ISO 14001-Clause 4.3.2 Legal and other requirements
ISO 14001 Requirements
The organization shall establish, implement and maintain a procedure(s)
- to identify and have access to the applicable legal requirements and other requirements to which the organization subscribes related to its environmental aspects, and
- to determine how these requirements apply to its environmental aspects.
The organization shall ensure that these applicable legal requirements and other requirements to which the organization subscribes are taken into account in establishing, implementing and maintaining its environmental management system.
The Standard requires that organizations shall establish and maintain a procedure to identify and have access to applicable legal and other environmental requirements to which the organization subscribes, and to determine how they apply to its environmental aspects. Examining the ‘other environmental requirements’ first, these might include a situation where, for example, the corporate headquarters of an organization decrees that certain solvents will be banned from all sites by a certain date. Clearly this directive must be obeyed and reflected within the overall environmental policy, programme, objectives and targets. As a further example, the use of the plastic PVC is under active environmental scrutiny because it is argued that, as PVC is a chlorinated material, it can have adverse health effects on humans and wildlife. Although such evidence is inconclusive, an environmentally responsible organization may mandate that all of its sites phase this material out until there is further research into the environmental impact and safety hazards of PVC.Most countries have government environmental agencies who will assist with national legislation information. The legal requirements will, of course, be considered by many to be the most important due to the possibility of fines, imprisonment or the forced closure of the business. Therefore, keeping up to date with legislation is important. However, bearing in mind the extent of the environmental legislation emanating from regulatory bodies throughout the world, this is no simple task. The principles of environmental legislation and guidelines for compliance.
We may not always agree with laws – but we must obey them. Nonacceptance of a law, or pleading ignorance of the law is no defence when it comes to courtroom proceedings. For example, in the case of an adjoining river to a manufacturing site becoming accidentally polluted, it is no defence to state that the Company was unaware that this was an unlawful act. The legal system would maintain that the Company should have taken reasonable steps to find out beforehand.
Penalties for breaking environmental laws
Certainly there are instances of heavy financial penalties (fines) for breaches of legislation. Additionally, senior management individuals have been sent to prison – usually in cases of proven negligence. There is a Supreme Court Judgment which states that the s ‘fines should be substantial enough to have a real economic effect on the organization’, the purpose being to put pressure on managers and shareholders to comply.
Concept of Strict Liability
Generally, offences under environmental law are subject to the concept of strict liability. As an illustration, consider the river in previous note 1, being polluted by a large drum of chemicals. If the reason for the incident is adverse weather conditions (storms blowing drums over causing spillage) or even criminals or vandals deliberately causing the spillage, then the Company is still guilty of pollution. All the Company can do is to plead mitigating circumstances which should reduce the severity of the fine. Such mitigating circumstances could be:
- Enclosed and locked storage areas for the drummed chemicals;
- Use of 24-hour security cameras and vandal proof fencing around the site.
This demonstrates to the court of law and the regulatory body, that due diligence was taken. In a less dramatic scenario, if a river is polluted due to an interceptor not functioning – the organization is still guilty and will face a fine in the courts. If the organization concerned has a regime of weekly checks, inspections, audits under the umbrella of an EMS, then the level of fine may be reduced as the client was indeed taking reasonable steps and precautions to reduce pollution.
Enclosed and locked storage areas for the drummed chemicals;
Legislation – responsibility for compliance
It is the implementing organization’s responsibility to ensure compliance with the law. This responsibility cannot be passed on to a third party, for example, the auditor from the certification body. The external auditor, however, must exercise due diligence and by asking questions based upon his training, expertise, knowledge and experience, should discover if the organization is compliant.
Determination of applicable legislation
Legislation is publicized by governments and regulatory authorities and should be readily available. Options can be access to internet sites, enquiries at government offices and reading of appropriate trade and professional journals. In this way a register of legislation can be compiled. However, the register of legislation by itself is not sufficient. The client must demonstrate how each piece of legislation applies – or not – as the case may be with reasons for inclusion or non-inclusion in the register. This register demonstrates that a review process has occurred by a responsible person.
To be in compliance with the laws and regulations that apply to your organization, you must first know what the rules are and how they affect what you do.Compliance with legal requirements is one of the “pillars” upon which your environmental policy should be based. Costs of non-compliance in terms of money, public image and possible damage to the environment can be very high. An effective EMS will include a process for:
- identifying applicable legal and other requirements, and;
- ensuring that these requirements are factored into the organization’s efforts.
Changing legal requirements might require that you modify your environmental objectives or other elements of your EMS. By anticipating new requirements and making changes to your operations, you can avoid some future compliance obligations and their associated costs.
Your EMS should include a procedure for identifying and having access to the legal and other requirements that apply to your organization. These “other requirements” might include industry codes, or similar requirements to which your organization may subscribe. The process of identifying applicable regulations, interpreting them, and determining their impacts on your operations can be a time-consuming task. Fortunately, there are many ways in which your organization can obtain information about applicable laws or regulations.
- commercial services (offered on-line, on computer disk, and on paper);
- regulatory agencies;
- trade groups / associations;
- public libraries;
- seminars and courses;
- newsletters / magazines;
- consultants and lawyers;
- the Internet; and
- customers, vendors and other companies;
Once the applicable legal and other requirements have been identified and analyzed for their impacts, you should communicate these requirements and plans for complying with them to the appropriate people within the organization. Communicating the other requirements that apply to your organization as well as their impacts is also an important step.
ENVIRONMENTAL LAWS APPLICABLE TO INDIA
Following is a list of major Environmental Acts and Rules applicable in India.
- 1986 – The Environment (Protection) Act authorizes the central government to protect and improve environmental quality, control and reduce pollution from all sources, and prohibit or restrict the setting and /or operation of any industrial facility on environmental grounds.
- 1986 – The Environment (Protection) Rules lay down procedures for setting standards of emission or discharge of environmental pollutants.
- 1989 – The objective of Hazardous Waste (Management and Handling) Rules is to control the generation, collection, treatment, import, storage, and handling of hazardous waste.
- 1989 – The Manufacture, Storage, and Import of Hazardous Rules define the terms used in this context, and sets up an authority to inspect, once a year, the industrial activity connected with hazardous chemicals and isolated storage facilities.
- 1989 – The Manufacture, Use, Import, Export, and Storage of hazardous Micro-organisms/ Genetically Engineered Organisms or Cells Rules were introduced with a view to protect the environment, nature, and health, in connection with the application of gene technology and microorganisms.
- 1991 – The Public Liability Insurance Act and Rules and Amendment, 1992 was drawn up to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident while handling any hazardous substance.
- 1995 – The National Environmental Tribunal Act has been created to award compensation for damages to persons, property, and the environment arising from any activity involving hazardous substances.
- 1997 – The National Environment Appellate Authority Act has been created to hear appeals with respect to restrictions of areas in which classes of industries etc. are carried out or prescribed subject to certain safeguards under the EPA.
- 1998 – The Biomedical waste (Management and Handling) Rules is a legal binding on the health care institutions to streamline the process of proper handling of hospital waste such as segregation, disposal, collection, and treatment.
- 1999 – The Environment (Siting for Industrial Projects) Rules, 1999 lay down detailed provisions relating to areas to be avoided for siting of industries, precautionary measures to be taken for site selecting as also the aspects of environmental protection which should have been incorporated during the implementation of the industrial development projects.
- 2000 – The Municipal Solid Wastes (Management and Handling) Rules, 2000 apply to every municipal authority responsible for the collection, segregation, storage, transportation, processing, and disposal of municipal solid wastes.
- 2000 – The Ozone Depleting Substances (Regulation and Control) Rules have been laid down for the regulation of production and consumption of ozone depleting substances.
- 2001 – The Batteries (Management and Handling) Rules, 2001 rules shall apply to every manufacturer, importer, re-conditioner, assembler, dealer, auctioneer, consumer, and bulk consumer involved in the manufacture, processing, sale, purchase, and use of batteries or components so as to regulate and ensure the environmentally safe disposal of used batteries.
- 2002 – The Noise Pollution (Regulation and Control) (Amendment) Rules lay down such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or public address systems during night hours (between 10:00 p.m. to 12:00 midnight) on or during any cultural or religious festive occasion
- 2002 – The Biological Diversity Act is an act to provide for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge associated with it
Forest and wildlife
- 1927 – The Indian Forest Act and Amendment, 1984, is one of the many surviving colonial statutes. It was enacted to ‘consolidate the law related to forest, the transit of forest produce, and the duty leviable on timber and other forest produce’.
- 1972 – The Wildlife Protection Act, Rules 1973 and Amendment 1991 provides for the protection of birds and animals and for all matters that are connected to it whether it be their habitat or the waterhole or the forests that sustain them.
- 1980 – The Forest (Conservation) Act and Rules, 1981, provides for the protection of and the conservation of the forests.
- 1882 – The Easement Act allows private rights to use a resource that is, groundwater, by viewing it as an attachment to the land. It also states that all surface water belongs to the state and is a state property.
- 1897 – The Indian Fisheries Act establishes two sets of penal offences whereby the government can sue any person who uses dynamite or other explosive substance in any way (whether coastal or inland) with intent to catch or destroy any fish or poisonous fish in order to kill.
- 1956 – The River Boards Act enables the states to enroll the central government in setting up an Advisory River Board to resolve issues in inter-state cooperation.
- 1970 – The Merchant Shipping Act aims to deal with waste arising from ships along the coastal areas within a specified radius.
- 1974 – The Water (Prevention and Control of Pollution) Act establishes an institutional structure for preventing and abating water pollution. It establishes standards for water quality and effluent. Polluting industries must seek permission to discharge waste into effluent bodies.The CPCB (Central Pollution Control Board) was constituted under this act.
- 1977 – The Water (Prevention and Control of Pollution) Cess Act provides for the levy and collection of cess or fees on water consuming industries and local authorities.
- 1978 – The Water (Prevention and Control of Pollution) Cess Rules contains the standard definitions and indicate the kind of and location of meters that every consumer of water is required to affix.
- 1991 – The Coastal Regulation Zone Notification puts regulations on various activities, including construction, are regulated. It gives some protection to the backwaters and estuaries.
- 1948 – The Factories Act and Amendment in 1987 was the first to express concern for the working environment of the workers. The amendment of 1987 has sharpened its environmental focus and expanded its application to hazardous processes.
- 1981 – The Air (Prevention and Control of Pollution) Act provides for the control and abatement of air pollution. It entrusts the power of enforcing this act to the CPCB .
- 1982 – The Air (Prevention and Control of Pollution) Rules defines the procedures of the meetings of the Boards and the powers entrusted to them.
- 1982 – The Atomic Energy Act deals with the radioactive waste.
- 1987 – The Air (Prevention and Control of Pollution) Amendment Act empowers the central and state pollution control boards to meet with grave emergencies of air pollution.
- 1988 – The Motor Vehicles Act states that all hazardous waste is to be properly packaged, labelled, and transported.
|Pollution Control Law in India|
- Has a procedure been established and implemented to identify and have access to applicable legal and other requirements , which your organisation subscribes to that are directly applicable to the identified environmental aspects?
- How is this procedure maintained?
- How do you ensure that you have access to all of the legal requirements, including codes of practice, that apply to the environmental aspects of your activities, products and services?
- Does the procedure determine how the legal and other requirements apply to the environmental aspects?
- Are the legal and other requirements taken into account in establishing, implementing and maintaining the EMS (eg. objectives, monitoring and measuring, training, auditing etc)?
- Is the person responsible for identifying and determining how the legal and other requirements apply competent to undertake the task? Note: it does not imply that a legal qualification is necessary.
Mandatory Procedure :
|Procedure for Identification of Legal and Other Requirements|
|Example of Legal and Other Requirements Register|
|Example of Legal and Other Requirements Compliance Monitoring Chart|
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