1986 wherein the parliament had vested the power of fixing the discharge standards to the Government of India and also laid down the process of notification of effluent standards in the country.
As per EPA 1986, the effluent standards could only be notified by publication in the official Gazette by the Government of India. It was very evident that the draft notification issued by CPCB was in violation of the process laid down by Indian parliament regarding the fixation and notification of standards. However, many of the state governments considered this communication by CPCB as a legal directive, and adopted stringent standards of tertiary treatment for their state.
Table 2: Central Pollution Control Board (2015)
(Table source: CPCB (2015) Inspection report: of STPs in Agra with reference to Hon'ble NGT Court Order dated 09.12.2015 in the matter of 0.A. No. 145 of 2015, D.K. Joshi Vs Union of India & Others)
Corrective measures undertaken by MOEF & CC
MOEF&CC came up with a draft notification dated 26th October 2015 on STP standards and invited comments from public at large on it. Subsequently, MOEF&CC through publication in the official gazette of India dated 13th October 2017, notified standards for STP under schedule I entry number 105.
The standards took account of the pollution load for different types of cities and notified two different standards of BOD and TSS for metro cities and state capital cities (with some exceptions in Northeast) and other classes of cities.
Table 3: Standards as Notified by MOEF dated 13th October 2017
(Table Source: The Gazette of India (2017) Ministry of Environment Forest and Climate Change Notification, 13th October 2017)
Harsh Vardhan is the Chief Executive Officer of CDD India.
This is the third of a five-part series of articles on ‘Wastewater management and its evolution’. Please find the first and second articles from the series below:
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