QCI's NABET and Legal Issues....

[Dr. Hemalkumar Naik]

A government of India’s initiative-QCI’s NABET scheme of accreditation of EIA consultancy organization for improvement of quality in EIA studies to protect & conserve the environment is appreciable step taken by Govt. of India through the Ministry of Environment & Forest. People who are interested in environmental profession for quality and ethically working for conserving & protecting environment by their business welcome and accept the scheme of NABET accreditation, but at the same time people engaged in revenue business through the environmental consultancy are now at to act to force against the action. There are many aspects of such imbalance in the implementation of the scheme. In August & December 2009 as well March, June & September 2010 vide various circular (not Notification under EPA 1986) Ministry of Environment & Forest has declared the scheme as mandatory requirement for EIA consultancy. As the process of accreditation is a time taking process, they allowed only selected consultants to present and practice the EIA consultancy work. For this point a action of a group of people to challenge the scheme can be started considering lot of weaker points of the scheme and circulars issued in support of the scheme. As of now, some people are stepping ahead with the flag of leadership and under the leadership of the people many other consultants are joining the skirmish of survival of their EIA business.

I being a person having interest in achieving the leadership position in scientific research by being a professional scientist through the consultancy work for innovative & profitable scientific research & solution for Environmental Management as well as Cleaner Production, have initiated the career with job in as renowned Educational institute then stepped forward with job in some private environmental organization practicing in field as environmental consultant & auditors. From beginning of the career I noticed a severe ignorance of environmental ethic in business by the owner or head or authority in charge of the firms. From the point of my first step in career I realized and faced a powerful suppression of my view and operation. Ignoring all the negative approach I keep stepping forward with a new mission of studying the business aspects of environmental consultant and finally I have been able to create a position in market with the view of quality work for environmental protection and profitable business. During the phase of establishment I have came across many private & government consultancy firms and noticed that hardly two – three firms are ethically working in business and other are just doing a REVENUE BUSINESS by environmental practices with minimum 70-80% profit which is officially accounted as 20-30%. The gap in the practiced & accounted profit is the expenses likely to be done for the environmental services which are not done actually and the reports are prepared based on the previous experiences or references. This is the key element of oppose of majority of environmental consultant for any government action taken for betterment-improvement-protection-conservation of environment. On the same platform of environmental practices, industries are demanding the quality work but a firm with their significant presence of few years in market, turnover of few crores and owning extraordinarily designed offices with attractive interiors and resources are not allowing the quality to come up or suppressing the firms delivering quality.

This is not a story for illustration of the nature or business of the environmental consultants but it is the discussion of NABET scheme and allied Legal issues - Implications. As mentioned in inception, the MoEF has issued a circular for proponents/Industries as well as EIA Consultant informing the mandatory requirement of NABET accreditation. As the circular showed compulsory accreditation, it has attracted many legal issues and such issues shall be treated seriously and immediately by MoEF to keep the scheme in place for longer time with continuous improvement in the scheme to bring up the quality of EIA studies, environment of our nation as well as industrial development in India. At this point, it is to be noted that the NABET scheme implementation need to be erected with some important changes to make it fit in legal terms. At present it seems to be a step of MoEF for benefit of particular parties. It is also being clear from various acts & rules that the scheme can not be implemented with compulsory requirement like similar schemes of quality & standards- ISOs. As the NABET is very similar to ISO it is voluntary by nature and it is just a action accepted by particular parties and government can not force any parties for acquiring the certification. As per EPA the only legally supported scheme is accreditation of Environmental Laboratory under Section-12, Subsection-1, clause -(a) & (b) and Section-13, of EPA-1986. MoEF has not cleared this issues in the circulars and other guideline for NABET. The question arises here for consultants and MoEF. Instead of NABET the some scheme with similar provisions shall be anounced under Subsection-1, Clause (a) & (b) and subsection-2 of Section-12 together with Section-13 & 14 of EPA-1986. Such action will have greater value & complete legal form of scheme. However, the issue of NABET is of importance to discuss under the article, i am not inscribing on the provisions of EPA for recognition of Environmental Firm for EIA & other environmental activities. The major issues of discussion under this peice of discussion note are the questions arising at present for NABET as following:

• Is the QCI’s scheme for accreditation of EIA consultancy Organizations a right & legal action?
• Can MoEF force or demand for compulsory certification of the NABET under the scheme for EIA consultancy organization?
• How MoEF make this action or requirement – NABET certification for EIA consultancy a mandatory requirement?
• Can the consultants go for legal actions against the scheme?
• Can MoEF justify the scheme as mandatory requirement under legal provisions?

We as a team of techno-scientific and legal professional have initiated a deep and thorough study for the legal options from view of consultant & MoEF, further action required or possible to make the scheme a mandatory requirement and future, effectiveness & outcome of the scheme and finally effectiveness for upbringing of QUALITY OF EIA which the main aim of scheme. We studied many legal aspects for the scheme referring The Constitution of India, The Environment Protection Act, The Consumer Protection Act, The Code of Criminal Procedure, Indian Penal Code, The Companies act, The Limitation Act. As it is listed we studied many legal aspects which lead us in depth with non-environmental legal provision enacted in India. The legal actions against the scheme also attracts the applicability of Constitution of India, CPC, IPC,CP, LA beside of EPA & related rules & notification. At the stage of present, the scheme is a voluntary by legal nature and no one can force one to accept the scheme and no one can reject the work of a person who has not acquired or accepted the scheme. If any of the two possibilities come in to a real practice at any stage of one’s business, one can frame suite against the scheme and / or the party or parties who has compel or forced to accept the scheme or who has rejected to accept a work done by one not having the accreditation under the scheme. The present probability of the legal movement of the consultants is to file a suit against MoEF and its officials and EAC. This in proceeding may lead to cancelation of the scheme, removal of the personnel of MoEF & EAC (if demanded by the consultant in their suit) and grant of freedom to work as EIA consultant without NABET certification. However, some actions, if taken timely before such suit, can make the side of MOEF positive. Such action involves sequential steps of incorporation of provisions in EPA & related notification, circular & guidelines as possibly below:

a. Provision to have an association or in-house environmental laboratory accredited under EPA 1986 for EIA consultancy work instead of NABL (BEST ACTION)

OR

Provision of QCI Requirement through NOTIFICATION under EPA,1986 (Best Option Which is difficult considering the other laws & Legal provision prevailing in Indian Legal Framework)

b. Provision for approved TOR with requirement of necessary standards, certification and accreditation for EIA Monitoring work not EIA consultant. (BEST AND MOST EFFECTIVE ACTION)

c. Provision of Environmental Laboratories is made in EPA, 1986 which shall be used for implementation of the scheme by notification, circular under EPA 1986. (Good Option but may have other quality issues)

d. Provision of NABET in guidelines issued as a mandatory requirement for Environmental Laboratory under EPA, 1986. (Good Option but may have other quality issues)

e. Provision of sector wise scope of EIA studies and allied activities in the scope of environmental laboratory under EPA 1986. (Good Option but may have other quality issues)

f. Provision of mandatory requirement of accreditation of environmental laboratory under EPA, 1986 for environmental monitoring for EIA study as well as provision of team of sector experts (industry specific) for same in the criteria for requirement of accreditation of environmental laboratory under EPA 1986. (Good Option but may have other quality issues)

At present, there numbers of issues if the scheme is legally challenged by consultants and if such action is taken in near future, the MoEF will have to withdrawn the scheme and the action taken towards the environmental protection & conservation will be failed. The consultants can file suit under the various provision of Constitution of India, EPA, Consumer Protection act, CPC, IPC etc. and put the MoEF and / or its official signed the circulars or ordered the requirement of scheme as well as the member of EAC who has favored the scheme and participated in ordering the requirement vide the said circulars of mandatory requirement of the scheme. A group of consultant has already come forward and has initiated such actions. The group is engaged in organizing a chain of meeting to lead other consultants and with the days in action the group is being supported and joined by many of the EIA consultants in the Indian Market. This in turn will result in early actions for legal suit against the scheme, MoEF, officials of MoEF, EAC and members of EAC as the strength and swiftness of the group is significantly increasing. Hence, it is now essential to act by MoEF with probable action for making the scheme legally fit with additional requirement. There shall be a details discussion for making the scheme in the legal framework without altering lot of clauses. Further, it is concluded by us after the study that the suggested action all together would not lead to any serious legal issue as it satisfy the basic provisions of Constitution of India, EPA, Consumer Protection act, CPC, IPC and allied laws, acts &b rules. There will a negligible scope of legal issues if the above suggested action is enacted by MoEF at earliest.

The another side of the scheme which is the basic Objective of the scheme is QUALITY of EIA study. As far as the scheme and the system of appraisal is concern, it is not going to bring any innovative action for quality. Like ISOs it will be just paper works and the authority need to make lot of arrangements for actual outcome as improved QUALITY by the scheme. On some blog people have written that the individual accreditation shall be implemented. Such requirement is also discussed and suggested in the seminar / workshop arrange by MoEF & QCI for awareness and training for NABET accreditation for EIA Consultancy organisation. But till date authority has not initiated such scheme. Moreover, the other schemes/circulars anounced/issued by MoEF/CPCB for EIA & EC for siting industries in some area is also of importance for reconsideration. In many case of some regions MoEF has anounced no more developement which will lead to some scattered developement as industries focuses on the other aspects of Business economics. Beside, the technic or system of assessing the EIA is, to a much extent except few projects, almost faulty as the EIA reports & information therein are being assessed without some basic quality criteria as well as fundamental principles of science & engineering. About 80% of the report fails to meet or prove the basic quality criteria, scientific & technical pronciple. Even the baseline primary data are mostly fabricated (almost in 90% cases). Thus there are lot of other things which shall be focused by authority to bring up the quality. Without such effort for assessment of EIA report NABET scheme will be a BIG FAILURE as it has been realised since its first declaration.

With hope of further discussion as well as timely and efficient action from MoEF for making the scheme fit we would like to request the Honr. Environment Minister of India, Officials of MoEF and EAC to empower the society with efficient and effective actions towards the environmental protection & conservation so that we can bring up a new dimension of healthy environmental condition to gift our offspring for a happy, joyful and healthy lives. We also hope an early action for improvement of EIA report & Data assessment system NABET as even under NABET the concern personnel of QCI are not focusing on the scientific & Technical aspects of EIA report & data. We all need to hope for the best actions and initiatives by MoEF in the Field of EIA & Environmental Protection, Conservation & Reclamation of conditions in some polluted area.

[abdul fasi]

Good discussion sir, based on your views Really MoEF should act accordingly. and it has to see that The legal frame work should not be hindrace for EIa consultants and the same time it has to give some Stringent directions to adopt for real EIA outcome
Thanks

[Dr. Hemalkumar Naik]

Thanks for your comments Mr. Gosh, Mr. J. Bharat, Mr. Pillai & Mr. Manimozhiyan
Further with respect to the comments i would like to inform that I am also a freelancer in field of EIA for EC & CRZ. I am very happy to see the system like NABET. But as it has got lot of issues i think MoEF must act sooner on this aspects. Further, the quality of EIA will definitely not improve as the experts appointed by the applicant firms are on paper. Further, I personally met many Experts- Coordinators & FAEs of accredited firms. I was suprised to see that the experts do not know about some basic & fundamental things of their experty. They are almost blank if we talk about the quality & knowledge. However, they have got the green flag by NABET.. Considering this I was feeling sad that a opportunity arised by NABET for people like us is about to go back in to dark and i wish MoEF acts sooner to make this scheme stronger. There shall some more legal provisions under EPA as i mentioned in my blog. Such provision will attract penal provisions against the faulty practice and that will be the best system for QUALITY EIA. As the issue is big to discuss and it is not possible to reveal all in this space, i do not write more. Hoping for the best actions by MOEF & QCI. Only legal provisions shall be made instead of the so called NABET scheme of paper work in a standard formats just like a decorated pieces of Reports & record timely arranged and made beautiful.
Thanks all of you again for your comments..

[Prof Dr V N Sivasankara Pillai]

Dear Dr Naik,
You have approached the issue as professional with concern for environment and business. The issues require a closer look. Once MoEF is decided to ensure quality and reliability of EIA report and related documents leading to commitment on the part of the proponent, and willing to institute a professional EAC, things can be solved. A properly framed rule with intention to protect the environment cannot be set aside by a court.
Thank you for your initiative.
With warm regards
Dr V N Sivasankara Pillai

[J.Bharat]

Dear Dr. Hemalkumar Naik,

It was interesting to read your blog. Someone, somewhere, somehow should take certain decisions to ensure the quality of services and in my part of Business Development tasks of these services, I wish to air my opinions as follows.

Though I am new entrant in environmental consultancy industry with Business Intelligence, Business Analysis and Business Development background, I am of the opinion that the QCI's NABET, which has taken the task of accreditating EIA firms, has been making its efforts in identifying the quality of consultancy services with respect to relevant education and experience of the service providers - be it EIA co-ordinators or functional area experts, as the services being provided by them are inseperable from them. Identifying them with their forte, NABET would suggest them sectors where they can excel and accredit the firms, as a whole, for specific sectors. This will ensure the following benefits to EIA consulting firms:
01. The firm shall be notified for providing EIA services for specific sectors for specific period, all over India.

02. The market base of EIA consulting firms shall be widened as specific project proponents shall look for specific accredited consulting firms. This ensures the reduction of no. of service providers in specific areas and thereby increasing the demand for their services.

03. By way of this, QCI-NABET-MoEF can ensure the quality of the expertise reflected in the reports and can take further measures in implementing the solutions provided by consultants.

04. The consulting firms will be empowered with accreditation tag which may bring more business to the firms and accelerate business growth on enhancing service-providing capacity with more number of experts in specific areas.

05. The accreditation for specific period would ensure further improvement in the quality of the services by next review, because of its focus on its field of expertise, and ensures growth of consulting firms.

I think, we should encash this opportunity in pruning the gross competition, enhancing visibility of our firms in specific areas, upgrading our service positioning in wider geographical markets and above all, proving our capacity-to-serve at best of expertise available with us.

Regards.

[Manimozhiyan , P]

Dear Sir,

Thanks for your kind information, we accept the issue, it will create legal issue more.

[GOPI KANTA GHOSH]

Thanks for information