Contaminated Sites, and Who Pays to Clean One Up

In one line

Rules made in 2025 for land that is already poisoned, four grades of site, a person made liable by buying the land, and a funding ratio for the site whose polluter cannot be found.

In exam wording: the Environment Protection (Management of Contaminated Sites) Rules 2025, S.O. 3401(E), in force on publication, provide in rule 4 for the identification of suspected, probable and contaminated sites against screening and response levels, in rule 5 for remediation and the identification of the responsible person, in rule 6 for verification, in rule 7 for the reference organisation, in rule 8 for the financial mechanism including the treatment of orphan sites, in rule 9 for the portal, in rule 10 for the Remediation Committee, in rule 12 for voluntary remediation, and in rule 13 for environmental compensation credited to the Environmental Relief Fund.

What is new about these Rules

Every other rule set in Module III regulates waste about to be generated. These are the only Indian rules about land that is already contaminated, and they are the point at which the polluter pays principle stops being a judicial doctrine and becomes a written procedure with forms and deadlines.

Before them, contaminated land in India was dealt with case by case, by writ petition and by the National Green Tribunal, on the authority of Indian Council for Enviro-Legal Action, where the Court held that the cost of remedial measures could be recovered from the polluter, and of Vellore Citizens' Welfare Forum, where the polluter pays principle was held to extend to the cost of restoring environmental degradation. What the Rules add is a system for finding the sites, which litigation never could.

Rule 1 gives the short title and provides that the Rules come into force on the date of their publication in the Official Gazette.

Rule 2: what is excluded

Contamination by radioactive waste under the Atomic Energy rules of 1987; by mining operations under the Mines and Minerals (Development and Regulation) Act 1957; by pollution of the sea by oil, under the Merchant Shipping Act 1958 and the 1974 oil pollution rules; and by solid waste from a dump site as defined in the solid waste rules.

But rule 2(2) is the important half. Notwithstanding those exclusions, if the contamination is due to a contaminant mixed with radioactive waste, mining operations, an oil spill or dump site waste, and the contamination exceeds the response level in these Rules, then remediation of the site is covered.

That saving clause is well drafted and worth an examination sentence. The exclusions are there so that four established regimes are not disturbed. But a legacy dumpsite is not only municipal waste and a mine tailings pond is not only mining spoil: both contain heavy metals from other sources. Rule 2(2) means the exclusion protects the other regime's subject matter and not the contaminant that happens to be lying next to it.