Regulatory Architecture for Construction Dust Control
The first step in evaluating regulatory performance is mapping the regulatory landscape. An accurate understanding of the regulatory regime on construction dust must necessarily come before undertaking an assessment of the manner in which it is being implemented.
What are the major laws that govern dust control measures at construction sites?
The legal regime on construction dust can be divided into two sets of laws — environmental and municipal. The umbrella law is the Environment (Protection) Act, 1986, which confers wide-ranging powers on the government to take steps to prevent environmental pollution and improve environmental quality. The teeth of this law lie in its details or its subordinate legislation. The government has extensive rule-making powers under the Act. It has passed three sets of rules/notifications that are relevant for the purpose of controlling construction dust. These are:
- The Environment (Protection) Rules, 1986, which prescribe specific dust mitigation measures to be taken by all kinds of construction activities;
- The Environment Impact Assessment Notification, 2006, which requires certain large building projects to obtain environmental clearance before commencing operations, and includes dust mitigation measures as one of the conditions attached to the clearance; and
- The Construction and Demolition Waste Rules, 2016, which specifically govern the collection and disposal of construction and demolition waste in an environmentally sound manner.
The key municipal laws governing construction dust in the Delhi NCR are the Unified Building Bye-Laws, framed under the Delhi Development Authority Act, 1957. These bye-laws govern the grant of building permits for certain kinds of activities. Some of the conditions attached to such permits include the implementation of dust mitigation measures at construction sites and the appropriate disposal of construction and demolition waste.
What are the specific dust control measures that must be in place at construction sites?
The specific measures that must be implemented depend upon the nature and magnitude of the construction or building activity in question. However, there are also measures that apply to all construction or building activities in the Delhi NCR, irrespective of their nature or magnitude. These measures are provided both in the Environment (Protection) Rules and the Unified Building Bye-Laws. Table I compares these measures as set out in the environmental laws and in the municipal ones. The provisions under the Environment (Protection) Rules are legislatively prescribed standards. The provisions under the Unified Building Bye-Laws are in the form of undertakings that builders or owners must compulsorily submit to obtain a building permit or as conditions attached to building permits granted by the relevant authorities.
Table I. Comparison of mandatory dust mitigation measures across environmental and municipal laws
|Environment (Protection) Rules, 1986 (effective as of 25 January 2018)||Unified Building Bye-Laws, 2016 (Forms A-6 and B-1, effective as of 17 June 2016)|
|Grinding and cutting of building materials in open areas is prohibited||Does not prohibit grinding and stone cutting, instead requires the compulsory use of the wet jet for such activities|
|Construction material and waste is to be stored only within earmarked areas, not on the side of the road||Allows construction material to be stored on the site, provided it is fully covered to prevent its dispersal in the air in any form. Also prohibits the storage of construction material (sand in particular) on any part of the road|
|Uncovered vehicles carrying construction material and waste are prohibited||Equivalent provision with the added condition that construction dust or debris must not be dispersed in the air in any form whatsoever. Added provision that vehicles carrying construction material and construction debris must be ‘cleared’ after they unload such material and before they are permitted to ply on the road again.|
|Construction and demolition waste processing and disposal sites must be identified, and the necessary dust mitigation measures must be notified at such sites||
A comparison of the provisions across these laws has certain implications for regulatory performance. One of the factors that is likely to play a key role in influencing the performance of regulatory functions is the clarity of the regulations themselves.There are several ways in which the regulatory provisions across both regimes are unclear:
The provisions across environmental and municipal laws have not been harmonised.
- The provisions on grinding and stone-cutting in the two laws are contradictory
- The provisions in the Unified Building Bye-Laws are far more comprehensive than the provisions under the Environment (Protection) Rules. The former apply only to the Delhi NCR, while the latter apply to towns and cities across India where the PM10 and PM2.5 values exceed the limits prescribed under the National Ambient Air Quality Standards. States are entitled to impose stricter standards than Central provisions, as Delhi has done. However, when human health is at stake, the Centre ought to ‘level up’ rather than prescribing the bare minimum. Provisions like the construction of screens and wind breaking walls could be incorporated in the Environment (Protection) Rules as well.
Some provisions are vague or incapable of effective enforcement.
- Two of the conditions of building permits under the Unified Building Bye-Laws completely prohibit the dispersal of construction dust in any form whatsoever. It is extremely unlikely that any construction site will be capable of fully complying with this condition. Such a condition also seems near-impossible to monitor.
- Another condition states that every precaution should be taken to ensure the complete control of dust emissions from construction sites. It is unclear what ‘complete control’ means since no limits have been specified for dust emissions at construction sites. The Environment (Protection) Rules only specify limits for stone-crushing units — the suspended particulate matter between 3 and 10 meters of the equipment of a stone-crushing unit should not exceed 600 micrograms per cubic meter.
Do special provisions apply to large construction projects?
When the Environment Impact Assessment Notification was issued in 2006, it required building and construction projects of a certain size to undergo an environmental impact assessment and obtain prior environmental clearance before the project could commence.
Building and construction projects between 20,000 and 1,50,000 square metres of builtup area required environmental clearance from State Environment Impact Assessment Authorities, while projects above 1,50,000 square meters required environmental clearance from the MoEFCC.
Over the last few years, several attempts have been made to do away with this requirement of prior environmental clearance, at least for projects below 1,50,000 square metres, and to allow local authorities to make these decisions instead. A timeline of some of the key attempts that have been made to dilute the application of the EIA Notification to building and construction projects are:
Table II. Timeline of Amendments to the EIA Notification relating to Building and Construction Projects
09 Dec 2016
MoEFCC issues an amendment to the EIA Notification, exempting prior environmental clearance for building and construction projects below 1,50,000 square meters, provided that certain environmental conditions relating to such projects were integrated with relevant building bye-laws or State laws. Local authorities like development authorities or municipal corporations were to constitute Environmental Cells that would monitor compliance with the environmental conditions integrated within these bye-laws. The notification also exempted residential building up to 1,50,000 square meters from obtaining a Consent to Establish and Operate under the Air and Water Acts.
09 Dec 2016
12 Jun 2017
MoEFCC issues an order approving the integration of environmental conditions with building permissions in the Unified Building Bye Laws notified by the Delhi Development Authority, subject to the outcome of the decision in Original Application No. 677/2016 pending before the Principal Bench of the National Green Tribunal (The Unified Building Bye Laws for Delhi had already been notified on 22 March 2016, but the chapter integrating environmental conditions with building permissions was not yet in force).
As far as air quality is concerned, the Unified Building Bye Laws prescribe the same set of conditions for projects that range in size from 5,000 to 1,50,000 square metres. They are less detailed than the conditions in Forms A-6 and B-1 (discussed above). They only state that dust, smoke and debris prevention measures such as screens and barricades are to be installed at sites during construction, and that plastic/tarpaulin covers are to be used for trucks bringing in sand and material at the site.
08 Dec 2017
The Principal Bench of the National Green Tribunal passes its judgement in a case challenging the legal validity of the 9 December 2016 Notification of the MoEFCC. It cites the principle of non-retrogression to hold that the notification substantially dilutes key features of the Environment (Protection) Act. It sets aside those parts of the Notification that exempt the application of the Air and Water Acts, as well as those empowering Environmental Cells within local authorities to recommend and monitor compliance with environmental conditions in building permits. It also states that those parts of the Unified Building Bye Laws that integrate environmental conditions with building permits are not to be given effect to unless the 9 December Notification is amended in accordance with its judgmenet.
08 Dec 2017
03 April 2018
MoEFCC issues an office memorandum to give effect to the NGT judgement. All applications submitted to the local environmental cell are instead to be dealt with as applications for prior environmental clearance under the EIA Notification.
14 Nov 2018
MoEFCC issues a notification delegating power to local bodies like municipalities and development authorities to ensure compliance with environmental conditions for building projects with a built-up area between 20,000 and 50,000 square metres and industrial sheds, educational institutions, hospitals and hostels for educational institutions with a built-up area between 20,000 and 1,50,000 square metres. The conditions prescribed in relation to air quality are similar to those contained in the Environment (Protection) Rules and the Unified Building Bye Laws. However, some of the key additions/clarifications are:
- Paving and blacktopping of roads leading to or at construction sites
- No excavation of soil to be carried out without adequate dust mitigation measures
- Prominent display of dust mitigation measures at the construction site for easy public viewing
- Dust, smoke and other air pollution prevention measures to be provided for the building as well as the site
- Unpaved surfaces and loose soil to be adequately sprinkled with water
14 Nov 2018
15 Nov 2018
MoEFCC issues a notification allowing local bodies to stipulate environmental conditions while granting building permission to:
- Building and construction projects with a built-up area up to 50,000 square metres
- Industrial sheds, educational institutions, hospitals and hostels for educational institutions with a built-up area up to 1,50,000 square metres
Such projects would not require prior environmental clearance from State Impact Assessment Authorities under the EIA Notification
26 Nov 2018
The Delhi High Court stays the operation of the two notifications dated 14 and 15 November, in a petition filed by Social Action for Forest and Environment.
26 Nov 2018
Therefore, the current position of the law is that building and construction projects with a built-up area of 20,000 square metres or more still require prior environment clearance from the State Impact Assessment Authority in accordance with the EIA Notification. Projects above 1,50,000 square meters require prior environment clearance from the MoEFCC.
34 building and construction projects in Delhi, with a built-up area above 1,50,000 square metres received environmental clearance in 2017 and 2018 till date.
For all such projects, a standard condition on air quality was attached to the environmental clearance letter. This replicates the conditions in the Unified Building Bye Laws and in the 14 and 15 November notifications (See Table I above).
On the website of MoEFCC, self-compliance reports, which must be submitted by project proponents after receiving Environmental Clearance under EIA Notification, 2006 were uploaded for only 2 projects in the ‘New Construction Projects’ category and 5 projects in the ‘Infrastructure & Miscellaneous Projects’ category in Delhi for the years 2017 and 2018.
As far as dust mitigation measures are concerned, the same conditions are prescribed in the EIA Notification as in the Unified Building Bye Laws, although the environmental conditions in Tables 3.3., 3.4 and 3.5 of the Bye Laws are less detailed than the combined conditions in Forms A-6 and B-1 of the same Bye Laws. The primary concern regarding the integration of environmental conditions and building permits is the delegation of environmental appraisal and monitoring compliance to local authorities, which are unlikely to have the technical capacity to carry out these functions.