Ask Enhesa Vol. 8 – India Special

by Enhesa 20 Sep. 2017

By Sunita Paudyal

You asked and we answered!

Enhesa’s team of multilingual regulatory analysts are committed to providing quality insight and analysis around the latest EHS news and developments via our Enhesa Flash, webinar series, and blog posts. In response, our team often receives a variety of questions regarding the broad realm of the EHS topics we cover. To meet this demand, we launched “Ask Enhesa”, a reoccurring blog series where our senior thought leaders will take the lead in answering all of your most relevant and topical EHS questions.

Let’s get started…

Where do you see India heading with EHS Legislation over the next few years? Maintaining its status quo, or moving to align with more modern health safety standards/legislation in response to international expectations?

EHS regulations have been rapidly changing in India at the National and State level. Various legislations such as waste management, employment of the protected class of employees, water conservation and ban on certain chemicals, such as PCBs and insecticides, have been implemented national wide in the past few years. While undertaking regulatory enforcement action, particularly against water and air polluting companies at the State level, India has been planning/formulating EHS legislations that match or are inspired by International regulations.

Waste management

Waste generation and its management has been a huge problem in India and has a significant impact on occupational as well as public health. India has amended/adopted six different types of waste management rules, just last year. These rules, for the first time, make it mandatory for the segregation of generated waste at the point of origin and the disposal/treatment of such generated waste to an authorized facility. The rules also establish a take back system based on the Extender Producer Responsibility (EPR) to every producer and manufacturer of products. The EPR principal is based on the European Policy.

Also, the E-Waste (Management) Rules, 2016 restrict the same six substances (Lead, Mercury, Cadmium, Hexavalent Chromium, polybrominated biphenyls, and polybrominated diphenyl ethers) at the same maximum amount as RoHS European Regulations in the Electrical and Electronic Equipment (EEE) products.

Chemical substances

India drafted a National Chemical policy in 2012. The policy is like the European REACH regulation, which is yet to be finalized and adopted. The Policy aims to consolidate various chemical legislations in India into one law. Based on the European REACH regulation, the policy addresses the following chemical issues to provide guidelines for safe use of chemicals and to protect human health and environment:

  • mandatory registration of chemical substances
  • preparation of a national inventory
  • restrictions on hazardous substances
  • banning of certain substances
  • detailed classification and labeling criteria
  • transport classification

In addition, new requirements regarding chemical management should be expected in near future, as the Ministry of Environment, Forest, and Climate Change (MoEFCC) has constituted the National Coordination Committee to prepare a National Action Plan for Chemicals in April 2017.

The Action plan for chemicals that are produced, imported, and consumed in India may include the following aspects:

  • A policy framework, particularly where registration of chemicals is needed
  • Phasing out of chemicals to be proposed over a short- and long-term period based on safety to human health and the environment
  • The need for development of infrastructure to analyze chemicals and their derivatives and effects on users
  • Revisions to existing legislation
  • India’s involvement in international programs and agreements

Moreover, the MoEFCC is planning to amend two existing Rules regarding handling of chemicals namely; Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989; and Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996. The Ministry has requested concerned parties including companies to review the rules and give their input on this matter. Companies using, handling and/or storing chemicals should anticipate new requirements under the amendment in the near future.

Water management

India outlined a model Water Framework Bill, last year, to regulate companies on water usage and water treatment upon discharge and a Draft Model Bill on the Conservation, Protection, Regulation and Management of Groundwater. Companies that fall under the purview of this Draft Model Bill should expect water usage restrictions and mandatory effluent treatment in near future.

The National River Ganga (Rejuvenation, Protection, and Management) Bill, 2017, sets, for the first time, stringent punishment and fines in EHS legislation for anyone polluting natural water resources. Once adopted any facilities polluting river can face up to seven years imprisonment and up to a Rupees (Rs.) 100 crores (USD 15 million) fine.

Protected class of employees

Legislations on employment of protected class’ of employees have also been adopted/implemented last year. For example, it is now prohibited to employ any child younger than 14 years of age, in any occupation, and any adolescent younger than 18 years of age in hazardous processes. Inspired by the European legislation, India has recently amended Maternity Benefit Act, which mandates companies employing female workers to provide six months paid maternity leave and companies with 50 or more workers to provide a child care center onsite.

Administrative offices, for the first time should anticipate stricter requirements regarding employment of female workers at night under the Model Shops and Establishments Bill 2016. The Bill is expected to be adopted soon.

Climate Change

India has committed to implement the Paris Agreement last year by developing agendas and implementing them through National Laws in the fight against climate change. Companies that are large energy consumers or large greenhouse gas emitters should expect new regulations and requirements such as reduction of greenhouse gases, use of renewable energy sources and a reduction in energy utilization, in the near future.

In addition, India has recently adopted the Energy Conservation Building Code (ECBC) 2017, which is yet to be published for the public. Companies undertaking construction of commercial buildings are required to comply with more stringent energy conservation requirements such as integration of renewable energy sources and the use of energy efficient building materials and technologies as specified under the Energy Conservation Building Code (ECBC) 2017.

The construction industry in India is considered a major contributor to the greenhouse gases and has a great impact on climate change. The Building Code, 2016 provides several requirements that aim to fight the contributions of the construction industry towards climate change. The code includes provisions for energy conservation and efficiency in buildings. It makes the use of renewable energy sources and energy efficient lighting systems in buildings is mandatory. Companies are required to use solar energy, LED and induction lighting, and use geothermal cooling and heating in buildings, among others.

Administrative offices

Indian EHS legislations for administrative offices are not strictly regulated. However, administrative offices will soon be required to comply with the requirement regarding health and safety at work, and must undertake precautions and preventive measures against occupational accidents under the Model Shops and Establishments Bill 2016, which is yet to be adopted.

Regulatory enforcement

Companies operating in India must be aware that local regulatory authorities (State Level) are undertaking stricter actions against any company violating EHS regulations. Most of the enforcement action, so far, has been taken against water and air polluting companies, as well as companies violating safety requirements at work.

Interestingly, most of the regulatory inspections, of companies violating EHS regulations, were carried out in response to complaints registered by the local population. Local residents are actively taking part in EHS enforcement, thereby, helping the government in enforcing the EHS regulations.

In addition, most of the state level pollution control boards are directing polluting industries to install continuous online emission and monitoring systems onsite and to set up fully functional effluent treatment plants. Consent to operate is revoked in the case of companies violating such directives and eventually will be prevented from operating completely if the directives are not adhered to.

Companies operating in India should expect more stringent regulations on industrial air and effluent management at both National and State level.

 

Do you have relevant cases/case studies where the employer was fined or suffered a great reputation loss or was highly criticized in media for not following the laws?

One such example was when Arsh Iron & Steel Private Limited was punished under the Factories Act for causing death of an employee on the factory premises. The employee died due to serious burns while working at the factory. The employer was liable under Section 92 of the Factories Act, 1948 as well as under Section 304 A of the Indian Penal Code (IPC). The employer was fined RS 50,000 (approximately USD 7,771) and a charge sheet under Section 304A of the IPC was filed. Read the full document here.

In general, the regulatory authorities in India have been increasingly taking stringent action against facilities in violation of EHS laws. Since the beginning of 2017, many companies were found to be non-compliant with the applicable laws, causing health hazards to the public and environment. In most of the cases, inspections of the facilities in question were carried out following complaints by local residents.

In fact, 33 factories that were found to be in violation of mandatory health and safety requirements were recently inspected and registered by the Safety and Health Department. These facilities were found to be in violation of requirements under the Factories Act, 1948, including non-compliance with fire safety measures, ventilation and overtime of workers. The owners/managers of these factories face up to two years’ imprisonment and 1 Lakh Rupees penalty (approximately USD 1,527).

In addition, more than 115 factories causing environmental pollution and public health hazards were recently shut down in Delhi by the Delhi Government. Police complaints were later filed against these companies. Any facilities found to be operating despite a closure notice subject to further legal action by the police department.

 

Is there a (high-level) comparison view of the regulations in US/Europe compared to India (For e.g. Occupational Health legal framework and how they are different in India)?

It is difficult to make such a comparison when the laws and regulations, as well as local cultures are so different. However, we can take some specific examples for comparison.

For example, India now has a Draft policy on National Chemical Policy 2012, which will be like the European REACH regulation, but is yet to be finalized and adopted. The document aims to consolidate various chemical-related laws in India into one law. Based on the European REACH regulation, the Policy addresses the following chemical issues to provide guidelines for safe use of chemicals and to protect human health and environment:

  • mandatory registration of chemical substances
  • preparation of a national inventory
  • restrictions on hazardous substances
  • banning of certain substances
  • detailed classification and labelling criteria
  • transport classification

On another topic, the E-Waste (Management) Rules, 2016 restrict the same six substances (Lead, Mercury, Cadmium, Hexavalent Chromium, polybrominated biphenyls, and polybrominated diphenyl ethers) at the same maximum amount as the European RoHS Directive regarding Electrical and Electronic Equipment (EEE) products.

In another example, although widely considered to be in need of updating, the Factories Act 1948 has similar principals and requirements to the United Kingdom‘s Health and Safety at Work Act 1974.

 

Could you provide more information about what is required to be a doctor and nurse in India (i.e. What requirements do they have to meet; what certifications do they have to have)?

Under the factories Act/Rules, doctors whether assigned by the State Government (Certifying Surgeon) or appointed by the employer of the factory to oversee occupational health center or in ambulance van/room (Factory Medical Officer) must have the qualification granted by an authority specified in the Schedule to the Indian Medical Degrees Act, 1916 or in the Schedule to the Indian Medical Council Act, 1933.

In some States (such as Haryana, Punjab, Delhi, Maharashtra and Karnataka), Factories Rules’ requires Factory Medical Officer to obtain a certificate of training (recognized by respective State Governments) in Industrial health for a minimum of three months duration. However, the requirement of certificate is exempted in the following cases; if the medical officer possesses a Diploma in Industrial Health or equivalent; or if the Chief Inspector believes that the medical officer possesses necessary qualification.

No qualification and requirement of Certification for Nurse is specified in any EHS laws.

 

Could you provide more information about non-communicable diseases (NCDs) in India and laws pertaining to them? We understand that NCDs are covered by the Factories Act but is there any more information specifically pertaining to NCDs?

The Factories Rules contain specific health and safety requirements applicable to employers undertaking dangerous processes (such as manufacture and repair of electric accumulators) that might likely cause NCDs to workers involved. For instance, any worker involved in lead processing is required to undergo medical examinations within seven days from the start of employment and once every month thereafter. In addition, as precaution and prevention measures against NCDS, the employer is required to provide personal protective equipment, enough ventilation, air space and effective exhaust draft in workroom.

In addition, India has adopted an international convention to reduce the use of tobacco and set targets to reduce household use of solid fuel to prevent NCDs, but no specific laws to prevent NCDs at the workplace.

 

Are there any separate Health and Safety laws which are applicable to an office environment or does this also fall under the Factories Act too?

HS regulations in India is mainly focused on manufacturing, mining, ports, and construction sectors, not in offices. Factories Act/Rules does not apply to administrative offices. However, Shop and Establishment Act/Rules regulated on the State Level are applicable to offices. This Act/Rules mainly set provisions for safe working environment and conditions for employing protected class of workers such as female workers and young persons in offices.

The following HS requirements are covered under the Act/Rules:

  • Sufficient and adequate ventilation, lighting at the workplace
  • Regular cleaning of premises
  • Prohibition to employ any child (under 14) worker in any work
  • Prohibition to employ young person (under 18) and women at night shift (between 9 pm. to 7 am.)

This Act/Rules in a few States (such as Punjab and Haryana) also regulate fire safety measures, first-aid provisions, personal protective equipment and safe operations of machinery in offices. Bombay Shop and Establishment Act/Rules (applicable in the State of Maharashtra) prohibit engaging female workers and young persons in dangerous work in offices.