New Delhi, July 7, 2012- Supreme Court’s judgment delivered
on July 6, 2012 directed the central government to ban import of all
hazardous/toxic wastes identified and declared to be so under the UN’s
Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal to which India is a party.
The
para 35 of the judgment reads:“The Central Government is also directed
to ban import of all hazardous/toxic wastes which had been identified
and declared to be so under the BASEL Convention and its different
protocols. The Central Government is also directed to bring the
Hazardous Wastes (Management & Handling) Rules, 1989, in line with
the BASEL Convention and Articles 21, 47 and 48A of the Constitution.”
This judgment is consistent with multilateral decisions made in October
2011, when 178 parties to the Basel Convention met in Cartagena,
Colombia to not only re-endorse the Basel Ban Amendment forbidding the
export of hazardous wastes from rich to poorer countries, but also
resolve that the Basel Convention must continue to prohibit the dumping
of end-of-life vessels on developing countries.
Now
Union Ministry of Finance will have to issue notification under Section
11 of the Customs Act, 1962 to prohibit the import of hazardous wastes.
It
is noteworthy that Jayanthi Natarajan, Union Minister of Environment
and Forests informed the Parliament on May 21, 2012 that "Import of such
(hazardous) wastes for disposal is not permitted. Import is permitted
only for recycling or recovery or reuse with the permission of the
Ministry of Environment and Forests and/or Directorate General of
Foreign Trade", Union Commerce Ministry. In the light of the Court
order, the information the Minister shared with the Lok Sabha that
defined hazardous waste as recyclable material will have to be
revisited.
The
court reminded the central government that “A sum of Rs.10, 000/- was
also imposed as costs against the Ministry of Environment and Forests.”
Now
Union Ministries of Finance, Commerce, Environment, Shipping and Steel
besides Gujarat agencies will have to comply with the Basel Convention,
ratify Basel Ban Amendment and redraft its illegal Hazardous Waste
Rules, 2008 and 5 amendments. The Basel Convention was signed by India
on 15th March, 1990 and ratified on 24th June, 1992.
This
judgment will have implications for the bilateral free trade agreements
with hazardous waste trading nations like Japan, USA and others and
trade in hazardous wastes by some Special Economic Zones. In
recent years, central government has been prevailed upon by hazardous
waste traders to dilute its laws and mutilate the Convention by entering
into agreements in subservience of.
The following examples of departures from the Basel Convention and international law are noteworthy:
- India has decided that transit states do not have to receive prior informed consent for all shipments of hazardous waste.
- Toxic wastes imported into the country under the garb of recycling
- India
has decided that dumping in rivers, oceans, and lakes, or burning waste
somehow does not constitute disposal and therefore that which is dumped
in aquatic environments, or burned, is not waste.
- The
international definition of "environmentally sound management" has been
ignored in favor of a new definition of "safe for recycling" that
states that as long as a material contains less than 60% contamination
by a hazardous constituent, then it’s safe!
- India has exempted bio-medical wastes and municipal wastes from this law although these are meant to be covered under Basel.
- India allows dioxin laced material imports for disposal
- Waste asbestos imports are banned unless they are contaminating other substances (e.g. old ships) but the same is allowed.
- It has failed to implement the Ban Amendment forbidding all imports of hazardous waste from developed countries.
- It failed to recognize it is illegal to trade in waste with non-Parties of the Basel Convention such as the United States.
- While
since 1982 over 5924 dead and hazardous wastes laden ships have been
dumped in Indian waters, the Hazardous Wastes Management (Handling &
Transboundary Movement Rules, 2008) provides that the Rules will not
apply to “wastes arising out of the operation from ships beyond five
kilometers of the relevant baseline as covered under the provisions of
the Merchant Shipping Act, 1958 and rules made there under”. Subordinate
legislations under Merchant Shipping Act, 1958 also merit attention.
· Allows importers of hazardous waste oil in the garb of furnace and lubricant oil to remain untraceable
The
judgment has pointed out that it is contrary to our constitution because
the State is under obligation to protect people's right to health and
environment), instead of an environmental law being protective of human
health and the environment, these subordinate hazardous waste
legislations are trade centric for hazardous waste.
While
the original petition was filed in 1995, the hazardous wastes case
(Writ Petition Civil No. 657 of 1995) was dealt with on October 14,
2003. The case stayed and steered its course with the tireless efforts
of Mr Sanjay Parikh, the lawyer, Members of the Supreme Court Monitoring
Committee (SCMC) on Hazardous Wastes, Dr Claude Alvares, Dr. D.B.
Boralkar and ToxicsWatch Alliance (TWA). All the subsequent and relevant
applications that form the basis of the judgment were filed by them in
public interest.
“I
wonder how our blind and deaf system will respond. We have total
turnaround from 2003 rules to 2008 rules. This must be by design and not
default. SCMC memebers (the remaining two) were intentionally kept out
of loop by MoEF while making of 2008 Rules. In my opinion HWM regime in
India is violating constitution/SC order but nobody seems to bother
especially those who matter and are responsible for the same” says a
SCMC member.
The
judgment vindicates the position of remaining SCMC members and TWA who
sought injunction to restrain Union of India from finalising of a
Notification on hazardous wastes dated 28th September, 2007 and the
publication of the Hazardous Wastes (Management, Handling &
Transboundary Movement) Rules, 2008.
TWA
had written to P Karunankaran headed Parliamentary Standing Committee
on Subordinate Legislation “for an injunction to restrain Union of
India” or any other possible relief through its examination of the
Notification on hazardous wastes dated 28th September, 2007, which has
been published as Hazardous Wastes (Management, Handling &
Transboundary Movement) Rules, 2008, subsequent four amendments in the
Rules, proposed fifth amendment in
the Rules and the ‘Procedure for grant of approval for utilization of
hazardous wastes as a supplementary resource or for energy recovery, or
after processing under Rule 11 of Hazardous Wastes Management Rules,
2008’.
The
current members of SCMC who were also the members of Supreme Court’s
High Powered Committee on Hazardous Wastes Management headed by Prof M G
K Menon have attempted to reveal the plot being set by hazardous waste
traders.
Following a Supreme Court order, the Union Ministry of Labour constituted a Special Committee to examine “Impact of Hazardous Wastes on Workers’ Health” by its order of October 14, 2003 under
Chairmanship of S K Saxena, Director General, Directorate of General
Factory Advice Service and Labour Institute (DGFASLI) on the issue of
medical benefits and compensation to workers affected by handling of
hazardous waste, toxic in nature. The DGFASLI Committee's report
mentions lung cancer and mesothelioma caused by asbestos in all work
involving exposure to the risk concerned among other occupational
diseases caused by hazardous waste generating industries. The July 7,
2012 judgment does not provide any specific relief to the workers. So
far the court has not done anything as per the recommendations of its
own committee. This issue needs to be revisited.
Due
to the disappearance of hazardous wastes from various ports and
container depots, A.C. Wadhawan Committee was also constituted by the
court to enquire into it. The waste oil trade is a part of black economy
that is still flourishing. Court ought to ban it at the earliest.
It
is noteworthy that all the incineration based municipal waste to energy
plants have failed. In such a backdrop, the proposal of the hazardous
waste to energy projects through the procedure for grant of approval for
utilization of hazardous wastes as a supplementary resource or for
energy recovery, or after processing under Rule 11 of Hazardous Wastes
Management
Rules, 2008 will have to be revisited in the light if the July 2012
judgment. This has not been examined as far as their adverse
environmental health impact is concerned. This was unfolding under
illegitimate acts of subordinate legislation on hazardous waste.
The
intent of the Commerce and Environment Ministry stood exposed when it
proposed an amendment to the Hazardous Wastes (Management &
Handling) Rules; after amendment it was to read "Hazardous Materials
(Management, Handling and Transboundary Movement) Rules, 2007. The
proposed rules was to have the effect of exempting transit countries
from obtaining prior informed consent for all shipments of hazardous
waste to India. The proposal also stated that as long as a material
contains less than 60 per cent contamination by a hazardous constituent,
then it is safe for our ecology. Waste asbestos embedded in the
structure of the scrap material is not banned. This sleight of hand at
redefinition attracted widespread criticism from environment and public
health groups. Startled by the proposed Rules environment and public
health researchers and activists had charged that it has been done at
the behest of hazardous waste traders. Even the Confederation of Indian
Industry (CII) had expressed its concerns in November 2007. The SCMC on
Hazardous Wastes also objected. As a consequence the word "wastes" was
not replaced with "materials" but "Transboundary Movement" remains. In
effect, the original Rules were mutilated and the process of mutilation
unfolded.
Through
a jugglery of words in the subordinate legislations on hazardous
wastes, Union Ministries of Commerce and Environment have paved the way
for officially opening floodgates for the dumping of world's hazardous
waste in the name of recycling. This has unleashed unprecedented havoc
on India's environment and health of its citizens. These subordinate
legislations on hazardous wastes seeks to undo established,
science-based definitions of waste and consider waste that is being
recycled somehow less hazardous than the waste being landfilled in order
to curry favor with hazardous scrapping industries.
Through
a not-so-subtle mangling of international definitions for "waste",
"disposal" and "safe recycling" both these ministries have designed a
veritable global waste funnel that will ensure that the world's waste
will surge to our shores. All this is being done in the name of
recycling.
It is quite clear now that Hazardous Wastes (Management, Handling
and Transboundary Movement) Rules, 2008 completely altered definitions
are contrary to the international rules of the Basel Convention, which
India is obliged to uphold. It is illegal for both these ministries
pretend to implement the Basel Convention but utilise definitions that
outwit the
intent of the treaty.
Central
government appears to have done its homework to justify hazardous waste
trade in various disguises. Under Rule 23 of Hazardous Wastes
(Management, Handling and Transboundary Movement) Third Amendment Rules,
2008 refers to the “Responsibilities of
Authorities” which is specified in its Schedule VII that provides the
List of Authorities and Corresponding Duties” wherein it is mentioned
that Directorate-General of Foreign Trade constituted under the Foreign
Trade (Development and Regulation) Act, 1992 has a duty to
“Grant License for import of hazardous wastes”.
It is indeed strange that while the Environment Ministry admits that there is huge deficit
of
capacity to deal with hazardous wastes generated in the country, the
new Hazardous Waste Rules, Amendments and Procedures permit traders to
import hazardous wastes.
A SCMC member opines, "Truly, we take three steps forward and then
five steps backward." It is noteworthy that central government has
ignored the recommendations of both the court appointed members of SCMC.
The judgment ought to have revisited the table of assigned task with
deadlines in the October 14, 2003 order because concerned agencies have
not completed the task assigned to them in contempt of court so far with
impunity.
It
came to light from the Environment Minister's statement in the
Parliament that a co-ordination committee comprising of representatives
from the Ministry of Finance, the Ministry of Commerce and Industries,
the Ministry of Shipping, Central Pollution Control Board and select
State Pollution Control Boards has been constituted that claims to be
"working to sensitize the Customs authorities regarding enforcement of
these Rules in order to check illegal import of hazardous waste into the
country." It appears that through linguistic manipulation waste is been
re-defined as non-waste. What has become evident is that Indian
regulations offer least resistance to dumping of hazardous wastes. In
fact it welcomes hazardous wastes trade in the name of "recycling or
recovery or reuse" of hazardous wastes.
As
a consequence hazardous waste importers are bringing in lakhs of tonnes
of hazardous waste into India without facing any legal hurdle. Earlier,
Environment Ministry’s Hazardous Waste Rules prohibited import of waste
oil, ash and residues from incineration of municipal solid waste,
plastic, and unsorted waste scrap. But the same was allowed under the
Open General License of the export-import policy of the Commerce
Ministry. This led to import of ash and residues from incineration of
municipal solid waste has increased by about 130 times
during 2006-2009. The import of plastic waste increased by seven times
during this period. Countries such as Netherlands, Germany and the
United Kingdom have realized that Indian regulations are hazardous waste
friendly. There was a 48 per cent increase in hazardous waste
trade import during 2006-2009.
Acknowledging
such a situation, the then Union Environment and Forest Minister had
written a letter to Union Commerce Minister in April 2010 urging
alignment of Hazardous Waste Rules and Export-Import policy to reduce
“scope of confusion” at implementation level. “I suggest that a joint
group of the two ministries be set up to resolve the issue”, the
minister said and had further added that some export-oriented units
especially those in the Special Economic Zones (SEZ) were importing
hazardous waste without seeking approval from either the Ministries.
They were also operating without a mandatory “consent to operate” under
environmental laws aimed at protecting the environment. The minister had
said, “An impression also seems to have gained ground that such units
are exempt from the provisions of environment regulations can import
hazardous wastes without any permission. These impressions need to be
corrected”.
What
has happened since then is that instead of aligning and factoring in
environmental concerns in the hazardous waste trade, blind profiteering
has taken precedence over public health concerns. The Hazardous Wastes
Rules do not apply to SEZ. The names of SEZs which are importing
hazardous wastes must be disclosed.
As
per a 54 page Report of the Committee to Evolve Road Map on Management
of Wastes in India, Union Ministry of Environment & Forests there
are about 36,000 hazardous waste generating industries in India which
generate 6.2 million tonnes out of which land fillable hazardous waste
is about 2.7 million tonnes (44%), incinerable hazardous waste is about
0.4 million tonnes (7 %) and recyclable hazardous waste is about 3.1
million tonnes (49 %). Indiscriminate and unscientific disposal of
wastes in the past has resulted in several sites in the country to
become environmentally degraded. Isn't our own hazardous waste
sufficient?
It
is noteworthy that "141 hazardous waste dumpsites that have been
primarily identified in 14 States/UTs out of which 88 critically
polluted locations are currently identified" which in effect means that
there no capacity to deal with these wastes. If they are unable to deal
with the domestically generated waste in a scientific and
environmentally sound manner and are compel them to dump them, how can
Environment Ministry's reply to the Parliament that implies that India
has the capacity to deal with the imported hazardous waste for any
purpose be deemed convincing.
The of bench of Justice Altmas Kabir and Justice J. Chelameswar made
it clear that according to the apex court’s October 13, 1997 and
October 14, 2003 orders, ship-breaking operations could not be allowed
to continue without strictly adhering to Basel Convention, precautionary
principles, Central Pollution Control Board guidelines and without
taking proper safeguards.
Sensing
weakness in India’s environmental regulatory agencies, US Maritime
Administration (US MARAD) has unfolded it s Ship Disposal Policy with
Indian sea coasts as one of its key destinations. In the aftermath of
the July 6 judgment, the fate of Sierra Leone flagged ex end-of-life US
ship Exxon Valdez (currently named MV Oriental N, IMO No. 8414520)
appears sealed. The matter will come up for hearing on July 9, 2012. The
central and Gujarat government authorities will now have to take steps
to prevent the entry of another dead and hazardous US flagged ship,
“DELAWARE TRADER” (IMO No. 8008929) has been cleared by the U.S.
Maritime Administration (US MARAD) for dismantling in the infamous
shipbreaking yards of Alang beach, Bhavnagar, Gujarat. It is expected to
arrive in Indian waters in the coming days. It was last reported at the
Port of Maputo, Mozambique on 13 June, 2012. TWA demands that DELAWARE
TRADER should not be allowed to enter Indian waters. These ships enter
Indian waters and present fait accompli to the law enforcement agencies.
The court’s order will act as a deterrent.
India
being a signatory to UN’s Basel Convention and International Maritime
Organisation (IMO)’s MARPOL (marine pollution) Convention is duty bound
to work to completely eliminate pollution of the marine environment by
discharge of oil and other hazardous substances from ships and to
minimize such discharges in connection with accidents involving ships.
The acts of omission and commission of Ministry of Shipping also merited
attention in this regard.
In
para 31 of the judgment, it reads:“…the question of ship breaking and
distribution of hazardous wastes are being considered separately in the
contempt proceedings, in these proceedings we expect and eiterate that
the directions contained in the BASEL Convention have to be strictly
followed by all the concerned players, before a vessel is allowed to
enter Indian territorial waters and beach at any of the beaching
facilities in any part of the Indian coast-line. In case of breach of
the conditions, the authorities shall impose the penalties contemplated
under the municipal laws of India.”
The
hazardous waste trade dumping situation in India further worsened
during 1998 to 2012. This merits a parliamentary probe since the court
has not constituted any new committee to examine the situation.
In
manifest contempt of court, the non-cooperation of the Union
Environment & Forests Ministry with the SCMC members is one of the
key reasons for the sorry state of affairs in the hazardous ship
breaking industrial operations.
